Toll Holdings Ltd v Diomidhous - [2023] NSWPICPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Toll Holdings Ltd v Diomidhous [2023] NSWPICPD 26
APPELLANT:	Toll Holdings Ltd
RESPONDENT:	Andromides Diomidhous
INSURER:	Self insured
FILE NUMBER:	A1-W828/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	9 May 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 27 July 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – section 11A of the Workers Compensation Act 1987 - approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 and Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505 considered and applied – parties are bound by the way a case is conducted below - Brambles Industries Ltd v Bell [2010] NSWCA 162
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B Jones, counsel
Colin Biggers & Paisley Lawyers
Respondent:
Ms L Goodman, counsel
Santone Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF Member’s DECISION:	27 July 2022

INTRODUCTION AND BACKGROUND

The respondent, Andromides Diomidhous, was engaged as a courier driver by the appellant, Toll Holdings Ltd, from 1997 until he ceased work on 2 February 2021. The respondent alleged that during the course of his employment with the appellant, he was subjected to various incidents of bullying and harassment which caused him to sustain a psychological injury, in particular an adjustment disorder. The respondent complained that the appellant did not pay him his correct entitlements and treated other drivers more favourably. Additionally, the respondent complained that notwithstanding his vehicle being of a two-tonne classification, he was only paid the rate applicable to a one-tonne classification.
The appellant denied all of the respondent’s allegations and stated that any psychological condition that the respondent may have suffered arising out of his employment was as a result of reasonable actions taken by the appellant or on its behalf. Additionally, the appellant denied that the respondent had ever been an employee, and also asserted the respondent was out of time to make a claim, pursuant to the statutory time limitations within ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1]
[1] See notice issued by the appellant pursuant to s 78 of 1998 Act, Application to Resolve a Dispute (ARD), p 79.
The Member rejected the appellant’s arguments, finding that the respondent was indeed an employee.[2] The Member also considered whether the respondent was a deemed worker, as provided for in cl 2 of Sch 1 of the 1998 Act. The Member found that the respondent could also be regarded as a deemed worker in accordance with that provision. Once finding that the respondent was an employee, the Member also found that he had sustained a psychological injury within the meaning of s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act) as a result of real events within the workplace. The defence raised by the appellant pursuant to s 11A of the 1987 Act and ss 254 and 261 of the 1998 Act also failed. As a result, the Member ordered payment of weekly compensation based on the respondent having no current work capacity, and ordered the payment of reasonably necessary medical expenses for treatment of the psychological injury.
[2] Diomidhous v Global Express Courier [2022] NSWPIC 412 (reasons), [55].
The appellant employer appeals from the Member’s decision in respect of the finding of injury, the s 11A defence and work capacity. I would note that there is no appeal pursued in relation to the finding that the respondent was either an employee or a deemed worker.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE MEMBER’S REASONS

Before turning to the Member’s reasons in detail, I would remark that a significant part of the dispute before the Member involved a consideration of whether the respondent worker was in fact a worker at the time he sustained his injury. Alternatively, the Member had to consider whether the respondent was a deemed worker at the time he sustained his injury.[3] On these two questions the Member found in favour of the respondent. No appeal ground has been advanced against these findings and therefore it is not necessary for me to traverse those aspects of the Member’s reasons which deal with and decide these questions.[4]
[3] Clause 2 of Schedule 1 of the 1998 Act.
[4] Reasons [12]–[63].
Once the Member made this finding, he turned to the question of whether the respondent suffered a psychological injury in the course of his employment with the appellant.
The Member was ultimately satisfied that the respondent suffered a disease injury pursuant to s 4(b)(i) of the 1987 Act, with a deemed injury date of 2 February 2021.
In coming to this determination, the Member considered the lay and medical evidence, providing detailed summaries.
The Member summarised the respondent’s two statements dated 18 October 2021 and 2 May 2022 and a document titled ‘Intimidations Diary’ within the first statement. In these, the respondent recalls several incidents he says caused the deterioration of his mental health. The first incident, which the respondent says was the first episode of significant stress, occurred on or about 10 December 2008. The respondent says he rang the office to enquire about an empty pallet that had been left over after delivering a load, and was verbally abused by a manager named ‘Murphy’ in two calls. The respondent says he vomited after the second call and saw Dr Verma, who provided a medical certificate to have two days off.[5] The Member refers to the clinical record made by Dr Verma relating to this incident.[6]
[5] Reasons, [65]–[66].
[6] Reasons, [88].
The respondent recalls an incident in 2010 where a superior by the name of ‘Wayne’ accused him of “sitting on [his] ass all day”, when he had done an extra delivery to help a driver who was sick that day. The respondent says that in 2010 he was not being allocated well paying jobs, as the appellant was discriminating who would get these jobs. Consequently, there was a delay in the appellant paying the safety net and the union had to be involved to resolve this. The respondent says that the failure of the appellant to distribute the workload evenly and fairly, and the failure to pay the safety net, contributed to the deterioration of his mental health in 2021.[7] The respondent also referred to incidents in 2011 when he lost safety net again, and a call to an operator for assistance who apparently spoke to him in an abusive way.[8]
[7] Reasons, [67]–[69].
[8] Reasons, [70]–[71].
The Member refers to another incident reported by the respondent, in 2008, when he was given a run to Wollongong. The respondent was told by a manager, John Reeves, that the job would be paid at a one-tonne rate, when the capacity of his vehicle meant he should have been paid at a two-tonne rate. He was told not to complain, and while the respondent says this incident did not cause him to seek medical attention, it contributed to the accumulation of incidents over the years which negatively impacted his mental health. In addition, the respondent refers to not being provided with new work apart from a ‘Symbion run’ which required him to complete 15 different drops within a hospital instead of one, after which he discovered he was underpaid by only being paid for one drop. The Member noted the respondent felt that “the progression of these events/factor, in combination with the other incidents in the past, forced me to go and seek medical help.”[9]
[9] Reasons, [78].
The respondent says he therefore saw Dr Gerges who provided a medical certificate which stated he was “suffering from stress related to work”, and then consulted general practitioner Dr Mangahis for ongoing treatment of his psychological condition.[10]
[10] Reasons, [79].
The Member referred to statements provided by the appellant’s employees, including Mr Delovski, whom the respondent reported to for some years. In this statement dated 31 March 2021, Mr Delovksi says the respondent had a ‘Toyota run’ in the morning and a ‘NAB run’ in the afternoon, and that he was good at his job with no complaints.[11] At the end of 2021, the appellant lost the Toyota account, which is why the respondent was offered the ‘Symbion run’. This was in the opposite direction to the ‘NAB run’, so the respondent gave back this run and was offered additional ad-hoc work. Mr Delovski recalled the respondent informed him that he was happy about the change and that his pay would not have been affected.[12]
[11] Reasons, [80].
[12] Reasons, [81].
Mr Delovski says he has no knowledge of the historic issues raised by the respondent and believed the respondent was paid correctly. He says to his knowledge, the respondent drove a one-tonne truck, although that classification is done through the Fleet Team.
The Member also considered Glen Coker’s statement dated 31 March 2021, who was employed to allocate runs. Mr Coker says that the respondent appeared fine during the ‘Symbion run’ and did not indicate any issues, however, on 2 February 2021, the respondent arrived at the site and started shouting and swearing, saying “I’m sick and tired of this. I’m not working for Toll anymore. They don’t f-ing pay. I’m sick of this b-shit and they can go f-k themselves”. The respondent said he would hand in his uniform and walked out of the office.[13]
[13] Reasons, [86]–[87].
The Member referred to the consultation notes of Dr Mangahis who treated the respondent’s psychological condition from February 2021. The notes indicate the respondent had been “quite stressed with work” for the preceding two weeks, although “prior to this [it] has been slowly building up for the past two years”. The respondent requested a mental health plan, reporting that he had been “getting discriminated”, “his work-load [was] being reduced”, that “he has been losing money in the process”, and that he has raised his work issues with the union. The notes also refer to the respondent going through a divorce and his 9-year-old son.[14]
[14] Reasons, [89].
The Member considered a report of 31 October 2021 from Ms Elizbeth Talbot, clinical psychologist, who the respondent saw on several occasions in 2017 and in June 2021. In this report, she writes that during an appointment in June 2021, the respondent described experiencing anxiety and distress related to the circumstances of his employment and the cessation of work. She notes there was “alleged discrimination and unfairness relating to the downgrading of his work vehicle”. She diagnoses the respondent with adjustment disorder with mixed anxiety and depressed mood. The Member noted that Ms Talbot’s clinical notes reveal the treatment sought in 2017 related to difficulties with his neighbours and in-laws.[15]
[15] Reasons, [90]–[94].
The Member considered a report by Dr Frank Chow, psychiatrist, dated 28 May 2021, obtained at the request of the respondent’s solicitors. In this report, Dr Chow records that the respondent’s vehicle was downgraded, and that the appellant had discriminated against the respondent over the years, affecting his hours and pay. Further, in the preceding 12 months, the respondent was travelling 2,000 kilometres per week, but his gross pay was $1,000 each week. Dr Chow reports that there were many incidents over the years that the respondent recorded in a diary, but that the “pivotal point” was the ‘Symbion run’. The Member noted Dr Chow’s diagnosis of an adjustment disorder resulting from the nature and conditions of the respondent’s employment, as well as the doctor’s opinion that employment was the main contributing factor to the injury. The Member referred specifically to Dr Chow’s response to the question of whether the injury was caused by the respondent’s normal duties or treatment by management, to which Dr Chow answered that the respondent felt it was due to being unfairly treated by the employer for a prolonged period of time.[16]
[16] Reasons, [95]–[100].
The Member summarised psychiatrist Dr Graham Vickery’s reports dated 20 April 2021 and 26 July 2021, who was independently qualified by the appellant. Dr Vickery’s reports also refer to the vehicle downgrade and the respondent earning $1,000 gross per week despite doing 2,000 kilometres of travel for work. Dr Vickery notes the ‘Symbion run’ and working more hours than he was paid. Dr Vickery similarly diagnoses the respondent with adjustment disorder and opines that the respondent’s “perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided.” In his supplementary report, Dr Vickery further states that this reasoning “is on the basis of the history provided by [the respondent].”[17]
[17] Reasons, [101]–[104].
The Member referred to submissions put forward by counsel for the respondent, that the perception of real events in a workplace are sufficient basis for a psychological injury to be compensable, consistent with State Transit Authority of New South Wales v Chemler,[18] even if the worker does not have a proper perception of those events. It was submitted that in this case, the evidence of stressful events had not been challenged by the appellant. Counsel for the appellant submitted on the other hand that Dr Chow and Ms Talbot did not appear to be aware of the extent of stressful events complained of by the respondent, and that other than the event of a lesser paying run, Dr Chow’s opinion has been provided on an incorrect history, whilst Ms Talbot’s history was limited to general notations about anxiety and distress except for a specific complaint in respect of the downgrading of his vehicle. The appellant asserted that the conclusionary statements made by Ms Talbot were fatal to acceptance of her opinion, and that both Dr Chow and Ms Talbot attributing causation to the nature and conditions of employment was of no assistance to the dispute.[19]
[18] [2007] NSWCA 249.
[19] Reasons, [105]–[109].
The Member appears to consider the applicability of a “nature and conditions” injury to these circumstances at [114] of the reasons, noting that such a claim might be relevant to the cause of injury if it involves work akin to that on a process line. The Member thought that neither Dr Chow or Ms Talbot appeared to explain the “nature and conditions of employment” which were attributable to the respondent’s injury. Of all the events described by the respondent, the Member agreed with the appellant’s submission that it was the specific events of the downgrading of the respondent’s vehicle classification and the reduction of jobs being provided to him, being events which led to a loss of income, that could be found to be causative of the respondent’s psychological injury. They were the only events “acknowledged with any precision by Dr Chow and Ms Talbot, as well as Dr Vickery.”[20]
[20] Reasons, [114].
Whilst the Member noted the appellant’s submission that the downgrading of the respondent’s vehicle was not a contributing factor to the respondent’s psychological injury noting his own statement that this event was not strong enough for him to seek medical attention; the Member did not agree with the appellant. On the Member’s reading, the respondent’s statement that “this incident alone, it wasn’t strong enough for me, to ask for any medical attention” relates to the interaction with Mr Reeves, rather than the ongoing downgrade of his vehicle classification over the years, particularly from 2015. The Member noted that the respondent referred to this vehicle downgrade as part of the “accumulation” of incidents, and it was significant enough to be mentioned as a particular source of stress for the respondent to Ms Talbot, Dr Chow and Dr Vickery. The Member noted that there was no evidence tendered by the appellant supporting its assertion that the vehicle downgrade was incorrect, besides a mention in Mr Delovski’s statement that he believed the respondent drove a one-tonne truck, but this was a matter for the Fleet Team, who had not provided evidence.[21]
[21] Reasons, [115]–[118].
The Member referred to Attorney General’s Department v K[22] and Deputy President Roche’s commentary at [54] in respect of a worker’s perception of events, and held that “[t]here is no evidence to challenge the claim made by the [respondent] that the vehicle classification downgrade in 2008 was a real event and that the ongoing concern he had as a result of this was a cause of the psychological distress that he experienced by the beginning of February 2021.”[23] The Member referred to both Dr Chow and Dr Vickery who considered this to be a cause of the respondent’s psychological distress. It was also referred to in Dr Mangahis’ notes following his consultation 15 February 2021 and Ms Talbot’s notes following her consultation 23 June 2021.[24]
[22] [2010] NSWWCCPD 76 (Attorney General v K).
[23] Reasons, [120].
[24] Reasons, [121].
The Member was also satisfied that the evidence supported the respondent’s claim that he was earning about $1,000 per week, and that the concern regarding this was heightened by realisation of what he would be earning on the ‘Symbion run’. The Member referred to the respondent’s statement that he was travelling 2,000 kilometres for only $1,000 gross per week, which the Member believed was supported by the parties’ agreement that the respondent’s pre-injury average weekly earnings (PIAWE) were $1,428.30. After deducting fuel and other expenses, the Member considered this would be consistent with the claimant’s estimate of earning $1,000 per week. The Member noted again that there was no evidence from the appellant to challenge this, other than a general assertion from Mr Delovski that it was not correct. Dr Chow had referred to the ‘pivotal point’ when the respondent realised the ‘Symbion run’ would result in pay for four hours, despite undertaking eight and a half hours of work.[25]
[25] Reasons, [122]–[126].
The Member found that on the evidence, the downgrading of the respondent’s vehicle classification and earning a lower rate were real events, unchallenged by the appellant, which caused the respondent to perceive that he was being unfairly treated. The reports of Dr Chow and Dr Vickery link these events as causes of the respondent’s psychological injury.[26]
[26] Reasons, [127].
The Member concluded that “[t]he weight of evidence therefore supports a finding that the downgrading of the motor vehicle and the lower rate of pay being received by the [respondent] were real events, and the [respondent’s] perception of them as being unfair and discriminatory were the cause of his psychological injury.”[27]
[27] Reasons, [129].
The Member found that the injury sustained by the respondent meets the definition of ‘disease injury’ in s 4(b)(i) of the 1987 Act. In doing so, the Member drew parallels between the progression of the respondent’s psychological condition, reaching a ‘pivotal point’ in February 2021, with Burke CCJ’s application of disease injury in Perry v Tanine Pty Ltd t/as Ermington Hotel,[28] wherein disease was described with respect to the physical injury of carpel tunnel syndrome as “a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence”. In this circumstance, the Member considered “there was repeated stress upon the [respondent’s] psychological condition due to the downgrading of his vehicle classification and earning low rates of pay in recent years, and this has been the cause of his injury.”[29]
[28] [1998] NSWCC 14; 16 NSWCCR 253 (Perry).
[29] Reasons, [130]–[131].

In considering the main contributing factor to the respondent’s disease, the Member referred to the evaluative process of the whole of the evidence, required by State Transit Authority of New South Wales v El-Achi.[30] The Member referred to Dr Vickery’s opinion that the respondent’s personal stressors (including marital issues) were contributing to his psychological condition, but the Member noted that the doctor still opined that the perception of inadequate income, the reallocation of runs and downgraded vehicle classification were substantial or whole contributing factors to his injury. The Member considered the opinions of Dr Chow, who referred to his condition resulting from the incidents at Toll, and Ms Talbot, who reported that the respondent’s personal issues from 2017 had resolved. The Member noted that neither practitioner identified marital issues as a factor, and that the appellant in its own written submissions, “accepts it cannot point to any evidence which indicates the diagnosed Adjustment Disorder was caused by anything other than work.”[31]
[30] [2015] NSWWCCPD 71 (El-Achi).
[31] Reasons, [132]–[139].
Based on this evaluation, the Member accepted that employment with the appellant was the main contributing factor to his psychological injury in the nature of a disease.[32]
[32] Reasons, [137].
In accepting a disease injury pursuant to s 4(b)(i) of the 1987 Act, the deemed date of injury was found to be 2 February 2021 in accordance with s 15(1)(a)(i) of the 1987 Act. As a result, the statutory time limitation defences raised pursuant to ss 254 and 261 of the 1998 Act had no basis.[33] No issue is taken on appeal with respect to the dismissal of these limitation defences.
[33] Reasons, [141].
In respect of the defence pursuant to s 11A of the 1987 Act, the Member noted that the dispute notices relied on reasonable action taken with respect to transfer, retrenchment and/or provision of employment benefits, however the appellant’s submissions upon hearing were limited only to the category of ‘transfer’ as the whole or predominant cause of psychological injury.[34]
[34] Reasons, [144].
In this regard, the appellant submitted that it had lost business due to the COVID-19 pandemic and thus the only option was to transfer the respondent to a new route, being the ‘Symbion run’, even though it would result in wage loss. It submitted it would have been unreasonable not to transfer the respondent when work was available. The appellant submitted that as Dr Vickery was the only expert to grapple with the s 11A issue, his opinion should be accepted. The respondent denied that the transfer of the run was only one event, and that the cause of injury was the cumulative effect of all the various incidents and the respondent’s perception of them.[35]
[35] Reasons, [146]–[148].
With reference to the events of vehicle downgrade in 2008 and rate of pay issues in 2020 as the accepted cause of injury, the Member considered that these actions extended well beyond the “transfer” to the ‘Symbion run’ in 2021, and thus, the transfer alone could not be the whole or predominant cause of injury. The Member said he could not accept that Dr Vickery had properly considered s 11A, and held that the doctor’s opinion was “ambiguous, lacks explanation and cannot be relied upon”. He found that Dr Vickery may have been directed to consider s 11A, however, the doctor had not considered its application properly in terms of the evidence as it was unclear which of the three categories in s 11A Dr Vickery considered to be contributing factors, as the doctor makes no differentiation between the incidents which caused the injury and those which relate to the transfer.[36]
[36] Reasons, [151]–[154].
The Member accepted the respondent’s submission that “the cause of his psychological injury was the cumulative effect of all the various incidents which occurred at work, and more particularly the [respondent’s] perception of those incidents”. The transfer of the respondent to the ‘Symbion run’ was but one of these events, and therefore, the s 11A defence failed.[37]
[37] Reasons, [154]–[156].
The Member then turned to the claim for weekly payments of compensation, and ultimately found the respondent has had no current work capacity since ceasing work on 2 February 2021 but commented that this may change when the respondent receives psychological treatment, as opined by his treaters.
The Member considered the respondent’s statements regarding his psychological trauma, and his inability to adjust to normal life; the opinions of the medical experts (despite finding they did not provide much assistance on this issue), and the parties’ submissions.[38]
[38] Reasons, [158]–[164].
The Member noted that Dr Chow was not aware of the respondent’s tertiary qualifications, which the Member said could arguably allow him to work in some basic clerical or administrative employment. The Member considered Dr Vickery’s opinion that the respondent is fit for work in another company was of little assistance as it was unclear whether the doctor is referring to another courier company, or to jobs the respondent is capable of doing within the open market. Further, the Member noted that Dr Vickery failed to consider the respondent’s complaints about memory and concentration issues caused by lack of sleep and his levels of anxiety.[39]
[39] Reasons, [164]–[165]
Despite concluding that there were deficiencies within the evidence, the Member ultimately preferred the opinions of the respondent’s treating practitioners and Dr Chow as they have the benefit of monitoring his condition. All the treaters considered that the respondent would have no capacity for work until such time as he receives further treatment for his psychological condition.[40]
[40] Reasons, [169]–[170].
The appellant referred to the respondent’s bank records, which it said showed that the respondent had attended numerous venues in 2021 which was inconsistent with lacking capacity for work. However, the Member considered that these mostly appeared to be attendances for daily living and the occasional leisure expenses, and did not allow a conclusion that the respondent was sufficiently active enough to allow a return to work.[41]
[41] Reasons, [172].
Despite the treating practitioners expressing that the respondent may be able to return to some part time work, the Member considered that this must be balanced against the main impediment, being the need for further psychological treatment.[42]
[42] Reasons, [173].
Although the respondent may have some capacity for work once he receives this treatment, based on the evidence available, the Member concluded that the respondent did not have work capacity and calculated an award of weekly payments based on the PIAWE agreed by the parties.[43]
[43] Reasons, [174].
The Certificate of Determination issued on 27 July 2022 records:
“1.     The [respondent] was a worker who worked under a contract of service with the [appellant] when he sustained a psychological injury in the course of his employment with the [appellant].
2.     The [respondent] also meets the definition of a deemed worker within the meaning of cl 2 of Schedule 1 of the Workplace [Injury] Management and Workers Compensation Act 1998 (the 1998 Act).
3. The [respondent] sustained a psychological injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), with a deemed date of injury of 2 February 2021.
4. The [appellant] has failed to establish a defence pursuant to s 11A(1) of the 1987 Act.
5.     That the [respondent] has had no current work capacity since 2 February 2021.
The Commission orders;
1.     The [appellant] is to pay the [respondent] weekly payments of compensation as follows;
(a)$1,356.88 per week from 2 February 2021 to 3 May 2021 pursuant to s 36(1) of the 1987 Act, and
(b)$1,142.64 per week from 4 May 2021 to date and continuing pursuant to s 37(1) of the 1987 Act.
2.      The [appellant] is to pay the cost of the [respondent’s] reasonably necessary medical expenses for treatment for his psychological injury pursuant to s 60 of the 1987 Act.”

GROUNDS OF APPEAL

The appellant advances seven grounds of appeal. They are:
Ground One: The Member erred in accepting and relying on the opinions of Dr Chow and Ms Talbot.
Ground Two: The Member erred in accepting and relying on the opinion of Dr Mangahis.
Ground Three: The Member erred in his fact finding process.
Ground Four: The Member erred in rejecting the appellant’s defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
Ground Five: The appellant was denied procedural fairness.
Ground Six: The Member did not deal with a clearly articulated argument raised by the appellant.
Ground Seven: The Member erred in finding that the respondent had no current work capacity.

LEGISLATION

Section 4(b)(i) of the 1987 Act provides:
“4 Definition of “injury” (cf former s 6 (1))
In this Act—
injury—
…
(b) includes a disease injury, 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
…”
Section 11A of the Workers Compensation Act 1987 (the 1987 Act) relevantly provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

DISCUSSION

As to Grounds One and Two: The Member erred in accepting and relying on the opinions of Dr Chow and Ms Talbot; The Member erred in accepting and relying on the opinion of Dr Mangahis

The appellant has dealt with Grounds One and Two jointly in its submissions. It is therefore convenient to deal with both grounds together. The appellant takes issue with the manner in which the Member dealt with the expert opinion evidence of Dr Chow, Ms Talbot and Dr Mangahis. The appellant submits as follows:
“the Member’s reliance on those opinions was in error and contrary to the findings made.”[44]
[44] Appellant’s submissions, [24].
Before turning to the specific arguments relied upon by the appellant in these grounds, it is necessary to set out the requirements for expert evidence in non-evidence-based jurisdictions such as the Commission.

Approach to expert evidence in the Commission

The Commission is not bound by the rules of evidence.[45] Procedural Direction PIC4 – Expert Witness Evidence, made pursuant to s 21 of the 2020 Act, sets out the requirements for expert witness evidence in Commission proceedings. The following authorities are usually the starting point for the consideration of expert evidence in the Commission’s setting. In Hancock v East Coast Timber Products Pty Limited,[46] Beazley JA said as follows:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell’s evidence in this case, so that is not the relevant error.”[47]
And:
“Although I have concluded that the two reports of 6 May 2008 were not deficient as found by his Honour, the question as to whether Dr Summersell’s satisfied the principle discussed above had to be determined by having regard to all of his reports. A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence: see the discussion in Rhoden v Wingate at [55]–[73]. In total, there were four reports of Dr Summersell, including the two reports dated 6 May 2008. A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law: see Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 per Hayne J at [130]. The question as to whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports. It was not a determination that could be made by singling out an isolated part from the whole of that witness’s material before the Commission.”[48]
[45] Section 43 of the 2020 Act.
[46] [2011] NSWCA 11 (Hancock).
[47] Hancock, [82]–[83].
[48] Hancock, [92].
In Paric v John Holland Constructions Pty Ltd,[49] Samuels JA in dealing with apparent discrepancies between the facts proven and hypothetical facts put to an expert said as follows:
“Furthermore, there is another reference in a footnote to the same section, and this is in the 1979 edition (at 942). This is a reference to a Wyoming case, Culver v Sekulich (1959) 80 Wyoming 437 at 458. It is in these terms:
‘From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witnesses.’
I would respectfully adopt that last statement as exactly in point and its application disposes of both aspects of the problem to which I have earlier referred. It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish, and certainly it was open to the learned judge to come to that conclusion.”[50]
[49] [1984] NSWLR 505 (Paric).
[50] Paric, 509–510.
Finally, both parties are referred to the decision of Deputy President Roche in El-Achi and in particular to his comments at paragraph [72] of that decision. Whilst the appellant accepts the principle enunciated in this case, it says it does not apply as there was “no cogent medical evidence which supports a finding of injury”.[51]
[51] Appellant’s submissions in reply, [8].

Submissions

The appellant argues that the Member expressed reservations about the opinions of Dr Chow and Ms Talbot[52] and yet proceeded to place reliance upon these opinions in his ultimate finding of injury at reasons [137]. The appellant argues that considering the finding, with respect to Dr Chow and Ms Talbot, their opinions were “of no assistance”,[53] those opinions should have been rejected and not featured as part of the determination.[54] Additionally the appellant states that neither opinion was given in a fair climate, relying upon Hancock.[55] The appellant repeats these submissions with respect to the opinion of Dr Mangahis.
[52] Reasons, [109]–[110].
[53] Reasons, [109].
[54] Appellant’s submissions, [30].
[55] Appellant’s submissions, [31], relying on Hancock, [66]–[83].
In reply, the respondent disputes that the Member’s views expressed at reasons [109]–[110] serve to render the opinions expressed by Ms Talbot and Dr Chow to be of no assistance.[56] The respondent also states that it was not necessary for Dr Chow and Ms Talbot “to take a history of each and every stressor which occurred over the course of a more than 13-year period”.[57] The respondent states that there is no requirement for there to be “a precise correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case. That is precisely the point made in Hancock.[58] The respondent concludes by saying that the appellant at first instance conceded that it could “not point to any evidence that indicated the diagnosed Adjustment Disorder was caused by anything other than work”.[59] The respondent also says that the appellant has not set out which assumptions made by the experts “were not borne out by the evidence”.[60] The respondent states this is not a matter of the Member rejecting opinions, rather it was a question of the weight to be attributed to each opinion.
[56] Respondent’s submissions, [9(b)].
[57] Respondent’s submissions, [9(c)].
[58] Respondent’s submissions, [9(c)], citing Hancock, [85].
[59] Reasons, [139].
[60] Respondent’s submissions, [9(d)].

