State of New South Wales v Rattenbury - [2015] NSWWCCPD 46

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Rattenbury [2015] NSWWCCPD 46
APPELLANT:	State of New South Wales
RESPONDENT:	Victor Rattenbury
INSURER:	QBE Insurance (Australia) Ltd
FILE NUMBER:	A1-6161/14
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	1 May 2015
DATE OF APPEAL DECISION:	12 August 2015
SUBJECT MATTER OF DECISION:	Psychological injury; disease provisions; ss 4(b)(i) and (ii) of the Workers Compensation Act 1987; whether worker suffered an aggravation of a disease or contracted a disease in the course of his employment; whether employment the main contributing factor to the injury; causation; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; meaning of “predisposition”; standard of proof; need for objective corroboration of complaints; application of principles in *Chanaa v Zarour* [2011] NSWCA 199; whether incapacity resulted from found injury; application of principles in *Kooragang Cement Pty Ltd v Bates* (1994) 35 NSWLR 452 at 463–4; 10 NSWCCR 796; “eggshell psyche” principle; application of principles in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Moray & Agnew
Respondent:	Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:	1. The name of the appellant is amended to be State of New South Wales. 2. For the reasons given in this decision, the Arbitrator’s determination of 1 May 2015, amended on 2 June 2015, is confirmed.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s finding that the worker suffered an aggravation of a psychological condition due to events at work between 2011 and 2013 and that his employment was the main contributing factor to that aggravation. The essential issues on appeal concern the assessment of expert evidence, causation and whether, if the worker suffered an injury, his employment was the main contributing factor to that injury.
Subject to revoking the Arbitrator’s finding that the worker suffered an aggravation of a disease, and substituting in its place a finding that the worker contracted a disease in the course of his employment, to which his employment was the main contributing factor, the appeal is unsuccessful and the Arbitrator’s decision is confirmed.

BACKGROUND

The respondent worker, Victor Rattenbury, was employed by the appellant employer, Hunter New England Local Health District, as a radiographer at Moree District Hospital between January 2009 and April 2013. For the reasons explained in State of New South Wales v Bishop [2014] NSWCA 354 at [27]–[28], the correct legal identity of the appellant is the State of New South Wales and the proceedings have been amended accordingly.
In late November 2012, Mr Rattenbury applied for six months’ leave (annual leave and 15 weeks’ leave without pay) from April 2013. He sought leave because he had been feeling increasingly stressed by his treatment at work and felt that he needed time away. That application was refused, as Mr Rattenbury had not given a reason for needing leave. He again applied on 4 December 2012. Though he said he required leave because of stress at work, he gave no details of the stress.
On 28 January 2013, Mr Rattenbury made a written complaint of bullying against his superior, Vicki Dunleavy, the chief radiographer at the hospital, and others at the Moree District Hospital. He alleged, in addition, that the failure to approve his leave was exacerbating his stress.
In summary, Mr Rattenbury’s main complaints related to:
(a)     the fact that Ms Dunleavy had requested CCTV video of his movements in and around the hospital, which made him “very paranoid that [his] every movement was being watched and reviewed” by her;
(b)     the fact that a Mr Weslake, the appellant’s acting area chief radiographer until October 2012 and then the chief radiographer, would not speak to him after Mr Rattenbury had complained to the union about a proposal (which did not proceed) by Mr Weslake that they would work in both the private and public radiography rooms at Moree District Hospital from 10 October 2011. Mr Rattenbury had also complained that Mr Weslake accused him of refusing to perform call-in examinations for private patients, and of being “divisive” and “unprofessional”. Mr Weslake’s refusal to respond to Mr Rattenbury’s request for a retraction of these comments made Mr Rattenbury “feel sick, stressed and depressed”;
(c)     conflict between Mr Weslake and Mr Rattenbury over Mr Rattenbury taking sick leave, which left Mr Rattenbury feeling “depressed”;
(d)     incidents involving Ms Janine Sweeney, administration officer at Moree Hospital, Radiography Unit, in which Mr Rattenbury alleged that she abused him for no reason and where she allegedly made racist comments, and
(e)     the fact that Mr Rattenbury was required to work a disproportionate number of on-call shifts, which started at 5 pm and ended at 8 am the following morning, compared to the other radiographers.
On receiving Mr Rattenbury’s complaints, the appellant’s director of workforce, Ms Dingwall, recommended that he be granted leave as soon as possible, provided radiography services could be maintained at an acceptable level.
On 29 January 2013, the appellant informed Mr Rattenbury that it approved his leave and that leave would commence on 15 April 2013. He continued his usual work until 12 April 2013, but has not returned to work since that time. In March 2013, he sought approval from the appellant to work as a casual radiographer at Coffs Harbour District Hospital. The appellant approved this application, though Mr Rattenbury did not take up the position.
Meanwhile, the appellant investigated Mr Rattenbury’s allegations that Ms Dunleavy had bullied him. Mr Rattenbury received the initial investigation report on 23 August 2013. Ms Dingwall had concluded that a number of Mr Rattenbury’s allegations had not been “robustly investigated”. As a result, further witnesses were interviewed and a final report sent to Mr Rattenbury shortly before December 2013. The delay in the investigation, and Mr Rattenbury’s concerns regarding the process, exacerbated his symptoms.
On 30 September 2013, Mr Rattenbury’s approved leave expired. In that month, the appellant offered Mr Rattenbury temporary employment at Scone, which Mr Rattenbury declined, because of the distance he would have to travel. However, he engaged in mediation with Ms Dunleavy on 4 November 2013 and, separately, with Ms Sweeney on 28 November 2013. The mediations did not resolve in a manner that was acceptable to Mr Rattenbury.
On 12 December 2013, the appellant advised Mr Rattenbury by email, that he should return to work at Moree Hospital on 16 December 2013. It also advised him of arrangements made for him to have psychological counselling. Mr Rattenbury indicated that he was unable to return to work.
On 16 December 2013, Mr Rattenbury saw his general practitioner, Dr Christopher Knight, who issued a WorkCover certificate certifying him as unfit for work from that day as a result of an adjustment disorder with depressed mood as a consequence of bullying in the workplace. Dr Knight and another general practitioner, Dr Gavin Nichols, have continued to certify Mr Rattenbury as unfit for any work.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 17 November 2014, Mr Rattenbury claimed weekly compensation from 16 December 2013 to date and continuing, medical expenses and lump sum compensation for a whole person impairment of 24 per cent. His injury is described in the Application as “[p]sychological injury”. The injury is alleged to have occurred as follows:
“A combination of events, which included bullying and harassment, between when [Mr Rattenbury] commenced work with the [appellant] and December 2013, the deemed date of injury being 16 December 2013 (the first date [Mr Rattenbury] was certified unfit for work as a result of his injury). Please see [Mr Rattenbury’s] statement for further details.”
At the arbitration, counsel for the appellant, Mr Lowe, identified the following issues to be in dispute:
(a) the occurrence of a psychological injury under s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether, if Mr Rattenbury suffered a psychological injury, his employment was a substantial contributing factor to that injury under s 9A;
(c) whether, if Mr Rattenbury suffered a disease injury, Mr Rattenbury’s employment was the main contributing factor to the injury under s 4(b)(i) and (ii) of the 1987 Act, and
(d) whether, if Mr Rattenbury suffered a psychological injury, the injury was wholly or predominantly caused by the appellant’s request to transfer him to Scone.
With respect to the first three issues, the appellant relied on evidence from Dr Roberts, consultant psychiatrist, that he did not consider Mr Rattenbury’s presentation “could be deemed to be either work-caused or aggravated”. In summary, Mr Lowe argued that Mr Rattenbury could not succeed because:
(a)     the allegations of stress and bullying were vague and unsatisfactory, and were largely denied by the workers said to be responsible;
(b)     Mr Rattenbury lost no time following the incidents, sought no treatment, and continued work without complaint following the alleged incidents of bullying, which occurred a considerable time before he sought leave or medical treatment;
(c)     Mr Rattenbury performed his normal work from December 2012 until April 2013 and he sought no medical treatment until December 2013, and
(d)     the most likely cause of Mr Rattenbury’s condition and incapacity was the dispute over where he would continue work (this argument related to the proposed transfer to Scone).
In a reserved decision delivered on 1 May 2015, the Arbitrator noted that there was “unanimity” among the medical practitioners, both treating and qualified, that Mr Rattenbury “has suffered a fairly profound psychiatric illness since 16 December 2013” ([95]). The medical experts described the illness as major depression, major depression with melancholic features, an adjustment disorder with depressed mood, major depressive episode and agoraphobia, or major depression with psychosis or a paranoid disorder with resultant associated depression.
Though the Arbitrator was not satisfied that the evidence established that Mr Rattenbury had been “bullied or harassed” ([100]), he accepted that some of the matters Mr Rattenbury recited in his evidence, and about which he complained to medical practitioners, “undoubtedly took place” ([102]). Though those matters did not appear to be of a kind that were “inimical to health” ([105]) and appeared to be “minor irritants” ([105]), Mr Rattenbury did not regard them as such.
The Arbitrator accepted the evidence of Ms Melville, the treating psychologist, that Mr Rattenbury’s “perception of injustice seemed to drive him to single mindedness”, which terms were apt to describe his reaction to events in the course of his employment. He also noted (at [109]) that if events that actually occurred in the workplace are perceived by a worker as creating a hostile working environment, and a psychological injury follows, it is open to the Commission to conclude that the psychological injury was caused by those events (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 (Chemler)). It did not matter that they affected the worker’s psyche because of a flawed perception resulting from the worker’s disordered mind.
The Arbitrator concluded that Mr Rattenbury suffered from “a significant underlying disorder that was rendered symptomatic by his perception of events at work” ([116]) and had therefore suffered an aggravation, acceleration or deterioration of a disease (under s 4(b)(ii) of the 1987 Act) as a consequence of his perception of events at work. The appellant’s defence under s 11A (relating to the proposed transfer to Scone) failed because there was no medical evidence that the proposed transfer had been the whole or predominant cause of Mr Rattenbury’s psychological injury.
As the evidence on incapacity was “all one way” ([127]), the Arbitrator made awards for the payment of weekly compensation and medical expenses in favour of Mr Rattenbury and remitted the assessment of any whole person impairment to the Registrar for referral to an Approved Medical Specialist.
Consistent with the Arbitrator’s findings, the Commission issued a Certificate of Determination on 1 May 2015, amended on 2 June 2015, in the following terms:
“The Commission determines:
1.       Respondent to pay the applicant weekly compensation as follows:
a)from 16 December 2013 to 15 December 2014 at the maximum weekly rate as adjusted in accordance with section 34; and
b)from 16 December 2014 to date and continuing at the rate agreed between the parties of $1206.48 per week pursuant to section 37 of the Workers Compensation Act 1987 .
2. Respondent to pay the applicant’s hospital and medical expenses pursuant to section 60 of the Workers Compensation Act 1987.
3.     Remit the matter to the Registrar for referral to an Approved Medical Specialist to certify the degree of whole person impairment, if any, as a result of psychological injury which notionally occurred on 16 December 2013 as a consequence of the applicants [sic] for [sic] employment prior to the date.
4.     Approved medical specialist to have access to the Application, the Reply, the Applications to Admit Late Documents save for the Application dated 26 May 2015 and the documents attached to each.”
The appellant has challenged the Arbitrator’s findings and orders dealing with injury and causation, but not the finding under s 11A.

