State of New South Wales v Ak - [2018] NSWWCCPD 36

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v AK [2018] NSWWCCPD 36
APPELLANT:	State of New South Wales
RESPONDENT:	AK
INSURER:	QBE Insurance (Australia) Ltd as agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-6460/17
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	3 April 2018 and 17 April 2018
DATE OF APPEAL DECISION:	28 August 2018
SUBJECT MATTER OF DECISION:	Alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, ‘injury’ – application of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468, causation – application of Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87, ‘injury’ in the primary sense and pursuant to the ‘disease’ provisions are not mutually exclusive: Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310; 140 ALR 156; 71 ALJR 32, s 9A (‘substantial contributing factor’) – application of Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The decisions of the Arbitrator dated 3 April 2018 and 17 April 2018 are confirmed. 2. The appellant is to pay the respondent’s costs of the appeal.

INTRODUCTION

This appeal involves challenges by the State of New South Wales (the appellant) against findings by an Arbitrator, in favour of an ambulance officer, on ‘injury’, s 9A of the Workers Compensation Act 1987 (the 1987 Act), and causation. It is common ground that AK (the respondent) was a ‘paramedic’ within the meaning of Sch 6, Pt 19H, cl 25 of the 1987 Act, and the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (2012 Amending Act) do not apply to her. The appeal fails, for reasons which follow.

BACKGROUND

The respondent worked as an ambulance officer with the NSW Ambulance Service from about 2006. She saw a general practitioner, Dr Trefely, on 26 August 2010. The history included reference to two years of bullying in her work as a paramedic on the south coast. It recorded “[n]ow better in Sydney”, “[s]till anxious” and a reference to an “Anxiety disorder”.[1]
[1] Reply, p 257.
The respondent was involved in an incident on 3 September 2010, in the course of her employment. She was stationed at Redfern at the time. An ambulance in which she was a passenger, while travelling to a job on a call out, struck a pedestrian. The respondent attempted to give assistance to the injured pedestrian, but the pedestrian died at the scene. The respondent took a short period off work after this incident, and saw Dr McGrath (a general practitioner) on 10 September 2010, when she was given a medical certificate for anxiety.[2] Dr McGrath referred the respondent to a psychologist, Ms Vlass,[3] who she started seeing from 7 March 2011.[4] The respondent continued her work as an ambulance officer. In 2012, she was appointed acting station manager at Redfern for a nine-month period. She undertook various training courses, including a course in 2013 which entitled her to work as an intensive care paramedic. She came under the care of a psychiatrist, Dr Chaugule, from March 2014.[5] She was treated with antidepressants and psychotherapy. She had problems with substance abuse. The respondent was off work from 7 March 2015, when she last performed an ‘on road’ shift. She performed alternative duties from 20 to 27 April 2015, and on 18 May 2015.
[2] Application to Resolve a Dispute (ARD), p 12.
[3] ARD, p 13.
[4] ARD, pp 14–15.
[5] ARD, p 163.
On 28 April 2016, the respondent completed an injury notification form. It described the incident details:
“Ongoing accumulation of stressors since workplace accident involving the death of a pedestrian, killed by being struck by our ambulance resulting in accumulation of stress.”
The appellant’s insurer issued a s 74 notice dated 8 July 2016. It disputed ‘injury’, whether s 9A of the 1987 Act was satisfied, and whether incapacity resulted from the alleged employment injury. The insurer issued a further decision, reviewing the earlier decision pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), on 17 August 2017. It maintained the previous grounds of declinature. Additionally, it stated that employment was not the main contributing factor to the injury (potentially relevant to the ‘disease’ provisions in s 4(b)(ii) of the 1987 Act, if the 2012 Amending Act had application), and that the appellant had a defence based on s 11A(1) of the 1987 Act, based on reasonable action with respect to “performance appraisal/discipline”.

THE ARBITRAL PROCEEDINGS

The proceedings were commenced by an Application to Resolve a Dispute registered on 8 December 2017 (ARD). It relied on a single injurious event, the motor vehicle accident on 3 September 2010. The appellant’s Reply, registered on 12 January 2018, maintained the issues previously raised in the dispute notices. The reliance on a defence pursuant to s 11A(1) of the 1987 Act was withdrawn, by the appellant’s counsel, at an arbitration hearing held on 26 February 2018.[6] The appellant also accepted that the respondent was involved in a motor vehicle accident on 3 September 2010, in the course of her employment.[7] No oral evidence was relied on. Counsel for both parties addressed, at a hearing which ran over 26 February 2018 and 9 March 2018. The Arbitrator reserved his decision.
[6] Transcript 26.2.18 (T1), T1 12.26–31.
[7] T1 4.11–24.

THE ARBITRAL DECISION

The Commission issued a Certificate of Determination dated 3 April 2017 (sic, 2018) accompanied by 34 pages of detailed reasons.[8] The orders provided for a general order for the payment of medical expenses, and directed the parties to agree on the appropriate weekly entitlement, based on total incapacity. A further Certificate of Determination was issued dated 17 April 2018, providing for the payment of weekly compensation from 7 March 2015 to date and continuing.
[8] The arbitral decision (the decision).
In the accompanying reasons, the Arbitrator summarised the evidence of the respondent in her statements. He summarised the evidence of treating practitioners, in documents produced by Royal Randwick Medical Centre (which included Dr Trefely, Dr Eliades and Dr McGrath), Ms Vlass (psychologist), Dr Chaugule, Dr Sturrock, Dr Tietze, Professor McMurchie (East Sydney Doctors), the National Home Doctor Service, Dr Hardy and South Coast Private Hospital.[9] He summarised the medicolegal reports of Dr Whetton[10] (qualified by the respondent’s solicitors) and Dr Smith[11] (qualified by the appellant’s solicitors). He summarised the parties’ submissions.[12]
[9] The decision, [35]–[86].
[10] The decision, [87]–[92].
[11] The decision, [93]–[107].
[12] The decision, [108]–[110].
The Arbitrator said that the circumstances of the incident on 3 September 2010 were not in dispute, and the respondent “obviously suffered a clear distressful reaction to the motor vehicle incident”. He accepted this from the records of the general practitioner and Ms Vlass. “The distress was extenuated because the incident was revisited in the coronial inquiry and CCTV footage replayed.” The Arbitrator referred to a submission by the appellant that this was a ‘disease’ case, the first incapacity occurred in March 2015, and the respondent had failed to establish the case as pleaded.[13] Findings of ‘injury’ based on ‘injury’ in the primary sense, and on the basis of the ‘disease’ provisions, were not mutually exclusive. The evidence of Ms Vlass and Dr Whetton, and the general practitioner’s certificate dated 10 September 2010, were consistent with injury in 2010 by reason of the motor vehicle incident. Dr Smith’s opinion was not inconsistent with this. The Arbitrator found ‘injury’ within the meaning of s 4(a) of the 1987 Act.[14] He said that, if he was wrong on this, the evidence established that the respondent was unfit for work on 4 September 2010, which would represent the deemed date of injury under the ‘disease’ provisions in any event.[15]
[13] The decision, [116].
[14] The decision, [119]–[125].
[15] The decision, [134].
The Arbitrator referred to submissions, going to the respondent’s psychological condition prior to 3 September 2010. He noted the respondent’s supplementary statement dated 13 February 2018, in which she stated that as at 26 August 2010 (the date of a consultation with a general practitioner) she had just moved back to Sydney, and “was not suffering from any depression”, but was “anxious about finding somewhere to live and fitting into [her] new role”.[16] He said the clinical note of the general practitioner was “not particularly clear and not inconsistent with the [respondent’s] statement”, which he accepted.[17] The Arbitrator referred to Dr Sturrock’s recorded history of depressive symptoms, and described the doctor’s note on the topic as “vague and unclear”. He referred to a line of appellate authority going to the reliability of histories recorded by medical practitioners. The Arbitrator said Dr Sturrock’s note was inconsistent with other evidence of the respondent’s full functioning while in the appellant’s employ, and he did not accept its accuracy. The Arbitrator said that he was satisfied the respondent “did not have a pre-existing psychiatric condition prior to the 2010 motor vehicle [accident]”, and did not accept the opinion of Dr Smith to the contrary.[18]
[16] Respondent’s Application to Admit Late Documents dated 16 February 2018 (RAALD), p 40, at [9(1)].
[17] The decision, [129].
[18] The decision, [131]–[132].
The Arbitrator then dealt with s 9A of the 1987 Act. He referred to Kelly v Secretary, Department of Family and Community Services,[19] and Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd.[20] He considered the matters set out in s 9A(2) of the 1987 Act. Dr Smith, in the appellant’s case, said that the incident on 3 September 2010 was not a substantial contributing factor; the Arbitrator rejected this view. He said that Dr Smith had supported this opinion by reference to other contributing factors, including pre-existing psychological symptoms, and substance abuse following the incident. The Arbitrator reasoned that substance abuse occurring after the injury could not be relevant to whether s 9A was satisfied at the time of the injury, on 3 September 2010. The Arbitrator said that he had rejected Dr Smith’s opinion regarding a pre-existing psychological condition. The Arbitrator said that s 9A is not purely a medical issue, and Dr Smith had not considered non-medical issues, such as those posed by subcll (a) and (b) of s 9A(2). The Arbitrator concluded there was a causal connection, which was “real and of substance”, between the respondent’s employment, and the injury on 3 September 2010.[21]
[19] [2014] NSWCA 102; 13 DDCR 111 (Kelly).
[20] [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi).
[21] The decision, [151]–[156].
The Arbitrator then moved to the issue of causation. He said it was “not seriously disputed that since 2015 the [respondent] was suffering from PTSD”. Both qualified doctors accepted the diagnosis, as did many treating doctors. The Arbitrator rejected the respondent’s evidence of “sleep problems, flashbacks and nightmares following the 2010 incident”, which he said was inconsistent with the clinical notes of Dr Chaugule, which he found “compelling”.[22] He said that the “objective facts do not support [the respondent’s] assertion that she was suffering from PTSD symptoms shortly after the 2010 motor vehicle accident”. He accepted that the incident was “extremely distressing”. He said he was satisfied that PTSD symptoms developed over time and were contributed to by the 2010 motor vehicle accident as well as other matters. The respondent “undoubtedly presented with PTSD symptoms from 2014 and onwards”.[23]
[22] The decision, [157]–[163].
[23] The decision, [168]–[173].
There was medical evidence that the PTSD was caused by “a variety of traumatic events in the employ of the [appellant]” (Dr Hardy, Professor McMurchie). Other doctors said that the PTSD developed following the 2010 accident (Dr Pakula), and that the PTSD and polysubstance abuse were “related to the injuries sustained in the accident” (Dr Whetton).[24] The Arbitrator considered Dr Whetton’s opinion to be “generally consistent with Dr Smith’s opinion”. However, Dr Smith considered the contribution of the 2010 motor vehicle accident to be “minor, in the light of the other causative events”. The Arbitrator said that Dr Smith’s analysis was on the basis that there was a pre-existing psychiatric condition. The Arbitrator had rejected that part of Dr Smith’s opinion. The effect of this was that “the contribution of the 2010 motor vehicle accident to the PTSD condition [was] above minor”.[25]
[24] The decision, [175]–[177].
[25] The decision, [178].
Additionally, the Arbitrator said that there was “a credible degree of medical opinion … that [the respondent’s] PTSD was causative of the substance abuse”. Dr Whetton supported this view. Dr Hardy described the use of substances as “classical numbing agents”. The Arbitrator said that he could not find an expression of opinion by Dr Smith on this issue, of a possible causal link between the 2010 accident and the subsequent substance abuse. The Arbitrator concluded that, notwithstanding the respondent’s previous history of drug use, he accepted that there was “a relevant causal nexus between PTSD and the use of numbing agents in this matter”.[26]
[26] The decision, [184]–[188].
The Arbitrator then dealt with the causal relationship between injury and incapacity. He referred to Murphy v Allity Management Services Pty Ltd,[27] McCarthy v Department of Corrective Services,[28] Calman v Commissioner of Police,[29] Comcare v Martin[30] and Tudor Capital Australia Pty Limited v Christensen.[31] He said that it was necessary for the respondent to demonstrate that that the injury “caused or materially contributed” to the incapacity and need for medical treatment. “Common-sense inferences may be drawn, consistent with the observations of McColl JA in Christensen”.[32]
[27] [2015] NSWWCCPD 49.
[28] [2010] NSWWCCPD 27.
[29] [1999] HCA 60; 167 ALR 91; 73 ALJR 1609.
[30] [2016] HCA 43; 258 CLR 467.
[31] [2017] NSWCA 260 (Christensen).
[32] The decision, [200].
The Arbitrator said the matter had been “unnecessarily complicated” by how it was pleaded, relying on only the injury on 3 September 2010.[33] He continued:
“As I earlier found, the medical evidence supports a causative link between the 2010 motor vehicle accident and the development of PTSD and polysubstance abuse. I consider the link to be more than ‘minor’, as described by Dr Smith because I am satisfied that there was no previous psychological condition and that the polysubstance abuse in 2014 was related to the PTSD.”[34]
[33] The decision, [201].
[34] The decision, [202].
The Arbitrator said that he accepted there was a “clear and compelling nexus between the PTSD and polysubstance abuse and the claims for weekly compensation and medical expenses”.[35] There was a “clear material contribution” between the psychological disorders and the compensation claimed.
[35] The decision, [207].
The Arbitrator also made comments critical of the appellant, on the basis that it had withheld some reports it had obtained from its qualified psychiatrist, Dr Smith.