Consideration

The appellant’s principal concern about the opinions of Dr Chow and Ms Talbot arises mainly from the use of the phrase “nature and conditions” of employment in the giving of a part of their opinions and the Member’s remarks upon the deployment of that phrase. This, the appellant states, will lead to these opinions in their entirety being rejected or given no weight. In short, the appellant states that the Member should have had no regard to either opinion.
In evaluating this submission, the starting point is a close consideration of both expert opinions.
I will deal firstly with the report of Dr Chow dated 28 May 2021.[61] This report was produced in response to a referral from the respondent’s solicitors. The doctor, as is very common in such reports, records the documentation that he had been provided, a background history of the respondent worker and the mental state examination upon presentation. This section of the report then concludes with Dr Chow’s “Summary and Opinion”.[62] In this section of the report the doctor states as follows:
“In 2008, his vehicle was unfairly downgraded from 2-ton to 1-ton, which affected his vehicle classification and income. He further tolerated the difficulties and continued to work to support his family.
He stated that he was bullied and intimidated through being given lower pay jobs and it had affected his psychologist [sic] state. He stated that he had done another 12 months of low pay run. Then earlier this year, he was given another assignment with lower pay, which caused him further psychological distress. He then went off work and put in a claim.
He reported experiencing sufficient symptomology for diagnosis of adjustment disorder.”
[61] ARD, p 105.
[62] ARD, p 109.
Immediately beneath this section of Dr Chow’s report appear 12 questions and answers, entitled “Specific questions for the examination”. The answer to question four contains the offending phrase “nature and conditions” referred to by the Member at reasons [109] and which is the subject of the appellant’s complaint in this appeal ground. I set out in full question four and the doctor’s answer:
“The date of our client’s injury and your opinion as to whether the injury was sustained as a result of the nature and conditions of our client’s employment with Toll Group. (emphasis added)
Please comment on whether you consider the employment to be a main contributing factor to the injury sustained by our client.
The date of injury is 2 February 2021. In my opinion, the injury was sustained as a result of the nature and conditions of your client’s employment with Toll Group, and I do consider the employment to be a main contributing factor to the injury sustained by your client.
Mr Diomidhous stated that he was being unfairly treated by the workplace over the years with him getting unfair assignments with lower pay.
He stated that he was bullied and intimidated by the workplace with being given lower pay jobs over the years.”[63]
[63] ARD, pp 109–110.

As can be seen, the deficiency in the doctor’s answer to question four arises is in no small way due to the in the infelicity of the question posed. Clearly Dr Chow was responding to the specifics of the question asked by the respondent’s solicitors in giving his answer to question four. But by the time Dr Chow has given this opinion, he has already in the “Summary and Opinion” section of his report set out in broad terms what he understands the facts to be and his diagnosis of the respondent’s condition. No issue has behen taken on this appeal by the appellant with the contents of the “Summary and Opinion” of Dr Chow’s report.
The Member was correct to give the answer to question four little or no weight. The question that Dr Chow was answering did not set out the basis upon which the question was asked and as a consequence the answer suffers from that deficiency. The doctor was merely responding to the question in the terms that it had been asked. But the answer to one poorly expressed question does not otherwise serve to vitiate the balance of the doctor’s opinion which was otherwise available for use by the first instance decision-maker. This would be contrary to the remarks from Hancock [92] which I have set out above.
I now turn to the report of Ms Elizabeth Talbot, clinical psychologist, dated 31 October 2021.[64] This report is addressed to the respondent’s solicitors and is in response to eight specific questions that the lawyer asked Ms Talbot to answer. Just as was the case with Dr Chow, the respondent’s solicitors asked the following question:
“The date of our client’s injury and your opinion as to whether the injury was sustained as a result of the nature and conditions of our client’s employment with Toll Group. (emphasis added)
I do not have a specific date of injury, however I note that the date of injury on this request is 15 February 2021. I do not have any reason to disagree with this date. I do believe, based on the information obtained from Mr Diomidhous and the psychometrics collected, that Mr Diomidhous’ current symptomology relates to the nature and conditions of his employment with Toll Group.”[65]
[64] ARD, p 112.
[65] ARD, p 113.
As can be seen the question and answer suffer from the same deficiency that I referred to above, namely that the question refers to “the nature and conditions of our client’s employment with Toll Group’’ without specifying the factual basis for the question.
However Ms Talbot gave an answer to question one which describes the history that she had been given by the respondent worker, relevantly stating as follows:
“He described depressed mood, disturbed sleep, anxious arousal, and worry/rumination mostly regarding to alleged discrimination and unfairness relating to the downgrading of his work vehicle … Mr Diomidhous did report workplace stress at the time – mostly relating to pressures/stress associated with long working hours on the road.”[66]
[66] ARD, p 112.
Ms Talbot then in answer to question two gives her diagnosis that the respondent was suffering from an adjustment disorder.
As was the case with Dr Chow, the Member was correct to give the answer to question three little or no weight. The deficiency in Ms Talbot’s answer is directly referable to the poor drafting of question three. The factual basis underpinning question three had not been set out by the drafter of the question and as a consequence, the answer suffers from that same deficiency. However, the balance of Ms Talbot’s report was available to the Member to consider and be given such weight as he thought appropriate. As I stated above, an answer to a single poorly drafted question does not otherwise vitiate the balance of Ms Talbot’s report. It is not the correct approach to construing expert evidence to single out an isolated section of the opinion. The entirety of the report and opinion need to be considered.[67]
[67] Hancock, [92].
The reports of both Dr Chow and Ms Talbot are criticised by the appellant as not being provided in a fair climate. This submission is based upon their use of the phrase “nature and conditions of his employment”. The appellant alleges this means that any factual assumptions underpinning the opinions are entirely unknown.[68] On the basis of the reasons that I have outlined above in relation to both reports, this is not a fair reading of either report. Neither is it an accurate description of how the “fair climate” principle arising from the decision in Paric operates. No issue was taken on this appeal with the other opinions expressed by both practitioners in their reports. Nowhere has any deficiency in the reasoning, outside of the offending provision, been identified. No error elsewhere in the reports has been identified. As a consequence, I do not accept this submission.
[68] Appellant’s submissions, [31].
Finally, I turn to the opinion of Dr Mangahis which is subject to challenge in Ground Two. Dr Mangahis furnished a report dated 21 December 2021.[69] The appellant relies upon paragraph [22] of its submissions at first instance in support of Ground Two of this appeal. Paragraph [22] reads as follows:
“Dr Mangahis, general practitioner at Earlwood Medical Centre, reported on 21 December 2021 (page 115 of the ARD). The only history received was that the [respondent] had been ‘quite stressed at work, most especially the past 2 weeks’ although it had been building up (page 115 of the ARD). However, it was later noted that the issues were the different class of truck in 2008 and events recorded in the [respondent’s] diary, incidents about which Dr Mangahis evidently knew nothing (page 116 of the ARD). The diagnosis of Adjustment Disorder has not been arrived at with reference to the entirety of the facts. Like with Dr Chow and Ms Talbot, Mr Mangahis’ opinion has not been provided in a fair climate and is without weight.”[70]
[69] ARD, p 115.
[70] Appellant’s submissions at first instance dated 24 June 2022 (incorrectly dated 2021), [22].
Dr Mangahis is the respondent’s general practitioner. His report records the following history:
“That time he reports has been quite stressed at work, most especially the past 2 weeks. That prior to this his stress has slowly been building up the past few years. He works as an owner-driver for Toll as a subcontractor and states he is being discriminated at work and has lost money in the process.”[71]
[71] ARD, p 115.
The doctor then states that his “impression” was of an adjustment disorder and he offered him a mental health care plan so that he could access the services of a psychologist. The report goes on to recount the following history:
“He was able to provide details of his issues at work as he kept a diary of events. He mentioned he had issues with the company since 2008, that his vehicle was being considered a different class to what it should be hence he has been losing money due to this. He remained to have poor sleep, feeling low and that he wanted accountability from the company to what has been done to him.”[72]
[72] ARD, p 116.
The doctor then provides a diagnosis of an adjustment disorder. The doctor says as follows:
“He reports he has had issues with Toll Group since 2008 on my notes and he has kept a diary of events. Based on his recollected events I think his workplace has caused his current condition.”[73]
[73] ARD, p 116.
On appeal the appellant criticises the history taken by the doctor and states that as a consequence, the opinion has not been provided in a fair climate and is without weight. I would remark that the doctor’s opinion, namely that the respondent worker suffers from an adjustment disorder, is the opinion commonly shared by all of the medical practitioners who provided evidence before the Member. In terms of this opinion not being given in a ‘‘fair climate’’, this submission would appear to be based upon the assertion that the opinion was reached without reference to the entirety of the facts. As I have described above in the section of this decision entitled “Approach to Expert Evidence in the Commission” an expert’s report does not have to strictly conform with the rules of evidence. Rather it must provide a “satisfactory basis upon which the Commission can make its findings”, and further “it does not require strict compliance with each and every feature referred to by Heydon JA in Makita”.[74] Additionally, the passage I have set out from Paric makes it clear that discrepancies may not be fatal in terms of an expert report being given weight.
[74] Hancock.
In fairness to the Member, Dr Mangahis’s report does not figure heavily as being foundational to his decision. The use of this report can be found at reasons [127]:
“From my review of the evidence, the claims made by the [respondent] of downgrading his vehicle classification from 2008 and earning a lower rate of pay from at least 2020, were real events, which have not been challenged with any substance by the [appellant], and which are consistent with the records made by Ms Talbot and Dr Mangahis, and the history recorded by both Dr Chow and Dr Vickery.”
It was of some importance to the Member to discern, consistent with Attorney General v K, whether the events complained of by the respondent were real events. Dr Mangahis’s notes were of assistance in the Member’s finding that the following two complaints made by the respondent were real events. Namely, the downgrading of his vehicle classification from 2008 and the earning of a lower rate of pay from at least 2020.
This doctor’s opinion, when the decision is read as a whole, is a consistent part of the entire medical evidence. It is true that the history recorded by the doctor in his report is not detailed. But as the authorities make clear, it does not have to be. In any event there is sufficient similarity and consistency between the history of complaints recorded by Dr Mangahis and the respondent’s statement.[75] Further, there is sufficient similarity and consistency between the diagnosis and history of complaints recorded by Dr Mangahis and those recorded by the other medical practitioners in evidence. Finally, there is a consistency in the diagnosis of the respondent’s condition between Dr Mangahis and the other doctors relied upon by the Member in reaching his decision.
[75] ARD, pp 1–60.
Even if I accept the appellant’s broad assertion about the deficiencies in the doctor’s report, a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence”.[76] Ultimately the Member made the following finding at reasons [137]:
“The opinions of Dr Chow and Dr Vickery, along with the records made by Dr Mangahis and Ms Talbot at each of their initial consultations with the [respondent], lead me to accept that the [respondent’s] employment with the [appellant] was the main contributing factor to the contraction of a psychological disease.”
[76] Hancock, [92].
As can be seen, it was not so much the opinion of Dr Mangahis that was determinative in this finding, rather it was a consideration of his treatment records, which as I state above were used by the Member to establish that at least two of the events complained of were real.
The appellant has not established error in either Ground One or Two. There is no warrant to reject or give little or no weight to the balance of the reports of Dr Chow and Ms Talbot due to one poorly drafted question each was asked to answer. The answer given by both practitioners to the question was rightly dismissed by the Member. But it is not appropriate to say that the contents of the rest of the reports ought also be given no weight. The decision taken by the Member in terms of the weight to be given to the three medical opinions challenged in these grounds was well within the Member’s discretion as the first instance decision-maker.
Grounds One and Two are dismissed.

As to Ground Three: The Member erred in his fact finding process

Submissions

The appellant complains of the Member’s findings found at reasons [114]. I set this paragraph out in full:
“I agree with the submission made by Mr Jones that it is only the downgrading of the [respondent’s] vehicle classification and the reduction in jobs being provided to him, both of which led to a loss of income for the [respondent], that can be found to be causative of the [respondent’s] psychological injury because it is only those events which are acknowledged with any precision by Dr Chow and Ms Talbot, as well as Dr Vickery.”
The appellant says the factual findings made within this paragraph were not open to the Member.[77] The appellant states that both Dr Chow and Ms Talbot identified matters other than those subject to the factual findings made at reasons [114] and that it was “the totality of that history which they base their opinion on.” This, the appellant says, was in error, stating that it was not open to the Member to “dissect the reports and find that given some specific reference was made to events, the other matters, once removed, did not undermine the conclusion as reached. It would require a specific comment from each expert for that to be found.”[78] Additionally, the appellant states that “the reliance upon Dr Vickery’s opinion [at reasons [114]] is misplaced when regard is had to the totality of his reports.”[79]
[77] Appellant’s submissions, [37].
[78] Appellant’s submissions, [38].
[79] Appellant’s submissions, [39].
The respondent replies by stating that this ground of appeal is misconceived. The respondent says that the remarks made by the Member at reasons [109] are misconstrued by the appellant and further that the Member’s finding at reasons [114] does not amount to a rejection of all evidence prior to 2021 or a conclusion that the entirety of the evidence is of no assistance.[80] The respondent points to the concession made by the appellant at first instance that it could not point to any other non-employment factors which caused the injury.[81] The respondent then refers to Attorney General v K and the need for events at the workplace complained of to be real. The respondent then submits how Dr Chow’s opinion is consistent with this authority. Finally, the respondent states that the alleged error in how the Member dealt with Dr Vickery’s report has not been articulated, rather “the Appellant appears to only offer its opinion as to how the Member construed Dr Vickery’s report”.[82]
[80] Respondent’s submissions, [10(a)].
[81] Reasons, [139].
[82] Respondent’s submissions, [10(e)].

Consideration

For the appellant to succeed under this ground, it is incumbent upon the appellant to establish the Member’s error in fact finding. In short, the Member must be wrong.[83]
[83] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston).
As I have found above in relation to Grounds One and Two, I do not consider that the Member’s finding at reasons [109] leads to the inexorable conclusion that the entirety of the evidence of Dr Chow and Ms Talbot is to be discarded. A single answer to a poorly worded question in each report does not undermine the balance of the reports or the opinions expressed therein.
As was the case with Grounds One and Two, a close reading of Dr Chow’s report and Ms Talbot’s report is the starting point in considering this appeal ground. Dr Chow takes a history from the respondent which he describes in the “Background” section of his report.[84] In this section, a history is given about the downgrading of the respondent’s vehicle classification from two-tonnes to one-tonne, which had an adverse effect upon the respondent’s pay. The history is also given that the respondent alleged that the company had downgraded his hours and pay over time and that he was given less favourable jobs (that is less remunerative jobs) than other drivers. The doctor also takes a history that “many different incidents had occurred at Toll over the years which affected him”.[85] It is important to recognise that in this background or history section of the report the doctor is recording the history as relayed to him by the respondent. Later in the same report, the doctor settles upon his “Summary and Opinion”.[86] Here, the doctor gives his diagnosis of an adjustment disorder after listing the following events. The doctor recorded the downgrading of the respondent’s vehicle from two-tonnes to one-tonne, which adversely affected his income as well as describing the respondent being given lower paid jobs. The doctor reports that the respondent considered that he was “bullied and intimidated” by these acts. In terms of Dr Chow’s report, it is clear that by the time he gets to the summary and opinion, Dr Chow had focused on a smaller number of acts giving rise to the respondent’s psychological condition. Those acts are the downgrading of the vehicle classification with a consequential loss in income and the respondent being given lower paid jobs. The report when read in this way, contrary to the appellant’s submissions, does provide support for the Member’s finding at reasons [114]. Consequently, with respect to Dr Chow’s opinion, I do not accept that the Member incorrectly construed the opinion as alleged by the appellant.
[84] ARD, pp 106–107.
[85] ARD, p 106.
[86] ARD, p 109.
I now turn to Ms Talbot’s report.[87] As described above, Ms Talbot’s report is drafted in response to eight questions posed to her by the respondent’s solicitors. Question one asks about the history. The history commences with the respondent describing “significant anxiety and distress relating to the circumstances of his employment and subsequent employment cessation with Toll Group.” Ms Talbot records the following: “He described depressed mood, disturbed sleep, anxious arousal, and worry/rumination mostly regarding to alleged discrimination and unfairness relating to the downgrading of his work vehicle.” Ms Talbot also described a previous therapy period relating to a separate issue which she said was unrelated to this issue.[88]
[87] ARD, pp 112–114.
[88] ARD, p 112.
Ms Talbot also diagnosed the respondent as suffering from an adjustment disorder.
Ms Talbot certainly takes a history of the downgrading of the respondent’s vehicle classification, otherwise the history recorded is broader and far less particular. The phrase “circumstances of his employment and subsequent employment cessation” is not specific. Indeed the only specific complaint recorded by Ms Talbot relates to the vehicle classification. The Member at reasons [114] talks about “events which are acknowledged with any precision by Dr Chow and Ms Talbot”. With regards to Ms Talbot, the Member was correct to approach her report in that manner. The only factual matter referred to by Ms Talbot with any specificity was the vehicle downgrade, which, for the reasons stated elsewhere, had a deleterious effect upon the respondent’s income. Additionally, in Ms Talbot’s notes dated 6 July 2021 the following appears: “Basic two things non-negotiable - downgrade of vehicle in order to pay less. Previously Ford Transit 2T, then downgraded to 1T. Also, restriction of income”.[89] Consequently there is support in Ms Talbot’s notes for the second factual finding in reasons [114] regarding loss of income.
[89] AALD dated 4 May 2022, p 150.
No error has been proven in the Member’s treatment of Ms Talbot’s report when one considers the entirety of the evidence from this source.
I now turn to the appellant’s complaint about how the Member treated the evidence of Dr Vickery. The complaint is that the Member misconstrued Dr Vickery’s opinions and, as a consequence, the finding of injury made by the Member was made in error. The appellant maintains that a proper reading of Dr Vickery’s reports would not provide the evidentiary support for the findings made by the Member at reasons [114].
Dr Vickery provided the appellant with two reports, dated 20 April 2021[90] and 26 July 2021.[91] As is common with such reports, Dr Vickery’s first report commences with a number of formal matters. The documentation that Dr Vickery is provided is detailed, he sets out some brief facts about the respondent worker and a brief employment history before detailing a number of answers to various historical questions, before recording the respondent’s current symptoms. Dr Vickery then takes a detailed history.[92] In particular, Dr Vickery takes the following history:
“Mr Diomidhous reported ‘I’m an owner driver working with Toll and from 2008 I’ve had issues with my 2-tonne van was downgraded to 1-tonne and I’ve kept ten chapters in my diary over this period and in 2020 I was doing 2,000 km for $1,000 as I was told that was all that was available’.”[93]
[90] Reply to Application to Resolve a Dispute (Reply), pp 31–40.
[91] Reply, pp 41–43.
[92] Reply, pp 34–35.
[93] Reply, p 34.

Beneath the heading “Opinion” Dr Vickery is asked and answers the following questions:
“1. Is work the substantial contributing factor to Andromides Diomidhous’s injury?
Mr Diomidhous’ perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided.
…
3. The precise work events, issues and incidents which Andromides alleges contributed to the development of the alleged psychological injury including dates, names of people involved, details of what was said or done to the employee by whom, where and how, and details of what the employer allegedly did or failed to do in response.
In late January 2021 Mr Diomidhous was placed on the Symbion contract and ‘I was working nine hours for four and a half hours pay and I only did it for a few days and then I couldn’t keep working under those conditions as I was too upset because I couldn’t live on the pay and I consulted my General Practitioner on 2 February 2021 and I was placed on WorkCover.’
4. Your diagnosis of his condition from a psychiatric point of view and how the condition has evolved from the date of the alleged onset of injury to the present time.
The diagnosis of Adjustment Disorder due to Mr Diomidhous’ perception of not being paid an adequate income in 2021.
5. Whether you consider he has suffered a definable, diagnosable or recognisable psychological/psychiatric injury within the meaning of the Workers Compensation Act.
Mr Diomidhous has suffered a definable, diagnosable and recognisable psychological/psychiatric injury within the meaning of the Workers Compensation Act on the basis of the history provided.
6. Your opinion as to whether workplace events or issues have contributed to any psychological injury. If so, what are the precise issues or events, how did they contribute and to what extent.
Mr Diomidhous’ perception of not being paid an adequate income is the substantial contributing factor to the injury.
…
9. In your medical opinion, what is the likely aetiology for Andromides’s psychological injury?
Mr Diomidhous’ perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided.
…
11. Is it possible that Andromides may be aggrieved rather than having a diagnosable psychiatric or psychological condition?
Mr Diomidhous is aggrieved and has a diagnosable psychiatric condition.
…
13. In your opinion, does it appear probable that Andromides’s psychological injury/disease resulted from the reasonable actions of [his] employer?
Mr Diomidhous’ perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided.”[94]
[94] Reply, pp 35–38.
Dr Vickery’s second report of 26 July 2021 answers a number of follow-up questions from the appellant's solicitors, including:
3. We refer you to section 11A above and Mr Diomidhous' stated issues with the classification of his vehicle, allocation of jobs, and displeasure with his financial position allegedly compared to that of other drivers. Would you say that:
a. The employer's classification of his vehicle.
b. The employer's allocation of work/runs/contracts.
c. The employer's cessation of their contract with Toyota and subsequent reallocation of runs.
d. Mr Diomidhous' choice to decline doing the NAB Bank runs due to the change in contracts.
e. The employer's offer and his acceptance to take on the Symbion contract/runs.
f. The employer's offer and his acceptance to start ad hoc [courier] work so that his pay remained unaffected by the changes/transfers.
Is wholly or predominately reasonable action taken on behalf of the employer with respect to transfer, retrenchment, and/or provision of employment benefits to a worker?
It is my opinion these work-related issues and actions taken on behalf of the employer were the whole contributing factors to his injury.”[95]
[95] Reply, p 42.
The appellant submits that the key piece of evidence of Dr Vickery is his answer to question four in his report of 20 April 2021[96] where he links his diagnosis of an adjustment disorder to the respondent not being paid an adequate income in 2021. This means, the appellant says, that this opinion is not available to be used for events wider than 2021.
[96] Reply, p 36.
With respect to the appellant, this is not a fair reading of Dr Vickery’s report. I have set out above a lengthy extract from the history section Dr Vickery’s report of 20 April 2021. In the same report Dr Vickery links the aetiology of the respondent’s psychological injury “on the basis of the history provided”.[97] Further, the doctor says in answer to question 13, which I have also set out above, that the respondent’s “perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided”. I accept that the answer to question four as asserted by the appellant is limited to 2021. This is a product of the doctor answering the question that was asked which directs attention to “the present time”. I would remark that Dr Vickery saw the respondent in 2021. The doctor’s answers to questions nine and 13, which are not time-limited, attribute the respondent’s condition to not being paid an adequate income on the basis of “the history provided”, which is a wider period than just 2021. Further, the answer to question three in Dr Vickery’s report of 26 July 2021 is also not time limited and is more in keeping with the history provided to Dr Vickery as set out at page 34 of the Reply.
[97] Reply, p 37, question 9.
The appellant’s complaint with respect to how Dr Vickery’s opinion was dealt with by the Member can therefore be distilled to the following proposition. Namely that the Member should have accepted the answer to question four[98] and ignored the answers to questions nine and 13 in the same report and question three from the second report of 26 July 2021. With respect this is not a proper approach to the construction of the doctor's opinion in its entirety. Dr Vickery obtained the history that he was given by the respondent and set this out in his first report as I have recounted above. I do not consider that it is correct for the appellant to assert that the doctor's opinion was limited to 2021 only. I accept that there is a tension or inconsistency between Dr Vickery’s answers to the various questions that I have highlighted above. This tension or inconsistency arises if the answers are read in isolation. The respondent’s evidence is to the following effect. In summary the respondent describes a progression of symptoms over a long period of time and a worsening of his condition until he could take no more in 2021. This was the Member’s finding at reasons [130] and [131]. Indeed question four asked the doctor to describe the evolution of the condition and the doctor’s answer pointed to events in 2021. There is a problem however with the answer to question four and it is this. The doctor does not reveal his path of reasoning in reaching this opinion in light of the history that he had otherwise been provided with. However the answer to the other questions, based on the “history provided”, more accords with the respondent’s unchallenged evidence of symptoms progressing over time.
[98] Reply, p 36.
I have described above the approach to dealing with expert evidence in the Commission. In many respects the approach taken by the Member to Dr Vickery’s opinion is consistent with the remarks of Beazley JA in Hancock at [92].
There was no error in the Member reading the reports as a whole rather than focusing upon the answer to question four in isolation and using the entirety of the doctor’s opinion to the support the findings at reasons [114].
No error is established with respect to how Dr Vickery's opinion was construed.
The appellant has been unable to identify error in the Member’s approach at reasons [114]. As I stated above, it is essential for the appellant to identify error in order to justify intervention on appeal.[99] The finding made by the Member in this paragraph was, on a dispassionate review of the evidence, a finding that was plainly available to the Member as the first instance decision-maker.
[99] Raulston.
Ground Three is dismissed.

As to Ground Four: The Member erred in rejecting the appellant’s defence under section 11A of the 1987 Act

Submissions

The appellant contends that once the opinion of Dr Vickery is properly understood, and that the only cause of the respondent’s psychological injury was what transpired in 2021, the s 11A defence is thus made out. The appellant asserts that how the Member dealt with Dr Vickery’s opinion on the s 11A point was incorrect. In the alternative, the appellant’s argument is that if the transfer was otherwise reasonable, the absence of medical evidence on the point was not fatal.[100]
[100] Relying upon Roche DP in El-Achi, [72].
The appellant also contends that the Member was in error in only dealing with the category of transfer when examining the appellant’s defence under s 11A. The appellant points to reasons [153] where the Member states that the appellant has only relied upon the category of transfer in its s 11A defence. The appellant says this is incorrect and that its s 78 notice[101] relied upon other aspects of s 11A, namely retrenchment and/or provision of employment benefits in the defence of the matter.
[101] ARD, p 95.
Reasons [153] provides as follows:
“In my view that opinion provided by Dr Vickery is ambiguous, lacks explanation and cannot be relied upon. Firstly, it is not clear as to which of the three categories referred to from s 11A of the 1987 Act that Dr Vickery is referring to. That problem is compounded when the [appellant] has only relied upon the category of ‘transfer’ when making out its case pursuant to s 11A in its submissions.” (emphasis added)
In response, the respondent relies upon its arguments in support of the opinions of Drs Chow and Mangahis and Ms Talbot in response to the earlier appeal grounds. The respondent submits as follows:
“It was open to the Member to find that the real events were perceived from 2008 onwards and constituted a disease injury which came to head in 2021. Again, the evidence was not, as asserted by the Appellant, limited to only the events which occurred in 2021 by virtue of the Member’s findings [at 114].
The Appellant at first instance bore the onus of proving that the ‘transfer’ was reasonable and that it was the whole or predominant cause of the injury. The transfer may have been a factor, but because of the Respondent’s perception of real events which commenced in 2008, it was open to the Member to find that the transfer in 2021 was not the whole or predominant cause of the injury [at 151].”[102]
[102] Respondent’s submissions, [11(b)]–[11(c)].
The respondent contends that the appellant’s evidence did not discharge its burden of proof with respect to s 11A. It failed to call evidence challenging the respondent’s evidence about the downgrading of his truck.
Finally, the respondent argues that the appellant is bound by the manner in which it conducted the first instance proceedings, relying upon R v Birks.[103] No submissions other than in relation to the category of transfer were advanced by the appellant before the Member.
[103] (1990) 19 NSWLR 677.

Consideration

There are two limbs to the argument advanced by the appellant in Ground Four. The first limb relates to the proper construction of the expert medical evidence, the second limb relates to the s 11A defences which it is said that the Member failed to consider or deal with at all.
This appeal ground is without merit. The appellant’s submission does not identify, with any precision, the error of fact, law or discretion said to have been made by the Member in dealing with the medical evidence. Rather this appeal ground seems to suggest the appellant’s preferred construction of the medical evidence. In the three appeal grounds that I have dealt with above, I have rejected the same arguments advanced by the appellant in terms of how the Member dealt with the medical evidence. For the reasons outlined above, I do not accept that the opinions of Dr Chow, Ms Talbot and Dr Mangahis “fall away” as asserted by the appellant.[104] Further, I also do not accept the appellant’s approach to Dr Vickery’s evidence for the reasons discussed in Ground Three above. The Member had concerns about the reliance that could be placed upon Dr Vickery’s report in support of the s 11A defence. The Member was correct, in reasons [153] which I have set out above, to question the difference between the argument conducted by the appellant on s 11A and how Dr Vickery dealt with the s 11A defence.
[104] Appellant’s submissions, [45].
In broad terms, it is not possible to reconcile the argument conducted by the appellant below, limited to the category of transfer only, with Dr Vickery’s opinion on the s 11 A defence which was given on a wider basis, namely three categories.
The first limb of Ground Four has failed to establish error. This aspect of Ground Four is dismissed.
I now deal with the appellant’s argument that the Member failed to properly consider all of the grounds relied upon by the appellant in its s 11A defence. It is clear from reasons [153] that the Member only dealt with the category of transfer.
Before the Member, the appellant filed and relied upon written submissions dated 24 June 2022 (incorrectly dated 24 June 2021). The s 11A defence is dealt with at paragraphs [26] to [30] of those submissions. The appellant’s submissions before the Member are limited to the category of transfer. No argument or submission in relation to the other grounds set out in the appellant’s s 78 notice are addressed. There is no invitation or submission to the Member about these other grounds.
This submission has no merit. I accept the respondent’s submission that a party is bound by the manner in which the case is conducted below.[105] A similar argument was considered by the Court of Appeal in Brambles Industries Ltd v Bell.[106] In that case McColl JA remarked:
“As Hodgson JA has said, the point which was critical to the appeal concerning the criticism of Dr Conrad’s third report of January 2008 was not a matter which was raised before the Deputy President in written submissions, and to the extent, if at all, that it had been raised in oral submissions before the Arbitrator, which were also before the Deputy President, it was raised in very obscure terms.
A tribunal such as the Workers Compensation Commission, sitting as the Deputy President was, which depends heavily on the parties’ written material for expeditious disposition of proceedings, must be entitled to rely upon the matters placed before it identified in the written submissions as the issues to be determined on a review pursuant to the [1998 Act]. More importantly, a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”[107] (emphasis added)
[105] Metwally v University of Wollongong [1985] HCA 28; Coulton v Holcombe [1986] HCA 33, [15].
[106] [2010] NSWCA 162 (Bell).
[107] Bell, [29]–[30].
I would note that the remarks of Her Honour, as they applied to the former Workers Compensation Commission, are equally applicable to the Workers Compensation Division of this Commission.
Arguments wider than the category of transfer were not put to the Member and consistent with the Court of Appeal authority I have referred to above, it was not an error for the Member not to deal with the remaining s 11A arguments, set out in the s 78 notice, as they were not argued. No error has been established in this regard, the Member was correct to only deal with the category of transfer.

As to Grounds Five and Six: The appellant was denied procedural fairness; The Member did not deal with a clearly articulated argument raised by the appellant.

Submissions

The appellant asserts as follows in relation to Grounds Five and Six:
“The appellant submitted that the medical experts relied on by the respondent did not grapple with, much less explain, why the respondent did not suffer any injury until 2021 despite his truck being downgraded in 2008 and he had continued working since then, see [17], [20] and [21] of the appellant’s submissions at first instance. It followed that by reason of that omission, the opinions of Dr Chow and Ms Talbot could not be accepted.”[108]
[108] Appellant’s submissions, [54].
This, the appellant argues, was a point never dealt with by the Member.[109] In attempting to make good this appeal ground, the appellant relies upon the submissions contained in paragraphs [17], [20], and [21] of the appellant’s first instance submissions, which are as follows:
“17. The [appellant] submits the assertion about the truck downgrading is factually incorrect (not just the [respondent’s] perception) but in any event, Dr Chow does not grapple with the fact that the [respondent] continued working and said that incident was not a contributing factor to his condition, as explained in his statement. That just leaves the lower paying role, which for the reasons touched on below, enlivens s 11A.”
“20. It is in the context of the above that Ms Talbot opined the [respondent’s] condition had been caused by the ‘nature and conditions of his employment’ with the [appellant] (page 113 of the ARD). The notes from Ms Talbot do not fill in the gaps. At the first consultation on 6 July 2021, it merely contains general and conclusionary statements about what occurred, rather than relate the condition to any factual events. However, it is telling that the problems were said to have been present since 2008, being well before the [appellant] was given any notice.
21. Given the focus on the downgrading, Ms Talbot’s opinion is questionable given that occurred years prior to the [respondent] ceasing work. There is no explanation as to why he was able to continue working, with that only becoming an issue in 2021. By relying on unhelpful conclusionary statements as the basis to reach a diagnosis, rather than referring to the actual events, is fatal to acceptance of Ms Talbot’s opinion.”
[109] Appellant’s submissions, [55].
The second point made by the appellant is as follows. The appellant alleges that the Member’s finding at reasons [130] was made without a basis in the medical evidence. The appellant complains that if the Member was intending on filling gaps in the medical evidence based upon the Commission being a specialist tribunal, the appellant should have been given notice and an opportunity to respond. This, the appellant argues, is a failure to afford it natural justice.
The respondent states that these two grounds of appeal are unmeritorious and can be rejected for the reasons specified in paragraph [12] of the respondent’s submissions. In particular, the respondent points to his uncontradicted evidence as to why he could no longer continue work from on or around 2 February 2021.[110] Further, the respondent states that there is nothing arising from the decision which suggests the Member determined the issue with respect to his own knowledge. The decision in Strinic v Singh[111] has no application, the respondent argues.[112]
[110] Respondent’s submissions, [12(a)].
[111] [2009] NSWCA 15 (Strinic).
[112] Respondent’s submissions, [12(e)].

Consideration

In considering these two appeal grounds, I commence with a consideration of how the dispute itself was framed. The Commission is not a tribunal of strict pleading. The respondent pleaded his claim at first instance in the following manner:
“Type of Injury - Disease
Injury Description/Cause of Injury and Death - The [respondent] sustained a psychological injury due to bullying and harassment he faced in the course of his employment. His last day of work was 2 February 2021, the deemed date of injury. Please see attached the [respondent’s] statement for further details regarding injury.”[113]
[113] ARD, p 6.

It is therefore tolerably clear that the respondent framed his claim as a psychological disease of gradual onset. The respondent’s statement which appears immediately after the document framing the claim is consistent with what has been pleaded, in particular at paragraphs [524b] to [537].[114] This explains in the respondent’s words why he ceased work on 2 February 2021.
[114] ARD, pp 53–54.
Notwithstanding the respondent’s evidence, the criticism made by the appellant is directed to the evidence of two of the medical practitioners. The appellant asserts that the following question was not answered by Dr Chow and Ms Talbot. Despite the respondent’s truck being downgraded in 2008 and his evidence about the intervening years, there is no explanation as to why he did not suffer any injury until 2021. The appellant states that the question as to why that problem only contributed to an injury in 2021 remains unanswered by the Member.[115]
[115] Appellant’s submissions, [55].
In dealing with the appellant’s submission about the Member’s failure to deal with this argument, namely the failure to explain why the respondent did not suffer injury until 2021, I will apply following principles.
In Dranichnikov v Minister for Immigration and Multicultural Affairs[116] the High Court stated that a failure to respond to a substantial, clearly articulated argument relying on established facts is a constructive failure to exercise jurisdiction.[117] In Wang v State of New South Wales[118] the Court of Appeal in referring to Dranichnikov said as follows:
“This decision is not authority though for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings”.[119]
[116] [2003] HCA 26 (Dranichnikov).
[117] Dranichnikov, [24]–[25] per Gummow and Callinan JJ.
[118] [2019] NSWCA 263 (Wang).
[119] Wang, [63].
I have closely reviewed the evidence of Dr Chow and Ms Talbot. I accept the appellant’s assertion that neither medical practitioner, in terms, deals with this question agitated by the appellant. In fairness to both practitioners neither appear to have been requested to turn their minds to this question in the precise terms asserted by the appellant.
The question that arises is whether the argument now asserted by the appellant, which it is said the Member failed to deal with, was actually put fairly to the Member. The appellant points to three paragraphs (which I have outlined above) as constituting the arguments that the Member had to deal with. In paragraph [17] of those first instance submissions the following statement appears:
“Dr Chow does not grapple with the fact that the [respondent] continued working and said that incident was not a contributing factor to his condition, as explained in the statement.”
And at paragraph [21] in reference to Ms Talbot’s opinion the following is said:
“There is no explanation as to why he was able to continue working, with that only becoming an issue in 2021.”
I would remark that both paragraphs [17] and [21] do refer to the truck downgrading which, before the Member, the appellant disputed. This point is important as the Member has specifically found that the truck downgrading (that is the downgrading of payment to the respondent for a two-tonne truck to a one-tonne truck) took place in 2008.[120] This factual finding has not been disturbed by this appeal. I would therefore remark that in relation to paragraphs [17] and [21], there is no “established fact” as Dranichnikov requires (see paragraph [125] above). Rather, the fact that was established was to the contrary of that argued by the appellant before the Member. In order to make good this point on appeal, the appellant is required to point to the argument put below, based upon established facts, which was not dealt with. No established facts underpinning the argument below have been advanced in support of this appeal ground. The absence of an opinion from each practitioner on a question they were not asked is not such a fact.
[120] Reasons, [118], [227].
In any event I do not accept that the contents of the appellant’s submissions before the Member in paragraphs [17] and [21], in terms of the particular point asserted now, was required to be specifically dealt with by the Member. These paragraphs, and the other paragraphs in this section of submissions, contain the appellant’s general submissions about the weight that the Member should accord to Dr Chow’s and Ms Talbot’s opinions. The Member plainly dealt with the issue of the weight to be accorded to these opinions. The phrases I have extracted from paragraphs [17] and [21] are not in the form of a specific submission requiring a specific answer by the Member. Rather, they constitute the appellant’s then observations of what they saw as deficiencies in the two medical opinions. This was a part of the overall argument about the weight to be given to this evidence which the Member did deal with. The Member did not have to deal with this “submission”, which as I say was not put in a manner which required the Member’s attention. I therefore reject this ground of appeal.
This now leaves the final argument about whether the Member failed to accord the appellant natural justice.[121] Although it is not particularly clear from the appellant’s submissions, the offending section of the Member’s decision appears to be found at reasons [130].[122] I would also include in this consideration the Member’s finding at reasons [131]. This argument also depends upon my accepting the appellant’s submission that it was incumbent upon the Member to reject the opinions of Dr Chow and Ms Talbot due to their failure to explain why it took until 2021 for the injury to manifest itself.
[121] Appellant’s submissions, [58]–[62].
[122] Appellant’s submissions, [57].
As I have found above, I do not accept the appellant’s submissions about how the medical evidence should have been treated by the Member. Apart from the answers to some poorly drafted questions, the Member was correct to accord weight to the evidence of Dr Chow and Ms Talbot. The Member clearly had regard to the evidence of the respondent in weighing the medical evidence. This is, and the Member did note various issues in the medical opinions,[123] the process the Member embarked upon in evaluating the evidence as contemplated in Hancock at [92], which I have set out above. This is a completely separate and entirely appropriate approach to be taken by the Member. I do not accept the appellant’s submission that the Member’s approach involved the Member in filling gaps in the evidence based upon the Commission’s status as a specialist tribunal. Firstly, the offending provision of the decision does not reveal on its face that this was the process being undertaken by the Member. It is certainly not apparent from a reading of the decision that the Member was undertaking the type of process referred to in Strinic.[124]
[123] For example with respect to Dr Vickery see reasons, [150]–[53]; Dr Chow and Ms Talbot see reasons, [109]–[112].
[124] See appellant’s submissions, [59]–[60].
Secondly, the proper characterisation of what the Member was doing at reasons [130] and [131] is this. Commencing at reasons [105], the Member was construing the medical evidence before arriving at the conclusions found in paragraphs [130] and [131] of the reasons. This was based upon a consideration of the entirety of the evidence, both lay and expert, in the proper application by the Member of his fact-finding discretion. I would note though, contrary to the appellant’s submissions in this regard, that the Member’s finding at reasons [130] was based in part upon the history recorded by Dr Chow which described the “pivotal point which led to him ceasing work in February 2021”.[125] This was not, as is now asserted, the Member filling in gaps in the evidence with his own skill or intuition. The assertion that the Member failed to accord the appellant natural justice has not been established. This ground of appeal is dismissed.
[125] ARD, p 107.

As to Ground Seven: The Member erred in finding that the respondent had no current work capacity

Ground Seven can be dealt with shortly. The appellant submits as follows:
“As submitted above, the Member should have rejected the opinions of Dr Chow, Ms Talbot and Dr Mangahis. That leaves Dr Vickery who considered the respondent fit to work for another company. The opinion of Dr Vickery is also consistent with the respondent’s movements, as demonstrate[d] in his bank statements. That ability to drive freely and engage in society supports a finding of total capacity, or partial capacity at the very least.”[126]
[126] Appellant’s submissions, [63].
This appeal ground does not, in terms, specify the error said to have been committed by the Member in dealing with the work capacity of the respondent. Rather, as was the case in the first limb of Ground Four, the appellant asserts its preferred construction of the medical evidence in order to make good this ground.
The Member dealt with the evidence regarding the respondent’s capacity for work at reasons [157] to [174]. The Member, in this section of his decision, considers all four medical opinions, three for the respondent and one for the appellant, on this question alone. Tellingly, all four medical practitioners recommend that the respondent requires further treatment. Whilst the evidence was not perfect, and the Member said as much, the following findings were reached:
“Despite the deficiencies in the medical evidence on the issue of the [respondent’s] capacity for work, I prefer the opinions of the [respondent’s] treating practitioners, and that of Dr Chow, who all consider that the [respondent] has no capacity for work until he has had further treatment for his psychological condition. Ten consultations with Ms Talbot does not appear to be sufficient, and the [respondent] has not had the benefit of seeing a psychiatrist for treatment.
The [respondent’s] treating practitioners have had the benefit of monitoring the [respondent’s] condition since he ceased work in February 2021, and are in a good position to provide an opinion on the [respondent’s] capacity for work. The treatment recommended by the [respondent’s] treating practitioners is supported by Dr Chow.
…
The indication from the medical opinion which I have preferred is that the [respondent] will have some capacity for work once he gets some more psychological treatment. However, at this stage and on the available evidence, I accept that the [respondent] has no current work capacity.”[127]
[127] Reasons, [169]–[170], [174].
In support of this ground, the appellant also points to the respondent’s movements as demonstrated in his bank statements. The Member dealt with this argument at reasons [172]. No error in the Member’s findings at reasons [172] has been identified by the appellant on appeal. Given that no error has been identified at reasons [172], the support for Dr Vickery’s opinion that the appellant seeks to make based upon the respondent’s bank statements cannot be established.
For the reasons I have outlined above, the Member was well within the function of the first instance decision-maker to give the opinions of Dr Chow, Ms Talbot and Dr Mangahis such weight as he saw fit. No error has been established with respect to Ground Seven.
Ground Seven is dismissed.

DECISION

The medical evidence before the Member was consistent across all the medical practitioners who submitted opinions for both the appellant and the respondent. That is, there was no doubt amongst the practitioners that the respondent suffered from an adjustment disorder. Before the Member, the appellant’s written submissions conceded that the respondent’s work was causative of his adjustment disorder.[128] After the appellant’s other arguments fell away, the real issue for determination was whether or not the appellant could make out its defence under s 11A of the 1987 Act. This it has failed to do either before the Member or on appeal, and as a consequence this appeal must fail.
[128] Appellant’s submissions at first instance dated 24 June 2022 (incorrectly dated 2021), [9].
The Member’s Certificate of Determination dated 27 July 2022 is confirmed.

Judge Phillips
President

9 May 2023