ON THE PAPERS

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

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Rattenbury suffered injury as defined in s 4(b)(ii) of the 1987 Act without identifying the disease which was said to have been aggravated and without providing any or any proper reasons for the finding that any disease had been aggravated (injury);
(b)     accepting the evidence of Ms Melville as to causation (Ms Melville’s evidence);
(c)     finding that Mr Rattenbury’s employment was the main contributing factor to the aggravation of an underlying disease (causation/main contributing factor);
(d)     attributing to the events relied upon by Mr Rattenbury causal significance in the development of, or material aggravation of, his psychiatric condition, when the evidence did not support that approach (causation/main contributing factor);
(e)     failing to find that Mr Rattenbury’s psychiatric condition was caused by or materially aggravated by factors arising other than out of or in the course of his employment, and that its consequences were thus non-compensable (causation/main contributing factor);
(f)      failing to deal with the submission, and in failing to find, that Mr Rattenbury’s incapacity for work resulted not from any injury arising out of or in the course of his employment, but from non-compensable factors which caused or aggravated his psychiatric condition (causation/main contributing factor), and
(g)     finding that Mr Rattenbury’s incapacity resulted from any injury arising out of or in the course of his employment with the appellant (incapacity).

INJURY

The legislation

Injury is defined in s 4 of the 1987 Act as follows:
injury“:
(a)     means personal injury arising out of or in the course of employment,
disease injury(b)     includes a , which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     …” (emphasis included in original)
The parties have made no submissions on the inconsistency between this definition and the definition of injury in s 4 of the 1998 Act, which does not require that employment be the main contributing factor to a disease injury. Each has accepted that the above definition applies. As it makes no difference to the outcome which definition applies, I express no concluded view on whether that concession was correct.

The Arbitrator’s reasons

The Arbitrator said, at [106]–[107]:
“106.[Mr Rattenbury’s] condition deteriorated following the direction by Mr Turner that he return to work and the denial of his workers compensation claim against the respondent. Ms Melville, his treating psychologist, whose evidence I largely accept, summarises [Mr Rattenbury’s] situation during 2014 as follows:
‘he had difficulty following through on recommendations regarding self-care and balance and my observations suggested he was quite obsessive in his approach to the appeal. His perception of injustice seemed to drive him to single mindedness’.
107.Ms Melville’s references to obsessiveness, a sense of injustice and single mindedness strike a chord. Those terms are also apt to describe [Mr Rattenbury’s] reaction to events in the course of his employment. These traits may reflect what Dr Nichols described as a pre-disposition to depression. It is probable, in my opinion, that [Mr Rattenbury] has magnified out of all proportion the events at the Moree Hospital which I have set out above.”
He concluded, at [116]:
“116.In my opinion the entirety of the evidence is consistent with the view that [Mr Rattenbury] suffered from a significant underlying disorder that was rendered symptomatic by his perception of events at work. I, therefore accept that [Mr Rattenbury] has suffered an aggravation, acceleration or deterioration of a disease as a consequence of his perception of events at work. As he rehearsed these events while compiling his complaint, engaging with the investigation into the complaint and dealing with his workers compensation claim, his refection [sic] further exacerbated his condition and produced an incapacity for work. In my opinion this approach is consistent with the opinion of Ms Morrow [sic, Melville] and Dr Nichol[s]. Although exacerbated by later events, the incapacity results from incidents arising out of and in the course of the applicant’s employment.”
Referring to Mr Rattenbury’s “predisposition”, the Arbitrator said, at [123]:
“123.Mr Lowe referred in argument to [Mr Rattenbury’s] underlying predisposition as a large contributing factor. It is strongly arguable that [Mr Rattenbury’s] underling [sic] psychological condition contributed significantly to the onset of his illness. Dr Nichols refers to a predisposition but I suspect that [Mr Rattenbury] had more than mere predisposition to psychiatric problems at the time he commenced to experience symptoms in 2011. Dr Nichol’s [sic] accepts that this predisposition was a cogent factor in the production of [Mr Rattenbury’s] illness. The predisposition is relevant to the disease process as a whole. However the aggravation which gave rise to psychiatric injury, on the evidence before the Commission, are aspects of [Mr Rattenbury’s] employment or, more accurately [Mr Rattenbury’s] perception of it.”