ON THE PAPERS

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

THRESHOLD MATTERS

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.

GROUNDS OF APPEAL

The appellant pleads four grounds of appeal:
(a)    The Arbitrator erred in fact, law and discretion in finding that the respondent suffered a psychological injury on 3 September 2010 (Ground No 1). This is followed by eight sub-grounds, apparently alleged to be illustrative of the error identified in Ground No 1. These will be referred to in the consideration of Ground No 1.
(b) The Arbitrator erred in fact and/or law in finding that the incident on 3 September 2010 was a substantial contributing factor to the respondent’s PTSD psychological injury pursuant to s 9A (Ground No 2) by:
(i)failing to properly consider and give sufficient weight to the numerous stressors to which the respondent was exposed prior to and post 3 September 2010 as causative of her PTSD psychological injury (error of fact, law and discretion), and
(ii)rejecting Dr Smith’s opinion regarding s 9A (error in fact and law).
(c)    The Arbitrator erred in fact and law in finding that the incident on 3 September 2010 was causative of the respondent’s incapacity that commenced on 7 March 2015 (Ground No 3) by:
(i)failing to properly consider and give sufficient weight to the numerous stressors and events, both physical and mental, to which the respondent was exposed immediately prior to becoming incapacitated (error of fact and law);
(ii)failing to properly consider the amount of time that elapsed between 3 September 2010 and the respondent’s first compensable incapacity on 7 March 2015 (error in fact and law), and
(iii)finding that the incident materially contributed to the respondent’s that commenced on 7 March 2015 (sic).
(d)    The Arbitrator erred in fact and law in finding that the incident on 3 September 2010 was causative of the respondent’s need for medical treatment pursuant to s 60 (Ground No 4):
(i)reliance on the above grounds of appeal, and
(ii)failure to give any or any adequate reasons.

THE NATURE OF THIS APPEAL

This appeal is brought pursuant to s 352 of the 1998 Act. It is subject to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The nature of such an appeal was discussed in Raulston v Toll Pty Ltd, where Roche DP set out the following principles:
“19.   First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20.    The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
21.    After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”[36]

GROUND NO 1

The Arbitrator erred in fact, law and discretion in finding that the respondent suffered a psychological injury on 3 September 2010.

[36] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[21].

(a) Failing to find the respondent had a psychological condition prior to 3 September 2010

This is the first of the sub-headings which the appellant nominates under this ground. Whether the respondent suffered some psychological condition prior to 3 September 2010 would not, of course, decide the issue of whether she suffered injury on 3 September 2010, but it could be relevant to it. The Arbitrator’s reasoning on the ‘injury’ issue is summarised at [9]–[10] above. The Arbitrator then referred to a decision of Roche DP in Inman v NSW Police Force, in which the Deputy President concluded that “a recognised psychological condition (such as major depression or PTSD) is a disease”.[37] He referred to a subsequent decision of Roche DP in NSW Police Force v Gurnhill in which the Deputy President said that whether “a psychological condition is classified as an injury or a disease depends on the evidence in each case”.[38] He referred to a decision of mine in Ky v Blue Leaf Food Group Pty Ltd, in which I said that findings of injury in the primary sense, and pursuant to the ‘disease’ provisions, are not mutually exclusive.[39] The Arbitrator noted[40] that Roche DP had made similar observations in Inman.[41]
[37] [2013] NSWWCCPD 11; 14 DDCR 243 (Inman), [264].
[38] [2014] NSWWCCPD 12 (Gurnhill), [72].
[39] [2016] NSWWCCPD 55, [72].
[40] The decision, [118]–[122].
[41] Inman, [249].
The Arbitrator referred to Dr Whetton’s reference to the respondent suffering anxiety symptoms after the accident in September 2010. He said this was consistent with Ms Vlass’s diagnosis of an adjustment disorder, and the opinion in the general practitioner’s certificate (which described “anxiety”). He said it was not inconsistent with Dr Smith’s opinion, that “the 2010 incident was a minor contributor to her presentation in 2016”.[42] The Arbitrator then said that “[f]or these reasons I am satisfied that the [respondent] has suffered injury within the meaning of s 4(a) of the 1987 Act”.[43] The Arbitrator moved to consider whether there was “a pre-existing psychiatric condition”, on the basis that an issue had developed on that topic.[44]
[42] The decision, [124].
[43] The decision [125].
[44] The decision, [126]–[132].
The appellant also submits that whether there was a pre-existing psychological condition is relevant to its submissions on s 9A of the 1987 Act.[45]
[45] Appellant’s submissions, [69]–[76].

The appellant’s submissions

The appellant summarises various aspects of the medical histories which deal with past symptoms. It refers to:
(a)    The entry dated 26 August 2010 in the notes of the Royal Randwick Medical Centre.[46] It recorded in part “Paramedic – posted to South Coast – 2 years – bullying – anxiety, ‘social phobia’. – Now better in Sydney – Still anxious. Loss of self confidence – No sleep disorder – Anxiety disorder.”
(b)    Dr Whetton’s history is summarised. It is unnecessary to quote the summary here. It includes references to family difficulties as a child, being a rebellious teenager, leaving home at 15, binge drinking from her 20’s, and the use of substances from ages 19 to 23.[47]
(c)    Dr Smith’s history is summarised. Again, I will not quote it for current purposes. It includes the use of substances from Year 12 into the respondent’s early 20’s, feeling depressed when stationed by the appellant at Mungindi, and feeling bullied and crying when she was transferred to Bulli.[48]
(d)    Ms Vlass’s history in her handwritten notes is summarised. It includes pressure to perform at work, two years of being bullied and taunted, performance anxiety, and reference to family members who were troubled by psychological problems and drug and alcohol issues.[49]
(e)    Dr Sturrock’s history in his report dated 12 May 2014 is quoted, “struggling with depressive symptoms for years, in fact, with suicidal ideation intermittently”.[50]
[46] See Reply, p 257.
[47] ARD, pp 3–5.
[48] Reply, pp 15–16.
[49] ARD, pp 14–18.
[50] ARD, p 968.
The appellant refers to Dr Smith’s report dated 25 January 2018. The appellant’s solicitors furnished the doctor with notes from Dr Chaugule, the Royal Randwick Medical Centre and Dr Sturrock, together with Dr Smith’s previous reports. The letter of instruction posed various questions, which the doctor set out and responded to. The appellant quotes from a passage, responding to a question regarding whether the respondent, on the probabilities, “suffered from a definable psychiatric disorder prior to the only pleaded work injury of 3 September 2010”. The doctor referred to the history which he took, of “anxiety and depressive symptoms relating to alleged bullying and rostering issues in her employment prior to 2010”. He referred to a history of substance abuse prior to 2010. He referred to the history in the Royal Randwick Medical Centre notes, on 26 August 2010, of anxiety and social phobia, and to Dr Sturrock’s history of depressive symptoms for years. The doctor said these aspects of the history were consistent with the respondent having suffered from “anxiety and depressive symptoms before 3 September 2010”. He said that diagnosis was difficult, but Dr Chaugule’s diagnosis may be the most appropriate, “mild depression with strong features of anxiety, personality vulnerabilities, cluster B traits”.[51]
[51] Appellant’s Application to Admit Late Documents, 16 February 2018 (AAALD), p 213.
The appellant submits that Drs Smith and Sturrock, and probably Dr Chaugule, opined that there probably was a psychiatric condition prior to the incident in 2010, but the Arbitrator dismissed these opinions, notwithstanding that there was no evidence to the contrary.[52] The appellant criticises the bases on which the Arbitrator did not accept these opinions.[53] It is critical of the Arbitrator’s reliance on the respondent having no treatment, and being fully functioning in a very demanding job, as evidence of the lack of a pre-existing condition. The appellant notes that the respondent only took one day off work after the incident on 3 September 2010, and continued in her job until “at least November 2014”.
[52] Appellant’s submissions, [6].
[53] Appellant’s submissions, [7]–[11].
The appellant submits that the erroneous rejection of the proposition that there was a pre-existing psychological condition, caused the Arbitrator to reject Dr Smith’s opinion that the incident was one minor contributor to the appellant’s post-traumatic stress disorder (PTSD), and is relevant to its argument based on ‘disease’.
In its submissions in reply, the appellant refers to Nguyen v Cosmopolitan Homes,[54] saying it is necessary that there be an “actual persuasion” of the injury on 3 September 2010, “as opposed to the incident being one of a number of incidents over a period of time”.[55]
[54] [2008] NSWCA 246, [44].
[55] Appellant’s submissions in reply, [4].

The respondent’s submissions

The respondent refers to a meeting held on 11 March 2016, regarding the termination of her employment. The participants included the respondent and Dan Morgan, the chief executive of the Ambulance Service. Mr Morgan raised the possibility of a “disability claim”. The respondent said that she was “not a workers comp person”. In this context the respondent raised the history of the fatal motor accident in September 2010. Mr Morgan referred to having a meeting for workers compensation, he said “talk to W. comp and D & D experts – more informed”.[56] Mr Morgan appointed a further meeting to take place on 28 April 2016, involving the respondent, with Alana Belmat and Ngaire Fryer (the Acting Workers Compensation manager and the Paramedic Insurance manager respectively).[57] The respondent attended this meeting and lodged a workers compensation claim.[58] The respondent submits that the terms in which the claim was submitted are not clear, but the s 74 notice dated 8 July 2016 refers to notification being made on 28 April 2016, and to the date of injury as the same date.[59] The respondent submits that, in those circumstances, she identified the incident on 3 September 2010 as “central and significant”. There was no suggestion that she sought to dissemble or deceive. Dr Smith, when asked by the appellant’s solicitors if the respondent’s statements were self-serving, rejected that suggestion.
[56] Reply, pp 222–232.
[57] Reply, p 238.
[58] Reply, p 488.
[59] Respondent’s submissions, [6].
The respondent submits that the hearing proceeded on the basis that Post-Traumatic Stress Disorder was at least one of the diagnoses. The Arbitrator referred to the reports of Dr Whetton, Dr Hardy, the Sydney Clinic, Professor McMurchie, Dr Kidd, Dr Pakula and Dr Smith in this regard. The respondent submits that, around the time of the incident, she lodged a notification of injury on 10 September 2010, nominating the relevant date as 3 September 2010, when a pedestrian was killed by the ambulance in which she was travelling. She lodged a supporting certificate dated 10 September 2010, certifying her unfit from 3 to 5 September 2010. The respondent’s evidence was that the respondent returned to work after her rostered days off. This was not the subject of further scrutiny or challenge at the time of the incident. The respondent submits that the Arbitrator did not err in making a finding of ‘injury’.
It will be observed that the respondent’s submissions on Ground No 1 do not deal with the issue of whether there was psychological injury prior to 3 September 2010. The respondent approaches Ground No 1 on the basis that the issue which it raises is whether there was error on the Arbitrator’s part, in his finding of ‘injury’ on 3 September 2010.

