State of NSW v Simms - [2015] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of NSW v Simms [2015] NSWWCCPD 62
APPELLANT:	State of NSW (wrongly sued as Fire & Rescue NSW)
RESPONDENT:	David Alan Simms
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-6841/14
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	17 April 2015
DATE OF APPEAL HEARINGS:	15 September 2015 and 21 September 2015
DATE OF APPEAL DECISION:	16 October 2015
SUBJECT MATTER OF DECISION:	Application to extend time to appeal, Pt 16 r 16.2 of the Workers Compensation Commission Rules 2011; whether delay in obtaining transcript of extempore decision constitutes exceptional circumstances; causation of injury; reasonableness of action taken by the employer with respect to discipline, s 11A(1) of the Workers Compensation Act 1987; costs where appeal only succeeds on a ground not initially pleaded
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Baran, instructed by Moray & Agnew
Respondent:	Mr P Stockley, instructed by Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. The appellant employer’s name is amended to State of NSW. 2. Time to appeal the Arbitrator’s determination of 17 April 2015 is extended until 24 June 2015. 3. The Arbitrator’s Certificate of Determination dated 17 April 2015 is revoked. 4. The matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. For the avoidance of doubt, the re-determination does not extend to whether the applicant worker suffered a psychological injury in the nature of a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder, to which his employment was a substantial contributing factor. 5. The appellant employer is to pay the respondent worker’s costs of the appeal. 6. The costs of the first arbitration shall follow the outcome of the second arbitration.

INTRODUCTION

The worker was employed by the appellant as a breathing apparatus instructor. He was required to travel around New South Wales providing training to firefighters, using a purpose built semi-trailer.
The worker claimed that he suffered a psychological injury as a result of allegations by his employer that he made fraudulent claims for unsubstantiated work travelling expenses. He also alleged the condition was aggravated by the manner in which those allegations were pursued.
The appellant alleged that the worker did not suffer a work related injury. It alleged the worker suffered from a bipolar condition which was constitutional in origin and was unrelated to his employment. The Arbitrator rejected that argument.
The Arbitrator also rejected the appellant’s alternative argument, namely that if the worker was injured as alleged, that the injury was caused by reasonable action taken with respect to discipline under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
This appeal concerns the Arbitrator’s findings on whether the worker suffered a work related injury and his findings with respect to the s 11A defence.

FACTUAL BACKGROUND

Mr David Simms, the respondent worker, was employed by the appellant, Fire & Rescue NSW, as a senior firefighter and a breathing apparatus instructor. The appellant appointed Mr Simms as a firefighter on 13 February 1998, but since March 2008 he was responsible for driving around the State in a semi-trailer and delivering breathing apparatus training to firefighters at the various fire stations.
On 24 April 2012, the appellant received a complaint from one of its staff members alleging that Mr Simms had engaged in misconduct through the use of inefficient travel routes and training schedules for financial gain. This complaint was treated as a public interest disclosure, pursuant to the Public Interest Disclosures Act 1994.
On 21 May 2012, Peter Heys, the appellant’s senior investigation officer, completed a briefing memorandum (the memorandum). It states:
“On 24 April 2012, the complainant contacted the Chief of Staff, Chief Superintendent Mal Connellan (TAB 1). The Complainant advised that they wished to remain anonymous and provided the following information regarding SF Simms matter:-
·That the alleged misconduct related to the work practices of SF Simms in his role as a trainer driving a semi trailer for BA Hazmat.
·Claimed the routes used by SF Simms were very inefficient and appeared to be designed to maximise costs.
·Advised that the issue had been raised by a manager in the past but the SF Simms had threatened to go to the FBEU.
·Claimed the travel appeared to result in overnight travel expenses on some occasions.
·Claimed the driver of the second semi trailer at BA Hazmat appeared to differ from SF Simms. In their view the second driver was not displaying the same corrupt behaviours.
·Advised there was one occasion when SF Simms had been involved in a collision with power lines in Orange when his training had been cancelled and they had no reason to be there.”
On 23 May 2012, the complaint was assessed and accepted by Commissioner Greg Mullins. On 4 June 2012, a preliminary inquiry was commenced into the allegations against Mr Simms. On that same day, the appellant sent a letter to Mr Simms advising him that it had decided to conduct a preliminary inquiry into alleged acts of misconduct committed in connection with his duties as a fire fighter. The letter was received by Mr Simms soon after 6 June 2012. In that letter it was stated:
“Dear Senior Firefighter Simms
I wish to advise you that pursuant to Clause 41 (1) of the Fire Brigades Regulation 2008, herein after called the Regulation, I have decided to conduct a Preliminary Inquiry into alleged acts of misconduct committed by you in connection with your duties as a firefighter.
Clause 36 (1) provides that:
If the Nominated Officer decides to act on a complaint, the firefighter against whom the complaint is made must be given a copy of it.
I advise that this complaint is being treated as a Public Interest Disclosure within the meaning of the Public Interest Disclosures Act 1994 and therefore I am unable to provide you with any information regarding the identity of the complainant. A copy of the FRNSW Public Interest Disclosures Policy is attached for your information.
Accordingly, please find attached a redacted copy of the complaint.
I also advise that pursuant to Clause 42 (1) of the Regulation, I have appointed Superintendent Garry Tye, to conduct a Preliminary Inquiry with the assistance of Mr Peter Heys.
The Inquiry will be conducted in accordance with Part 4 of the Regulation. The relevant extract of the Regulation is attached.
Superintendent Tye will make contact with you and invite you to make oral representations regarding the matters subject of the inquiry. You are entitled to be accompanied by an observer of your own choice. The interview will be recorded and you will be provided with a typed or electronic copy of the transcript.
I remind you that this is a confidential matter and you are not permitted to discuss the matter with any other person other than you [sic] union or other representative, your support person and/or manager.
You are further advised that pursuant to Clause 36 (4) of the Regulation which states:
36Complaints of misconduct
(4)Any firefighter dealing with a complaint:
(a) must treat the information as strictly confidential, and
(b) must deal with any personal information within the meaning of the Privacy and Personal Information Protection Act 1998 in relation to that complaint in accordance with that Act,
unless this Part authorises the information to be dealt with in another way or unless the Commissioner authorises the information be dealt with in another way.
I have requested that a report of the preliminary inquiry be provided to me no later than 13 July 2012.
I take this opportunity to advise you of the support services available to you, including:
·      FRNSW Chaplain, Major Lindsay Smith who can be contacted on ;
·      FRNSW Employee Assistance Program (EAP): xxxx;
·      The Wellbeing Coordinator who can be contacted on xxxx;
·      The Health and Safety Branch on xxxx.
Should you have any queries or concerns regarding this matter, please contact Superintendent Garry Tye, Manager Workplace Conduct on xxxx or via email at xxxx
Yours sincerely
Jim Smith AFSM
Acting Deputy Commissioner Emergency Management
Nominated Officer”
A redacted copy of the complaint, which deleted the identity of the complainant, was attached to the letter.
On 6 June 2012, while on annual leave, Mr Simms received a telephone call from Superintendent Tye. In his statement dated 12 July 2012, Mr Simms states that in a “friendly, personable way Superintendent Tye” told him that he would be investigated for alleged misappropriation of public funds. He was told that “the matter had to be completely confidential and [he] could not speak to anyone about it”. He claims that Superintendent Tye used “big long words in a friendly tone and it was initially hard for [him] to understand what he was talking about”. It took him sometime before he realised what was happening.
Mr Simms saw his general practitioner, Dr Comben on 21 June 2012. Dr Comben diagnosed an “anxiety/stress” condition. Subsequently he was seen by various psychiatrists and was diagnosed with a range of psychiatric illnesses. Mr Simms remained unfit for work since 6 June 2012 with the exception of one day on 17 July 2012 and a brief period in August/September 2012.
On or about 15 June 2012, Mr Simms suffered what he describes as a “meltdown”. He shouted at his dog, threw his phone at the door and started smashing his phone against the garage wall repeatedly. He had never behaved in that manner before that occasion.
The preliminary enquiry took a protracted course and was not completed until 29 August 2012. During the course of the preliminary investigations the appellant referred the complaints to both the Independent Commission Against Corruption (ICAC) and the Police. Ultimately neither of those agencies pursued the complaints.
On 9 August 2012, the appellant wrote to Mr Simms’ solicitor outlining nine “matters” under investigation, some of those matters being of a very general nature.
Mr Simms was not formally charged with the alleged offences until 5 February 2013, at which point he was charged with 113 offences.
Due to Mr Simms’ deteriorating health, the charges were not pursued and he was discharged medically unfit on 13 February 2015.