Submissions

The appellant’s solicitor, Mr Andrew Murphy, submitted that the Arbitrator did not identify the “significant underlying disorder” allegedly suffered by Mr Rattenbury, nor refer to the evidence upon which he relied in identifying the existence of such a disorder or in expressing the opinion that it was “significant”.
Mr Murphy contended that in the absence of any identification of an “underlying disorder” and in the absence of expert medical evidence dealing with the nature and extent of any such underlying disorder, and the propensity of any such disorder to be aggravated by the events and factors found by the Arbitrator, it was not open to the Arbitrator to make a finding that Mr Rattenbury suffered a s 4(b)(ii) injury.
Mr Rattenbury’s solicitor, Ms Biljana Maric, submitted that Mr Rattenbury did not limit his case to one or the other of the limbs of s 4(b). His case was that he was suffering from a disease which was either caused by or aggravated by events at work. Ms Maric said that the Arbitrator discussed the nature of Mr Rattenbury’s pre-existing condition at [107], that the existence of a pre-existing condition would not disqualify Mr Rattenbury from compensation, and that the “egg-shell skull principle” applies. This left open to the Arbitrator the factual conclusion he drew, namely, that Mr Rattenbury suffered an aggravation of the underlying condition which pre-disposed him.
Relying on Chemler and Attorney General’s Department v K [2010] NSWWCCPD 76 (K), Ms Maric argued that, as a matter of common sense, the more extensive the pre-existing condition, the more likely it is that an otherwise minor irritation does in fact precipitate a major psychiatric condition in a vulnerable person (such as Mr Rattenbury).

Discussion and findings

In considering if a worker has suffered an injury under s 4(b)(ii), that is, an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, the first question is whether the worker is suffering from a disease (Clarke JA in Austin v Director General of Education (1994) 10 NSWCCR 373, at 378B) (for convenience I will refer to “aggravation” as if it includes the other terms used in the definition). Only if the answer to that question is “yes”, does one then ask if there was an aggravation of the disease and if the employment was the main contributing factor to that aggravation.
While it is accepted that a mental illness, such as depression, is a disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632; Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114 at [46] to [69]), there is no evidence that Mr Rattenbury suffered from any mental health illness prior to starting work for the appellant. Mr Rattenbury’s evidence was that he had not suffered “any mental health problems or symptoms” prior to the events the subject of this claim. The histories recorded by Ms Melville and Dr Roberts are consistent with that evidence.
While it may be accepted that, as Ms Maric submitted, Mr Rattenbury did not limit his case to one or the other of the limbs in s 4(b), the first issue on appeal is whether the Arbitrator erred in finding an injury under s 4(b)(ii) when there is no evidence that, prior to the events complained of, Mr Rattenbury suffered from a disease. If he made that error, whether Mr Rattenbury suffered a s 4(b)(i) injury is considered below.
The Arbitrator’s statements at [107] do not overcome the fact that there is no evidence that Mr Rattenbury suffered a pre-existing mental illness that was aggravated by the events at work with the appellant. The Arbitrator merely said that Ms Melville’s reference to Mr Rattenbury’s “obsessiveness, a sense of injustice and single mindedness strike a chord” and that those terms were apt to describe Mr Rattenbury’s reaction to events in the course of his employment. It may well be that, as the Arbitrator observed, those “traits may reflect what Dr Nichols described as a pre-disposition to depression” and that Mr Rattenbury “magnified out of all proportion the events at the Moree Hospital”.
However, that does not advance Mr Rattenbury’s position on this issue. Just as a vulnerability or pre-disposition will not usually be sufficient to establish a causal connection between an injury and an incapacity (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463–4; 10 NSWCCR 796 (Kooragang)), a mere predisposition to the development of a disease will not, on its own, establish the existence of a disease that can be later aggravated by events at work. A predisposition means no more than “a tendency in a person to react in a certain way” and “a physical condition which makes a person susceptible to a disease” (Shorter Oxford English Dictionary, 6^th ed, Oxford University Press).
The full passage where Dr Nichols referred to Mr Rattenbury having a “predisposition” is as follows:
“[Mr Rattenbury’s] feelings of being manipulated into working illicitly and then being bullied and harassed when asserting to his managers that what they were doing is illicit triggered his depression. Major Depression does also have a biological basis. Not all persons in [Mr Rattenbury’s] predicament would develop such a severe depression. Lets [sic] assume [Mr Rattenbury] has a predisposition to depression based on his biology and his upbringing and therefore I allocate work as [a] 50% contributing factor.”
Dr Nichols did not suggest that Mr Rattenbury had an “underlying disorder” that had been aggravated by work. His evidence merely assumed that Mr Rattenbury had a “predisposition” to depression. That does not establish that Mr Rattenbury was suffering from a psychological illness, such as depression, before the events at work that are the subject of this claim. There is no evidence to support the Arbitrator’s “suspicion” (stated at [123]) that Mr Rattenbury had more than a “mere predisposition” to psychiatric problems when he started to develop symptoms in 2011. Being predisposed to a disease is quite different to having a disease that is later aggravated. Mr Rattenbury’s evidence that he had not previously suffered from any mental health problems or symptoms, corroborated by histories recorded by Ms Melville and Dr Roberts, is compelling evidence that he did not suffer from a disease prior to the events complained of with the appellant. (The relevance of a worker suffering a predisposition or susceptibility to a condition is discussed further at [94]–[96] below.)
On this issue, Ms Maric’s reliance on Chemler is misplaced. As explained by Basten JA in Commissioner of Police v Dalziel [2011] NSWCA 290 at [26], Chemler is authority that there is, with respect to psychological injury, an “eggshell psyche” principle, equivalent to the “eggshell skull” principle in relation to physical injury. His Honour added that conduct that actually occurs in a workplace and is perceived as creating an offensive or hostile working environment, from which a cognizable injury follows, may give rise to a claim for compensation (Chemler at [69]).
However, the first ground of appeal does not concern the principles discussed in Chemler. It concerns whether the Arbitrator erred in finding that Mr Rattenbury suffered an aggravation of a disease under s 4(b)(ii) when there is no evidence that he suffered a disease prior to the events complained of with the appellant. The above analysis demonstrates that the Arbitrator erred on this point.
In light of this error, and Ms Maric’s submission that, in the alternative, Mr Rattenbury relied on s 4(b)(i), I directed the appellant to make submissions on whether Mr Rattenbury had contracted a disease in the course of his employment where the employment was the main contributing factor to contracting the disease. Mr Murphy provided further submissions on this issue and they are considered below.