Consideration

The appellant refers to matters in the history, which it submits are consistent with the presence of stressors and/or symptoms prior to 3 September 2010. It then refers to medical opinion, which it submits is consistent with the presence of a condition prior to 3 September 2010, particularly by reference to the aspects of the history to which it has referred. It relies particularly on Dr Smith and Dr Sturrock in this regard. It submits the Arbitrator did not have a proper basis for not accepting these doctors’ views on this issue.[60] The appellant submits that the Arbitrator “dismisses Dr Sturrock’s opinion because the respondent saw him on only one occasion and the consultation allegedly upset the respondent”.
[60] Appellant’s submissions, [6]–[14].
The Arbitrator’s reasons for not accepting the evidence of Dr Sturrock are at [131] of the decision:
“[The respondent] consulted Dr Sturrock on one occasion. Following the consultation, [the respondent] immediately informed Dr Chaugule that the consultation was ‘unsettling and distressing’, a direct quote recorded by Dr Chaugule. [The respondent] also advised Dr Chaugule that she felt that the experience of her distress was dismissed. Further, the note provided by Dr Sturrock is vague and unclear. It described the applicant as having ‘depressive symptoms for years, in fact, with suicidal ideation intermittently’. That record does not define ‘years’ and is inconsistent with the other evidence in the case that the applicant was fully functioning in her employ with the respondent. Noting that caution may be placed on the reliability of histories recorded by medical practitioners and will always depend on the circumstances [Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, [8]; Gulic v O’Neill [2011] NSWCA 361, [24]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, [35], [40] and [41]], I do not accept the accuracy of Dr Sturrock’s note.”
The passage of Dr Sturrock’s report[61] on which the appellant relies on this issue reads:
“She complained of depressive symptoms for the last few months. She said she had been struggling with depressive symptoms for years, in fact, with suicidal ideation intermittently.”
[61] Reply, pp 313–314.
The report also notes that the respondent failed to attend a second appointment arranged for one week later, and that his “assessment was incomplete, as she only attended for the one session”.
The appellant’s submissions make reference to Dr Sturrock’s “expert views”, and to the Arbitrator dismissing Dr Sturrock’s “opinion”.[62] Dr Sturrock’s report dated 12 May 2014 sets out the history he recorded on one consultation. It does not set out the doctor’s “opinion” or “expert views”.
[62] Appellant’s submissions, [9]
The Arbitrator’s reasons for rejecting Dr Sturrock’s recorded history were not restricted to the two matters to which the appellant refers. The Arbitrator referred to a line of appellate authority which includes King v Collins, in which Basten JA (Mason P and Santow JA agreeing) said:
“There is, however, a separate point which is that the omission of particular material must be assessed against the purpose and nature of the documentary record, the circumstances in which it was created and by whom. As Mason P noted in Davis, there may be various reasons why hospital records ‘make no mention of the mechanics of’ an accident, in circumstances where the mechanics of the accident have ‘little to do with the diagnosis and treatment of an obviously serious injury’: at [36]. In other circumstances, it may be necessary to give consideration to the context of a particular statement or omission in particular documents.”[63]
[63] [2007] NSWCA 122 (King), [36].
It is apparent, from the respondent’s failure to return to her second appointment with Dr Sturrock, and her comments recorded by Dr Chaugule, that there was probably not a satisfactory rapport between she and Dr Sturrock. Dr Smith recorded a history that the respondent did not like Dr Sturrock.[64] The Arbitrator described Dr Sturrock’s note as “vague and unclear”, specifically referring to the doctor’s use of the term “years”. The history was taken on 1 May 2014, a little more than three and a half years after the incident on 3 September 2010. The term “years” may apply only to periods after 3 September 2010, or may include periods before that, this is not apparent from the report. The substance of the report does not assist on this; there is a reference to an unhappy childhood, but no indication of psychological symptoms necessarily being associated with that. These matters are part of the context of Dr Sturrock’s statement, about the respondent’s history, in this report. Although the Arbitrator did not rely on it, it is possibly significant that the doctor’s assessment of the respondent was “incomplete”. It was appropriate, in the circumstances, for the Arbitrator to treat the recorded history in Dr Sturrock’s report with caution (see Container Terminals Australia Ltd v Huseyin,[65] relied on by the Arbitrator). There was no error in the Arbitrator declining to accept the accuracy of Dr Sturrock’s note on this issue, in the circumstances. The specific use the appellant seeks to make of this report is to establish the presence of psychological injury prior to 3 September 2010, yet the report does not clearly record such a history.
[64] Reply, p 17.
[65] [2008] NSWCA 320, [8].
The appellant is critical of the Arbitrator’s treatment of the history recorded at Royal Randwick Medical Centre on 26 August 2010.[66] In his reasons, the Arbitrator said:
“The [respondent] in her supplementary statement explained her condition prior to the 2010 motor vehicle accident. The clinical note of Dr [Trefely] is not particularly clear and not inconsistent with the [respondent’s] statement. I accept the [respondent’s] evidence on this matter.”[67]
[66] Reply, p 257.
[67] The decision, [129].
The handwritten entry in the notes related to two matters. The first was an upper respiratory tract infection which had been present for three days, and for which the respondent was given a medical certificate for 25 and 26 August 2010, together with a prescription for medication. The note also contains references to anxiety, set out at [28] above.
The respondent’s statement dated 13 February 2018 dealt with the entry:
“In relation to the entry in Dr [Trefely’s] notes dated 26 August 2010, I wish to provide some context. At this time I had just moved back to Sydney and had been suffering from a bit of performance anxiety, having spent the previous few years working in regional areas. At this time I wasn’t living in my own home and was having to stay in a small 3 bedroom house with 5 people living there until I found my own place to live. I was also taking a pay cut in moving back to Sydney and I was starting a new position. At this time I was not suffering from any depression, it was just that I was anxious about finding somewhere to live and fitting into my new role.”[68]
[68] RAALD, p 40.
In dealing with the entry of 26 August 2010, it was appropriate that the Arbitrator deal with the evidence relevant to it. He would have erred if he did not do so. This included giving “consideration to the context of a particular statement or omission”.[69] The Arbitrator, elsewhere in his reasons, dealt with Dr Smith’s consideration of a suggestion, by the appellant’s solicitors, that the respondent’s “more recent histories, since bringing her workers compensation claim in April 2016, have been, or are likely to have been, self-serving”. Dr Smith responded “in my opinion, she did not present as providing a self-serving history or presentation of PTSD”.[70] The Arbitrator correctly noted that the “doctor rejected this suggestion based on his assessment of [the respondent]”.[71]
[69] King, [36], quoted at [41] above.
[70] AAALD, pp 211–212.
[71] The decision, [174].
When the entry on 26 August 2010 is read, in concert with the respondent’s statement dated 13 February 2018, the Arbitrator’s observation that the entry was “not inconsistent with the [respondent’s] statement”[72] was open. The contents of the entry are essentially matters of history, with the possible exception of the words “Anxiety disorder”. That could be used as a term of psychiatric diagnosis. Whether the general practitioner intended that it be understood in that way is unknown. It was used in the presence of a history of the respondent being “still anxious”, but also of being “[n]ow better in Sydney”, and in the context of a consultation which included assessment and treatment of an upper respiratory tract infection, in addition to the discussion about the respondent’s psychological wellbeing. When the evidence relevant to the entry dated 26 August 2010 is viewed as a whole, the Arbitrator’s acceptance of the respondent’s evidence about the consultation, in her statement, was open. It does not disclose error.
[72] The decision, [129].
The appellant describes the Arbitrator as having dismissed the opinion of Dr Smith, on whether there was a psychological condition prior to the incident in 2010.[73] The appellant submits that the Arbitrator rejected Dr Smith’s opinion “because that doctor did not have the respondent’s supplementary statement”.[74]
[73] Appellant’s submissions, [6].
[74] Appellant’s submissions, [7] and [10].
The lengthy question from the appellant’s solicitors, about the possible existence of a pre-existing psychiatric disorder prior to 3 September 2010, referred the doctor to a raft of suggested historical matters. These included polysubstance use and dependence since the respondent’s teen years, the daily use of cannabis for three months in Year 12, amphetamine use on weekends for about two years in her early twenties, frequent use of ecstasy during that period, taking about 200 MDMA pills throughout her life, and a history at the Royal Randwick Medical Centre on 21 August 2012 of the respondent having “had counselling in the past”. The question also referred to Dr Sturrock’s report.[75] Dr Smith’s report dated 25 January 2018 included the passage:
“The evidence from the notes of Dr Eliades [Royal Randwick Medical Centre] suggesting anxiety and ‘social phobia’ and the report of Dr Sturrock suggesting that [the respondent] had suffered from depressive symptoms for years are consistent with the proposition that [the respondent] had suffered from anxiety and depressive symptoms before 3 September 2010.
The precise diagnosis is difficult to confirm due to the lack of contemporaneous information but Dr Chaugule’s diagnosis of ‘mild depression with strong features of anxiety, personality vulnerabilities, cluster B traits’ would be most appropriate, in my opinion.”[76] (italicisation in original)
[75] AAALD, pp 212–213.
[76] AAALD, p 213.

The Arbitrator described Dr Smith’s opinion, that there was a pre-existing condition, as being based on “Dr Sturrock’s report and the notes of the general practitioner for 26 August 2010”. This was consistent with the doctor’s response to the question asked of him, referred to in the previous paragraph. The Arbitrator noted that “Dr Smith did not have and has not considered the [respondent’s supplementary statement] when reaching his opinion”.
The Arbitrator did not accept that the report of Dr Sturrock, and the clinical note recorded on 26 August 2010, established a pre-existing psychiatric condition prior to the 2010 motor vehicle accident. Dr Sturrock’s report was non-specific regarding the period of alleged depressive symptoms, depriving it of probative value on this issue. The note taken on 26 August 2010 was essentially explained away by the respondent’s supplementary statement, which the Arbitrator accepted. For reasons given above, this course was open to him. The Arbitrator noted that the respondent was not in receipt of psychiatric medical treatment, and was “fully functioning in a very demanding job”, before the accident on 3 September 2010. He was “satisfied that the [respondent] did not have a pre-existing psychiatric condition prior to the 2010 motor vehicle” accident. He did not accept Dr Smith’s opinion to the contrary.[77]
[77] The decision, [132]–[133].
The Arbitrator did not reject Dr Smith’s opinion on this topic simply because Dr Smith had not seen or considered the respondent’s supplementary statement, although this was one of the factors. The Arbitrator had regard to the level of the respondent’s functioning before the 2010 accident and the lack of psychological treatment at that time. Dr Smith’s ultimate opinion on this issue was based in part on an acceptance that Dr Sturrock’s report was consistent with the presence of “anxiety and depressive symptoms before 3 September 2010”. Because of the Arbitrator’s analysis of the significance, or lack of it, of Dr Sturrock’s report to this point, and the 26 August 2010 clinical entry, Dr Smith’s opinion on pre-existing psychiatric symptoms was deprived of weight, its factual assumptions being undermined.[78] This is consistent with the decisions of the Court of Appeal in Hancock v East Coast Timber Products Pty Limited[79] and Onesteel Reinforcing Pty Ltd v Sutton.[80] It follows that there was no error in the approach taken by the Arbitrator, to the evidence of Dr Smith on this issue.
[78] The decision, [129]–[132].
[79] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock), per Beazley JA (Giles and Tobias JJA agreeing), [81]–[83].
[80] [2012] NSWCA 282; 13 DDCR 351 (Sutton), per Allsop P (McColl JA agreeing), [2]–[4].
The appellant faintly submits that Dr Chaugule supports the proposition that the respondent suffered from a psychiatric condition prior to 3 September 2010.[81] Dr Chaugule took a detailed history on 22 March 2014, her first consultation with the respondent.[82] This included details of a disrupted upbringing and cannabis use. It recorded “THC from year 12 to age 20. 1 gram per day – 8 cones per day for 2 to 3 years. Binge drinking from 2003 to 2006. ‘Then joined the Ambulance service. Nothing else.’” The respondent gave a history of a family history of psychological problems involving her brothers, and on her paternal side “Schizophrenia, Heroin Addiction, alcoholism”, with two uncles dying of heroin overdose. Her older brother had troubles with substance abuse, and had been diagnosed with “severe mental illness, Bipolar”. There was not a history of prior psychological illness involving the respondent herself. The respondent referred to the motor vehicle accident in 2010 (misdescribed as “2009”) saying it was “Just horrendous”, and that she “was so devastated, I felt like I was falling off the edge of the earth”. She said that she saw a counsellor for 8 to 10 sessions, “felt better, then stopped”. Dr Chaugule, in her notes, commented:
“Interestingly, felt she had recovered, and although remembers clearly, does not give an account of bad dreams, panic attacks, reliving the event, or it compromising the work. Does not make her want to leave work. – I wonder about how she dealt with this, but denies at present it was of concern.”
[81] Appellant’s submissions, [6].
[82] Reply, pp 118–121.
Dr Chaugule recorded of the respondent’s job as a paramedic, “Loves the job ‘stressful’ but I am always ON my game”. The doctor recorded “Very resourceful, and resilient, in the face of difficulties, has continued her professional study”. Dr Chaugule’s material covers multiple consultations and correspondence over a period from 22 March 2014 to 30 June 2016. It does not include any medical reports. The appellant’s submissions point to no specific parts of the material as being supportive of its argument on this issue. Perusing the material, I did not identify any aspects of it that would establish the presence of a psychiatric condition prior to 3 September 2010.
The Arbitrator did not err, in failing to find there was a psychiatric condition prior to 3 September 2010.

(b) Finding that the incident on 3 September 2010 was an injury pursuant to s 4(a) and s 11A(3)

(c) Elevating the word “anxiety” in WorkCover medical certificate to a psychological disorder

(d) Conflating the diagnosis of an Adjustment Disorder opined by Ms Vlass in April 2011 with Dr McGrath’s clinical note and WorkCover medical certificate dated 10 March 2010

(e) Offending rule 15.2 of the Workers Compensation Commission Rules 2011 (the Rules) and Hancock v East Coast Timber Products Pty Limited

(f) Failing to give sufficient weight to Dr Smith’s opinion

(g) Finding that the incident on 3 September 2010 was causative of PTSD

I have retained the appellant’s nomenclature for these sub-headings. This cluster of sub-headings, under Ground No 1, challenge the Arbitrator’s finding on ‘injury’.

The submissions

Dr McGrath’s certificate dated 10 September 2010 certified the respondent unfit from 3 to 5 September 2010, and gave the diagnosis “Anxiety”. Dr McGrath’s referral to Ms Vlass, of the same date, described “confidence issues at work” together with the incident in which a pedestrian was killed. The appellant submits this referral was, on its face, primarily to resolve the issues at work. The next entry in the general practitioners’ cards, 25 January 2011, did not mention the incident or psychological issues. The next entry, 4 February 2011, mentioned “stress” and “anxiety re family”. The next entry, 2 April 2011, referred to stress from the coronial inquiry. The appellant submits that, to this point, the general practitioner entries do not support any psychological injury resulting from the incident on 3 September 2010.[83]
[83] Appellant’s submissions, [16]–[22].
The appellant submits that ‘anxiety’ is not a diagnosis, and is not a diagnosable psychological disorder within the meaning of s 11A(3) of the 1987 Act. The respondent carried the onus of proving a “diagnosable psychological/psychiatric disorder” pursuant to s 11A(3). Anxiety symptoms are insufficient. The respondent was referred to Ms Vlass, a second time, via Dr McGrath’s letter dated 4 February 2011. The referral mentioned health issues in the respondent’s family.[84] Reporting back to Dr McGrath, Ms Vlass diagnosed Adjustment Disorder; the report did not mention the motor vehicle accident, but rather family relationships. The report did not identify the cause of the diagnosed adjustment disorder.[85]
[84] Reply, p 64.
[85] Appellant’s submissions, [24]–[31].
The appellant refers to the Arbitrator’s reasons at [124], where he said:
“Dr Whetton referred to the applicant suffering ‘anxiety’ symptoms following the incident [Application, page 3]. This finding is consistent with the conclusion expressed by Ms Vlass that the applicant was then suffering an adjustment disorder. It is also consistent with the expression of opinion by the general practitioner in the WorkCover certificate. The conclusion expressed by Dr Smith, that the 2010 incident was a minor contributor to her presentation in 2016, is not inconsistent with the fact that that the applicant suffered a psychological injury in 2010 by reason of the 2010 motor vehicle incident.”
The appellant submits that the “anxiety symptoms” to which Dr Whetton referred did not amount to a diagnosable disorder. Dr Whetton’s comments were not consistent with Ms Vlass’s conclusion, Dr Whetton did not conclude that in 2010 and/or 2011 the respondent suffered from an Adjustment Disorder. Nor were the general practitioner’s views consistent with those of Ms Vlass. The general practitioner diagnosed “Anxiety”, not an Adjustment Disorder. The appellant submits the Arbitrator erred in conflating the different terms used by these three practitioners, without relying on expert evidence. Ms Vlass’s report was “unsupported by reasoning and is absent on causation”. It is submitted there is no reasoning in the certificate of the general practitioner that underpins her diagnosis.[86]
[86] Appellant’s submissions, [33]–[37].
The appellant submits that the Commission is obliged to be satisfied that expert evidence provides a satisfactory basis to make findings. The appellant refers to Hancock at [81], where a passage from South Western Sydney Area Health Service v Edmonds[87] is quoted. It submits the Arbitrator’s “erroneous reliance” on the above evidence caused him to find an injury on the basis of s 4(a).[88]
[87] [2007] NSWCA 16; 4 DDCR 421, [127].
[88] Appellant’s submissions, [38]–[41].
The appellant submits that Dr Smith was provided with all of the relevant material, examined it in detail, and the doctor’s reports were “detailed and well-reasoned”, as the Arbitrator found.[89] The Arbitrator correctly found that the clinical notes until mid-2011 did not record complaints of flashbacks or intrusive thoughts,[90] and that the respondent’s PTSD commenced sometime in 2014 or 2015.[91] The Arbitrator rejected the respondent’s evidence that in the few months after the motor vehicle accident she began to experience flashbacks, nightmares and mood changes.[92] The appellant submits that the contemporaneous treating records, and reports from treating doctors, do not support the contention that the respondent suffered a frank psychological injury on 3 September 2010. The appellant refers to Kennedy Cleaning v Petkoska, where Gleeson CJ and Kirby J spoke of the requirement, for an injury in the primary sense, that there be “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.[93] The appellant submits there was not such a change. It submits, in the alternative, that if there was injury in the primary sense, its effects were brief and self-limiting.[94]
[89] The decision, [172], quoted in appellant’s submissions, [42].
[90] The decision, [113].
[91] The decision, [157].
[92] The decision, [43].
[93] [2000] HCA 45; 200 CLR 286; 174 ALR 626; 74 ALJR 1298 (Kennedy Cleaning), [39].
[94] Appellant’s submissions, [52]–[54].
The respondent’s submissions addressing Ground No 1 have been summarised at [33]–[35] above.

The legislative provision

Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)     No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)     A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5)     (Repealed)
(6)     This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement):
(a)the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b)proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

Consideration

The submissions directed to sub-headings (b), (c) and (d) essentially go to whether the medical evidence generated in late 2010 and 2011 was sufficient to support a finding of ‘injury’ in the primary sense. In Trustees of the Society of St Vincent de Paul (NSW) v Kear as administrator of the estate of Anthony John Kear[95] Roche DP dealt with a claim where a worker was involved in a “near miss” while riding his motor scooter to work. Work mates described him as being stressed and in shock when he arrived at work. He then collapsed, suffering a subarachnoid haemorrhage. There was an issue regarding whether the worker had suffered psychological injury during his journey to work. After referring to a number of authorities, including Kennedy Cleaning, the Deputy President said:
“40. Consistent with these authorities, where the alleged condition is ‘shock’, for a worker to have received a personal injury, it is necessary that the event or events complained of had a physiological effect, not a mere emotional impulse (Yates v South Kirkby Collieries Ltd [1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3; Thazine-Aye v WorkCover Authority(NSW) (1995) 12 NSWCCR 304; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566). Whether a worker has suffered a physiological effect will depend on the nature and severity of his or her symptoms.
41. In the present case, there is no evidence that comes close to establishing that Mr Kear received a personal injury, in the sense of a sudden and ascertainable or dramatic physiological change, on his journey to work on 8 February 2009. Mr Goodrich’s reference to the definition of ‘shock’ in DSM-IV does not assist. As Mr Goodrich properly conceded, ‘shock’ is a medical diagnosis. As such, it will usually (but not always) require appropriate expert evidence before such a diagnosis can be made. There is no such expert evidence in the present case and no lay evidence from which to infer the existence of such a condition.”[96]
[95] [2014] NSWWCCPD 47 (Kear).
[96] Kear, [40]–[41].
In Military Rehabilitation and Compensation Commission v May[97] the High Court dealt with the proof of ‘injury’ in the Safety, Rehabilitation and Compensation Act 1988 (Cth). After quoting from Kennedy Cleaning at [39], the plurality stated:
“47. However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.’”[98] (emphasis in the original) (footnotes omitted).
[97] [2016] HCA 19; 257 CLR 468 (May).
[98] May (per French CJ, Kiefel, Nettle and Gordon JJ), [47]–[48].
In May Gageler J, agreeing with the orders of the plurality, said:
“An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’. The universality of that explanation has been questioned, and the comment has fairly been made that ‘a distinct physiological change is not itself an expression of clear and definite meaning’. The expression has nevertheless been shown by repeated usage to have utility as an exposition of the particular sense in which injury has been used, and continues to be used, in the particular legislative context.”[99] (footnotes omitted)
[99] May, [75].
The appellant concedes that the respondent would have been “obviously distressed and emotionally upset by the incident [on 3 September 2010]”, but makes the point that the respondent carries the onus of proving “a diagnosable psychological/psychiatric disorder”, by way of ‘injury’.[100] The initial WorkCover certificate of Dr McGrath gave a diagnosis of “anxiety”. It also referred to “psychological trauma after the ambulance in which she was travelling accidentally killed a pedestrian”. Dr McGrath’s referral letter to Ms Vlass did not contain a diagnosis; it referred to “confidence issues at work” together with the incident in which the pedestrian was killed. The appellant submits that this referral was, “on its face, primarily to resolve the respondent’s ‘issues at work’.” This inference was not available, and is rejected: Bradshaw v McEwans Pty Ltd,[101] applied in Luxton v Vines.[102] The letter did not distinguish between the “confidence issues at work”, and the motor vehicle accident, in terms of one or the other being a primary basis for the psychological referral.
[100] Appellant’s submissions, [26].
[101] (1951) 217 ALR 1, 5.
[102] [1952] HCA 19, 85 CLR 352 (per Dixon, Fullager and Kitto JJ), [8].
It is true, as the appellant submits, that these documents did not contain a psychiatric diagnosis. I accept that a mere emotional impulse will not constitute an ‘injury’, consistent with the authorities referred to above. I have expressed some doubt regarding whether the reference to “anxiety disorder” in the clinical note made on 26 August 2010, in context, should be viewed as a psychiatric diagnosis. In any event, given when that entry was made, it obviously could not constitute evidence of a psychiatric injury resulting from the incident on 3 September 2010.

The respondent eventually saw Ms Vlass, on 7 March 2011 and subsequently, she reported back to Dr McGrath.[103] Dr McGrath’s name, and the date 29 June 2011, are written in by hand on the top of the letter. The letter gives a diagnosis of “Adjustment Disorder”, states that rapid treatment gains were made, and describes ongoing issues as “Family relationships”. It does not otherwise describe the history or the nature of the respondent’s symptoms. Ms Vlass’s handwritten notes are in evidence.[104] The motor vehicle accident was mentioned at the initial consultation on 7 March 2011, the notes from which include “3rd September – involved in accident woman ran out she died instantly was not driving intoxicated cardiac arrest C[ervical] spine injury”. There was also a passage “When the accident happened realised lack of support in [the respondent’s] direction”. The notes for the next consultation, on 18 April 2011, included “trouble getting into routine concentrating – motivated. esp last few weeks working 4 days on 5 days off paramedic”. The next (and final) entry, on 27 April 2011, included “accident at work with a pedestrian – she ran out onto the road – no way could have avoided her”. The handwritten notes contain multiple references to other matters, including the respondent’s fears at work, bullying at work and family matters. The appellant is correct, that Ms Vlass’s material does not deal with the causes of the Adjustment Disorder which she diagnosed.
[103] ARD, p 19.
[104] ARD, pp 14–18.
The appellant makes the point that the descriptors used by Dr McGrath and Ms Vlass are different (anxiety and Adjustment Disorder), and that the reference to “Adjustment Disorder” did not refer to its cause. Dr Whetton recorded a history that “[f]ollowing on from the accident she describes the development of anxiety symptoms”.[105] The appellant submits that this is not the same as Ms Vlass’s diagnosis of “Adjustment Disorder”.[106] The passage from the Arbitrator’s reasons, which the appellant specifically refers to, is at [124] (quoted at [59] above). The Arbitrator clearly was aware of the differences in these descriptors. He quoted from Dr Whetton’s history of “anxiety symptoms following the accident”, and specifically referred to Ms Vlass’s “Adjustment Disorder” diagnosis. He did not say that the various references to psychological symptoms and diagnosis were the same, but that they were “consistent”. Dr Whetton’s history was of “a difficult and traumatic scene” at the accident, followed by a “substantial investigation”. He took a history of “the development of anxiety symptoms” following on from the accident, which “continued to progress”. The history referred to:
“… progression of the [anxiety] symptoms leading to the development of Post Traumatic Stress Disorder symptoms and here she spoke about intrusive thoughts relating to the accident and flashbacks to the scene. The symptoms have been more pronounced and clinically diagnosed.”[107]
[105] ARD, p 3.
[106] Appellant’s submissions, [34].
[107] ARD, p 3.
The respondent’s submissions on appeal, dealing with Ground No 3, make the point:
“The fact that the accident of 3 September 2010 loomed large in the [r]espondent’s presentation in history from 2016 onwards is telling. Her case did not depend on a continuity of florid and disabling PTSD symptoms from 2010 onwards; rather that the event of that day and her response to it was a material contribution to the ultimate decompensation and incapacity, Dr Smith, qualified for the [a]ppellant, appeared to support that connection.”[108]
[108] Respondent’s submissions, [28].
Dr Whetton reasoned that subsequent to the motor vehicle accident, the respondent “developed anxiety symptoms which she was able to cope with to a significant degree by methods of distraction … She did not identify herself as having a psychiatric disturbance initially”. He noted a history of the “continued development and intensifying of those anxiety symptoms”. The doctor continued:
“In 2014 with the physical injuries and the death of her colleague she describes a marked exacerbation of her symptoms with the development of a cluster of symptoms warranting a diagnosis of a Post Traumatic Stress Disorder.”
On the topics of diagnosis and causation, Dr Whetton said:
“From the history that she gives her psychiatric diagnoses have related to the injuries sustained in the accident.
This was the initial development of anxiety and the gradual onset of Post Traumatic Stress Disorder and a secondary polysubstance abuse.”[109]
[109] ARD, pp 7–8.
The Arbitrator’s statement, that Dr McGrath’s references to anxiety shortly after the 3 September 2010 accident were consistent with Dr Whetton’s history, is clearly correct. Ms Vlass is the only one of these practitioners to diagnose an “Adjustment Disorder”. The report in which she does so is short, and does not deal with her reasons for the diagnosis, or the specific complaints which gave rise to it.[110] Ms Vlass’s handwritten notes specifically refer, on 7 March 2011 and 27 April 2011, to a history of the accident of 3 September 2010. In a general sense, the fact that Ms Vlass assessed the respondent to be suffering from a diagnosable psychiatric disorder at that time was consistent with the presence of psychiatric distress. Elsewhere, the Arbitrator referred to there being “every reason to accept the reliability of the records of the general practitioner and Ms Vlass in relation to [the respondent’s] reaction to the incident”.[111] This is significant, in a case where the respondent told Dr Whetton that, initially, she did not identify herself as having a psychiatric disturbance. I do not read the Arbitrator’s reasons at [124] to be attributing more significance than this to Ms Vlass’s diagnosis. Ms Vlass’s notes and short report offered support to the history taken by Dr Whetton, to this extent.
[110] ARD, pp 14–18.
[111] The decision, [112].
Elsewhere in its submissions on this appeal, the appellant states that the “‘injury’ for the purposes of s 9A is PTSD”. It also submits that the Arbitrator did not “identify the injury when making his findings pursuant to s 4(a) and s 9A”.[112] I accept that the found ‘injury’ in the circumstances was PTSD, this was consistent with the views of Dr Whetton and Dr Smith.
[112] Appellant’s submissions, [70].
The Arbitrator’s analysis of the evidence going to ‘injury’ included reference to the opinion of Dr Smith. Dr Smith’s initial assessment occurred on 22 June 2016. He diagnosed dependence on methamphetamine, GHB and alcohol. He made a differential diagnosis that the respondent suffered from “depressive symptoms and symptoms consistent with the diagnosis of Posttraumatic Stress Disorder”. He said that, due to the history of substance abuse, it was not possible to confirm a diagnosis of “mood disorder or PTSD”. This would require reassessment after a substantial period of abstinence from all addictive substances and behaviours.[113]
[113] Reply, pp 23–24.
Dr Smith reassessed the respondent on 8 February 2017. She gave a history that she had been under the care of Dr Hardy since 3 September 2016, and “clean and sober since that time”. Dr Smith said the respondent “presents with ongoing symptoms consistent with the diagnoses of PTSD and Major Depressive Disorder despite early remission from her addictive disorders”. He described the PTSD as “related to her exposure to traumatic incidents during her employment as a Paramedic”, with the Major Depressive Disorder being “secondary to this condition”.[114] (emphasis added)
[114] AAALD, p 196.
Dr Smith furnished a supplementary report dated 31 May 2017, after being given access to various treating records, including the material from Dr Chaugule. Dr Smith described the respondent as being “predisposed to develop symptoms of PTSD and mood disorder”, due to family history, a history of disruptive familial relationships in childhood, subsequent personality vulnerabilities and a history of substance abuse in her teens and 20s. He said:
“[The respondent] described to Dr Chaugule the development of significant distress associated with an incident in 2009 [sic, 2010] in which a pedestrian was hit and killed. According to Dr Chaugule, [the respondent’s] symptoms apparently resolved with treatment although Dr Chaugule appears to have questioned this.
[The respondent] also reported to me a large number of traumatic incidents as a Paramedic that contributed to the development of PTSD symptoms.
Her abuse of Stimulants, Alcohol and GHB worsened her anxiety and depressive symptoms from 2014 to 2016.
Given that her anxiety and depressive symptoms had persisted despite documented abstinence from substances, exposure to traumatic incidents in the course of her employment was a substantial contributing factor to the development of her PTSD and depressive symptoms.”[115] (emphasis added)
[115] AAALD, p 203.
Dr Smith provided a further supplementary report dated 25 January 2018. On this occasion he was additionally given access to the notes from the Royal Randwick Medical Centre and Dr Sturrock’s report, and he responded to questions put to him. He was asked whether the history contained in the records of Dr Eliades (the Royal Randwick Medical Centre) suggested, on the probabilities, that the “worker was experiencing any PTSD (or primary or secondary depression) as a result of the fatal motor accident on 3 September 2010 (on its own).” The doctor referred to references to alleged bullying and anxiety, and anxiety and stress regarding family issues and an abusive boyfriend. He said “the documentation does not support the proposition that the incident caused [the respondent’s] anxiety and depressive symptoms on its own” (emphasis in the original).[116]
[116] AAALD, p 211.
The doctor was asked whether, on the probabilities, since bringing her compensation claim in April 2016, the “more recent histories” were likely to have been “self-serving”. The doctor was asked to discuss references in Dr Chaugule’s notes to specified matters, being a history on 23 January 2015 of frustration and interpersonal difficulties with superiors and peers, fallout from the suicide of a colleague, and her supervisors not understanding. The question included:
“At that time Dr Chaugule said there was no clear melancholic or PTSD features and that the worker denied any difficulties from that time (presumably referring to the motor vehicle accident when the pedestrian was killed on 3 September 2010).”
Dr Smith responded:
“I do not necessarily conclude that her recent histories have been, or have likely to have been [sic], self-serving. The history provided by [the respondent] in my assessment of 22 June 2016 contained descriptions of a number of extremely distressing incidents (as documented above). [The respondent] expressed great distress related to these experiences and in my opinion, she did not present as providing a self-serving history or presentation of PTSD.
From the documentation provided and the history obtained by me from [the respondent] (on 22 June 2016 and 8 February 2017) it is apparent that she had been distressed by the 3 September 2010 incident and received counselling but did not experience significant ongoing symptoms in relation to that incident. She experienced a deterioration in her condition from 2014 in relation to other stressors including exposure to further extremely traumatic incidents, perceived lack of support from her superiors, and non-work related stressors (including family and relationship conflict and substance abuse).”[117]
[117] AAALD, pp 211–212.
The next question asked of Dr Smith was approximately one page long, closely typed, and referred to various things said by Dr Smith in his earlier reports, together with Dr Sturrock’s history about “struggling with depressive symptoms for years”, and the consultations at the Royal Randwick Medical Centre on 21 and 28 August 2012. The question included:
“In your May 2017 report you said the worker also reported to you ‘a large number of traumatic incidents’ as a paramedic that had contributed to the development of PTSD symptoms. [Comment: We emphasise that the only injury that the worker is relying on in support of her claim is the motor accident on 3 September 2010, so any other actual or potential work incidents are not relevant to the current claim and should be excluded from your consideration when offering your opinions in this supplementary report.]”
Dr Smith was asked whether he believed, on the probabilities, that “the worker suffered from a definable psychiatric disorder prior to the only pleaded work injury of 3 September 2010”. He responded that the evidence in the notes from Royal Randwick Medical Centre and Dr Sturrock’s report were “consistent with the proposition that [the respondent] had suffered from anxiety and depressive symptoms before 3 September 2010”.[118]
[118] AAALD, pp 212–213.
Dr Smith said that his diagnosis had not changed, and remained “Post Traumatic Stress Disorder (PTSD), Chronic”, “Major Depressive Disorder, Moderate”, and dependence, in early remission, on Methamphetamine, GHB and Alcohol. He was asked whether “the motor vehicle accident on 3 September 2010 (on its own) was ‘a substantial contributing factor’ to any psychiatric injury/psychopathology?” The doctor responded that he did “not believe that the motor vehicle accident on 3 September 2010 (on its own) was ‘a substantial contributing factor’ to [the respondent’s] anxiety and depressive symptoms”. There were “other significant contributing factors to her condition”. These he listed as a “strong family history conferring vulnerability”, “pre-existing anxiety and depressive symptoms”, “personality vulnerabilities”, “interpersonal family and relationship issues”, “substance abuse”, including pre-existing abuse, “other reported traumatic incidents”, and “difficulties in the workplace after 2010 with her superiors and peers and a perceived lack of support”. He concluded on this point:
“In comparison, the single incident of 3 September 2010 ‘on its own’ was a minor contributing factor to [the respondent’s] condition.”[119] (emphasis in original)
[119] AAALD, pp 213–214.
The Arbitrator correctly concluded from this that it was Dr Smith’s opinion that the incident on 3 September 2010 was a contributing factor to the injury by way of PTSD. This is the nature of the Arbitrator’s finding about Dr Smith, at [124] of his reasons, notwithstanding its expression there as a double negative. It is consistent with the passages from Dr Smith’s reports quoted at [78]–[79] and [82] above. It is consistent with the submission made by the respondent’s counsel before the Arbitrator,[120] and by the appellant’s counsel on this appeal.[121] It has not been submitted that the condition of Posttraumatic Stress Disorder is insufficient to constitute an ‘injury’, consistent with the references to Kennedy Cleaning and May referred to above.
[120] Transcript 9.3.18 (T2), 54.16–18.
[121] Appellant’s submissions, [70].
“[T]here can be multiple causes of the damage suffered by a plaintiff”: ACQ Pty Limited v Cook.[122] The Arbitrator referred to the test on causation stated by Clarke JA (Priestley JA and Hunter AJA agreeing) in Sutherland Shire Council v Baltica General Insurance Co Ltd (a case involving the apportionment provision in s 22 of the 1987 Act), applying Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd.[123] Clarke JA said:
“What the court will be obliged to do is to determine a question of fact which directs attention to the existence of a number of injuries in order to determine whether a worker’s incapacity could properly be held to have resulted partly from one or more of them. If the question is answered in the affirmative the apportionment exercise will need to be carried out.”[124]
And:
“… I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity.”[125]
[122] [2009] HCA 28; 237 CLR 656, [27].
[123] [1994] HCA 68; 121 ALR 417.
[124] (1996) 39 NSWLR 87 (Baltica), 95B.
[125] Baltica, 97G–98A.
I applied the above in State of New South Wales v Butler[126] and, in my view, the Arbitrator did not err in having regard to these principles, in dealing with the issues of ‘injury’ and causation. It will be observed that the way in which certain questions were asked of Dr Smith had the capacity to give rise to misleading answers. The question was not whether the respondent “was experiencing any PTSD (or primary or secondary depression) symptoms as a result of the fatal motor accident on 3 September 2010 (on its own)”. Rather it was whether that accident caused or materially contributed to the respondent’s psychological condition. The Arbitrator dealt with this question at [201]–[207] of his reasons, concluding that the test was satisfied. He referred to his conclusion that “there was no previous psychological condition”. He noted that Dr Smith had accepted the validity of PTSD symptoms in 2016, related to the motor vehicle accident. He noted the support of Dr Whetton for the proposition that there was a causal linkage between the accident, and the development of PTSD and substance abuse. He noted the history recorded by Dr Chaugule in 2014, that the incident was “[j]ust horrendous”, and the respondent “felt like [she] was falling off the edge of the earth”.
[126] [2017] NSWWCCPD 47, [39]–[42].
The Arbitrator made a factual finding that the respondent “has established the more demanding test of ‘caused or materially contributed’ between the 2010 incident and the development of PTSD and poly-substance abuse”.[127]
[127] The decision, [206].
I do not accept the submission that the Arbitrator conflated the evidence of Dr Whetton, Dr McGrath and Ms Vlass to make a finding on ‘injury’, without relying on expert evidence in support.[128] The references to the evidence of Dr McGrath and Ms Vlass were supportive of the respondent experiencing psychiatric distress in the weeks and months following the accident. Dr McGrath and Ms Vlass both recorded histories of the incident. The Arbitrator’s findings on ‘injury’ involved consideration of the medical evidence overall, particularly that of Dr Whetton and Dr Smith, and histories recorded by various treating practitioners, including the Royal Randwick Medical Centre, Ms Vlass and Dr Chaugule. The findings which he made were reasonably open on the evidence, and do not involve error of the type described in Raulston.
[128] Appellant’s submissions, [36].
Rule 15.2 of the Rules provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1)  evidence should be logical and probative,
(2)  evidence should be relevant to the facts in issue and the issues in dispute,
(3)  evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)  unqualified opinions are unacceptable.”
The passage of Hancock on which the appellant relies[129] (quoting from the decision in South Western Sydney Area Health Service v Edmonds[130]) reads:
“In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, McColl JA (Giles and Tobias JJA agreeing) observed, at [127]:
‘While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 [the Workers Compensation Commission Rules 2006, r 15.2] provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.
(The Workers Compensation Commission Rules 2006, r 15.2 superseded, but replicated in identical form, the Workers Compensation Commission Rules 2003, r 70.)”[131]
[129] Appellant’s submissions, [39].
[130] [2007] NSWCA 16; 4 DDCR 421 (Edmonds).
[131] Hancock, [81].

The Arbitrator considered the time and place of injury (subcl (a)), saying the “injury occurred in circumstances where [the respondent] was performing her duties as a paramedic”.[199] He referred to the “nature of the work performed and the particular tasks of that work” (subcl (b)). The work performed by the respondent and her work tasks were those of a paramedic. The Arbitrator described the matters requiring consideration pursuant to subcl (b) as “patently favourable to the [respondent]”.[200]
[199] The decision, [142].
[200] The decision, [145].
In circumstances where the injurious event was a specific event which occurred on 3 September 2010, the Arbitrator regarded subcl (c) (the duration of the employment) as not relevant.[201] The Arbitrator referred to subcl (d), “the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”. The Arbitrator said “[i]t is unlikely that the accident or the injury or a similar injury would have happened anywhere and at a similar time given that [sic] the manner in which the accident occurred”.[202]
[201] The decision, [146].
[202] The decision, [148].
The Arbitrator referred to subcll (e) and (f), accurately describing these as relating to “the worker’s state of health, hereditary risks and lifestyle”. The Arbitrator said that he had accepted Dr Smith’s views on “non-work pre-existing matters which contributed to the onset of the psychological injury”. He said “[t]hese are matters in favour of the [appellant]”.[203] He further clarified this, saying he had not accepted Dr Smith’s opinion on “a pre-existing anxiety and depressive condition”, although he did accept there was “a pre-disposition to psychiatric injury”.[204]
[203] The decision, [149].
[204] The decision, [153].
The Arbitrator gave reasons for not accepting the opinion of Dr Smith that the injury on 3 September 2010 was only a minor contributing factor to the condition of PTSD and major depression. He referred to his non-acceptance of Dr Smith’s conclusion, that the respondent suffered from a “pre-existing anxiety and depressive condition”. He referred to the substance abuse in 2014 and 2015, saying that this post-dated the injury, on 3 September 2010.
Elsewhere, the Arbitrator dealt with the issue of whether the polysubstance abuse, that occurred from 2014 to 2016, resulted from the psychological injury that flowed from the motor vehicle accident. He referred to the history of drug and alcohol abuse that predated the respondent’s employment with the appellant. The Arbitrator noted that the “onset of the recent drug abuse, despite some inconsistent histories, clearly commenced on the day of the friend’s funeral”.[205] He said:
“184. There is a credible degree of medical opinion in the case that the [respondent’s] PTSD was causative of the substance abuse. Dr Whetton’s opinion, which I also generally accept, supports this proposition. Dr Chaugule noted an onset of PTSD symptoms in August 2014. These notes show a grossly deteriorating situation prior to the funeral. Accordingly, whilst there is a proximate cause between the funeral and the use and abuse of drugs, the [respondent] had already establish[ed] a deteriorating psychological condition.
185. I could not locate Dr Smith’s opinion on the issue of whether the recent substance abuse was related to PTSD and I was not specifically taken to the doctor’s reasons on this issue. It appears that the doctor treats the substance abuse as having separate causes because he describes it as distinct cause of the psychological condition [See for example, Respondent’s late Application, page 214]. In this respect, the doctor’s reasoning is not particularly clear.
186. Dr Hardy, a Consultant Specialist in Addictive Medicine, describes the causal link between PTSD and the use of substances as ‘classical numbing agents’. Mr Saul challenged the opinion because the doctor referred to ‘no previous addiction history of note’ an[d] otherwise linked it to ‘active duties’ rather than the single incident relied upon.
187. In her statement [the respondent] asserted that the doctor was provided with a proper history and did not consider the previous use to be of ‘note’. It is unclear what the doctor means by ‘of note’. However, this is an opinion of a treating specialist, with obvious expertise in respect of this particular area. The opinion provides strong support between the concept of the use of numbing agents and PTSD.
188. For these reasons, despite the applicant’s previous history of drug use, I accept that there is a relevant causal nexus between PTSD and the use of numbing agents in this matter.”[206]
[205] The decision, [182]–[183].
[206] The decision, [184]–[188].
The effect of this factual finding, which had support in the evidence, was that it was not appropriate to assess the role of the later substance abuse, which commenced in 2014, as a causative factor separate and unrelated to the motor vehicle accident. Rather, it was a result of the motor vehicle accident and its psychiatric consequences.
The Arbitrator referred correctly to the fact that s 9A is “not solely a medical question”, it requires a consideration of the evidence as a whole.[207] In Badawi the plurality, discussing the effect of Department of Education and Training v Sinclair[208] said:
“Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors …”[209]
[207] Awder Pty Limited t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222 at [31], Villar v Tubemakers of Australia Pty Ltd [2009] NSWWCCPD 57 at [99], Greater Western Area Health Service v Williams [2010] NSWWCCPD 95 at [124].
[208] [2005] NSWCA 465; 4 DDCR 206, [49].
[209] Badawi, [48].
The question to which Dr Smith responded, relevant to s 9A, was:
“Do you believe the motor vehicle accident on 3 September 2010 (on its own) was a ‘substantial contributing factor’ to any psychiatric injury/psychopathology? Please give your reasons for your opinion on this issue.”[210]
[210] AAALD, p 214.
The appellant submits that the opinion of Dr Smith was “the only expert medical evidence on this issue”, and “should not be rejected unless it is demonstrated to be flawed or compromised.” The issue was not purely a medical one, it required consideration of the evidence as a whole. That included consideration of “what the employee was in fact doing at the time of the injury, because it requires an identification of the time and place of injury”.[211] The Arbitrator engaged in a consideration of the matters set out in s 9A(2) to the extent to which they were relevant, consistent with the requirements found in Badawi.[212] The appellant does not attack the way in which he went about this task. The conclusion which he reached was that the requirements of s 9A were satisfied. Dr Smith (understandably) had not considered the “non-medical issues”, such as those raised by subcll (a) and (b) of s 9A(2). The question to which the doctor responded did not reflect the central test posed in Badawi:
“The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance.” (emphasis in original)
[211] Badawi, [96].
[212] Badawi, [105].
Earlier in the same passage, the plurality in Badawi also said:
“Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose of the amendment: see the Second Reading Speech at [34] above.”[213]
[213] Badawi, [82].
I also note the passage from Kelly quoted at [143] above, and its reference to the question posed by s 9A as “an evaluative one, leaving a broad area for the personal judgment of the fact finder”. Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd said:
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[214]
[214] [2001] FCA 1833; 117 FCR 424, [28].
The Arbitrator was not required simply to accept the opinion of Dr Smith on ‘substantial contributing factor’, unless it was demonstrated to be flawed or compromised. He was required, on all of the evidence, to consider the broader causal issue raised by s 9A. This he did. The appellant has not demonstrated error in how the Arbitrator dealt with the issue. Ground No 2 is rejected.

GROUND NO 3

The Arbitrator erred in fact and law in finding that the incident on 3 September 2010 was causative of the respondent’s incapacity that first commenced on 7 March 2015.

The appellant’s submissions

The appellant refers to Kooragang Cement Pty Ltd v Bates.[215] It submits that the Arbitrator failed to properly consider and give sufficient weight to the numerous physical and mental stressors to which the respondent was exposed, immediately prior to becoming incapacitated. It submits that the Arbitrator failed to consider the lapse of time between 3 September 2010, and the first compensable incapacity on 7 March 2015. It submits that the finding that the injury materially contributed to incapacity commencing on 7 March 2015 was erroneous.
[215] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
The appellant submits there is not an “unbroken chain of causation” between the incident in 2010 and incapacity in March 2015. The respondent was exposed to a “plethora” of other stressors that broke any chain of causation. The appellant specifically refers to the suicide of a friend and having a patient spit in the respondent’s mouth. The appellant refers to stressors identified by Dr Smith in his report dated 22 June 2016.[216]
[216] Reply, pp 17–18.
The appellant submits the Arbitrator’s finding, that the respondent’s use of illicit drugs resulted from her PTSD, involved factual error. That nexus was supported only by Dr Hardy, who did not have a history of the respondent’s “regular and significant use” since her teenage years. If the use did result from trauma, the trauma was the suicide of her friend. She said that this triggered “a bad bout of depression”.[217] The appellant refers to a history recorded by Dr Smith in his report dated 22 June 2016, that on the day of her friend’s funeral the respondent “chose to self-destruct”, and began to use illicit drugs and binge drink.[218] The appellant submits that the Arbitrator misquoted Dr Pakula, saying that he expressed an opinion that PTSD followed the motor vehicle accident, when the doctor was simply reciting a history that he recorded.[219]
[217] ARD, p 1027.
[218] Reply, p 17.
[219] Appellant’s submissions, [79]–[80].

The respondent’s submissions

The respondent submits that whether injury on 3 September 2010 resulted in incapacity was the primary focus of submissions. The Arbitrator’s critical finding is submitted to be at [178]:
“I am satisfied on the balance of probabilities, that the [respondent’s] initial psychological injury materially contributed to the development of PTSD. The analysis provided by Dr Smith is that it was minor, in light of the other causative events. Dr Smith’s conclusion, is subject to the rejection of that portion of his opinion, that [the respondent] had a pre-existing psychiatric condition. That finding elevates the finding of the contribution of the 2010 motor vehicle accident to the PTSD condition as being above minor, given the finding that there was no previous psychiatric condition.”
The respondent submits that her case did not depend on “a continuity of florid and disabling PTSD symptoms from 2010 onwards”. The respondent’s case was that “the event of that day and her response to it was a material contribution to the ultimate decompensation and incapacity”. Dr Smith’s evidence, in his report dated 25 January 2018, supports this conclusion. The Arbitrator found that, having been injured on 3 September 2010, the respondent in 2016 was suffering from PTSD symptoms that resulted from that motor vehicle accident.[220] The respondent submits that the findings were supported by fact and legal principle, and do not disclose error.
[220] Respondent’s submissions, [27]–[34], referring to the decision at [178], [124] and [203].

Consideration

The appellant’s submissions place emphasis on the time between the injurious event that was found to be causative on 3 September 2010, and the commencement of compensable incapacity from 7 March 2015. The authority cited by the appellant is Kooragang, which is frequently applied in the Commission when dealing with issues of causation. The appellant cites the following passage from the judgment of Kirby P (Sheller and Powell JJA agreeing):
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula, and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”[221]
[221] Kooragang, 463G–464C.
The Arbitrator found that the respondent was totally incapacitated from 7 March 2015 to date and continuing. He noted that the respondent was “hospitalised for significant periods in 2016 and into 2017”. He noted that Dr Smith, in a series of reports, said the respondent was unfit for any work, and in early 2017 described her prognosis as “poor”. He said that the appellant did not submit that the respondent had “any capacity during the period of the claim”. The Arbitrator concluded the respondent was “entitled to weekly compensation based on total incapacity”.[222] Issues of causation are raised, but the finding of incapacity is not challenged in this appeal.
[222] The decision, [208]–[213].
Dr Whetton made the diagnoses of “Chronic Post Traumatic Stress Disorder” and “Polysubstance abuse in current remission”.[223] Dr Smith, when he last examined the respondent on 8 February 2017, diagnosed “PTSD and Major Depressive Disorder despite early remission from her addictive disorders”. Dr Smith described the Major Depressive Disorder as “secondary” to the PTSD.[224] Dr Whetton said that he did not make a separate diagnosis of Major Depression, as he regarded it as “covered by the diagnosis of PTSD”.[225] Any difference is more apparent than real. The total incapacity, found by the Arbitrator, effectively results from the diagnosed condition of PTSD. This is subject to the issue raised by the appellant regarding causation of the polysubstance abuse, which is in remission.
[223] ARD, p 8.
[224] AAALD, p 196.
[225] RAALD, p 39.
The causation issue raised in respect of incapacity is entwined with the issue going to causation of the PTSD. If the PTSD results, in the relevant sense, from the injurious event on 3 September 2010, then so does the incapacity caused by the condition of PTSD. The issue of whether the PTSD, from which the respondent suffers, resulted from the incident on 3 September 2010 was the subject of Ground No 2, and Ground No 1 in part. It is dealt with at length above. The appellant raises an additional submission, that the Arbitrator misunderstood the report of Dr Pakula, treating a recorded history as if it were the doctor’s opinion.
The submissions relating to Ground No 3 raise one specific issue which was not raised in the earlier submissions. This is whether there was error in the Arbitrator’s finding that the condition of polysubstance abuse, which is now in remission, resulted from the condition of PTSD. The appellant relies on two specific submissions on this point. The first goes to the weight to be attached to the evidence of Dr Hardy, in circumstances where the appellant submits that he did not have a proper history of the respondent’s previous history of drug use dating back to her teenage years. The second is whether the substance abuse, dating from 2014, resulted from the suicide of her friend (whether or not this is viewed as a novus actus), rather than the effects of the motor vehicle accident in 2010 and PTSD.
To deal initially with the submission about Dr Pakula, the Arbitrator said:
“Dr Pakula, from whom the [respondent] received treatment which appears to have improved the [respondent’s] condition, opined that [the respondent] ‘developed PTSD’ following the 2010 motor vehicle accident.”[226]
[226] The decision, [176].
The appellant does not identify the passage from the notes of the South Coast Private Hospital to which it refers. There are various documents signed by Dr Pakula. The first is dated 16 December 2016, and is described as an “Admission Note”.[227] That document describes under “Reason for Admission”, in part:
“The assessment of this patient was very difficult due to her extreme anxiety, constant crying and her difficulty speaking clearly. Extreme anxiety which has become uncontrollable. Very tearful and distressed. Asking for two week admission to help her settle down. Recently was in Mossman clinic and described this experience as unsatisfactory. She continues to see Dr Hardy from that clinic. She has a methamphetamine problem for which she has been having treatment. Involved in fatal accident when in Ambulance killed a pedestrian. She was not the driver. Developed PTSD but has not yet been eligible for worker’s compensation as she has had polydrug abuse. At Mossman, she had a positive Cocaine result which she denied. She was accused of dealing Valium.” (emphasis in original)
[227] ARD, pp 575–579.
The document includes a “Mental State Examination on Admission”. It also includes “Provisional Diagnosis”, which lists (in order) PTSD, Borderline Personality Disorder, Alcohol Use Disorder, GHB Use Disorder, Methamphetamine Use Disorder and Nicotine dependence. The document was clearly produced at the time of admission. This is consistent with its date, and contains, amongst other things, various recommendations for the respondent’s management and treatment. There is a further Admission Note dated 1 February 2017,[228] which states “Admitted to attend PTSD group.” It described the earlier admission to that hospital as being from 16 December 2016 to 26 December 2016. It is similar to the earlier such document, save that “Borderline Personality Disorder” has been removed from the list of Provisional Diagnoses, and is described as an “unlikely diagnosis”.
[228] ARD, pp 402–405.

There is a document dated 22 February 2017 (the date of discharge), described as a “Discharge Note”.[229] It largely includes the same material as the first note, however, this appears to have been added to from time to time during the course of treatment, and has to an extent been changed. The provisional diagnosis in this document lists, in order, PTSD current, Alcohol Use Disorder in remission, GHB Use Disorder in remission, Methamphetamine Use disorder in remission and Nicotine dependence – current. The document states that the respondent was “[a]dmitted to attend PTSD program”. The entry for 20 February 2017 states:
“[The respondent] is much improved today. She is finishing the PTSD group therapy tomorrow and she has done well in this program. [The respondent] has continued to utilise the services of a lawyer to help her with her claim for workers compensation. She has somewhat less in the way of any memories of her nightmares but still wakes in a startled manner. It may be worthwhile trying an increase of the prazosin to 5 mg nocte. It would be worthwhile once the distraction of the workers compensation issues have settled that [the respondent] attend the phase 2 PTSD program.”
[229] ARD, pp 351–359.
There are also “Patient Update Notes” of Dr Pakula dated 31 March 2017 and 20 April 2017.[230] In that dated 31 March 2017, Dr Pakula commented that there had been “overall improvement”, and that the respondent would “need to have a psychologist treating her for the trauma she has experience[d]”. The provisional diagnoses in these documents read as they were at the time of discharge.
[230] ARD, pp 367–369.
When Dr Pakula included the history of the motor vehicle accident in the admission document, followed by “developed PTSD”, this may well have been a matter of history. However, it is apparent that the doctor conducted a mental state examination, and described a series of provisional diagnoses which included PTSD. It is apparent that he continued to be involved in the respondent’s treatment. It is appropriate that the documents of Dr Pakula be read together.[231] By the time of the discharge note dated 22 February 2017, Dr Pakula modified his provisional diagnoses, describing the various addictive problems (except nicotine) as “in remission”, and “Borderline Personality Disorder” had moved from the list of provisional diagnoses, to a position as a differential diagnosis, described as “unlikely”. By that point, the only diagnoses not in remission were PTSD and nicotine dependence. It could be appropriately inferred that the various diagnoses described by Dr Pakula constituted his opinion, based on the history he obtained, the response to treatment and his impression on mental state examination.
[231] Hancock, [92].
I reject the submission that the report of Dr Pakula, in its reference to the development of PTSD after the motor vehicle accident, was simply a matter of history, and not entitled to weight. The Arbitrator did not err in his reference to the opinion, in his reasons at [176]. The weight to be ascribed to that evidence was essentially a matter for the Arbitrator. It does not appear to have been central to his reasoning.
The appellant submits that Dr Hardy comprised the only expert evidence, supporting the proposition that the respondent’s polysubstance abuse resulted from her PTSD. This is incorrect; the causal link is also drawn by Dr Whetton. Dr Whetton recorded a history of intensifying anxiety symptoms. He recorded:
“In 2014 with the physical injuries and the death of her colleague she describes a marked exacerbation of her symptoms with the development of a cluster of symptoms warranting the diagnosis of a Post Traumatic Stress Disorder.
It was subsequent to this that she commenced drug abuse leading to a significant state of drug dependence.”[232]
[232] ARD, p 8.
Under “Nature of condition found on examination” Dr Whetton recorded:
“[The respondent] warrants the diagnosis of:
1. Chronic Post Traumatic Stress Disorder.
2. Polysubstance abuse in current remission.”[233]
[233] ARD, p 8.
Describing the “relationship between the condition found on examination and the injuries sustained in the accident”, the doctor said:
“From the history that she gives her psychiatric diagnoses have related to the injuries sustained in the accident.
This was the initial development of anxiety and the gradual onset of Post Traumatic Stress Disorder and a secondary polysubstance abuse.”[234]
[234] ARD, p 8.
Dr Hardy’s report dated 9 December 2016[235] was directed to NSW Ambulance. The doctor described himself as “an Addiction Medicine Specialist, with a special interest in trauma, mood and personality disorders as they pertain to addiction”. The doctor said the respondent was referred to him because of her methamphetamine dependence. He said it “quickly became apparent to me that [the respondent] meets criteria for Post-traumatic Stress Disorder”. He continued:
“Use of substance[s] are classical numbing agents for the purposes of defining PTSD and I find it challenging to accept that she could have been declined a workers compensation claim on the basis of substance use, itself a classical symptom of the illness. She last used illicit drugs on 15/9/16 and will therefore be clean from methamphetamine from that date. She had a previous diagnosis of depression in early 2014, but that is not a driver in her current illness, which appears to be related to her employment in the NSW Ambulance.
She had no previous addiction history of note prior to her substance use in the Ambulance Service, which I believe directly and causally relates to PTSD she has sustained as a result of her active duties within that service.”
[235] ARD, p 23.
Dr Hardy recommended that the respondent’s “workers compensation case be re-visited”.
In her statement dated 13 February 2018, the respondent dealt with what she told Dr Hardy of her previous drug and alcohol use. She described smoking “some marijuana for about 2 years in [her] late teens”, participating “in some binge drinking between the ages of about 19 and 21 or 22”, and during this time also experimenting with “some illicit substances, including MDMA and cocaine, however this was not a regular thing”. She stated that “any drug use had ceased before I joined the ambulance service”.[236] She stated:
“I told Dr Hardy about my previous drug and alcohol use, as I have every doctor or specialist I have seen. He just didn’t classify it as substance abuse and he says as much to me. He indicated that it is not unusual at all for people to smoke marijuana or take other elicit [sic, illicit] substances in your late teens or early 20s irregularly.”[237]
[236] RAALD, p 41 at [7].
[237] RAALD, p 29 at [37].
The Arbitrator referred to this, saying “[the respondent] asserted that the doctor was provided with a proper history and did not consider the previous use to be of ‘note’. It is unclear what the doctor means by ‘of note’.”[238] The Arbitrator did not suggest that he did not accept the evidence in the respondent’s statement on this topic. Consistent with the principles set out in Caddaye (see [106] above) it would have been preferable if Dr Hardy had set out the history he obtained regarding previous drug and alcohol use more fully. When the respondent’s statement and the short report are read together, it follows that Dr Hardy reached his view with an understanding of the respondent’s drug and alcohol use in her teens and twenties, and did not regard this as relevant (“of note”) in reaching his expressed view. Dr Hardy’s report focuses particularly on the causal relationship between PTSD (which he clearly accepted was the diagnosis) and substance abuse, “a classical symptom of the illness”. What is required depends on the circumstances in each case. Dr Hardy was a treating specialist, and his report did not purport to be a comprehensive medicolegal report, assessing the matter in a general sense. It made three short points. The respondent met the criteria for PTSD, he was treating her for methamphetamine dependence, and such substance abuse was a “classical symptom” of PTSD. It was the specific field in which Dr Hardy specialised. Dr Hardy’s opinion is not deprived of all weight. It would have had greater weight if the prior history had been set out, rather than being referred to in such a shorthand way, but it still carried weight.
[238] The decision, [187].
Whilst the respondent’s drug use commenced, on the evidence, at the time of her friend’s funeral, this “proximate” relationship does not determine the issue of causation. Consistent with the principles in Kooragang quoted above, it is necessary to engage in a commonsense evaluation of the causal chain, including expert opinions. There was support in the evidence for the presence of worsening anxiety from 3 September 2010. The respondent was experiencing significant problems with depression by the time she was under Dr Chaugule’s care from 22 March 2014. The Arbitrator observed that Dr Chaugule noted PTSD symptoms in August 2014,[239] which was well prior to the respondent’s friend’s suicide. The medical evidence overall strongly supports the diagnosis of PTSD. The causal linkage between that psychiatric injury, and substance abuse, is supported by Dr Whetton, and Dr Hardy regarded such abuse as a “classical symptom”.
[239] The decision, [184].
The Arbitrator’s acceptance of the causal link between PTSD and polysubstance abuse was open on the lay and medical evidence. I reject the submission that the Arbitrator erred in making this finding.
This deals with the further issues raised in the submissions going to Ground No 3. For reasons given above, the more general submission, that there was no causal link between the incident on 3 September 2010, and the incapacity commencing on 7 March 2015, has been dealt with in the consideration of the grounds dealing with causation of the condition of PTSD (see [161]–[164] above). Ground No 3 is rejected.

GROUND NO 4

The Arbitrator erred in fact and law in finding that the incident on 3 September 2010 was causative of the respondent’s need for medical treatment pursuant to s 60:

(i)reliance on the above grounds of appeal, and
(ii)failure to give any or any adequate reasons.

The submissions

The appellant notes that a “general s 60 order will usually follow” (which is what the Arbitrator did). The appellant states that it “relies on the above grounds of appeal and submissions”.
The appellant refers to the Arbitrator’s reasons at [207] where he said:
“There is a clear and compelling nexus between the PTSD and polysubstance abuse and the claims for weekly compensation and medical expenses. I accept that there is a clear material contribution between these psychological disorders and the claims for weekly compensation and medical expenses.”
The appellant submits the Arbitrator “erred in failing to give any or any adequate reasons as to why he has ordered the appellant to pay the respondent’s s 60 expenses”. It refers to Soulemezis v Dudley (Holdings) Pty Ltd[240] and NSW Police Force v Newby.[241]
[240] (1987) 10 NSWLR 247.
[241] [2009] NSWWCCPD 75.
The respondent simply relies on the submissions it made relating to Ground No 3.

Consideration

The appellant’s submissions going to causation of the expenses pursuant to s 60 are adequately dealt with above, in the consideration of Grounds Nos 2 and 3, and those aspects of the consideration dealing with Ground No 1 in respect of which the causation issue is raised.
The submission that the Arbitrator failed to give adequate reasons, for making a general order pursuant to s 60, is without merit. The submission refers to the reasons at [207]. The Arbitrator, before making the general statement at [207], engaged in a lengthy and thorough analysis of the evidence, and legal principles on causation, relevant to the claims for weekly payments and medical expenses.[242] The ‘general order’ does not compel the payment of any specific expenses. Sheahan J in Widdup v Hamilton[243] described the making of such an order, after making necessary findings on matters requiring determination such as ‘injury’ and incapacity, as “accepted practice”. The reasons must be read as a whole.[244] It is abundantly clear that the Arbitrator complied with his duty to give reasons, and there is no developed submission to the contrary. Ground No 4 is rejected.
[242] The decision, [157]–[207].
[243] [2006] NSWWCCPD 258; 5 DDCR 85, [19]. See Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23, and the decisions cited therein.
[244] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.

THE RESPONDENT’S CONTENTION

The respondent includes, in its submissions, an argument that the Arbitrator’s determination “can be supported on additional factual findings, analogous to a notice of contention.” It argues, contrary to the Arbitrator’s finding, that the incident on 3 September 2010 was materially different to other events raised in the history. “It was sudden, unexpected, and occurred in circumstances where the ambulance itself was the instrument of the death of the pedestrian, which the [r]espondent witnessed.” “It was the focus of the [r]espondent’s attention and concern in the histories …” It submits this would form a proper basis for a factual finding that it contributed, in the requisite legal sense, to the disabling conditions with which the respondent was diagnosed in 2015.[245]
[245] Respondent’s submissions, [36]–[40].
The appellant, in its submissions in reply, says that there is no mechanism for a notice of contention, and the respondent has not lodged any appeal. It also makes submissions, contrary to those made by the respondent, going to the merits of the argument.
In Rail Corporation of New South Wales v B Roche DP said:
“Second, RailCorp submits that, as the Arbitrator found against Mr B on the issue of reasonableness and, as Mr B has not filed a ‘cross appeal’, he is precluded from arguing that issue on review. That is not correct. There is no provision in the legislation or rules for a cross appeal in the Commission and where a factual finding is at issue on review and each party has had an opportunity to make submissions on it, as has happened in the present case, it is open for that issue to be re-determined by a Presidential member conducting a section 352 review.”[246]
[246] [2009] NSWWCCPD 81 (B), [54].
The Deputy President expressed similar views in BlueScope Steel Ltd v Markovski.[247] I referred to and applied B and Markovski, In Navitas English Pty Ltd v Trinh.[248]
[247] [2013] NSWWCCPD 69 (Markovski), [13].
[248] [2017] NSWWCCPD 52, [25]–[28].
It follows I accept that, in appropriate circumstances and subject to principles of procedural fairness, it may be open to a respondent to defend a decision on a basis akin to a notice of contention or cross-appeal. As the appellant’s appeal has failed, for reasons given above, it is unnecessary to further consider the respondent’s ‘contention’, in the current matter.

OTHER MATTERS

Under this heading in its submissions, the appellant has raised comments made by the Arbitrator at [216]–[222] of his reasons. The comments go to the respondent’s inclusion of only the first of Dr Smith’s reports, dated 22 June 2016, in its Reply. The balance of Dr Smith’s reports were served as attachments to the appellant’s Application to Admit Late Documents dated 16 February 2018. The appellant has attached, to its Application to Appeal, a chronology of events relevant to the service of Dr Smith’s reports, by way of explanation. The appellant states, appropriately, that this issue is not raised as a ground of appeal, as it does not directly go to the Arbitrator’s findings. It asks that the criticism “be corrected”. The respondent did not, in its submissions, address these matters.
This issue has not been fully ventilated before me. My statutory role on appeal is the identification and correction of error in the decision appealed against, within the meaning of s 352(5) of the 1998 Act. In my view, in the current circumstances, it is undesirable that I comment on the remarks made by the Arbitrator. I note that the decision was not published in any event.

COSTS

The appellant is to pay the respondent’s costs of the appeal.

DECISION

The decisions of the Arbitrator dated 3 April 2018 and 17 April 2018 are confirmed.
The appellant is to pay the respondent’s costs of the appeal.

Michael Snell

Deputy President

28 August 2018