PROCEDURAL BACKGROUND

Between 6 June 2012 and 15 July 2012, Mr Simms lodged a workers’ compensation claim. However that claim was withdrawn in July 2012 because Mr Simms considered that it “seemed like too much hassle and paperwork” (second statement dated 12 March 2013). Mr Simms was feeling very stressed as a result of the internal investigation and decided it was best to take sick leave instead of workers compensation. He had an “expectation that the investigation would be over within 6 weeks because [he] was told so by Superintendent Tye and a civilian investigator, Peter Hayes [sic Heys]”.
On 2 March 2013, Mr Simms completed a worker’s injury claim form. The injury is there described as: “my HEAD has sustained trauma immedaely [sic] after being wrongly accused of Fraud I have Angziaty [sic, anxiety]”. As to how the injury occurred it is recorded: “An Annonamous [sic] complaint was made about me and the Fire Brigade have taken it as gospel and charged me with 151 offences wrongly”.
On 2 May 2013, the insurer issued a poorly drafted notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the alleged work related psychological injury. The notice was largely comprised of extracts from the legislation and large extracts from reports of its investigators and medical advisors. It is clear enough from the notice that the insurer put in issue injury and whether the employment was a substantial contributing factor under ss 4 and 9A of the 1987 Act, asserting that Mr Simms’ current psychological condition had not arisen out of or in the course of employment with the appellant and that the employment was not a substantial contributing factor to the psychological injury. The notice made reference to the provisions of s 11A of the 1987 Act, but did not state how that was relevant to its decision to deny liability. That was most unsatisfactory.
On 17 December 2014, Mr Simms lodged an Application to Resolve a Dispute in the Commission (the Application). Mr Simms sought weekly benefits from 6 July 2012 to date and continuing and medical expenses for an alleged psychological injury deemed to have occurred on 6 June 2012. In an amended application lodged on 2 April 2015, the alleged injury was pleaded as follows:
“The [worker] has developed a psychological injury because his employer has brought fraud charges against him in relation to the [worker] allegedly claiming unsubstantiated work travelling expenses. The [worker’s] psychological condition has been further aggravated by the [appellant’s] failure to provide proper information in relation to the charges and also the employer’s failure to prosecute the fraud charge claim. The [worker] has also been bullied in relation to his removal from the Northern Rivers Transfer List. The [worker] was also bullied by Station Officer Climo in relation to his accommodation in Sydney and his travel claims / travel schedules.”
The bullying allegation concerning Mr Simms’ removal from the transfer list was not pressed.
On 2 January 2015, the employer filed a Reply denying liability, relying upon the grounds stated in its s 74 notice.
On 15 April 2015, the matter proceeded to a conciliation and arbitration hearing. At the arbitration hearing it was explained that, if Mr Simms succeeded on injury, the employer contended that the injury had been caused by reasonable action with respect to discipline. This should have been made clear in the s 74 notice. On that same day, the Arbitrator delivered an extempore decision in favour of Mr Simms.
On 17 April 2015, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. Respondent to pay the applicant weekly payments of compensation as follows:
(a)$1,803.23 from 6 June 2012 to 2 August 2012 pursuant to s 36 of the unamended Workers Compensation Act 1987;
(b)$1,803.23 from 29 October 2012 to 2 March 2013 pursuant to s 36 of the unamended Workers Compensation Act 1987, and
(c)maximum statutory rate for a worker without dependants pursuant to s 37 of the unamended Workers Compensation Act 1987 from 3 March 2013, as adjusted, to date with such payments to continue in accordance with the provisions of the unamended Workers Compensation Act 1987.
2. Respondent to pay the applicant’s reasonably necessary medical or related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.
3. Matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess whole person impairment of psychological injury deemed to have happened on 6 June 2012. The following documents are to be sent to the AMS: [Not reproduced]
4. Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010, I certify this matter as complex with a 30 per cent increase in costs otherwise available to the parties.