MS MELVILLE’S EVIDENCE

Submissions

Mr Murphy submitted that Ms Melville’s evidence as to causation was limited by the fact that her first consultation with Mr Rattenbury occurred on 20 December 2013, almost five years after the commencement of his employment and one to three years after the alleged injurious events, apart from the leave application and subsequent complaint. He contended that it was “not self evident” from Ms Melville’s reports that the factual basis for her opinion as to causation “in fact corresponds to any large degree with the history given by [Mr Rattenbury] or more importantly as found by the arbitrator”.
He submitted that Ms Melville’s opinion was, to a degree, speculative in terms of her analysis of and her opinion in relation to the development of Mr Rattenbury’s condition. As such, Mr Murphy contended that her opinion (as summarised by the Arbitrator at [112]) that “the original events in the workplace resulted in stress reaction and the onset of psychological and anxiety related symptoms” does not “suffice to establish either the unspecified foundational disease or the occurrence of any relevant aggravation”. That is so because, so it was argued, there is an absence of “any objective evidence” of Mr Rattenbury suffering psychological or anxiety related symptoms up to April 2013. Mr Murphy noted that some of Mr Rattenbury’s absences due to gastric upset were caused by an “infectious medical condition”, namely gastroenteritis, rather than manifestations of stress.
In his further submissions, addressing s 4(b)(i), Mr Murphy contended that the difficulty with Ms Melville’s opinion is that she does not set out, in any detail, the factual “difficulties and reported bullying and harassment” related to her by Mr Rattenbury, nor did she provide a detailed history of the onset of Mr Rattenbury’s symptoms and their nature. He contended, as the Arbitrator found, that the bullying and harassment did not occur and that the onset of the depressive symptoms may have “followed” Mr Rattenbury’s perceived difficulties but the temporal connection was “far from proximate”, there being no evidence of any objective signs of depressive symptoms until Mr Rattenbury presented to Dr Knight on 3 and 16 December 2013. This casts considerable doubt on whether there is any causal connection between those events, or Mr Rattenbury’s perception of them, and the development over time of his condition.

Discussion and findings

It is first appropriate to set out Ms Melville’s history and opinion. Ms Melville prepared three reports. In her first report, dated 7 July 2014, and addressed to the Workforce Manager, Hunter New England Local Health District, Ms Melville diagnosed Mr Rattenbury to have an adjustment disorder with depressed mood. She recorded that he had no history of depression or other mental health issues, and no previous incidents of adjustment disorders. The balance of the report dealt with whether Mr Rattenbury’s condition would prevent him from providing a response to recent allegations presented to him by the Local Health District and when he would be fit to return to work.
In her second report, addressed to Dr Knight on 28 July 2014, Ms Melville recorded that at her initial assessment of Mr Rattenbury, which took place on 24 December 2013, he “reported the onset of depressive symptoms following multiple and long-term difficulties and reported bullying and harassment by management within his workplace”. In an effort to cope with his growing distress, Mr Rattenbury applied for six months’ leave. This was initially refused but later, after presenting a complaint around illegal and unprofessional activities by his immediate supervisor, was granted. Ms Melville recorded that the complaint was not dealt with prior to Mr Rattenbury going on leave and he was subsequently contacted throughout his leave; “leaving little space and distance for recovery”. She said that Mr Rattenbury presented at the initial interview as “severely depressed”. The Depression Anxiety Stress Scale (DASS; Lovibond) was administered on 24 December 2013 and Mr Rattenbury’s scores indicated depression and stress in the extremely severe range and anxiety in the moderate range. It was Ms Melville’s opinion that Mr Rattenbury met the diagnostic criteria for major depressive disorder. The report then dealt with “intervention and treatment progress”.
In her third and last report, dated 23 February 2015, Ms Melville recorded the following history:
“He noted that over the previous few years, he experienced bullying and harassment by his immediate supervisor. He believed this was related to a conversation that [he] had had about his separation from his first wife and because he would not align with her against the Chief Radiographer of the private practice.
Mr Rattenbury noted that he experienced further difficulties with senior management after he questioned the legality of having he and his supervisor work shifts in the private radiology practice as well as in the positions in the public hospital and subsequently taking the matter to the Union. It was his opinion that this person subsequently aligned with his supervisor to ‘make life hard for me’. The details of this are included in Mr Rattenbury’s appeal regarding the Workers Compensation decision.
In late 2012, Mr Rattenbury reported that he applied for six months leave (annual leave and 15 weeks leave without pay) from April 2013. He explained during interview that he had been feeling increasingly stressed by his treatment in the workplace and felt that he needed some time away. This was initially declined as he had not given a reason for the leave. He subsequently informed management that it was due to stress. When this was again declined with the request for more information, Mr Rattenbury submitted a complaint to the CEO of Hunter New England Health regarding the behaviour of his supervisor – this included racial vilification, malicious slander, breaches of patient and personal confidentiality and fraud. He noted that he had not wanted to submit a complaint, but felt ‘pushed’ into giving a reason for his leave request. His leave was subsequently granted.
Mr Rattenbury stated that the result of the investigation of his complaint was still only partially completed in August 2013, eight months following its lodgement and about a month before he was due to return to work from his leave. He noted that he had hoped that the complaint would have been investigated and dealt with prior to going on leave in April, thus giving him time to settle and be ready to work again. He noted that during his leave he was unable to relax and have his symptoms settle because of the uncertainty of the outcome of the complaint and his future work situation as well as the frequent communication from Hunter New England Local Health District.
Mr Rattenbury reported that he had serious concerns on receiving the interim report. He questioned the independence of the investigation (conducted by long-term associates of his supervisor) as well as the findings. He detailed feeling ‘barraged’ by phone calls, emails and text messages from Hunter New England Local Health District over the next weeks. As the investigation at Moree was not finalised, a return to his position there was not seen as viable. Alternative temporary positions at other hospitals were investigated. However, as these were further away than Moree from his home, he refused; feeling that he was not being treated fairly. Mediation was recommended and Mr Rattenbury noted that he complied and participated in mediation with his supervisor and also with the administration officer. He also requested Employee Assistance Counselling; he had delayed this until he was close to returning to work as he was aware he was only entitled to three sessions.”
Ms Melville then detailed Mr Rattenbury’s symptoms, which included sleep and appetite disturbance, weight gain, fatigue, loss of energy and motivation, constant thinking and ruminations regarding the situation at work, tearfulness, irritability and a short fuse, lack of control to reactions, guilt regarding the impact on his wife and family, anxiety, fear of populated places and leaving the house, and social withdrawal. He detailed stomach discomfort, headaches and dizziness, high blood pressure and increased cigarette smoking. As previously noted, he denied a history of depression or anxiety or other psychological conditions. During the 14 months that Mr Rattenbury consulted with Ms Melville, his symptoms had not abated significantly. Ms Melville considered him to be significantly disabled. Ms Melville’s initial impression was that Mr Rattenbury met the diagnostic criteria for Adjustment Disorder, but her opinion, as expressed in her February 2015 report, was that he met the diagnostic criteria for Major Depressive Episode and Agoraphobia.

Dealing with causation, Ms Melville said:
“Mr Rattenbury reports no previous history of psychological conditions and has consistently denied throughout our contact any other significant psychosocial stressors that may have played a role in the onset of his psychological symptoms. It is my opinion that the original events in the workplace resulted in a stress reaction and the onset of physiological and anxiety related symptoms. I surmise that this led to his decision to take extended leave in an effort to allow his reaction to settle. Unfortunately, the workplace’s legitimate requirement for more information before granting leave, appears to have pushed him to making a formal complaint. The subsequent events, including the delay in the investigation, Mr Rattenbury’s concerns regarding the process and independence and the perceived injustice to him, the denial of the workers compensation claim and the appeal, exacerbated and maintained his symptoms and reaction. It is my opinion that Mr Rattenbury’s employment and his perception of events in the workplace have been the substantial factors in his injury and current disability.”
Ms Melville added that Mr Rattenbury’s symptoms have been largely maintained as a consequence of the ongoing uncertainty of his position and his perception of a lack of adequate resolution and justice. Ms Melville then dealt with Mr Rattenbury’s prognosis and his capacity for work.
Given the above histories and findings on examination, Mr Murphy’s criticism of Ms Melville’s evidence is without foundation. The fact that she first saw Mr Rattenbury in December 2013 is, on its own, of limited relevance. Her history was that Mr Rattenbury developed symptoms of depression “following multiple and long-term difficulties and reported bullying and harassment by management within his workplace”. She confirmed that Mr Rattenbury’s application for leave without pay was motivated by “an effort to cope with his growing distress”. Significantly, Ms Melville took no history of any non-work cause of Mr Rattenbury’s psychological condition. All of these matters were consistent with Mr Rattenbury’s evidence, which the Arbitrator clearly accepted as being correct.
What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [85]; 80 NSWLR 43; 8 DDCR 399).
To the extent that an expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 at [101]–[102]; [105]–[134]). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510).

The Arbitrator accepted that several of the factual matters Mr Rattenbury recited in his evidence, and about which he complained to medical practitioners, “undoubtedly took place” ([102]). He said that there was “no doubt”, for example, that Ms Dunleavy requested CCTV video of Mr Rattenbury and, though her reason for doing so may have been innocuous, Mr Rattenbury said it made him “paranoid” and that his “stress and anxiety levels went through the roof” ([102]).
Similarly, the Arbitrator accepted that the conflict between Mr Rattenbury and Mr Weslake over the relationship between public and private radiographers at Moree District Hospital took place and that following this incident Mr Rattenbury felt sick, stressed and depressed. The Arbitrator also accepted that there was conflict over sick leave, which left Mr Rattenbury “depressed”, that Ms Sweeney had made comments that Mr Rattenbury regarded as racist, and that Mr Rattenbury worked more on-call shifts than the other radiographers. He inferred from Mr Rattenbury’s evidence that these were among the matters that contributed to the “onset of [his] depression and anxiety” ([104]). That finding, based on an acceptance of Mr Rattenbury’s evidence, was open on the evidence and disclosed no error.
It is of no consequence that the Arbitrator did not accept that Mr Rattenbury had been “bullied or harassed”. That expression is no more than a short hand method of describing events at work that are perceived by the claimant to have created a hostile environment. Consistent with Chemler, the question is whether real events occurred at work that Mr Rattenbury perceived as creating such an environment and whether they caused a psychological injury. The short hand or global term used to describe those events is of little, if any, relevance.
Thus, as Ms Melville’s history was “reasonably similar to the facts” ([112]) the Arbitrator found, her history provided a “fair climate” for the acceptance of her opinion and Mr Murphy’s first point under this heading is rejected. Further, Ms Melville’s opinion was not speculative. It was based on the history she took and her findings on examination. That history did not have to set out in minute detail every event that occurred at work. Nor did it have to accord precisely with the true facts. It properly recorded that Mr Rattenbury had difficulties with management and his perception of, and reaction to, those difficulties. Mr Murphy’s reference to Mr Rattenbury suffering gastroenteritis does not diminish the probative value of Ms Melville’s evidence and does not establish any relevant error by the Arbitrator.
While Ms Melville’s opinion does not support a finding of an aggravation injury under s 4(b)(ii), her opinion that “the original events in the workplace resulted in a stress reaction and the onset of physiological and anxiety related symptoms” clearly supports a finding that Mr Rattenbury suffered an injury under s 4(b)(i), that is, that he contracted a disease in the course of his employment. Whether his employment was the main contributing factor to contracting the disease is discussed below.
This conclusion is also supported by the evidence from Dr Nichols, whose report Mr Murphy has criticised for failing to specify those aspects of the employment upon which he relied in forming his opinion as to the causative effects of the employment. Dr Nichols’ history was that Mr Rattenbury’s feelings of being manipulated into working illicitly and then being bullied and harassed when asserting to his managers that what they were doing was illicit “triggered his depression”.
The reference to being manipulated into working illicitly, and then being bullied and harassed, was clearly a reference to the conflict between Mr Rattenbury and his supervisors. The Arbitrator was satisfied that such a conflict arose and that it made Mr Rattenbury “feel sick, stressed and depressed”. That finding was open on the evidence and involved no error. It follows that, though Dr Nichols’ history was less than ideal, it provided a fair climate for the acceptance of his opinion.
Mr Murphy’s next point under this ground, that there is an absence of “any objective evidence” of Mr Rattenbury suffering psychological or anxiety related symptoms up to April 2013, is based on the false assumption that an applicant cannot succeed without such evidence. I have assumed that Mr Murphy’s reference to “objective evidence” was a reference to the absence of objective corroboration of Mr Rattenbury’s complaints or symptoms until he saw Dr Knight and Ms Melville in December 2013. Mr Murphy’s submission has ignored the fact that objective corroboration is not required before an Arbitrator can accept an applicant’s evidence.
As explained by Campbell JA (Bathurst CJ and Tobias AJA agreeing) in Chanaa v Zarour [2011] NSWCA 199 at [86]:
(a)     it is not the law that a worker must have corroboration before he or she can succeed;
(b)     in the civil law, corroboration is not a technical term or a legal requirement, and
(c)     the task of a judge is to decide, on the basis of the whole of the evidence (denials and all), what he or she accepts.
It is trite law that, even without corroborating witnesses, a tribunal of fact is free to accept the evidence of a claimant as credible (per Kaye AJA, Tate and Whelan JJA agreeing, in Woolworths Ltd v Warfe [2013] VSCA 22 at [151]). The Commission has applied this principle in several decisions (George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62 at [117]; Trustees of the Roman Catholic Church for the Diocese of Parramatta v O’Brien [2012] NSWWCCPD 68 at [100]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [43]; Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65 at [37]; Cowra Jockey Club v Murphy [2013] NSWWCCPD 20 at [138]; Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74 at [209]; Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69 at [83]). It is more than a little surprising that appellant employers continue to ignore this basic principle. It is clear, from reading the Arbitrator’s decision as a whole, that he accepted Mr Rattenbury’s evidence that events at work caused him to feel stressed and unwell. That finding was open and disclosed no error.
Last, the submission that the temporal connection (between Mr Rattenbury’s symptoms and the events at work) was “far from proximate” is essentially a repetition of the submission that there was no “objective evidence” of Mr Rattenbury suffering any psychological symptoms until after he stopped work, which I have dealt with above. I would add that, as explained by Kirby P (as his Honour then was) in Kooragang at 463, the importation of notions of “proximate cause” is not the law. What is required is a commonsense evaluation of the causal chain. Adopting that approach, and accepting Mr Rattenbury’s evidence, as the Arbitrator clearly did, the commonsense approach to causation comfortably supports a conclusion in favour of Mr Rattenbury on injury and, for the reasons explained below, on the issues of causation and main contributing factor.

CAUSATION/MAIN CONTRIBUTING FACTOR

Submissions

Mr Murphy said that the Arbitrator referred to Dr Roberts’ evidence of the need to exclude organic factors for Mr Rattenbury’s condition. He contended that the Arbitrator’s dismissal of aspects of Dr Roberts’ evidence was “unwarranted” because there was no conflict with other expert medical evidence and there is support for Dr Roberts’ view, in the evidence from Dr Nichols, of the likelihood of organic factors causing Mr Rattenbury’s condition.
Mr Murphy argued that the Arbitrator failed to differentiate between the events arising out of or in the course of Mr Rattenbury’s employment, on the one hand, and Mr Rattenbury’s fixation and obsession with the claims process and his search for vindication, on the other. He said that the latter factors could be characterised as a “straight litigation neurosis” and are not compensable (Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32 (Bottle); Stewart v New South Wales Police Service (1998) 17 NSWCCR 202 (Stewart)).
Mr Murphy referred to the Arbitrator’s finding (at [100]) that the evidence did not establish that Mr Rattenbury was bullied or harassed and that other matters relied upon by Mr Rattenbury “individually or collectively, do not appear to be of a kind that is inimical to health” ([105]). He also noted the Arbitrator’s finding that Mr Rattenbury became obsessed with making a case of bullying and harassment and that his symptoms appeared to have become worse during his leave and following the denial of his workers’ compensation claim.
In accepting Ms Melville’s evidence, Mr Murphy contended that the Arbitrator failed to have regard to whether her opinion, that “the original events in the workplace resulted in stress reaction and the onset of psychological and anxiety related symptoms”, could properly be characterised as evidencing the contraction or existence of a “foundational disease”.
Mr Murphy argued that the Arbitrator’s concluding observation at the end of [116], “reflects the logical difficulty with his approach”. That is because, so it was argued, there was no incapacity before Mr Rattenbury ceased work. The incapacity certified from “December 2012 [sic, 2013]” only arose while Mr Rattenbury was off work when his “claim fixation” was in full swing. Until December 2013, there was no medical evidence of any psychiatric injury or symptoms and no evidence of any incapacity relating to the “injurious events” upon which Mr Rattenbury relied. In these circumstances, it was difficult to see how the Arbitrator could find any existing incapacity that could have later been aggravated.
It was further contended that the Arbitrator’s approach failed to properly apply the test of whether the employment was the main contributing factor to the aggravation. That was so because the Arbitrator made no attempt to assess the relative weight of the employment as a contributing factor to the aggravation compared to the weight of non-employment factors. On Dr Nichols’ assessment that employment comprised of a 50 per cent contribution, a level at which it could not be said that employment was the “main” contributing factor given that non-employment factors also contribute 50 per cent “causatively and so operate as equal contributing factors”.
Mr Murphy contended that the Arbitrator gave no explanation for why he concluded (at [122]) that employment seemed to be the overwhelming factor contributing to the aggravation of Mr Rattenbury’s condition.
Mr Murphy contended that by saying (at [113]) that he accepted Ms Melville’s evidence, but “not without hesitation”, the Arbitrator fell into the error described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Whiteley Muir). Further, the Arbitrator’s reservations “strongly suggest” that he failed to have regard to the “overarching requirement” to “feel actual persuasion of the existence of [a] fact”, as required in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] (Nguyen).
In his further submissions, dealing with s 4(b)(i), Mr Murphy submitted that employment was not the main contributing factor to the contraction of any disease, because any disease was pre-existing and because Dr Nichols opined that employment contributed equally but not to a greater extent than non-employment factors. Hence, it cannot be said that employment is the main contributing factor to the contraction of the disease. Mr Murphy said that Dr Nichols’ opinion as to the equal contribution by the employment carries little weight because the document did not “delve into the factual matters related to the employment upon which [Mr Rattenbury] relied” and the doctor failed to specify those aspects of the employment upon which he relied in forming his opinion as to the causative effects of the employment.

Discussion and findings

Mr Murphy’s submissions are plainly wrong and are rejected.
On the question of organic factors, Dr Roberts said, in his report of 4 February 2014:
“Mr Rattenbury presents as an unwell man; he has a history of substantially raised blood pressure, he presents with a history consistent with depression. Mr Rattenbury deserves referral to a psychiatrist for a full evaluation, he requires investigation of his raised blood pressure by a cardiologist, he requires investigation of his headaches by a neurologist and an overall evaluation of his physical health status.
Organic factors involved in the production of symptomatology need to be excluded. Any management [of Mr Rattenbury’s condition] would require exclusion of any underlying potential organic factors. If organic factors are excluded the differential diagnosis would need to include Major depression with psychosis or a paranoid disorder with resulting associated depression. The potential of caffeinism to induce misperception would require consideration and any management plan would require a very substantial reduction in caffeine ingestion.”
In his second report, dated 7 March 2015, Dr Roberts said:
“I consider that in the event of organic factors being excluded, the differential diagnosis would encompass major depression with psychosis or a paranoid disorder with resultant associated depression.
COMMENT: Both of these diagnoses are in terms of the spectrum of mental illness, severe mental illnesses. They are illnesses of life; they could not be caused by leave being refused or by an attempt to be transferred closer to his home at Coffs Harbour.” (emphasis in original)

Dr Nichols, who took over Mr Rattenbury’s treatment in September 2014, gave evidence that:
“In simple terms, [Mr Rattenbury] has had a nervous breakdown. Doctors call this a Major Depression with melancholic features. [Mr Rattenbury] is depressed clinically with a nihlistic [sic] view of his current predicament and his future. [Mr Rattenbury] cannot concentrate and cannot relax. He told me he was smoking about 40 cigarettes per day and I believe him. He presents as dishevelled, hair is not shampooed and is scruffy, he is unshaven and smells strongly of tobacco. He looks unwell, pale and skin is dry. He has poverty of content of speech, he is not spontaneous or forthcoming.
…
My Opinion as to causal connection
[Mr Rattenbury’s] feelings of being manipulated into working illicitly and then being bullied and harassed when asserting to his managers that what they were doing is illicit triggered his depression. Major Depression does also have a biological basis. Not all persons in [Mr Rattenbury’s] predicament would develop such a severe depression. Lets [sic] assume [Mr Rattenbury] has a predisposition to depression based on his biology and his upbringing and therefore I allocate work as [a] 50% contributing factor.” (emphasis included in original)
The Arbitrator dealt the “organic factors” at [124], where he said:
“124.Mr Lowe also referred to the possible organic causes of [Mr Rattenbury’s] condition hypothesised by Dr Roberts. It is possible that they played some role in the onset of [Mr Rattenbury’s] illness but that is really no more than speculation. There is no support for the proposition that these matters are causative of [Mr Rattenbury’s] condition in the reports of Dr Nichol[s], Ms Morrow [sic, Melville] or Dr Akkerman. By and large I have chosen to accept the other medical evidence in the case in preference to Dr Roberts. I, therefore, discount his opinion on this matter. I find that [Mr Rattenbury’s] employment was the main contributing factor to the aggravation of [Mr Rattenbury’s] psychological condition in the years before he left the employment of the respondent.”
The Arbitrator was correct to state that there is no support for the proposition that organic factors have caused Mr Rattenbury’s condition and that that suggestion was “no more than speculation”. Dr Roberts merely suggested that some of Mr Rattenbury’s physical symptoms, namely, his high blood pressure, headaches, and his overall physical status, be investigated. He did not say that organic factors were responsible for Mr Rattenbury’s undoubted psychiatric condition.
The suggestion that Dr Nichols supports the likelihood of organic factors causing Mr Rattenbury’s condition is simply wrong. Dr Nichols said that major depression has a biological basis and that not all people in Mr Rattenbury’s situation would develop such a severe depression. This evidence demonstrates, in support of Ms Maric’s contentions, which I accept, that Mr Rattenbury is an example of the “eggshell psyche” principle discussed in Chemler. This follows from Dr Nichols’ uncontradicted assumption that Mr Rattenbury had a “predisposition to depression”. It is patently obvious that, on causation, Dr Nichols felt that Mr Rattenbury’s interaction with his managers “triggered” his depression. That is, that the events at work caused his depression. Dr Nichols did not suggest or imply that Mr Rattenbury’s psychological condition had been caused by unrelated organic factors. Nor is there any support for that proposition in the clinical notes from the Coffs Central Medical Centre where Dr Nichols and Dr Knight practise.
In any event, whether Mr Rattenbury’s headaches and high blood pressure are organically based is largely irrelevant. The generally accepted diagnosis is that Mr Rattenbury is suffering from major depression. The diagnosis of that condition does not depend on the existence of “organically based” (non-work related) headaches or high blood pressure, but is entirely independent of them. As explained above, Ms Melville’s diagnosis was based on her history, her findings on examination and, in addition, the results of the DASS questionnaire administered on 24 December 2013.
The alleged failure to differentiate between events arising out of or in the course of Mr Rattenbury’s employment and his fixation with the claims process overlooks the fact that, after stopping work in April 2013, but while still employed by the appellant, Mr Rattenbury was constantly contacted at home, by phone, email and in person, by the appellant’s representatives. That contact was about the investigation into his complaints. The investigation, and the contact about it while Mr Rattenbury was on leave, was directly related to his employment. Thus, any injury that resulted from that contact clearly arose out of Mr Rattenbury’s employment. This conclusion is supported by Ms Melville’s evidence, to which the Arbitrator referred at [112]. Though the Arbitrator was wrong to say that Mr Rattenbury’s symptoms were exacerbated by events that occurred after he had “ceased his employment”, because Mr Rattenbury was still employed by the appellant throughout the period concerned, that error makes no difference to the result.
Mr Murphy’s reliance on Bottle and Stewart is misplaced. There is no evidence that Mr Rattenbury is suffering from “straight litigation neurosis”. At its highest, Ms Melville suggested that the denial of the workers’ compensation claim exacerbated and maintained Mr Rattenbury’s symptoms. However, that statement must be read in the context that Mr Rattenbury first developed symptoms of stress in 2011 when a conflict arose with Mr Weslake, which Mr Rattenbury said made him “feel sick, stressed and depressed”. Ms Melville’s opinion was, as previously noted, that the original events in the workplace resulted in a stress reaction and the onset of physiological and anxiety related symptoms. Properly assessed, that evidence provides strong support for Mr Rattenbury’s case that he contracted his disease in the course of his employment and that his employment was the main contributing factor to contracting the disease.
As it is not suggested that Mr Rattenbury’s condition is merely frustration or emotional upset, which conditions do not constitute a psychological injury (Thazine-Aye v WorkCover Authority of NSW (1995) 12 NSWCCR 340), the relevance of Stewart is difficult to follow. On any view of the evidence, Mr Rattenbury has a recognised psychological condition. Moreover, the statement in Stewart upon which Mr Murphy relied, namely that “subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable”, is inconsistent with Chemler and other accepted authorities, and is not a correct statement of the law.

It is worth repeating the observations made in K (at [52]), though this involves some repetition of points already discussed:
(a)     employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
Mr Rattenbury’s injury developed as a result of real events that occurred in the course of, or arose out of, his employment with the appellant. It follows that nothing in Stewart advances the appellant’s position. The suggestion that Mr Rattenbury suffers from a “straight litigation neurosis” is completely without substance and is rejected. The fact that Mr Rattenbury’s symptoms might have been “exacerbated and maintained” by “the denial of his workers compensation claim and the appeal” (see Mr Melville’s opinion at [52] above) does not undermine the finding on injury, which was established well before the denial of his claim, but goes only to the cause of his incapacity, which is discussed at [91] and [106] below.
In the context of the need to establish error, the relevance of Mr Murphy’s reference to the Arbitrator’s reasons at [100] and [105] is unclear. I have already noted that the finding that Mr Rattenbury was not bullied or harassed, made at [100], is of no consequence (see [59] above). At [105], the Arbitrator said that the matters relied on by Mr Rattenbury “individually or collectively, do not appear to be of a kind that is inimical to health”. That statement has to be read in the context of the principles in Chemler and K, considered above. When that is done, the Arbitrator’s statement involves no error because the events complained of did not have to be “inimical to health” for Mr Rattenbury to succeed.
The attack on the Arbitrator’s conclusion at [116] fails to acknowledge one of the most fundamental principles of workers’ compensation law, namely, that a claimant only has to establish that his or her incapacity has resulted from the relevant injury (Kooragang) and, as the Arbitrator noted (at [117]), that there can be multiple causes of an incapacity (Calman v Commissioner of Police (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435). It is not necessary that employment be the main (or substantial) contributing factor to the incapacity. It only has to be the main contributing factor to contracting the disease. There is, therefore, no “logical difficulty” with the Arbitrator’s approach and Mr Murphy’s submission has not established any relevant error.
It is correct that, until December 2013, there was no medical evidence of any incapacity resulting from the events complained of at work. However, reliance on that fact ignores Mr Rattenbury’s detailed evidence of the effect the work events had on him, the fact that he applied for leave because of work stress, and the support for his claim from Ms Melville, Dr Nichols and, to a lesser extent, Dr Knight. Though it may well have been helpful if Mr Rattenbury had seen a doctor earlier than December 2013, the fact that he did not is not fatal to his claim.
Mr Murphy has misunderstood Dr Nichols’ evidence on the contribution of Mr Rattenbury’s work to his injury. Dr Nichols’ statement that he would allocate “work as [a] 50% contributing factor” has to be read in context and, in particular, having regard to the correct legal principles on causation. He assumed that, because not all persons in Mr Rattenbury’s predicament would develop such a “severe depression”, Mr Rattenbury had a “predisposition to depression based on his biology and his upbringing”. On this basis, he allocated work as a 50 per cent contributing factor.
Given that, prior to the events with the appellant, Mr Rattenbury had no psychological symptoms or disability, it is not open to find that his employment was only a 50 per cent contributing factor to his condition. As explained earlier (see [39] above), a predisposition means no more than “a tendency in a person to react in a certain way” and “a physical condition which makes a person susceptible to a disease”. Having a predisposition or susceptibility to a condition is not the same as having the condition. It merely means that the person is more vulnerable to develop a condition than another person may be. It would be different if Mr Rattenbury had demonstrated symptoms of a psychological illness before starting with the appellant. Then, however, the question would be whether the employment had been the main contributing factor to the aggravation of his condition.
The point is well illustrated in Matthew Hall Pty Ltd v Smart (2000) 21 NSWCCR 34, a case concerning the calculation of the deductible proportion for a pre-existing condition or abnormality under s 68A of the 1987 Act. In that case, the worker had a congenital predisposition to keratoconus (a condition where the cornea becomes distorted and bows out), but had no symptoms of that condition prior to his injury. He suffered an injury to his eye at work. After his injury, he had an 85 per cent loss of vision in his eye. The trial judge rejected the employer’s argument that, because of the keratoconus, there should be a deduction of 50 percentage points out of the 85 per cent loss of sight loss of vision in his injured eye.
Dismissing the employer’s appeal, Giles JA (Mason P and Powell JA agreeing) held, at [37]:
“37 The employer accepted that it bore the burden of proving that to some extent the worker’s loss of vision was due to a pre-existing condition of keratoconus. In my opinion a genetic predisposition to keratoconus is not the same as the condition of keratoconus for the purposes of s 68A(1). I do not think the employer established that there was a pre-existing condition of keratoconus – that is, that there was more than a genetic predisposition to keratoconus which may never have progressed to loss of vision, being a condition of keratoconus albeit an asymptomatic condition.” (emphasis added)
Thus, having a predisposition to depression, but no symptoms, is not the same as having depression. Once the reference to Mr Rattenbury’s “predisposition to depression” is properly understood, the only other suggested cause of his injury (the alleged litigation neurosis having been rightly rejected as a potential cause) is “organic factors”, which the Arbitrator (correctly) did not accept. Given that Mr Rattenbury has consistently denied any other significant psychosocial stressors (see Ms Melville’s history/opinion at [52] above), and that there is no evidence of any such stressors, the only conclusion open is that his employment was not just the main contributing factor to his injury, it was the sole cause of it. It follows that Mr Rattenbury must succeed under s 4(b)(i). It also follows that I agree with the Arbitrator’s conclusion (at [122]) that Mr Rattenbury’s employment with the appellant was the “overwhelming” factor in the cause of his injury. However, that injury was a s 4(b)(i) injury not the s 4(b)(ii) injury found by the Arbitrator.
Mr Murphy’s reliance on Whiteley Muir is misplaced. Mr Murphy’s only submission in support of this point was that the Arbitrator’s statement (at [113]), that he accepted Ms Melville’s evidence but “[n]ot without hesitation”, demonstrated error. He based that submission on the following statement by Barwick CJ, at 506C in Whiteley Muir:
“It must be shown that the trial judge was wrong. This may be achieved 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 trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
For the reasons explained above, the Arbitrator did not overlook material facts, or give undue or too little weight in reaching his conclusions. He carefully considered the relevant evidence, expressly noting (at [112]) that causation must be determined on the basis of all of the evidence, including the medical evidence. Nor is the opposite conclusion to that reached by the Arbitrator so “preponderant” that the Arbitrator’s decision is wrong. Save for the finding under s 4(b)(ii), the evidence comfortably supports the conclusions reached.
Mr Murphy’s reliance on Nguyen is similarly misguided. It seems to be based on the idea that an Arbitrator must feel certainty before a finding can be made in favour of an applicant. Such a suggestion is plainly wrong. An applicant only has to establish his or her case on the balance of probabilities. In accepting some evidence over other evidence, an Arbitrator has to weigh a myriad of competing factors. However, in a civil case, notwithstanding that the decision maker may have a “hesitation” before reaching a conclusion, the standard of proof is satisfied if he or she feels actual persuasion that a fact exists. The Arbitrator’s reasons, when read as a whole, comfortably establish that he was satisfied that Mr Rattenbury had made out his case on the balance of probabilities. I have reached the same conclusion on the s 4(b)(i) issue.
Mr Murphy’s further submissions on this issue are somewhat surprising. In his original submissions, he argued that the Arbitrator erred in finding that there was a s 4(b)(ii) injury when there was no evidence of the disease that had been aggravated. In his further submissions he has, without explanation, argued the opposite: he has submitted that Mr Rattenbury cannot succeed under s 4(b)(i) because, as the Arbitrator found, the evidence is that Mr Rattenbury “had a pre-existing condition” and “any disease was pre-existing”. The finding upon which Mr Murphy now relies is the very finding that he challenged in the first ground of appeal. Such a change in position was, in the circumstances, improper and unacceptable advocacy.
Last, I accept that the Arbitrator did not consider if Ms Melville’s evidence supported a conclusion that Mr Rattenbury contracted a disease in the course of or arising out of his employment. However, this matter has been the subject of submissions by the parties on appeal and, for the reasons explained in this decision, I am comfortably satisfied that Mr Rattenbury contracted a disease (a psychological illness, most likely major depression) in the course of his employment and that his employment was the main contributing factor to contracting the disease.

INCAPACITY

Submissions

Mr Murphy repeated his previous submissions that Mr Rattenbury’s incapacity resulted from the escalation of his symptoms after the cessation of his employment, due to his preoccupation with the vindication of his complaints and his sense of injustice, as distinct from any of the events relied upon as allegedly constituting bullying and harassment or any other events at work. By his own admission, Mr Rattenbury was able to perform his usual duties up to the time he commenced his planned leave on 12 April 2013. Mr Murphy asserted that his submission is supported by the Arbitrator’s conclusion (at [116]).

Discussion and findings

This issue substantially repeats matters previously covered. I do not accept Mr Murphy’s submissions. For completeness, I make the following additional observations.
The Arbitrator’s statement at [116] is reproduced in full at [29] above. Mr Murphy relies on the third last sentence in that paragraph, where the Arbitrator said “[a]s he rehearsed these events while compiling his complaint, engaging with the investigation into the complaint and dealing with his workers compensation claim, his refection [sic] further exacerbated his condition and produced an incapacity for work”.
Mr Murphy has taken this sentence out of context. The first sentence of [116] makes it clear that the Arbitrator’s opinion was based on the “entirety of the evidence”. Further, in the last sentence at [116], the Arbitrator recorded that, though exacerbated by later events, Mr Rattenbury’s incapacity “results from incidents arising out of and in the course of [his] employment”. Thus, more accurately, the incapacity resulted from the work injury. That finding was open on the evidence and the authorities, which make it clear that an incapacity can result from multiple causes. Save for the s 4(b)(ii) finding, which has been replaced by a finding of an injury under s 4(b)(i), the Arbitrator’s approach and conclusion involved no error.
Given that an incapacity can result from multiple causes (see the authorities at [91] above), the finding that Mr Rattenbury’s incapacity has resulted from his injury was consistent with the evidence.

CONCLUSION

Save for the Arbitrator’s finding that Mr Rattenbury suffered a s 4(b)(ii) injury, which is substituted on appeal by a finding that Mr Rattenbury suffered a s 4(b)(i) injury, and therefore makes no difference to the result, the submissions in support of the appeal were without merit. They raised several matters that were plainly wrong, were contrary to accepted authority and/or were unsupported by any evidence. They demonstrated a fundamental misunderstanding of the basic principles involved in cases of this kind.

DECISION

The name of the appellant is amended to be State of New South Wales.
For the reasons given in this decision, the Arbitrator’s determination of 1 May 2015, amended on 2 June 2015, is confirmed.

Bill Roche
Deputy President

12 August 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE