Watts v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Watts v State of New South Wales (NSW Police Force) [2024] NSWPIC 179
APPLICANT:	Adam Maxwell Watts
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Gaius Whiffin
DATE OF DECISION:	10 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for accepted psychological injury and disputed consequential thyroid condition; claim for treatment expenses pursuant to section 60 in relation to total thyroidectomy surgery; consideration of medical reports and other treatment records, claim correspondence, medical literature, and factual material; consideration of whether the need for the applicant’s total thyroidectomy surgery on 21 February 2023 was materially contributed to by his accepted psychological injury from his employment with the respondent, in order to make the respondent liable to compensate the applicant regarding the costs of and incidental to the surgery; Murphy v Allity Management Services Pty Limited, Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Limited, Kumar v Royal Comfort Bedding Pty Limited, Kooragang Cement Pty Ltd v Bates, DGL (Aust) Pty Limited v Martino, Moriarty-Baes v Office Works Superstores Pty Limited, Fisher v Nonconformist Pty Limited, Hancock v East Coast Timber Products Pty Limited, Roads and Traffic Authority v Royal, Amaca Pty Limited v Ellis, and Drca v KAB Seating Systems Pty Ltd considered; Held – the applicant has sustained a consequential condition to his thyroid resulting from his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent; the total thyroidectomy surgery performed upon the applicant by Professor Sidhu on 21 February 2023 was reasonably necessary treatment for the applicant, and was materially contributed to by his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent; the respondent is liable to compensate the applicant for the expenses paid by him of and incidental to the total thyroidectomy surgery; award for the applicant in the amount of $6,000 (with leave given to the respondent to approach the Commission should this amount exceed appropriate scale costings) pursuant to section 60 in this regard.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained a consequential condition to his thyroid resulting from his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent. 2. The total thyroidectomy surgery performed upon the applicant by Professor Sidhu on 21 February 2023 was reasonably necessary treatment for the applicant, and was materially contributed to by his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent. 3. The respondent is liable to compensate the applicant for the expenses paid by him of and incidental to the total thyroidectomy surgery. The Commission orders: 4. The respondent is to pay to the applicant an amount of $6,000 (with leave to be given to the respondent to approach the Personal Injury Commission should this amount exceed appropriate scale costings) pursuant to s 60 of the Workers Compensation Act 1987, in relation to the receipt paid by the applicant to Professor Sidhu regarding the total thyroidectomy surgery, as attached at page 46 of the Application for Expedited Assessment.

STATEMENT OF REASONS

BACKGROUND

Adam Maxwell Watts (the applicant) is 54 years old. He was employed by the New South Wales Police Force, being the State of New South Wales (the respondent), from 1995 to 2012, when he was medically retired from his employment.
As a result of events which occurred during his employment with the respondent, the applicant developed a psychological condition, diagnosed as post-traumatic stress disorder. The respondent has accepted, and continues to accept, liability to compensate the applicant in relation to this psychological condition. It agrees that the applicant has an accepted psychological injury with a deemed date of 10 September 2008.
On 21 February 2023, Professor Sidhu performed total thyroidectomy surgery upon the applicant. The applicant paid Professor Sidhu an amount of $6,000 in this regard. The applicant then claimed this amount from the respondent, arguing that his need for the thyroidectomy surgery was materially contributed to by his accepted psychological injury.
The respondent issued a notice dated 26 September 2023 denying liability for the applicant’s claim regarding the expenses of the thyroidectomy surgery, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent then confirmed its denial of liability by way of a review notice pursuant to s 287A of the 1998 Act, dated 11 October 2023.
The applicant therefore initially lodged an Application for Expedited Assessment (AEA) with the Personal Injury Commission (Commission), claiming pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) with respect to his expenses of $6,000 in relation to his thyroidectomy surgery.
The AEA was listed for an expedited assessment conference before the Commission on
15 November 2023. At that conference, it was agreed that due to the complexity of the applicant’s claim, the dispute should be referred for determination by a Member of the Commission. A direction was made in this regard on 16 November 2023, and the direction also transferred the AEA into a Form 2 Application to Resolve a Dispute (ARD).
The ARD was then eventually listed before myself for conciliation/arbitration on
22 March 2024. It was listed by way of a Teams video conference link.

ISSUES FOR DETERMINATION

The parties agreed at the conciliation/arbitration that the issue in dispute in the Commission proceedings was:
(a) whether the need for the applicant’s total thyroidectomy surgery on 21 February 2023 was materially contributed to by his accepted psychological injury from his employment with the respondent, in order to make the respondent liable to compensate the applicant regarding the costs of and incidental to the surgery.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
A brief conciliation conference was held in the dispute on 22 March 2024. On that occasion, the applicant represented himself, and his partner (Linda Kool) was also present supporting him. Mr Paul Stockley of counsel appeared for the respondent, instructed by Ms Harvey, and Ms Lacmanovic from the respondent’s insurer also appeared.
The dispute did not resolve during the conciliation conference, and therefore proceeded to an arbitration hearing. The issue in dispute (see paragraph 8 above) was agreed between the parties, and the respondent also agreed that there was no issue that the 21 February 2023 surgery was reasonably necessary to treat the applicant for his thyroid condition. The respondent also did not argue against the reasonableness of the amount ($6,000) paid by the applicant for the surgery to be performed by Professor Sidhu, although it was agreed that should the applicant be successful in the dispute, the respondent would be given leave to approach the Commission should this amount exceed appropriate scale costings.
As the applicant was self-represented, the respondent agreed to make its submissions first. The applicant then made his submissions, following which, he was given the opportunity to consider the respondent’s submissions further and make additional submissions in writing (should he so wish) within a specified period of time. He chose not to avail himself of this opportunity, and the arbitration hearing then finalised following some brief submissions in reply from the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence (none of them being objected to by either party) before the Commission and considered in making this determination:
(a)    the AEA and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the applicant’s Application to Admit Late Documents dated 11 December 2023 (applicant’s first AALD) and attached documents;
(d)    the applicant’s Application to Admit Late Documents dated 9 February 2024 (applicant’s second AALD) and attached documents;
(e)    the applicant’s Application to Admit Late Documents dated 14 March 2024 (applicant’s third AALD) and attached documents, and
(f)    the respondent’s Application to Admit Late Documents dated 8 March 2024 (respondent’s AALD) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant substantially relies upon two reports from his treating endocrinologist, Associate Professor Ho. The first report (addressed directly to the respondent’s insurer) is dated 6 September 2023 and found at page 17 of the AEA.
The doctor diagnoses the applicant with recalcitrant Graves’ disease. He had taken a history of the applicant having “a severe mental collapse” while working for the respondent, and being medically discharged from that employment in 2012. He had recorded the applicant had continued “to do poorly” since then, with symptoms of severe anxiety, severe lethargy, hypertension, and depression.
The doctor had also obtained a history of the applicant having a strong family history of hyperthyroidism.
The doctor first reviewed the applicant on 30 August 2019 with symptoms consistent with thyrotoxicosis. The applicant was treated with medication and hormone replacement.
The doctor then reviewed the applicant on 29 November 2022 with ongoing symptoms of severe exhaustion, sweating and weight loss. After investigations, the doctor referred the applicant to Professor Sidhu for management with total thyroidectomy. Following that surgery, the doctor noted that the applicant’s thyroid antibodies were normalising after reviewing blood tests taken on 20 June 2023. The doctor asked the applicant to reduce his thyroxine dosage.
The doctor opines:
“It is my opinion that Adam has a genetic propensity for Graves disease given his strong family history. It is possible that his initial presentation and subsequent relapses are triggered by severe stress and anxiety, originating from his previous employment with the police force. It was difficult to stabilise his Graves disease medically so total thyroidectomy was a reasonable cause of action.”
The doctor’s second report (again addressed directly to the respondent’s insurer) is dated
27 September 2023 and found at page 19 of the AEA. The doctor advises:
“I would like to clarify a few details from my previous report for Adam Watts…Even though Mr Watts has a family history of thyroid disease, it is the severe stress that he experienced during his time in the police force that has triggered the presentation of Graves disease. It was not possible to stabilise his disease medically so a total thyroidectomy had to be done…It is my opinion that his time in the police force has directly resulted in his health problems and the only solution was surgery.”
The applicant also relies upon evidence from his treating general practitioner, Dr Parikh, as follows:
(a) there is a very brief report from the doctor dated 8 December 2023 (at page 1 of the applicant’s first AALD) in which the doctor does no more than advise that the applicant is suffering from Graves’ disease, hypertension, and hyperlipidaemia, and that “each of these conditions can be caused by stress coming from PTSD”, and
(b) there is a recent certificate of capacity from the doctor dated 12 February 2024 (at page 1 of the applicant’s third AALD) in which the doctor confirms his diagnosis of the applicant’s work-related injury/disease as “Major Depressive Episode with PTSD causing anxiety and Graves Disease” - the doctor also notes that the applicant’s management plan includes attendances with his endocrinologist.
Dr Parikh referred the applicant to a treating psychiatrist, Dr Verma, and the AEA contains (at page 20) a report from Dr Verma to Dr Parikh dated 13 September 2023.
The doctor takes a history that the applicant has had “mental health symptoms since his time as a police officer”, and he describes some of the incidents that the applicant was involved with in this regard. The doctor notes that the applicant was medically retired from the respondent in 2012 after working with it since 1995. The doctor also notes that the applicant has not worked since 2012.
The doctor records the applicant’s current symptoms as:
“He feels harrassed by EML. He hopes he does not wake up but does not have active ideation or suicidal planning. He feels policing ruined his life and he wishes he never joined the Police. He has initial and middle insomnia with nightmares of past traumas including seeing dead bodies. He avoids walking past a butchers shop and cant watch police shows on TV. He is irritable and his concentration is very poor and he tends to zone out. There are also traumatic flashbacks. He feels he is on a scrap heap.”
The doctor notes the following on examination:
“Adams mood was dysphoric, irritable and anxious. He was able to provide a reasonable history. There was no formal thought disorder or perceptual abnormality. He remains triggered by trauma reminders. No delusions. He shows some passive suicidal ideation without active intent or planning. Insight is reasonable.”
The doctor diagnoses post-traumatic stress disorder. He recommends that the applicant continue with his psychological treatment, but that his Efexor medication be increased, and that he also commence Quetiapine medication.
The applicant’s treating psychologist (Hermann Tin) has provided two reports. The first report is dated 22 October 2022 and found at page 23 of the AEA.
The applicant had first attended the psychologist on 23 August 2022, reporting symptoms of rumination, hypervigilance, fear avoidance, hyperarousal, and intrusive thoughts. The psychologist records the following examination findings:
“Brief mental state examinations were assessed across several sessions, and they showed that Adam’s mood was generally depressed and anxious in each of the sessions. His thought patterns were frequently disorganised – Adam would repeatedly change topics and ruminate on the details of his traumatic experiences. Adam would do this several times in each session. This was observed across multiple sessions. Occasionally, Adam would make state hypothetical situations of suicidality when making references to his history. A safety plan was completed and determined that Adam does not have intent or have a plan.”
The psychologist administered a number of tests (DASS42, PCL-5, WHODAS 2.0, and CEFI Adult) and found the applicant to have “severe levels of depression, anxiety, and stress”, and to be “highly impaired in all the domains of functioning”. He scored well below average on scales for attention, emotional regulation, flexibility, inhibitory control, initiation, organisation, planning, self-monitoring, and working memory.
The psychologist’s second report is dated 20 October 2023 and found at page 44 of the AEA. The report provides an update regarding the applicant’s self-reported symptoms, including:
(a)    his emotional state to be frequently irritable, anxious, and depressed;
(b)    his frequent experiencing of intrusive distressing memories from his days working with the respondent;
(c)    his frequent dissociative reactions when he is triggered by traumatic memories;
(d)    his anger outbursts;
(e)    his engaging in reckless behaviour;
(f)    his hypervigilance;
(g)    his concentration problems, and
(h)    his passive suicidal ideation without active intent or planning.
Aside from this evidence, the applicant also relies upon the following:
(a)    a tax invoice dated 8 February 2023 (found at page 46 of the AEA) in relation to an amount that he paid to Professor Sidhu of $6,000 - although not specifically stated as such in the tax invoice, it is reasonable to conclude that this was the amount that he paid with respect to the thyroidectomy surgery which he underwent on 21 February 2023;
(b)    an abstract with references from Cambridge University Press in 2018 (found at page 32 of the AEA) referring to a study which evaluated trauma exposure and post-traumatic stress disorder symptoms “in relation to incident thyroid dysfunction in a large longitudinal cohort of civilian women”, and concluded that post-traumatic stress disorder “was associated with a higher risk of hypothyroidism in a dose-dependent fashion” – I do not give much weight to this publication, not only because it is incomplete, but because its relevance to the applicant’s claim is not the subject of expert opinion specifically addressed to the claim;
(c)    an extract taken from a webpage (found at page 3 of the applicant’s second AALD), claimed by the applicant to be from Harley Street ENT, dealing with thyroid problems and women’s health, and noting that it is 10 times more likely for a woman to be affected by a thyroid condition that a man – I really cannot see the relevance of this extract to the applicant’s claim, especially without expert opinion specifically addressed to the claim;
(d)    an article published in the Journal of the Endocrine Society, 2024, Vol 8, No 1 (found at page 4 of the applicant’s third AALD) entitled Stress-Induced Graves Disease: Spontaneous Recovery After Stress Relief - the article reports on a series of patients with stress-induced Graves’ disease where stress relief alone led to a remission of that Graves’ disease - again however, the relevance of the article to the applicant’s claim is not the subject of expert opinion specifically addressed to the claim;
(e)    a statement dated 9 February 2024 (found at page 1 of the applicant’s second AALD) from the applicant’s sister, Angela Beard – the statement says that she is “currently on thyroxine and I am living a happy and healthy life”, not needing to see an endocrinologist regularly like the applicant has to – I presume that the applicant relies upon the statement in an attempt to show that his thyroid condition is worse than his sister’s due to his work-related post-traumatic stress disorder, but again, there is no specific expert opinion in this regard;
(f)    a medical certificate dated 2 February 2024 (found at page 2 of the applicant’s second AALD) from Dr Trinidad in relation to the plaintiff’s mother, Mareea Watts – the medical certificate says that the plaintiff’s mother has normal thyroid function – I presume that the applicant relies upon the certificate in an attempt to show that not all of his family members have thyroid conditions, but again, there is no specific expert opinion as to the relevance of that fact to his claim;
(g)    an unsigned document said to be authored by Joanne Thompson (found at page 2 of the applicant’s first AALD) dated 6 May 2022 – I do not propose to give this document any weight, not only because it is unsigned, but also because it is unclear as to Ms Thompson’s qualifications to provide expert opinions (as it seems that she is a registered nurse), and
(h)    four pages described as 'EML and Dr Katafaris reviews’ (found from page 28 of the AEA) - I do not propose to give these reviews any weight at all as they seem to me to be irrelevant to the specific dispute that I am required to determine.

Respondent’s evidence

The respondent relies upon an opinion that it obtained from an endocrinologist, Professor Carter. The doctor’s report is dated 15 February 2024, and found at page 1 of the respondent’s AALD. The doctor did not conduct any formal examination of the applicant, only summarising briefly the applicant’s thyroid condition history, and then answering a number of questions put to him by the respondent’s solicitors.

The history that the doctor relied upon in providing his opinion is therefore essential to the opinion, and I quote it in full:
“The claimant worked for the NSW Police Force and was diagnosed on 10 September 2008 with PTSD, major depression and an anxiety disorder, secondary to his service in the Police Force. He was diagnosed with autoimmune thyroid disease in 2019 with
thyrotoxic Graves' disease in August 2019. It was reported in the letter from his
endocrinologist, Dr K Ho, in September 2023 that there was a strong family history of
hyperthyroidism (ie thyrotoxicosis) with both his mother and sister having the condition.
His thyroid antibodies were documented as being elevated in 2019, consistent with
autoimmune thyroid disease…He was treated with low-dose anti-thyroid medication Neo-Mercazole in 2019 and the Graves' disease went into remission…He was referred back to Dr Ho in November 2022, complaining of severe exhaustion, increased sweats and weight loss. His thyroid blood tests were shown to be high and his thyroid stimulating immunoglobulin was raised, consistent with recurrence of his thyrotoxic Graves' disease. His thyroid tests were normalised with Neo-Mercazole therapy, and he was then treated with a total thyroidectomy on 24 February 2023.”
The doctor advises that Graves’ disease is a genetic condition, and there are no “clear-cut” precipitating factors for thyrotoxic Graves’ disease. He concedes that for at least 70 years “there have been references in the medical literature to stress being a potential cause”, but he also advises that there are numerous studies that “have not substantiated a significant role”, referring to one study in particular which reviewed data between 1989 and 2008 in relation to 45,992 women and found no association between post-traumatic stress disorder and the risk of Graves’ hyperthyroidism.
The doctor then provides his opinion as follows:
“I do not believe that stress associated with his employment has substantially
contributed to the development of the thyrotoxic Graves' disease. The onset was around 11 years after the development of his PTSD, depression and anxiety, and the clinical notes from his GP, Dr Parikh, do not indicate that the claimant was markedly stressed leading up to the diagnosis in 2019.”
The respondent otherwise only relies upon the applicant’s clinical records from Associate Professor Ho, Professor Sidhu, and Dr Parikh. I have considered these records in full, but (apart from my observations below) will only detail them further if specifically directed to aspects of them during the parties’ submissions.
In relation to the clinical records of Associate Professor Ho (found from page 4 of the respondent’s AALD), I note:

(a)    the doctor’s first report to Dr Parikh is dated 30 August 2019 – it refers to the applicant’s “strong family history of thyroid disorders” as well as his history of post-traumatic stress disorder from working for many years with the respondent – it also notes that the applicant “has not been very well for a number of years since his discharge from the force”, and it refers to symptoms such as lethargy, depression, palpitations, erratic blood pressure, erratic weight, and irritable bowels - it opines that the applicant’s condition “is likely due to ‘Hashitoxicosis’ associated with autoimmune thyroiditis”;
(b)    the doctor’s next report to Dr Parikh is dated 4 November 2019 - it specifically mentions the applicant being “very stressed lately” due to his wife’s cancer diagnosis - it diagnosis likely Hashimoto’s thyroiditis rather than Graves’ disease;
(c)    the doctor’s next report to Dr Parikh is dated 6 January 2020 – it refers to the applicant as feeling better but still tired – it maintains the diagnosis of Hashimoto’s thyroiditis – it advises as to a medication change and a review of the applicant in three months - the review however does not seem to have occurred as the doctor’s next report to Dr Parikh is dated 29 November 2022;
(d)    the doctor’s 29 November 2022 report refers to the applicant being referred to the doctor again after not having thyroid treatment for a year, but still being mentally and physically fatigued - it reviews pathology and diagnoses a relapse in his hyperthyroidism;
(e)    the doctor’s next report to Dr Parikh is dated 22 December 2022 - it reviews radiology and pathology, and confirms that the applicant has been “symptomatic with fatigue, flushes and labile moods” - it opines that the applicant “will need to have definitive treatment of his thyroid condition, given his previous relapses and therefore, cure is not high”, and
(f)    the doctor’s final report to Dr Parikh is dated 24 January 2023 and advises that he has referred the applicant to Professor Sidhu for total thyroidectomy - the referral provides a specific history of the applicant’s “current problems” as being “Autoimmune thyroiditis – Graves…Hypertension…PTSD – onset 01/02/2012…Thyroid scan – patchy uptake 6% – hyperthyroidism – onset 05/12/2022…Graves thyrotoxicosis-relapse – onset 22/12/22”.

In relation to the clinical records of Professor Sidhu (found from page 57 of the respondent’s AALD), I note:
(a)    the doctor’s first report to Associate Professor Ho is dated 8 February 2023 and confirms that total thyroidectomy surgery had been arranged for the applicant on 21 February 2023 – the report does not provide any significant history to the applicant’s thyroid condition, although there is a handwritten Initial Endocrine Assessment dated 8 February 2023 which (while difficult to read) certainly refers to “PTSD” as one factor in its history section;
(b)    the doctor’s next report to Associate Professor Ho is dated 22 February 2023 and confirms the total thyroidectomy surgery that was performed on
21 February 2023, and
(c)    the doctor’s final report to Associate Professor Ho is dated 14 March 2023 and confirms that the total thyroidectomy surgery “went well”, and that the applicant’s “voice is normal, his wound has healed well and his parathyroid function is normal”.
In relation to the clinical records of Dr Parikh (found from page 77 of the respondent’s AALD), I note:
(a)    the records essentially include typed clinical notes covering the period between 31 July 2006 and 25 January 2024, together with pathology and radiology reports;
(b)    the clinical notes detail numerous reports of psychological symptoms from the applicant’s work with the respondent, made by him to the doctor since
8 March 2007;
(c)    there is a clinical note on 26 July 2012 in which the doctor refers to thyroid tests requested by the applicant, and in which, after explaining the results of those tests, records that the doctor reassured the applicant that his thyroid function was normal;
(d)    on 26 August 2019, the doctor first refers the applicant to Associate Professor Ho in relation to the applicant’s thyroid condition, following pathology and radiology results – the clinical note on 26 August 2019 refers to the applicant as being anxious and catastrophising;
(e)    the clinical note on 16 September 2019 specifically refers to the applicant’s ongoing “work related issues” which had been present for nine years and for which the ongoing care of a psychiatrist was required - the reason for contact is said to be “Depression – Major…Anxiety – PTSD”;
(f)    the clinical notes reveal that since 16 September 2019, the doctor has continued to provide the applicant with certificates of capacity on around a three monthly basis in relation to his work-related psychological condition - the notes often specifically state the condition to be unchanged, although there were changes made to the applicant’s certificate of capacity on 29 September 2022 - the nature of and reason for these changes is not specified, although return to work issues are noted on 13 April 2022 and 20 October 2022 – the 13 April 2022 clinical note refers to the applicant being unable to work more than one shift, having sleep disturbance, having anxiety and depression, and being harassed by the respondent’s insurer;
(g)    the clinical notes do not reveal any treatment afforded to the applicant for his thyroid condition by the doctor between 25 August 2019 and 8 February 2023, other than the doctor prescribing medication for the condition between
2 June 2020 and 26 May 2021;
(h)    since the applicant’s total thyroidectomy surgery, his thyroid condition has been extensively managed by the doctor with medication and pathology, and
(i)    there is a clinical note on 8 December 2023 which reads “PTSD and R Grave’s disease discussed…wants a note about stress causing graves disease” - it is reasonable to assume that the doctor then produced the report discussed at paragraph 22(a) above.

Respondent’s submissions

The respondent’s submissions have been recorded and are part of the Commission’s record. I will therefore not repeat them in detail.

The crux of the respondent’s submissions is that there is an insufficient evidentiary basis for me to find the necessary causal relationship between the applicant’s work-related psychological condition and his thyroid condition, in order for the costs of his total thyroidectomy surgery to be payable by the respondent. To be successful in his claim, the applicant would have to prove that his accepted psychological injury “made a material change to the symptoms and progress” of his thyroid disease. However, there is no coherent expert opinion relied upon by the applicant to demonstrate first, that the applicant’s psychological injury is capable of having a causal link to his thyroid condition; and second, that in the specific circumstances the applicant’s case, the link is established.
The respondent first takes me to the clinical records of Dr Parikh and especially the note on 26 July 2012 (see paragraph 40(c) above). The respondent notes that at the time of this note, the applicant had a well advanced psychological condition but was not exhibiting any thyroid symptoms or pathology.
The respondent next considers Associate Professor Ho’s reports. It submits that his opinion in his 6 September 2023 report (see paragraph 20 above) as to a possible causal link between his work-related psychological condition and his Graves’ disease is not sufficient for me to find that causal link. It then submits that his opinion in his final 27 September 2023 report (see paragraph 21 above) moves from the mere possibility of that causal link, to a triggering of the Graves’ disease by the work-related psychological condition, and then to the disease being a direct result of the psychological condition. The report provides no proper analysis for these changes in opinion, and is more in the form of advocacy. The respondent submits that the doctor has proceeded from providing a measured commentary in his
6 September 2023 report to providing a four paragraph ipse dixit non-reasoned report.
The respondent concedes that Associate Professor Ho’s opinions “unmet by any contradicta, maybe would be enough to get the applicant’s case to the line”, but relies upon the opinions of Professor Carter as contradictory evidence.
The respondent concedes that Professor Carter did not conduct a consultation or examination with the applicant, but prepared his report following a file review. It submits however that there should be no criticism of the doctor in this regard as there is no controversy in relation to diagnosis. The doctor is commenting upon the same symptoms and pathology as did Associate Professor Ho. He is providing a “purely scientific medical opinion”.
The respondent submits that the history obtained by the doctor (quoted in full at paragraph 34 above) is accurate.
The respondent then refers to the doctor’s comments in relation to the “medical literature” (see paragraph 35 above) and submits that “the jury’s still out” regarding whether there is any association between post-traumatic stress disorder and Graves’ hyperthyroidism. The respondent then however relies upon the doctor’s opinion (quoted at paragraph 36 above) regarding the lack of a temporal connection between the applicant’s work-related psychological condition and the onset of his Graves’ disease, which occurred 11 years after the onset of that psychological condition.
The respondent is questioned by me as to the accuracy of the doctor’s comments that the applicant was not markedly stressed leading up to the thyroid condition diagnosis in 2019. I put it to the respondent that it would have been preferable for a consultation to have occurred, so that the doctor could have discussed with the applicant the history of his psychological symptoms in 2019. The respondent submits that the doctor correctly recorded the history given by the applicant to others in 2019, and that in any case, it is for the applicant to meet his onus of establishing the nature of his psychological symptoms in 2019. The respondent comments that there has been no lay evidence produced by the applicant as to any particular manifestation of his psychological condition in 2019 that could have acted as a trigger for the presentation of his thyroid condition then.

Applicant’s submissions

The applicant’s submissions have also been recorded and are part of the Commission’s record. I will therefore not repeat them in detail.
The applicant counters the respondent’s submission (see paragraph 49 above) regarding the accuracy of Professor Carter’s statement that he was not markedly stressed leading up to the diagnosis of his thyroid condition in 2019. He declares that statement to be “completely false” and argues that the doctor has not adequately considered Dr Parikh’s clinical records, which show at least 25 entries of marked stress since 8 March 2007. The applicant specifically mentions entries on 27 January 2017, 31 January 2018, 23 October 2018,
29 October 2018, and 26 August 2019. The applicant also notes that Dr Parikh has continued on a three monthly basis to provide certificates of capacity referencing the ongoing nature of his psychological condition. Dr Parikh has also drawn a causal link between that condition and his Graves’ disease – in this regard, the applicant specifically refers to the doctor’s 12 February 2024 certificate of capacity (see paragraph 22(b) above).
The applicant refers to Professor Carter as a “cash for comment” doctor, who no longer practices as an endocrinologist, and who did not examine him.
The applicant also counters the respondent’s submission (see paragraph 44 above) as to Associate Professor Ho changing his opinion to provide a more definitive causal link between the applicant’s psychological condition and his thyroid condition in his 27 September 2023 report. The applicant submits that it is not unusual for experts to change their opinions after reviewing extra documents, medical digests, or other research.
The applicant then submits that his family history of thyroid conditions is not particularly relevant. He is the only male family member to have a thyroid condition, and it is also very rare in general for a man to have such a condition.
Finally, the applicant points to the fact that he did not pay any of the doctors for them to prepare the reports that he relies upon. He emphasises that Associate Professor Ho has treated him for five years, and Dr Parikh has treated him for 17 years. Their opinions should as a result be given more weight than the opinion of Professor Carter.

Further submissions in reply

There were some further submissions by both the respondent and the applicant that were then made. These submissions also form part of the Commission’s record, and I will not repeat them in detail.
The respondent concedes that while it was open to Associate Professor Ho to change his opinion, he needs to advise his reasons for doing so. It is not open to me to infer those reasons, as the applicant had submitted (see paragraph 53 above).
In a discussion which then ensued between myself and the parties, I made it clear that I could not infer what the doctor did in order to change or revise his opinions. However, considering that his 27 September 2023 report was dated one day after the respondent’s notice pursuant to s 78 of the 1998 Act and addressed issues raised in the notice, I considered that it was reasonable for me to infer that the report was prepared in answer to the notice, either after the applicant had showed the notice to him or after he came to consider it by other means.

FINDINGS AND REASONS

Was the need for the applicant’s total thyroidectomy surgery on 21 February 2023 materially contributed to by his accepted psychological injury from his employment with the respondent, in order to make the respondent liable to compensate the applicant regarding the costs of and incidental to the surgery

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment.”
The first question to therefore determine is whether the applicant’s total thyroidectomy surgery was reasonably necessary treatment for his thyroid condition. The respondent correctly has however not put the reasonable necessity for the surgery in dispute. There is no medical evidence disputing the need for the surgery in this regard.
Having accepted that the total thyroidectomy surgery was reasonably necessary, it is now necessary to consider whether there was a material contribution between the applicant’s accepted psychological injury and the need for the surgery.
In Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49 (Murphy), Roche DP stated at [58]:
“Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]. That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
In relation to the meaning of ‘material contribution’, it is helpful to consider what the majority of the High Court said (albeit in a common law tortious claim) in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Limited [2013] HCA 10 (Hunt & Hunt) at [45]:
“The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.”

In Kumar v Royal Comfort Bedding Pty Limited [2012] NSWWCCPD 8 (Kumar), Roche DP provided a useful summary of what was said by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) at [46-48]:
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that ‘[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate’. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.’
His Honour concluded that the Court was left with ‘an unbroken chain of undisputed evidence’. In combination, the facts went ‘beyond mere predisposing circumstances’. They combined to make it ‘proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train’. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”

Whether the applicant can establish that his accepted psychological injury led to the need for surgery to be undertaken in relation to his thyroid condition, is (as noted by Kirby P in Kooragang) a question of fact to be determined following a “commonsense evaluation of the causal chain”, on the basis of the evidence, including, where applicable, expert opinions. The psychological injury must have played ‘some part’ in contributing to the need for the surgery, in accordance with Hunt & Hunt.
The recent decision of Wood DP in DGL (Aust) Pty Limited v Martino [2023] NSWPICPD 30 (Martino) confirmed at [139] that “in questions of causation in the Commission, a common sense evaluation of the causal chain is required and that each case will depend on its own facts and be determined on the evidence, including, as in this case, expert evidence” – see also Moriarty-Baes v Office Works Superstores Pty Limited [2015] NSWWCCPD 28. The Court of Appeal also very recently in Fisher v Nonconformist Pty Limited [2024] NSWCA 32 (Fisher) explained at [113] that “the invocations of common sense” to be applied by the Commission involved treating the issue in dispute “as an evaluative question of fact to be assessed in a practical manner”.
The expert opinions in this dispute are not as detailed as I would like. The applicant’s treating endocrinologist, Associate Professor Ho, does not in my view provide specific detailed reasons for his opinions, and that does affect the weight that I give to those opinions.
Dr Parikh’s opinions are similar. However, I find Professor Carter’s opinions to also be brief, to be to a degree unclear, and to be based upon an assumption that I do not find to be supported by the evidence.
Professor Carter did not consult with the applicant at all. The history section of his
15 February 2024 report (see paragraph 34 above) focuses upon the applicant’s thyroid condition, and he obtained no history from the applicant directly regarding whether the applicant was “markedly stressed” in 2019 when the applicant’s thyroid condition was diagnosed. Yet he relies upon the absence of marked stress in 2019 (in circumstances where the psychological condition had developed 11 years prior to the thyroid condition) to provide his reasoning for not finding a causal link between the conditions (see paragraph 36 above).
Apart from the obvious desirability of the applicant’s stress levels in 2019 being the subject of direct questioning by the doctor prior to the doctor proffering his opinion regarding those levels, there is ample contemporaneous evidence which in my opinion supports the position that the doctor was incorrect in finding that the applicant was not markedly stressed in 2019 and in the years following:
(a)    the history obtained by Associate Professor Ho (who first consulted with the applicant in August 2019) that the applicant had done “poorly” with symptoms of severe anxiety and severe lethargy as well as depression since he last worked for the respondent in 2012 - see paragraphs 16 and 38(a) above;
(b)    the psychological symptoms recorded by Dr Verma in his 13 September 2023 report (including passive suicidal ideation, traumatic flashbacks, and insomnia) - the doctor recommends medication increases - see paragraphs 25-27 above;
(c)    the testing carried out by Hermann Tin in late 2022 (just prior to the applicant being reassessed by Associate Professor Ho on 29 November 2022 - from which assessment the total thyroidectomy surgery was proposed) - the testing showed severe levels of depression, anxiety and stress, as well as high impairment in all domains of functioning - see paragraph 30 above;
(d)    the psychological symptoms recorded in Hermann Tin’s 20 October 2023 report - see paragraph 31 above;
(e)    the recording in Associate Professor Ho’s 29 November 2022 report of the applicant being mentally and physically fatigued - see paragraph 38(d) above;
(f)    the clinical notes from Dr Parikh on 26 August 2019 and on 16 September 2019, referring to the applicant’s psychological symptoms and his need for ongoing care with a psychiatrist - see paragraph 40(d) and (e) above, and
(g)    the ongoing certificates of capacity issued by Dr Parikh - see paragraph 40(f) above - although only one of these certificates is in evidence (see paragraph 22(b) above).
Professor Carter has therefore, in my opinion, based his report upon an incorrect assumption. He has not obtained an adequate history of the applicant’s psychological injury. I do not intend to afford his report much weight and find it to be unreliable.
It is also unclear from the report as to the degree to which the doctor accepts a general connection between a psychological condition and a thyroid condition. He refers to studies going back 70 years (see paragraph 35 above) supporting such a connection, but also advises that there are alternative studies, specifically referencing one such study. He does not however then provide his opinion regarding the connection, and I accept the respondent’s submission (see paragraph 48 above) that in the context of his report, he probably considers that “the jury’s still out”.
In contrast to Professor Carter (who did not even consult with the applicant), Associate Professor Ho has been the applicant’s treating endocrinologist since 2019, and Dr Parikh has been the applicant’s general practitioner since 2006. They are certainly, in my opinion, in a better position to comment on the applicant’s medical conditions and provide information regarding his medical history. They both support a causal link between the applicant’s work-related psychological condition and his thyroid condition.
Associate Professor Ho in his 6 September 2023 report (see paragraph 20 above) refers to the possibility of severe stress and anxiety triggering the applicant’s thyroid condition. However, he then revises his opinion in his 27 September 2023 report (see paragraph 21 above) to state categorically that it was the severe stress from his work with the respondent that “triggered” his thyroid condition, and that “his time in the police force has directly resulted in his health problems”. As I advised the parties during their submissions (see paragraph 58 above), I was willing to infer that the doctor addressed his 27 September 2023 report to the respondent’s insurer in answer to its 26 September 2023 notice pursuant to s 78 of the 1998 Act. I was not willing to infer any other reasons for his revision of opinion.
The opinion of Associate Professor Ho in his 27 September 2023 report is certainly forthright, and as he is the applicant’s treating endocrinologist, I consider that I would need significant contrary evidence to not accept it. The respondent only provides Professor Carter’s opinion evidence (which I have found cannot be given much weight) in this regard. The respondent concedes (see paragraph 45 above) that without Professor Carter’s opinion, Associate Professor Ho’s opinion may be sufficient for the applicant to meet his onus in this dispute.
Associate Professor Ho’s opinion is also supported to a degree by Dr Parikh. Although the doctor’s 8 December 2023 report suffers from the same deficiency as Associate Professor Ho’s 6 September 2023 report (in that it only deals with possibilities), the one certificate of capacity in evidence from the doctor (see paragraph 22(b) above) is clear in its description of the applicant’s thyroid condition as being caused by his work-related major depressive episode and post-traumatic stress disorder.
Further, the opinions of Associate Professor Ho and Dr Parikh (while lacking in providing specific detailed reasoning) are supported by Professor Carter’s concession that there have been studies published for over 70 years linking psychological conditions with thyroid conditions. The applicant also seeks to reference some of these studies (see paragraph 32(b), (c), and (d)). Although Professor Carter does not provide a specific opinion regarding the link (see paragraph 72 above), it is clear to me from his referencing of the supportive studies that there is a scientific medical basis for Associate Professor Ho and Dr Parikh to provide their opinions. It is also relevant to note in this regard that while being no more specific in his records, Professor Sidhu considered post-traumatic stress disorder to be worthy of noting in the history section of his Initial Endocrine Assessment (see paragraph 39(a) above).
As indicated however, I accept the respondent’s submissions (see paragraph 44 above) regarding there being no specific detailed reasoning provided by Associate Professor Ho and Dr Parikh. This does affect to a degree the weight I give to their opinions.
In Hancock v East Coast Timber Products Pty Limited [2011} NSWCA 11 (Hancock), Beazley JA discussed the use of expert evidence in the Commission at [82-83]:
“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.”
And at [85]:
“Dr Summersell's opinion did not have to expressly refer to the subsequent non-work related incidents in order for there to be a proper foundation for the opinion expressed in his reports. Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”
And at [90]:
“Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes are present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work incident was responsible for the current condition of the appellant's knee. Accordingly, there was no failure to comply with the second limb of Makita. His Honour's finding to the contrary thus constituted a wrong application of legal principle and also amounted to an error in point of law.”
Considering the opinions of Associate Professor Ho and Dr Parikh in the light of these pronouncements from Hancock, I intend to give the opinions substantially more weight than the opinion provided by Professor Carter. Especially in the case of Associate Professor Ho’s reports (including his reports to Dr Parikh discussed at paragraph 38 above), I accept that they (in a similar manner to Dr Summersell’s reports discussed in Hancock) not only set out the facts observed and the assumed facts garnered from the history provided by the applicant, as well as radiology and pathology; but that they also provide an adequate scientific basis, when the opinion is provided in the 27 September 2023 report that the applicant’s thyroid condition has been triggered by his severe stress due to his employment with the respondent.
I therefore also reject the crux of the respondent’s submissions (see paragraph 42 above) regarding there being an insufficient evidentiary basis to demonstrate the causal link between the applicant’s psychological condition and his thyroid condition. Overall, I am able to give the opinions of Associate Professor Ho and Dr Parikh the necessary weight to establish this evidentiary basis, especially in circumstances where I have concluded there to be no reliable contrary evidence.
In Roads and Traffic Authority v Royal [2008] HCA 19 (Royal), Kiefel J observed at [144]:
“Kitto J in Jones v Dunkel said that one ‘does not pass from the realm of conjecture into the realm of inference’ unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam Pty Ltd v McGuiness, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered.”
The High Court also dealt with the relevant causation question in Amaca Pty Limited v Ellis [2010] HCA 10 (Ellis) at [70] as follows:
“The answer to the question can be expressed in several different ways. All depend upon the basic and unpalatable fact that no scientific or medical examination can now say, with certainty, what caused Mr Cotton's cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, ‘reduce to legal certainty [a question] to which no other conclusive answer can be given’. The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may [emphasis in original] have been a cause of Mr Cotton's cancer is not a sufficient basis for attributing legal responsibility.”
Further, in Fisher, the Court of Appeal observed at [98]:
“It is true that proving that a risk came home can sometimes be difficult. That does not mean it is impossible. Indeed, it is an issue which has long arisen in relation to heart attack claims in workers compensation cases. For example, in Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 the High Court upheld a compensation claim in relation to a worker who was, to quote two of the doctors who gave evidence, ‘a candidate for sudden death – work or no work’ due to his arterio-sclerosis (see at 324). It was enough that some particular exertion at work had triggered the heart attack.”
In accordance with these authorities, and in accordance with the weight that I have given to the opinions of Associate Professor Ho and Dr Parikh, I believe that I have enough facts and evidence to make a positive finding that the applicant’s work-related psychological condition materially contributed to his thyroid condition and his need for total thyroidectomy surgery. It is more probable than not. In accordance with Fisher and Associate Professor Ho’s opinion, I find that the applicant’s work-related psychological condition “triggered” the presentation of his thyroid condition.
Having evaluated the facts and evidence (especially the expert evidence) in a practical manner, and having regard to the applicant’s need to establish a causal chain between his work-related psychological condition and his thyroid condition, I find an unbroken chain of evidence in the opinions of his treating doctors linking the two conditions, and establishing the necessary material contribution to his thyroid condition from his work-related psychological condition.
The thyroid condition therefore results from the applicant’s accepted psychological injury, and is consequential to that injury. The respondent having accepted that the applicant’s total thyroidectomy surgery was reasonably necessary treatment for his thyroid condition, I find that the psychological injury materially contributed to the need for the surgery, in accordance with Murphy and Hunt & Hunt.
In reaching my findings, I have finally considered the observations of Roche DP in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca) at [103-106]:
“Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).
The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”

From the opinions of Associate Professor Ho and Dr Parikh, I feel the actual sense of persuasion required by Drca to find that the applicant’s total thyroidectomy surgery was materially contributed to by his accepted work-related psychological injury.

SUMMARY

I find that the applicant has sustained a consequential condition to his thyroid resulting from his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent.

I find that the total thyroidectomy surgery performed upon the applicant by Professor Sidhu on 21 February 2023 was reasonably necessary treatment for the applicant, and was materially contributed to by his accepted 10 September 2008 (deemed date) psychological injury, arising from his employment with the respondent.
I find that the respondent is liable to compensate the applicant for the expenses paid by him of and incidental to the total thyroidectomy surgery - and I order the respondent to pay to the applicant an amount of $6,000 in this regard (with leave to be given to the respondent to approach the Commission should this amount exceed appropriate scale costings), pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 179

10 April 2024