NOTATION:

1. The amendments made by the 2012 amending legislation to the Workers Compensation Act 1987 do not apply to or in respect of injury received by the applicant as he is an exempt worker in accordance with the provisions of cl 25 of Pt 19H of Sch 6 to the Workers Compensation Act 1987.”

On 20 April 2015, Mr Simms was referred to an Approved Medical Specialist (AMS) for assessment of permanent impairment in respect of the psychological injury. On 17 June 2015, Professor Glozier, AMS, issued a Medical Assessment Certificate. Professor Glozier assessed Mr Simms with 19 per cent whole person impairment for the psychological injury, deemed date of injury being 6 June 2012.

PRELIMINARY MATTERS

The appellant employer was wrongly sued as “Fire & Rescue NSW”. The appellant sought leave to amend the pleadings to correct the record to describe the appellant, pursuant to the Crown Proceedings Act 1988, as the “State of NSW”. The worker’s legal representatives do not oppose the application. I therefore order that the record be corrected to describe the appellant as “State of NSW”.

TIME TO APPEAL

An appeal against a decision of an Arbitrator must be made within 28 days after the making of the decision appealed against, in accordance with s 352(4) of the 1998 Act.
An Arbitrator’s decision is made when the Commission issues a Certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act (Pt 16 r 2(2) of the Workers Compensation Commission Rules 2011 (2011 Rules)). In the present matter, the Arbitrator’s determination was made on 17 April 2015.
Applying s 36 of the Interpretation Act 1987, the “given date” for the reckoning of time pursuant to s 352(4) of the 1998 Act is 17 April 2015 and the time to appeal is calculated “exclusive of that day”.
It follows that the last day for lodging the Application within the 28-day period allowed by s 352(4) was 15 May 2015. As the Application was lodged on 24 June 2015, it was filed over five weeks out of time and therefore leave to appeal is required.

Submissions – leave to appeal

The appellant submits that, contrary to s 294(2) of the 1998 Act and Pt 15 r 15.6 of the 2011 Rules, the Certificate of Determination did not have a brief statement attached setting out the Commission’s reasons for the determination. Therefore, it is submitted it was invalid for the purposes of constituting a proper Certificate of Determination “pursuant to the Act and rules” and time did not commence to run until the transcript of the extempore decision was provided on 17 June 2015. Accordingly, it was submitted, the appeal is within the time prescribed by s 352(4). This submission was unsupported by authority or any reasoned argument.
In the alternative, it is submitted that the Commission should exercise its discretion to extend time to appeal because the manner in which the Certificate of Determination was issued, containing only formal orders, was an exceptional circumstance in that it was unexpected and out of the ordinary.
The appellant submits that the transcript of the reasons was sought by the appellant and correspondence was sent to the Commission to make inquiries as to when the transcript would be made available. This submission did not direct attention to the evidence detailing those inquiries, the appellant merely claims that that correspondence is “on the court [sic] file”.
The appellant further submits “based on the principles well known to the Presidential Division of the Workers Compensation Commission that this Appeal warrants and [sic, an] extension of time being granted”. It submits that there could be no suggestion of any prejudice to the respondent. The appellant submits that its “extensive submissions” set out in relation to the grounds of appeal are sought to be taken into account in determining the issue of the extension of time.
If the appeal is dismissed it is submitted that the respondent would have the benefit of a medical assessment having already been undertaken. If the appeal is allowed then the only prejudice sustained by the respondent would be that the documents were referred to an AMS with an appointment/consultation taking up a very small amount of the respondent worker’s time.

Discussion

An extension of time in which to lodge an appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules, which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal has been considered in several appellate courts. In Gallo v Dawson [1990] HCA 30; 93 ALR 479 (Gallo), McHugh J observed (at 480) that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
In Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce), Allsop P considered Pt 16, r 16.2(11) of the Workers Compensation Commission Rules 2006 which is in the same terms as Pt 16 r 16.2(12) of the current rules. His Honour held at [10] (Beazley JA (as her Honour then was) and Giles JA agreeing):
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction...”
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, Basten JA (Beazley P and Leeming JA agreeing) observed at [9]:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
Section 294(2) of the 1998 Act sets out the Commission’s obligations with respect to certificates of determination. It provides:
“(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
Part 15 r 15.6 of the 2011 Rules provides:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.”
Attached to the Certificate of Determination was a separate document entitled “Statement of Reasons – Extempore Orders”. It states in part:
“In this matter an arbitration hearing was held on 15 April 2015 where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the arbitration hearing.
A sound recording of the reasons given is available to the parties.”
Thereafter the Arbitrator set out the formal orders entered.
The procedure adopted by the Arbitrator was consistent with the Commission’s usual practice. It is an approach which is encouraged to promote the timely disposal of cases and the entry of appropriate orders as soon as possible after the dispute is heard. The submission that the Certificate of Determination was invalid is not correct. Where an Arbitrator delivers an extempore decision, that decision is recorded and the recording is made available to the parties on request. The Registrar issues a Certificate of Determination and a document headed “Statement of Reasons - Extempore Orders”. That is what occurred in this case. That document satisfies the requirements of s 294(2) of the 1998 Act, as the Commission has held on previous occasions including: Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14 and New South Wales Police Service v Shelley [2011] NSWWCCPD 57 at [16].
For these reasons I reject the submission that the time for lodging an appeal did not commence to run until the receipt of the transcript of the reasons for decision. Time ran from the date the Certificate of Determination was issued on 17 April 2015. Therefore it follows that the appeal was lodged over five weeks out of time, as I have indicated.
Accepting that there was a delay in the provision of a transcript of the reasons for decision, counsel for the appellant was unable to advance any reason why an appeal application could not have been lodged within the time prescribed, subject to the appellant’s right to supplement the grounds and submissions following the receipt of the transcript.
The appellant was represented by counsel who was present throughout the proceedings before the Arbitrator, including the delivery of the extempore decision. Practitioners at judgment should be ready and active in taking notes: Dillon v Boland; Dillon v Cush [2012] NSWCA 364 at [8], applying Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 at [14]–[16] where Allsop P stated (at [15]):
“It is simply not satisfactory for cases to be held up in the District Court for ten months while everyone waits for an overburdened court reporting service to prepare transcripts and then take three months after their delivery. Practitioners are required to keep notes of the essentials of what occurs in Court. This includes, in particular, the terms of judgments and the elements of arguments put to judicial officers.”
In any event the application seeking an extension of time should have been accompanied by detailed submissions explaining why it was out of time and why time should be extended. However, no proper submissions were attached. Apart from asserting that the transcript of the Arbitrator’s extempore judgment was not made available until 17 June 2015, no attempt has been made to explain why the appeal was filed out of time.
Counsel merely submitted that “correspondence was sent to the Commission to make inquiries as to when the transcript would be made available. That correspondence is on the court [sic] file”. No attempt was made in the written submissions or in the course of oral argument to identify what “correspondence” was being referred to or its significance in terms of the application to extend time. If there was further material that the appellant sought to rely on, it should have been clearly identified. The appellant cannot expect that by merely making a passing reference to the Commission’s file that a Presidential member will scour the file seeking to identify material that might advance its case.
That approach to an extension of time application was highly unsatisfactory and fell well short of what is expected of a party seeking an order under Pt 16 r 16.2(12) of the 2011 Rules. To the extent that it may be inferred from the appellant’s submissions that the failure to lodge the appeal within time was due to a delay in obtaining a transcript of the Arbitrator’s reasons, I do not accept that that, of itself, constitutes exceptional circumstances that justify the extension of time: Wynyard Properties Pty Ltd v Reyes [2013] NSWWCCPD 23 at [34].
However, as Allsop P (as his Honour then was) explained in Bryce, whether or not there are exceptional circumstances and whether in those circumstances it is shown that demonstrable or substantial injustice would occur if leave were not granted is a composite expression.

Looking at the tests in Gallo, I consider that the history of the matter indicates dilatory conduct by the appellant in preparing and lodging the appeal. This points strongly against extending time to appeal. However, if the explanation for the delay is less than satisfactory, it may be relevant that the claimant shows that his or her case has more substantial merit than merely being fairly arguable (per Hodgson JA at [14] in Tomko v Palasty No 2 [2007] NSWCA 369) .
There is nothing in the nature of the litigation that points one way or the other on whether the extension should be granted.
The consequences for the respondent, if time to appeal is extended, will be significant because he will lose the vested right he has in the decision given in his favour. However, he will suffer no direct prejudice.
The prospects of success depend upon an assessment of the merits. There are two main challenges to the decision: one to the injury/causation finding and one to the s 11A issue. For the reasons explained below, the first challenge has no reasonable prospect of success. However, because it is arguable that the Arbitrator erred in his approach to the s 11A issue, the second challenge has good prospects.
Weighing the above matters, the lack of prejudice to the respondent and the prospects of success on appeal (at least on one critical issue), I am satisfied, not without considerable hesitation, that there are exceptional circumstances that justify the extension of time to appeal. Therefore I extend time to appeal until 24 June 2015. I would add that the appellant’s presentation of the application to extend time to appeal would not be a model to be followed in similar matters of this kind.

GROUNDS OF APPEAL

The appellant’s “Application Appeal Against Decision of Arbitrator” alleged four grounds of appeal. However only two grounds were ultimately pressed, namely that the Arbitrator erred in:
(a) his analysis and determination of the question of causation, and
(b) taking into account irrelevant considerations in his determination of whether the appellant’s actions taken with respect to discipline were reasonable under s 11A of the 1987 Act, being the conduct of the appellant in the prosecution and investigation of the disciplinary proceedings after 6 June 2012, notwithstanding the finding that the conduct causing the respondent to sustain injury occurred on or about 6 June 2012.

EXPERT MEDICAL EVIDENCE

On 16 April 2013, Mr Simms attended on Professor Robert Kaplan, forensic psychiatrist, at the request of the employer’s insurer, Employers Mutual Ltd. Professor Kaplan records a history that on 4 June 2012, Mr Simms received formal notification alleging that his claims for travel expenses and overtime were made for financial gain and that 151 fraud charges were laid on the basis of an anonymous complaint.
Professor Kaplan records a past history of a “difficult upbringing in London with a strict father”. He assessed Mr Simms to have bipolar affective disorder, hypomanic phase. It was recorded that bipolar affective disorder occurs in constitutionally predisposed individuals and that is the likely explanation in this case.
Professor Kaplan concluded:
“On this presentation, it is not possible to find that his work with NSW Fire & Rescue is the substantial contributing factor to his condition. The history suggests that Mr Simms may have been affected by the condition before the charges were laid against him last June, noting some examples of extroverted behaviour and the possibility that the offences themselves occurred on this basis.”
Mr Simms attended on Dr Peter Klug, forensic psychiatrist, at the request of his solicitors. In a report dated 27 February 2014, Dr Klug recorded Mr Simms’ medical history. He notes that Mr Simms enjoyed “a secure childhood with good parenting. His mother was affectionate. He was not exposed to any abuse or violence”. He also records that Mr Simms’ plans for the future are to return to work but that he is not sure if he is capable.
Dr Klug opined that Mr Simms suffered a chronic adjustment disorder with mixed features of anxiety and depression in response to cumulative and various work-related stressors during the course of 2012. He then suffered from an antidepressant induced bipolar disorder from about November 2012 and has continued to suffer from both manic and depressive symptomatology through the course of 2013 in response to the continuing prescription of antidepressants. He also suffered from secondary alcohol and cannabis use disorders.
Dr Klug found there to be a direct connection between the work-related stresses and Mr Simms’ chronic adjustment disorder and an indirect connection between work-related stresses and his medication-induced bipolar disorder, given that he sought treatment for his adjustment disorder and was prescribed an antidepressant that induced his bipolar condition.
Dr Klug recorded that: “[w]ith appropriate treatment and clearly with the withdrawal of use of antidepressant medication, I believe that Mr. Simms should be fit to continue to work with Fire & Rescue NSW. Once his mood has normalised, there is no reason to consider that restrictions should be placed on him with respect to work”. It was his view that Mr Simms’ absences from work had been reasonable and had been caused by both his chronic adjustment disorder and his medication-induced bipolar condition.
Dr Klug provided a supplementary report dated 27 November 2014. In that report, Dr Klug opined that Mr Simms now suffers from a chronic major depressive disorder in partial remission. He also suffers from a chronic generalised anxiety disorder. Dr Klug also confirmed his diagnosis of a medication-induced bipolar disorder.
Dr Klug found there to be a clear temporal and clinical relationship between Mr Simms’ psychiatric problems and work-related stresses. He further found that Mr Simms’ work has been a substantial contributing factor to his psychiatric illness. He assessed Mr Simms’ whole person impairment for the psychiatric injury to be 24 per cent and one per cent for treatment effect, finding a total of 25 per cent whole person impairment.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues before him as follows. First, whether the worker suffered an injury within the meaning of s 4 of the 1987 Act. Second, whether his employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. Third, whether the defence available under s 11A of the 1987 Act applied. It was agreed that Mr Simms was totally incapacitated for work.
With respect to the third issue, Mr Rickard, appearing for the respondent, submitted that the s 11A defence related to a matter of discipline. It is uncontested that the respondent bears the onus on that issue.
The Arbitrator found that whilst Mr Simms was on leave on 6 June 2012, he received a telephone call from Superintendent Tye, who informed Mr Simms that he was investigating an allegation of fraudulent misappropriation of public moneys. No particulars of the allegations were provided.
On a date which is not identified, but which occurred after the phone call of 6 June 2012, Mr Simms received a letter from the respondent dated 4 June 2012. That letter is reproduced at [9] of this decision.
The Arbitrator accepted Mr Simms’ evidence that in response to the phone call and the letter referred to above, Mr Simms suffered what was described as a “meltdown” (T16.30). It is common ground that the “meltdown” occurred on 15 June 2012.
The Arbitrator accepted Dr Klug’s evidence that Mr Simms suffered from a chronic adjustment disorder with mixed features of anxiety and depression in response to cumulative and various work related stressors during the course of 2012. The Arbitrator also accepted that Mr Simms suffered from an antidepressant induced bipolar disorder from about November 2012 and has continued to suffer from both manic and depressive symptomatologies throughout the course of 2013 in response to the continued prescription of antidepressants.
The Arbitrator noted that Dr Kaplan concluded that Mr Simms suffered from a bipolar disorder hypomanic phase, which was constitutional in origin. Contrary to Dr Kaplan’s suggestion that Mr Simms may have been affected by his condition before charges were laid against him, the Arbitrator found that there was nothing in the evidence to corroborate such a history.
The Arbitrator noted that in his report of 17 February 2015, Dr Kaplan confirmed his diagnosis as outlined above. He added that by reason of the history of continuing depression and another manic episode around Christmas 2014, at a time when he believed, mistakenly, that Mr Simms was not on antidepressant medication, that Dr Klug’s assessment of a secondary medication-induced mania could be excluded.
However, it was conceded by the appellant’s counsel that Dr Kaplan’s history was not correct in that Mr Simms was in fact still taking antidepressant medication at the time of his admissions to Tweed Heads Hospital.
The Arbitrator accepted Mr Simms’ unchallenged evidence that he had not behaved in an unusual or abnormal manner prior to receiving the telephone call from Mr Tye on 6 June 2012.
Relying on a commonsense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)), the Arbitrator was satisfied that the psychiatric condition Mr Simms suffered, as diagnosed by Dr Klug, was caused by the telephone call that he received from Mr Tye and upon reading the respondent’s letter dated 4 June 2012. The Arbitrator made the following findings relating to the question of causation (at T17.20):
“I accept the unchallenged evidence that Mr Simms had not behaved in that manner previously, and on a common sense evaluation of the causal chain I am satisfied that the psychiatric condition that Mr Simms suffers with, as diagnosed by Dr Klug as one of chronic adjustment disorder with mixed features of anxiety and depression, as well as a bipolar disorder manifesting itself as a result of the symptomatology from his psychiatric condition and the ingestion of antidepressant medication, displaying itself in abnormal behaviour in January 2013 and again as commented upon by officers of the respondent when they observed Mr Simms at the respondent's premises on 5 February 2013, and his subsequent admissions to the Tweed Heads Hospital on 26 January 2013, 20 March 2013, his suicidal ideations and admission to the Northside Clinic for a period of three weeks under the care of Dr Cocks in April 2014, was caused by the telephone call he received from Mr Tye and upon reading the respondent’s letter.”
The Arbitrator added (at T19.19):
“It seems to me though that the causation of the psychiatric condition which Mr Simms suffered or suffers with was the events of 6 June 2012, firstly when he received the telephone call from Mr Tye and then receiving the letter from Deputy Commissioner Smith dated 4 June 2012 and the subsequent events thereafter.”
The Arbitrator further added (at T20.1):
“I am inclined to agree that that is the situation in relation to the evidence which has been presented to me, that the causation of the psychiatric condition and the causation of the injury on a common sense evaluation of the causal chain or link between the respondent’s action was the [sic] firstly the telephone call from Mr Tye and then the receipt of the letter dated 4 June 2012.”
The Arbitrator was satisfied, on the balance of probabilities, that Mr Simms had suffered a psychological injury arising out of or in the course of his employment with the respondent with a deemed date of injury being 6 June 2012 (T18.6). The Arbitrator did not explain the basis for the finding of the deemed date of injury, however I infer that the Arbitrator treated the injury as a disease condition and that 6 June 2012 is the date of incapacity under s 15 of the 1987 Act.

The Arbitrator did not accept that a dispute over authorisation of travel expense claims in December 2012 caused any aggravation of the condition (T20.13).
The Arbitrator found (at T20.20) that, on the balance of probabilities, Mr Simms’ psychiatric injury was wholly or predominantly caused by the action of the employer with respect to disciplinary matters.
With respect to the defence under s 11A the Arbitrator commenced with an analysis of the relevant principles, referring to Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie), Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 and Irwin v Director General of School Education (Unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997).
The Arbitrator noted that by May 2012, activity had begun to pursue the alleged wrongdoing by Mr Simms. As at 23 May 2012, the Commissioner, Mr Mullins, had written to ICAC setting out the nature of the allegations as per those contained in the briefing memorandum dated 21 May 2012.
By 27 July 2012, the respondent’s wellbeing coordinator expressed concerns for Mr Simms’ welfare. The Arbitrator concluded (at T26.6) that Mr Simms had been left in a state of limbo not knowing the nature of the allegations against him other than those set out in the redacted complaint. This the Arbitrator concluded was consistent with Mr Simms’ evidence which he provided in his statement of 12 July 2012, where he said that he did not understand what the allegations were all about. Mr Simms stated that the accusations were non-specific.
The Arbitrator concluded that the letter of 9 August 2012 was the first time that Mr Simms became aware of the specific nature of the allegations made against him. Further he said that although that letter set out a series of matters under investigation, it was insufficient for Mr Simms to understand the nature of the allegations made against him. By then the matter had already been referred to the Police for investigation, although Mr Simms was not made aware of that fact in the letter.
The Arbitrator found (at T29.31) that the letter from Deputy Commissioner Smith dated 5 February 2013, was the first occasion that Mr Simms became aware of the nature of the charges against him. This occurred some eight months after he received the letter dated 4 June 2012, advising him that there would be an investigation into alleged misconduct.
The Arbitrator concluded (at T31.10) that he could not be satisfied that the respondent had discharged its evidentiary burden required by s 11A of establishing that the actions it took with respect to discipline were reasonable. The Arbitrator found that what occurred on 6 June 2012 when Mr Simms received a phone call from Mr Tye telling him that he was the subject of an investigation for alleged misconduct and the receipt of the letter of 4 June were not reasonable. That was because the letter did not set out the nature of the allegations which had been made against him and it could not be found on an objective reading of the redacted complaint attached to the letter of 4 June that there was an allegation specifically made against Mr Simms.
The Arbitrator went on to find (at T32.1) that Mr Simms “remained in a state of flux” for a substantial period of time. The time frame for the completion of the preliminary inquiry, which was to be completed by 13 July 2012 did not occur. Enquiries made on behalf of Mr Simms on or about 27 July 2012, by the appellant’s welfare officer expressing concern for Mr Simms’ welfare, were not responded to.
The Arbitrator found (at T32.13) that Mr Simms remained in a “state of uncertainty” notwithstanding that the preliminary report had been completed on 29 August 2012, until he was advised by letter dated 5 February 2013 as to the nature of the charges preferred against him and that access to the documents to be relied upon would be made available.
The Arbitrator found (at T32.21):
“I find that the actions of the respondent in relation to discipline were not reasonable and that the respondent has not discharged its evidentiary burden pursuant to s 11A.”
It having been agreed that Mr Simms was totally incapacitated and that his current weekly wage rate was $1,803.23, the Arbitrator proceeded to make orders in relation to weekly payments from 6 June 2013, together with an order that Mr Simms be entitled to recover medical or related treatment expenses pursuant to s 60 of the 1987 Act. He also directed that the matter be remitted to the Registrar for referral to an AMS to assess the whole person impairment with respect to the psychological injury with a deemed date of injury being 6 June 2012.

SUBMISSIONS AND DISCUSSION

Did the Arbitrator err in his analysis and determination of the question of injury/causation? (ground a)

This ground is couched in terms of a complaint concerning the Arbitrator’s determination of a “causation” issue, however it is in substance a complaint concerning the Arbitrator’s finding of injury and the diagnosis of the injury.
Mr Baran submits that the Arbitrator failed to have regard to Dr Kaplan’s opinion, which was that Mr Simms’ condition was constitutional, namely a bipolar affective disorder, hypomanic phase, evidenced by mood swings, paranoia and disinhibition prior to June 2012. That submission is plainly wrong and I reject it.
The Arbitrator rejected Dr Kaplan’s opinion because there was no evidence to indicate any unusual or abnormal behaviour by Mr Simms prior to him receiving a telephone call from Mr Tye on 6 June 2012 (T16.30). In response to an invitation from me, at the second hearing of the appeal, to identify any evidence of such behaviour to support Dr Kaplan’s opinion, Mr Baran was unable to do so.
Given that the basis for Dr Kaplan’s opinion, namely the existence of pre-existing symptoms of unusual or abnormal behaviour, is unsupported by any evidence, it was open to the Arbitrator to reject it.
Mr Baran further submitted that, contrary to what Mr Simms told Dr Klug, namely that he enjoyed a secure childhood with good parenting, that his mother was affectionate and that he was not exposed to any abuse or violence, in fact Mr Simms’ early history was most distressing and involved physical abuse by his father and mental abuse by his mother.
This submission was not made at the arbitration and it is not open to argue on appeal that the Arbitrator erred in failing to deal with a submission never made: University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481. However, the submission is without merit in any event. It is based on an extract from the clinical notes of Mr Simms’ admission to the Tweed Hospital on 26 January 2013, when Mr Simms was being treated for a psychotic episode after “trashing” his home. The history in the clinical notes is at odds with the history recorded by both Dr Kaplan and Dr Klug and, given the circumstances in which it was taken, is likely to be less reliable than the history taken by both experts, which suggested a reasonably harmonious upbringing. Even if it is accepted that Mr Simms had a difficult upbringing, I was not taken to any medical evidence to link his childhood experiences with the bipolar condition the appellant submits he suffers from. The appellant’s case is that the condition is idiopathic, not that it was due to a traumatic childhood.
Mr Baran submitted that Dr Klug’s opinion of a medication induced mania should have been rejected by the Arbitrator. The submission was based on a mistaken observation by Dr Kaplan and is rejected. It was conceded by Mr Rickard at the arbitration hearing that Dr Kaplan was mistaken when he stated that Mr Simms suffered a manic episode in December 2013, after ceasing antidepressant medication. In fact, Mr Simms continued taking antidepressant medication after his discharge from hospital in January or March 2014, up until and including the time of the episode in December 2014. It follows that Dr Kaplan’s opinion on that issue was based on a false history and the Arbitrator was entitled to reject it.
At the hearing of the appeal, Mr Baran made two further submissions on the question of causation, neither of which were argued before the Arbitrator or formed part of the grounds of appeal. The first additional submission was that the Arbitrator erred in relying on Dr Klug’s opinion on the question of causation because Dr Klug did not conclude that Mr Simms’ condition was caused by the events on or about 6 June 2012 in isolation. Rather, it was submitted that Dr Klug’s evidence was that the condition resulted from a series of stressors some of which post-date June 2012.
The question of causation was dealt with by the Arbitrator on a common sense evaluation of the causal chain (Kooragang), taking into account not just the medical evidence but the whole of the evidence before him. However, for the reasons which I will discuss in dealing with ground two, the Arbitrator made inconsistent findings with respect to the cause of the injury. Although those inconsistencies do not affect the finding on injury, because irrespective of whether the injury was due to the events on or around 6 June 2012, or due to a series of stressors during 2012, the injury still arose out of or in the course of employment. However, the findings on injury do affect the approach to the determination of the s 11A issue, as discussed below.
The second submission made without notice at the appeal hearing concerned the Arbitrator’s analysis of the conflicting expert medical evidence. Mr Baran submitted the Arbitrator failed to take into account evidence in the clinical presentations in 2013 and 2014 which pointed more to a diagnosis of bipolar affective disorder as diagnosed by Dr Kaplan than an adjustment disorder as diagnosed by Dr Klug.
Mr Baran directed attention to various hospital entries, these included a note by a psychiatric registrar at Tweed Heads Hospital on 20 March 2013 of “imp [impression] Mixed Mood BPAD [bipolar affective disorder]”. Mr Baran also sought to rely on an alleged diagnosis of “BPAD” made on 15 April 2013 by a psychiatric registrar at the same hospital. However, on my reading of that document it is an unattributed nursing progress note. Mr Baran also directed my attention to a note by a triage nurse on 18 April 2013 which included an alleged history of bipolar affective disorder and hypomania.
The Arbitrator was not taken to any of the evidence that Mr Baran referred me to. At the arbitration hearing the appellant’s case on injury was that Dr Kaplan’s opinion should be preferred based on the history he obtained and on his clinical examination. Counsel for the appellant made no reference at the arbitration hearing to the extracts from the hospital notes or other clinical presentations Mr Barran referred to as a foundation for the submission that Dr Kaplan should be preferred. The Arbitrator cannot have erred in not dealing with material in respect of which no submissions were put at the Arbitration hearing.
In any event these entries in the clinical notes do not advance the appellant’s case. Both Dr Klug and Dr Kaplan diagnosed a bipolar condition which is consistent with the clinical entries. The dispute before the Arbitrator was whether the condition was idiopathic or related to the ingestion of medication for the adjustment disorder diagnosed by Dr Klug. The notations in the clinical notes do not address that issue.
Mr Baran submitted that a further basis upon which the Arbitrator should have preferred the opinion of Dr Kaplan is because Professor Michael Robertson, a psychiatrist, in a report dated 22 September 2014, prepared for the purpose of assessing Mr Simms’ suitability for medical retirement, concluded that Mr Simms suffered a type one bipolar disorder. I reject that submission. Professor Robertson’s report is not in evidence. Dr Klug merely referred to it in passing, in his report of 27 November 2014. Dr Klug stated that he disagreed with Professor Robertson’s opinion and noted that it had been reached in the absence of relevant documentation.
Given that Dr Klug had a full and detailed history, it was open to the Arbitrator to accept it in preference to Professor Robertson. Dr Klug explained the bipolar features of Mr Simms’ presentation as being due to a reaction to his antidepressant medication. That explanation was both plausible and logical and indicated that the bipolar condition resulted from reasonable treatment for the injury.
Mr Baran also sought to bolster Dr Kaplan’s diagnosis of Mr Simms’ condition by following a trail of prescriptions for certain medications which, in Mr Baran’s submission, are consistent with treatment for a bipolar affective disorder. Even if that submission is accepted it does not advance the appellant’s case because Dr Klug diagnosed that Mr Simms suffered a medication induced bipolar disorder in addition to the adjustment disorder. Therefore it followed that the medications Mr Simms was taking were equally consistent with treatment for the conditions diagnosed by both doctors.
On the evidence presented to the Arbitrator it was open to him to conclude that Mr Simms suffers from a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder. His finding to that effect does not involve error. Whether that condition was due to the events of 6 June 2012, or a series of stressors throughout 2012, it is clear, although the Arbitrator did not expressly say so, that Mr Simms’s employment was a substantial contributing factor to the injury. These findings are confirmed and are not open to challenge on the re-determination.

Did the Arbitrator take into account irrelevant considerations in determining the s 11A defence? (ground b)

Mr Baran submitted, relying on Heggie, that the Arbitrator erred by taking into account irrelevant considerations in assessing the reasonableness of the appellant’s conduct. He submitted that the Arbitrator took into account the conduct of the investigation after June 2012, being the deemed date of injury. Those matters included, for example, the Arbitrator’s criticism of the letter of 9 August 2012 as containing inadequate particulars of the allegations made against Mr Simms. Moreover, Mr Baran relied upon the Arbitrator’s findings that Mr Simms was left in a state of uncertainty about the investigation notwithstanding that the preliminary enquiry had been completed by 29 August 2012.
Mr Stockley submitted that the Arbitrator did that which was required of him, namely to determine whether the conduct of the appellant on or about 6 June 2012 was unreasonable. He submitted that the series of further findings made by the Arbitrator in relation to the conduct of the appellant after that date were not essential to his ultimate conclusions but were simply for the sake of completeness, those matters having occupied a large proportion of the lengthy hearing. I do not accept that submission. The assessment of the reasonableness of the appellant’s conduct should have been assessed at the time the decision to take disciplinary action was taken and communicated to Mr Simms.
In order to assess the merit of the appellant’s defence under s 11A, the Arbitrator was required to approach the question by determining:
(a)     the relevant injury to which the defence is said to apply;
(b)     whether the whole or predominant cause of that injury was action taken or proposed to be taken by or on behalf of the employer with respect to (in this case) discipline, and
(c)     that the action or proposed action was (objectively) reasonable.
The injury to which the defence applies is the chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder.
The Arbitrator’s findings with respect to (b) and (c) are confused and confusing.
The Arbitrator found (at T17.2) that the injury was caused by the telephone call from Mr Tye and reading the letter of 4 June 2012.
However, at (T19.19) the Arbitrator inconsistently found that the injury was caused by the events referred to in the preceding paragraph and “subsequent events thereafter”. Those two findings do not sit comfortably together. It is therefore unclear what finding, if any, the Arbitrator made as to the whole or predominant cause of the injury.
The Arbitrator found (at T31.16) that what occurred on 6 June 2012 when Mr Simms received the phone call from Mr Tye telling him that he was to be the subject of an investigation for alleged misconduct and the receipt of the letter dated 4 June 2012 were not reasonable actions taken with respect to discipline. The basis for that finding was that the nature of the allegations which had been made against Mr Simms had not been sufficiently identified. The Arbitrator found that Mr Simms could not have known that allegations were being made against him and did not know the nature of the allegations other than that he was being investigated for misconduct as a firefighter. If the events on or about 6 June 2012 were the whole or predominant cause of the injury, that finding was sufficient to dispose of the s 11A defence and it was not necessary to consider the appellant’s subsequent actions (Heggie at [12], [14] and [61]).
However, the Arbitrator also found (at T32.1) that Mr Simms remained in a state of flux for a substantial period of time. The timeframe for the completion of the preliminary investigation was not met, and a request by the appellant’s wellbeing coordinator on 27 July 2012 that Mr Simms be updated on the progress of the inquiry was refused. He also found (at T32.13) that Mr Simms remained in a state of uncertainty because he was not advised until 5 February 2013 of the detail of the charges that had been or were to be preferred against him. This led the Arbitrator to conclude (at T32.21) that the actions of the respondent in relation to discipline were not reasonable and that the respondent had not discharged its evidentiary burden pursuant to s 11A.
Therefore it is unclear from the Arbitrator’s determination whether it was the events on or about 6 June 2012 that were found to be the whole or predominant cause of the injury or whether it was those events combined with the whole of the investigation process that followed. The failure to make a clear finding on this issue was an error that has affected the whole approach to the s 11A defence. That error requires that this part of the matter must be re-determined.
It follows that except for the Arbitrator’s findings on the question of injury, which as I have indicated are to stand, the Arbitrator’s determination must be revoked and the matter remitted to another Arbitrator to re-determine.

OTHER MATTERS

For a worker to have received a personal injury, it is necessary that the events complained of had a physiological effect (Yates v South Kirkby Collieries Ltd[1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3). Whether a worker has suffered a physiological effect will depend on the nature and severity of his or her symptoms. Such an effect may be experienced as a result of a specific event, or it may develop over time as a result of exposure to multiple events.
As explained above, the difficulties arise from the Arbitrator’s reference to the deemed date of injury being 6 June 2012. That could only be relevant if Mr Simms’ injury is a s 4(b)(i)/ s 15 injury, that is, a disease contracted in the course of his employment. In that event, the injury is deemed to have happened at the time of death or incapacity (s 15(1)(a)).
However s 15(1) only applies if the injury is a disease “which is of such a nature as to be contracted by a gradual process”. Without deciding it, it is difficult to see that the phone call on 6 June 2012 and/or the receipt of the letter of 4 June 2012 could be described as a gradual process. It may well be, however, that Mr Simms suffered a personal injury (s 4(a)) on 6 June 2012. Neither the evidence nor the parties’ submissions dealt with this possibility.

As these are not matters that are the subject of this appeal I express no concluded view about them. However, as the matter is to be remitted to another Arbitrator for re-determination they should be addressed before the next Arbitrator by way of submissions and further evidence if necessary.

SUMMARY AND CONCLUSION

The Arbitrator’s finding that the worker suffered a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder to which his employment was a substantial contributing factor was open on the evidence and that finding is confirmed. Thus, the issue of whether Mr Simms received and injury is no longer in dispute.
The matter will be remitted to another Arbitrator to re-determine the s 11A defence.

COSTS

At the resumed hearing of the appeal on 21 September 2015, three of the four grounds of appeal were withdrawn and a further ground added. The only original ground of appeal that was pressed, which related to the question of injury, failed.
The appellant succeeded on the ground that the Arbitrator took into account irrelevant considerations in his assessment of the s 11A defence. That ground was permitted over objection at the resumed hearing of the appeal on 21 September 2015.
Mr Stockley submitted that in the event that leave to appeal was granted out of time, that the Commission should order as a term of that leave that the appellant pay the respondent’s costs in any event. He submitted that that is particularly so if the appellant succeeds on the ground filed for the first time at the hearing of the appeal. The appellant did not oppose such an order.
In the circumstances I order the appellant employer to pay the respondent worker’s costs of the appeal.

ORDERS

The appellant employer’s name is amended to State of NSW.
Time to appeal the Arbitrator’s determination of 17 April 2015 is extended until 24 June 2015.
The Arbitrator’s Certificate of Determination dated 17 April 2015 is revoked.
The matter is remitted to another Arbitrator for re-determination in accordance with the reasons in this decision. For the avoidance of doubt, the re-determination does not extend to whether the applicant worker suffered a psychological injury in the nature of a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder, to which his employment was a substantial contributing factor.
The appellant employer is to pay the respondent worker’s costs of the appeal.

I order that the costs of the first arbitration shall follow the outcome of the second arbitration.

Judge Keating
President

16 October 2015

I, VALDA TAYLOR, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE