Wood v Woolworths Limited - [2020] NSWWCCPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Wood v Woolworths Limited [2020] NSWWCCPD 8
APPELLANT:	Shane Wood
RESPONDENT:	Woolworths Limited
INSURER:	Employers Mutual Limited
FILE NUMBER:	A1-2096/19
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	5 August 2019
DATE OF APPEAL DECISION:	24 February 2020
SUBJECT MATTER OF DECISION:	A decision should be given on the basis of issues that have been litigated in the course of the trial – Chanaa v Zarour [2011] NSWCA 199, Popovic v Liverpool City Council [2017] NSWWCCPD 49 applied; the weight to be afforded to evidence is generally a matter within the province of the primary decision maker Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367, Shellharbour City Council v Rigby [2006] NSWCA 308; requirement to identify facts relied upon – use of the phrase “nature and conditions”
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr A J Parker, counsel
Turks Legal
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 5 August 2019 is confirmed.

INTRODUCTION

Mr Shane Wood (the appellant) was employed by Woolworths Limited (the respondent) as a store person and cleaner, commencing in 2005. On or about 13 January 2018, the appellant lodged a workers compensation claim in respect of an alleged psychological injury, alleging such injury arose from bullying and harassment in the workplace. The respondent denied liability for the injury on 7 March 2018.
On 27 August 2018, the appellant forwarded to the respondent a claim for weekly payments commencing from 26 March 2018, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). On 16 October 2018, the respondent issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability, disputing that:
(a)    the appellant suffered a psychological injury pursuant to s 4(a) of the 1987 Act;
(b)    the appellant’s employment was a main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the any psychological injury;
(c)    the appellant’s employment was a substantial contributing factor to any injury in accordance with s 9A of the 1987 Act, and
(d)    the appellant had any entitlement to weekly payments, treatment expenses or lump sums.
The appellant commenced proceedings in the Commission, alleging “various incidents of bullying and harassment by his employer and manager” between 2012 and February 2018. The appellant alleged that he had suffered the gradual onset of a psychological injury “due to the nature and conditions of his employment” with a deemed date of injury being 13 January 2018.[1]
[1] Application to Resolve a Dispute (ARD), Part 4 – Injury Details.
The parties attended an arbitration on 1 July 2019. On that day, by consent, the deemed date of injury was amended to 26 March 2018.
The Arbitrator reserved her decision and issued a Certificate of Determination (COD) with her statement of reasons attached dated 5 August 2019, in which she entered an award for the respondent in respect of the allegation of psychological injury.

BACKGROUND

It is apparent that the appellant had submitted at least two prior claims in respect of psychological injury.
In a notice dated 3 November 2015, issued pursuant to s 74 of the 1998 Act, the respondent declined liability for a claim made by the appellant for compensation in respect of a psychological injury on 27 July 2015. The details of the injury were recorded by the respondent in the notice as resulting from an allegation by the appellant that he was falsely accused of talking with a co-worker and the respondent threatened to issue a warning letter.[2]
[2] ARD, pp 199–203.
A further notice pursuant to s 74 of the 1998 Act was issued on 16 September 2016. Liability was declined for a psychological injury alleged to have occurred on 28 December 2015. The notice referred to the appellant’s allegation that he was yelled at and sworn at during his shift on that day.
It appears that these claims were not pursued by the appellant at that stage.
The appellant’s employment was terminated, and this appears to have occurred in March 2018.

ON THE PAPERS

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

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 EVIDENCE

The appellant’s statements

In response to the claim lodged by the appellant on or about 13 January 2018, the appellant was interviewed by an investigator at the request of the respondent. A statement signed by the appellant following that interview and dated 31 January 2018 was in evidence.[3]
[3] ARD, pp 213–226.
The appellant stated that he had previously suffered workplace stress as a result of bullying in the workplace, but denied having previously been diagnosed with depression, anxiety stress or a psychological condition.
The appellant reported that up until approximately November 2017, his team leader was Ms Angela Brown and thereafter it was Mr Nick Roundtree. The appellant advised that he had pre-arranged leave for the period 14 January 2018 to 24 January 2018.
The appellant referred to an incident on 6 January 2018, when he went to the lunchroom to retrieve a packet of M and M sweets from his lunch bag, which was in the fridge, and the sweets were missing. The appellant said that he had previously reported issues to management of food missing from his lunch bag. The appellant took a bag of jelly snakes from his bag and then reported the incident to a security officer and asked if security could check the CCTV footage. He returned to his duties.
Approximately 15 minutes later, he was paged to the shift office, where Mr Bob Phillips, who was a team leader, and Mr George Demos, the union delegate were sitting. The appellant said that they queried why he had gone to security and advised the appellant that he ought to have advised the team leader, who would have dealt with security. The appellant advised the team leader of what had happened, and that he was unaware of the procedure in relation to approaching security.
The appellant reported that about one hour later, he was again called to the office. The team leader accused him of taking the M and M sweets himself, questioned him about the colour of the bag of sweets and indicated that they had seen the appellant take a yellow bag from his lunch bag. The appellant denied the accusation and explained that the packet he had taken contained jelly snakes. At the request of the team leader, the appellant retrieved the empty packet from the garbage bin.
The appellant said that the team leader advised him that no one else had been seen opening his lunch bag and that he should not be eating except in the lunchroom. The appellant protested that others were allowed to eat in the work area but was advised to only worry about himself. The appellant was subsequently advised by his wife that she had removed the bag of sweets that morning for health reasons.
On 8 January 2018, the appellant approached the safety officer, who confirmed the policy about no eating in the work area and indicated that if other staff were eating in the work area she would cause it to stop.
The appellant complained of another incident when he was paged to return to clean an area that was reported to be dirty, and when he went there, it was clean. The appellant enquired as to who had issued the direction for him to return there and was advised that it was Ms Brown. He said that he had experienced previous problems with Ms Brown, which had been documented, and felt that her directing him to return to an area that was already clean was more than a coincidence.
The appellant stated that on 13 January 2018, which was a hot day, he noticed one of the workers was wearing a neck cooling towel. He said he went to the office to get a cooling towel for himself, but that another worker (Wilson), who was present in the office said he had already been issued with one. The appellant denied having been issued with one, but the team leader (Yasmine) maintained that he had. The appellant took a towel in any event, and after checking the computer Wilson confirmed that the appellant had not already received one.
The appellant complained that a similar event occurred at Christmas time, when he went to pick up his staff Christmas hamper, and Ms Brown asserted that he had already received one. The appellant said that after the CCTV footage was checked, it was apparent that Ms Brown had mistakenly recorded that he had received his hamper.
The appellant stated that later on the same day, he noticed that Mr Michel Haleblian (a co-worker) was eating, holding his mobile phone to his ear and smirking, as though he was trying to antagonise the appellant. The appellant reported that he found it hard to ignore the co-worker’s behaviour because it had been happening for a number of years.
The appellant said that he finished the order he was working on, went to the office and informed Wilson that he had had enough of being harassed and bullied and was going home. The appellant advised that he was aware from past experience that he needed to attend a doctor and obtain a Workcover certificate. He called his usual doctor’s practice, but the call went to message bank, so he attended Dr Ashraf El Gamal, general practitioner, at the Australian Health Care Centre who issued him with a WorkCover certificate of capacity indicating that the appellant had no work capacity until 27 January 2018. He emailed the certificate to Ms Bianca Pitarelli.
The appellant said that he was then on pre-arranged leave, during which time he received a number of calls from various employees but only accepted the call from Ms Pitarelli. He said he advised Ms Pitarelli of what had occurred at work. The appellant said that he was also contacted by his shift supervisor, Mr Ronald Bina, in relation to his leave entitlements.
The appellant advised that he returned from leave and attended Dr El Gamal who certified him as fit to return to work, with which the appellant disagreed. The appellant said that he took a further day off work on 29 January 2018 as carer’s leave and returned to work on his next scheduled shift on 31 January 2018.
The appellant said he believed that the cause of his diagnosis was due to the bullying and harassment by his managers at work on 13 January 2018. He confirmed that he had previously lodged a workers compensation claim for “stress” and a left hip injury. He again denied that he had previously suffered from anxiety and depression.
The appellant provided a second statement dated 20 October 2018 in which he confirmed his earlier statement but sought to add other episodes of bullying and harassment at work.[4]
[4] ARD, pp 287–296.
The appellant recalled that in about 2013 he had an altercation with his manager, Michel Haleblian. He said that Mr Haleblian had a farm and the appellant from time to time would buy eggs from him. On one occasion, Mr Haleblian asked the appellant if he would like to buy some goat’s milk. The appellant said that when he suggested that they first have a taste test Mr Haleblian was offended, and their relationship deteriorated thereafter. The appellant said that despite mediation, Mr Haleblian continued to make his life uncomfortable.
The appellant described further instances of adverse behaviour towards him that included:
(a)    his car being scratched, and the tyres being slashed;
(b)    derogatory graffiti written about him on the toilet walls;
(c)    a colleague named David persistently eating the appellant’s food, sometimes in front of him and sometimes taking it from the appellant’s bag, and spread rumours about the appellant;
(d)    Ms Brown accusing him of talking to another co-worker for an hour, but eventually realising the worker on the CCTV footage was not the appellant, and
(e)    the respondent beginning to micro-manage him.
The appellant stated that he complained on numerous occasions to his managers and asked for a transfer, but the transfer was denied.
The appellant complained that in about 2015, his manager, Ms Brown, who was known to be temperamental, asked him to clean up a spill, which he told her he could not clean up because he was already busy. Ms Brown then called the appellant to the office and she shouted at him, accused him of using his mobile telephone and said he was lying. The appellant alleged Ms Brown gave him a warning and told him to go home. The appellant said he put in a complaint about Ms Brown, but nothing was done.
The appellant spoke about feeling ostracised, angry and frustrated and began to lack trust in other people. The appellant attended his general practitioner, Dr Gaurav Tewary on 28 July 2015 in respect of psychological symptoms and was certified unfit for work for a period of time. The appellant lodged a claim for workers compensation on 18 August 2015, but the claim was denied.
The appellant alleges that the bullying and harassment continued throughout 2015 and into 2016, and in January 2016, he made a further formal complaint against the respondent and lodged a further WorkCover certificate of capacity. That claim was also denied.
The appellant complained of numerous further incidents, including:
(a)    being slapped in the face by a co-worker;
(b)    co-workers not talking to him;
(c)    a co-worker claiming that other staff treated him badly because the co-worker sat with the appellant in the lunchroom;
(d)    the same co-worker telling him that another co-worker (who the appellant did not know very well) had said that the appellant would be the first person he would shoot if he had a gun;
(e)    the appellant becoming increasingly frightened of David, who in about 2017 had put the appellant’s head in a headlock so that the appellant could not breathe and then slapped the appellant on the back of the head, and
(f)    while he was on restricted duties in relation to his hip injury, the appellant being told to perform scrubbing work which was not within his restrictions at the time. He felt intimidated and bullied and other workers were laughing and taking photographs.
The appellant confirmed that further incidents occurred, which were detailed in his previous statement. He advised that he had not returned to work since February 2018 because he feared for his life and detailed his ongoing treatment and impairment.
In a statement dated 17 April 2019,[5] the appellant gave details of pre-existing psychological symptoms as follows:
(a)    stress and anxiety relating to his daughter’s medical issues occurring between 2008 and 2014, which the appellant said he managed, and which did not affect his ability to manage at work and perform his full duties;
(b)    on 3 June 2008, he consulted a doctor because of a panic attack on a flight;
(c)    anxiety in and around March 2009, when he consulted a doctor in relation to concerns about his wife’s pregnancy, and
(d)    on 1 May 2012 he again consulted a doctor for medication to control his nervousness about air travel.
[5] ARD, pp 297–312.
The appellant described these occasions as sporadic and with long periods between them.
The appellant repeated the events described in his second statement, and reiterated the difficulties he was experiencing, and the debilitating psychological effect of the injury.
The appellant responded to statements from Mr Roland Brina, team leader, Ms Brown, and the report of Associate Professor Robert Kaplan, forensic psychiatrist, dated 5 February 2018. Those responses are detailed following the summary of that evidence.

Statement of Mr Roland Bina

Mr Bina provided a statement dated 16 March 2016.[6]
[6] Reply to Application to Resolve a Dispute (Reply), pp 1–5.
Mr Bina was appointed as team leader with the respondent at the Yennora Distribution Centre on 12 October 2015. He stated that he had worked with the appellant a number of years previously at another location and that there were no issues between them at that time. Mr Bina said that at Yennora, he would normally have limited interaction with the appellant, who was not in his team. Mr Bina added that he did have to speak to the appellant on occasion in passing if he was doing something wrong and that other staff complained to him about the appellant’s use of his mobile telephone at work.
Mr Bina recalled an incident on 28 December 2015 when he witnessed the later part of a conversation between the appellant and Ms Brown in respect of an umbrella. The appellant was asserting he had not been given the umbrella and Ms Brown was of the view that the appellant had already received it. Mr Bina said that each of them just kept repeating their position.
Mr Bina was of the opinion that Ms Brown’s patience was wearing thin. He said that during the period he was present, Ms Brown did not appear inappropriate in the manner she spoke to the appellant. In his view, although she was fairly direct and straight forward, Ms Brown did not use inappropriate language or raise her voice.
Mr Bina stated that he did not hear the appellant being accused of stealing the umbrella but did observe that the appellant appeared to be upset that Ms Brown was not taking him at his word. The appellant was not, in his view, yelling, swearing screaming or being aggressive and was conducting himself in a reasonably normal manner.
In Mr Bina’s view, Ms Brown acted in accordance with the respondent’s policy, which was the protocol to be adopted in relation to all employees.
Mr Bina said that he told the appellant that they would ask the person who allocated the umbrella when she came on shift and if the appellant was correct, then they would issue him an umbrella the next day. Mr Bina advised that the appellant appeared upset and left and Ms Brown left also. Mr Bina said that the appellant returned very shortly afterwards, appearing agitated. Mr Bina stated that the appellant tried to re-open the matter, insisted that the CCTV video footage be made available and left again.
Mr Bina denied that the appellant told him he was not returning to work until he saw the video footage and denied that when the appellant left, he took an umbrella.

The appellant’s response

The appellant reviewed Mr Bina’s statement and provided the following comments:
(a)    he denied that he had ever received disciplinary action or any formal or informal warning or communication about mobile telephone usage;
(b)    the alleged discussion about waiting for the following day for the umbrella was inconsistent with the appellant not being rostered on for work the following day;
(c)    Ms Brown had a long history of verbally abusing staff and in the incident involving the umbrella, Ms Brown was losing her temper and said that if he took an umbrella, he would be stealing, and
(d)    shortly after the incident, the appellant complained to Mr Bina about Ms Brown speaking to him inappropriately and Mr Bina agreed that Ms Brown should not have spoken to the appellant in that manner.

The appellant added that there was a clear pattern of bullying and that he always seemed to be isolated and picked on about matters that should not have been the subject of such harassment to that degree and frequency.

Statement of Ms Angela Brown

Ms Brown provided a statement dated 16 March 2016.[7]
[7] Reply, pp 6–17.
Ms Brown described the supervisory and disciplinary nature of her duties as a team leader. She advised that the appellant had been part of her team for approximately six years, but that because of the shift arrangements, she only interacted with him on Mondays and Wednesdays. Ms Brown described the appellant as “lucky” because his duties were split between picking orders and cleaning. Ms Brown indicated that the appellant worked well, except for a few issues such as using his mobile telephone when he was performing cleaning duties. She said some of the team leaders had some issues reported to her by leading hands.
Ms Brown recalled that on 28 December 2015, she and another co-worker were working in the office when the appellant entered and asked where his bag was, in a demanding tone. Ms Brown said that she did not understand what bag he was talking about. Ms Brown said that when the appellant identified the bag as a gift bag, she realised he was talking about the Christmas bags, which had been given out two weeks earlier. Ms Brown advised that she then pointed to the bags and told the appellant he could take one himself. Ms Brown said that the appellant remarked that he would put his own bag together, but Ms Brown advised him they were already made up. Ms Brown said that George Demos, the union delegate, was in the hallway and she asked him to show the appellant where the bags were and returned to her work on the computer.
Ms Brown stated that the appellant returned, was standing at the doorway and asking where his umbrella was. Ms Brown was uncertain as to whether he was talking to her, but then stood up and walked toward him. The appellant reiterated that he was looking for his umbrella, so Ms Brown said she picked up the list to sign the appellant off as receiving one when she saw that his name had already been signed off. Ms Brown stated that she told the appellant he had already received an umbrella, which he denied. Ms Brown recalled that the appellant then spoke to her about trusting him, and asked to look at the list, which she showed him. Ms Brown said that she explained that she could check the following day with the person who had recorded that the umbrella had been given to him. Ms Brown stated that the appellant then left, without indicating that he wanted the umbrella there and then, and he did not appear upset.
Ms Brown denied that she swore. She also denied saying to the appellant to “grab it and leave, your shift is finished” and “I am [expletive] off at you for trying to get another umbrella.” Ms Brown also denied that the appellant asked to see the CCTV video footage.
Ms Brown recalled that Mr Bina was present, and that after the appellant left, she asked Mr Bina to double check the list because she was concerned about how the appellant would act. She said that Mr Bina confirmed that the appellant’s name was signed off. Ms Brown said she then left the room for about 10 minutes, and when she returned, Mr Bina told her that the appellant had returned and asked for the CCTV video footage.
Ms Brown advised that she was about to follow up on the matter but that follow up was stopped because the appellant had raised the issue with the “People Porthole.” Ms Brown said that the appellant had previously made complaints about her which were found to be unsubstantiated. She confirmed that she was upset during the incident but spoke to the appellant in a respectful manner and was just following protocol. She felt the appellant was demanding and disrespectful but said that the appellant was acting normally and did not appear stressed.
Ms Brown could not recall any incident in which the appellant was required to call her from the back floor. Ms Brown also said that the issue in relation to David Bates had nothing to do with her, other than that she acted as a support person and did not want to discuss it.
Ms Brown said she did recall the appellant speaking to her about Mr Haleblian watching him, but that she told the appellant if he wanted to lodge a complaint, it needed to be in writing. Ms Brown said she was aware that the appellant had requested to be moved to a different team but thought that that would be of no benefit.

The appellant’s response

The appellant said that the respondent’s policy was that team members were to be rotated every six months in order to avoid prolonged issues, managerial bias or favouritism. He said that it was incorrect to say he was in her team for six years. He further referred to Ms Brown’s description of his work duties and advised that he had received an award of recognition for keeping his area clean and helping others. The appellant considered that Ms Brown’s reference to him being “lucky” because he was able to perform different roles was a “passive aggressive remark with malice intent” and was an example of Ms Brown’s resentful attitude towards him.
The appellant referred to Ms Brown’s acknowledgment that she was upset and reiterated that he had previously experienced her losing her temper. The appellant pointed out alleged inconsistencies in Ms Brown’s evidence in relation to the Christmas bag and the umbrella incidents. The appellant agreed that they were both agitated, and was critical of Ms Brown’s manner, which he said was not what a person would expect from a manager or team leader.
The appellant said that Ms Brown and Mr Haleblian were friends and displayed a bias in favour of Mr Haleblian in issues between Mr Haleblian and the appellant.
The appellant described it as “ludicrous” that Ms Brown thought it best to keep him in her team when he requested a transfer because of her bullying and harassment.

The appellant’s medical evidence

The general practitioner’s clinical records

The clinical notes from Engadine Medical Centre recorded attendances by the appellant at that practice from 5 March 2008 to 19 September 2018.[8] Those notes relevantly recorded the following early history:
(a)    on 5 March 2008, the appellant complained of anxiety for the past 4 months after the birth of his daughter, attended hospital casualty on three occasions in the last six months with chest pain, and had been prescribed anti-depressants. The appellant attended again on 12 March 2008. Anxiety was recorded as “still present” and cognitive behavioural therapy was implemented;
(b)    on 17 March 2008, Dr Weiner prepared a mental health care plan and recorded a panic attack on a flight. Again on 3 June 2008, the doctor recorded a recent panic attack on a flight;
(c)    on 3 August 2008, the appellant attended Dr Eli Weiner, general practitioner, complaining of insomnia over the past six months about the recent birth of his child, muscular pain, palpitations and symptoms of anxiety. The appellant was referred to Mr Stephen Scicluna, psychologist;
(d)    on 6 November 2009, 10 June 2010 and 30 March 2011, the appellant attended Dr Weiner and complained of anxiety in relation to his daughter’s medical condition, and a prescription for Zyprexia was issued;
(e)    on 1 May 2012, anxiety was noted and diazepam was prescribed;
(f)    on 1 August 2012, the appellant consulted Dr Eddie Kanan, general practitioner, in respect of stress about upcoming air travel;
(g)    on 15 February 2013, 1 October 2013, 1 November 2013 and 8 January 2014 Xanax was prescribed, and
(h)    on 8 April 2014, a mental health plan was again initiated.
[8] ARD, pp 35–57.
The notes disclosed that the appellant first complained of anxiousness associated with work on 23 May 2014, when he complained that his manager was bullying him, and he asked for a medical certificate. The appellant again attended on 28 May 2014 with worsening mood after making a formal complaint at work. Further attendances up to 19 June 2014 were recorded where WorkCover certificates of capacity were issued.
The appellant attended Dr Kanan again on 30 December 2015, complaining of stress and anxiety after being bullied at work, including not being given a work present because he was told he had already received it. On 21 January 2016, Dr Kanan noted that the appellant’s anxiety was continuing.
On 31 January 2017, the appellant attended Dr Elisabeth Ayliff, general practitioner, who recorded that the appellant was experiencing stress at work as a result of bullying, which related to criticism of his cleaning work.
On 22 November 2017, the appellant consulted Dr Katrina Evans, general practitioner, who recorded problems at work over recent years involving issues with the manager and an issue about the hours he worked, which resulted in an unjustified warning. Dr Evans noted that the appellant did not feel depressed but wanted to have the incident recorded in his notes.
The appellant attended Dr Robert Harris, general practitioner on 26 February 2018, complaining about an allegation that he had made threats against the respondent on the internet, but that Telstra had advised him that somebody had “piggybacked” his internet provider address, which the appellant felt may have been another disgruntled employee. Dr Harris diagnosed anxiety.
The appellant continued to consult Dr Ayliff, Dr Harris and Dr Evans from March to May 2018 in relation to recent work stress. On 21 May 2018, Dr Ayliff diagnosed high levels of stress and provided a diagnosis of depression.
Attached to the clinical notes were a number of reports from treating practitioners and documents prepared by various treatment providers. These included:
(a)    a mental health assessment and treatment plan by Dr Weiner dated 17 March 2008, referring to anxiety and three episodes of chest pain following the birth of the appellant’s daughter. Dr Weiner’s management plan was to refer the appellant for cognitive behaviour therapy;[9]
(b)    a mental health assessment and treatment plan by Dr Kanan dated 8 April 2014, providing a diagnosis of generalised anxiety and a past history of panic disorder;[10]
(c)    a mental health assessment and treatment plan by Dr Verity Griffiths, general practitioner, dated 28 May 2014. The plan referred to the appellant as having difficulties at work, described as feeling harassed by a senior at work. The appellant was experiencing escalating anxiety symptoms, disturbed sleep and was ruminating over work issues;[11]
(d)    a mental health assessment and treatment plan by Dr Harris dated 3 April 2018, in which Dr Harris noted that the appellant’s employment had recently been terminated pending an investigation in relation to threats made on Facebook. Dr Harris also noted long term difficulties between the appellant and his employer and previous referrals for anxiety;[12]
(e)    WorkCover certificates of capacity certifying various periods of incapacity flowing from psychological injuries occurring on 21 May 2014, 27 July 2015 and 13 January 2018;[13]
(f)    a response from Dr Tewary to the respondent’s questionnaire about the injury on 27 July 2015, in which Dr Tewary described the injury as resulting from workplace bullying by seniors, which he said was not “an injury per se” and did not meet the criteria for a DSM IV diagnosis;[14]
(g)    letters of referral from Dr Weiner to Mr Stephen Scicluna, clinical psychologist. In a letter dated 17 March 2008, Dr Weiner wrote that the appellant had presented to a hospital casualty department on three occasions complaining of chest pain, with investigations showing no abnormality. Dr Weiner considered the appellant to be psychosomatic and suffering from anxiety precipitated by the recent birth of his daughter and financial and health concerns.[15] In a further letter of referral to Mr Scicluna, Dr Weiner advised that the appellant continued to experience marked symptoms of anxiety,[16] and
(h)    Mr Scicluna reported back to Dr Weiner on 11 September 2008.[17] Mr Scicluna diagnosed the appellant as suffering from hypochondria, with concerns in relation to heart disease and a potential heart attack. Mr Scicluna reported that the appellant initially had concerns about suffering from cancer and had a belief that the birth of his daughter signified that his demise was forthcoming. Mr Scicluna described the appellant as being extremely egocentric and selfish and admitted to readily using people to his advantage. Mr Scicluna was uncertain whether the appellant’s symptoms of anxiety related to his selfishness. Mr Scicluna confirmed that the appellant had undergone several sessions of cognitive behavioural therapy and recommended the appellant undergo a further six sessions.
[9] ARD, pp 68–70.
[10] ARD, pp 74–78.
[11] ARD, pp 102–104.
[12] ARD, pp 164–167.
[13] ARD, pp 132–161.
[14] Response dated 27 July 2015, ARD pp 59–61.
[15] ARD, p 71.
[16] ARD, p 73.
[17] ARD, p 67.

Reports of Dr Elisabeth Ayliff

On 3 March 2018, Dr Ayliff wrote a letter of referral to Mr Adrian Lumbewe, psychologist Dr Ayliff provided a background history that the appellant had been suspended from work pending an investigation into threats made on Facebook against some of the respondent’s staff, which had been traced to the appellant’s house. Dr Ayliff said that the appellant contended that his internet provider address had been hacked. Dr Ayliff also remarked on the long term difficulties the appellant had experienced with his employer.
In a report dated 10 July 2018,[18] Dr Ayliff advised that she had been the appellant’s treating general practitioner for a period of two and a half years, in the context of treating the appellant for a work related hip injury. Dr Ayliffe confirmed that the appellant had complained of workplace bullying by various staff members over a number of years. Dr Ayliff advised that the appellant complained of being treated differently to other staff, given different instructions and being singled out. Dr Ayliff referred to one incident in which the appellant was required to work on his hands and knees cleaning metal bars while he was on modified duties, which the appellant felt was intended to cause detriment to his return to work plan.
[18] ARD, pp 128–130.
Dr Ayliff said that she was not aware of the appellant having suffered from any prior mental health condition. She said that if the appellant had been exposed to workplace bullying over a number of years then it would be expected that over time this would have an effect on his mental health, particularly when the appellant felt unsupported and the issues were not being adequately addressed. Dr Ayliff reported that the appellant consulted her regularly and there were no other psychosocial or health concerns that precipitated his recent diagnosis of depression. She advised that she had spent long periods of time debriefing the appellant in relation to events in the workplace. Dr Ayliffe reported that the dismissal of the appellant from his employment resulted in the appellant suffering loss of self-esteem, self-confidence, self- worth and wellbeing, and left him pessimistic about his future employment. Dr Ayliffe said, however, that the main causal factor which led to the appellant’s depression was the harassment and bullying in the workplace since 2015. Dr Ayliffe agreed with the content of the report provided by A/Prof Kaplan, forensic psychiatrist qualified by the respondent. Dr Ayliff believed that the appellant’s prognosis was excellent.
In a further report dated 14 December 2018, directed to the appellant’s legal representatives, Dr Ayliff confirmed that in her opinion, the bullying and harassment the appellant had experienced was a substantial cause of the appellant’s current psychological state.[19]
[19] ARD, p 198.

Mr Adrian Lumbewe

Mr Lumbewe reported to Dr Ayliff on 11 May 2018.[20] Mr Lumbewe recorded the history that after years of workplace bullying and harassment, the appellant “snapped” and made threats against the respondent’s staff members, which he had no intention of carrying out. Mr Lumbewe reported that the appellant’s employment was terminated, and the appellant was struggling to secure further employment. Mr Lumbewe said that the appellant presented with depression and anxiety issues and reported high levels of stress and irritability. Mr Lumbewe observed that the appellant presented with low emotional intelligence and ineffective communication skills. He considered the appellant’s depression fell into the extremely severe range and was consistent with a major depressive disorder.
[20] ARD, p 24.
Mr Lumbewe provided a report dated 21 September 2018 directed to the appellant’s legal representatives.[21] Mr Lumbewe advised that the appellant had attended on eight occasions and was provided with cognitive behavioural therapy in order to address the appellant’s depressive symptoms. Mr Lumbewe said he also provided the appellant with debriefing and counselling about the events at work. Mr Lumbewe outlined the future treatment strategies, which included further cognitive behavioural therapy, behavioural activation strategies and counselling.
[21] ARD, pp 32–34.

Dr Thomas Oldtree Clark, consultant forensic psychiatrist

Dr Oldtree Clark was qualified by the appellant’s legal representatives to provide a psychiatric opinion and assessment of the appellant’s whole person impairment (WPI) for the purpose of a lump sum claim pursuant to s 66 of the 1987 Act. Dr Oldtree Clark provided a report dated 4 July 2018.[22] The history recorded by Dr Oldtree Clark was that:
(a)    the manager was selling goods separately from the respondent, and after the appellant bought some of the goods he was told he could not be trusted. Rumours spread around the respondent’s premises;
(b)    the appellant was picked on over false accusations;
(c)    the appellant lodged workers compensation claims in July 2015 and in January 2016 and both were denied;
(d)    the appellant’s lunch was stolen and he was “accidently” slapped;
(e)    on another occasion, the appellant was told to run and jump into the air;
(f)    a colleague grabbed the appellant from behind and put him in a headlock which caused the appellant to fear for his safety;
(g)    the appellant was ostracised, victimised and harassed, which became worse after he made a complaint, and
(h)    the appellant’s employment was ultimately terminated because his computer was hacked, which he felt was a set up.
[22] ARD, pp 1–7.
Dr Oldtree Clark recorded that the appellant’s family relationship was strained and that there was no prior psychiatric history. Dr Oldtree Clark noted the appellant’s complaints of bad dreams, sleep talking, waking at night and horrible reminders of the workplace bullying.
Dr Oldtree Clark diagnosed an adjustment disorder with symptoms of anxiety and depression, precipitated by the work related events. In a separate report of the same date, Dr Oldtree Clark assessed the appellant as suffering from 23% WPI and made no deduction for any previous impairment.[23]
[23] ARD, pp 9–15.
Dr Oldtree Clark was asked by the appellant’s legal representatives to provide a further report. It is not clear from the report whether the appellant attended for further examination on that occasion. In his report dated 28 February 2019,[24] Dr Oldtree Clark appeared to have been provided with details of the appellant’s prior psychiatric history and noted that history. Dr Oldtree Clark diagnosed a major depressive disorder, on the basis that an adjustment disorder would have been expected to resolve, thus warranting a change in diagnosis.
[24] ARD, pp 16–21.
Dr Oldtree Clark acknowledged that the appellant had a previous history of anxiety and depression, but was of the view that there was no evidence that the appellant was psychiatrically impaired at that time or that the appellant had a significant pre-existing psychiatric impairment. Dr Oldtree Clark considered the appellant’s condition was deteriorating.

The respondent’s medical evidence

The respondent qualified A/Prof Kaplan to provide an opinion in relation to the appellant’s claim. A/Prof Kaplan provided a report dated 6 February 2018 following an examination of the appellant on that date.[25] A/Prof Kaplan noted that the relevant date of injury was 13 January 2018 but took a history commencing with the appellant’s complaint about having bought eggs and milk from Mr Haleblian, who subsequently accused the appellant of not being trustworthy. A/Prof Kaplan noted that the appellant complained of difficulties with other managers and felt unfairly treated but did not provide details. A/ Prof Kaplan took the further history that things “came to a head” on 6 January 2018 when someone stole a packet of M and M’s from the appellant’s bag in the lunch room, which the appellant complained was a frequent occurrence and which the appellant suspected was done by co-workers who were drug users. A/Prof Kaplan recorded that the appellant reported the incident to security but was chided by management for not reporting the incident to them and also for eating jelly snakes in the work area, which the appellant said was common practice among other staff. The appellant told A/Prof Kaplan that nothing was done about his complaints, and Mr Haleblian continued to cause the appellant difficulties such as eating potato chips loudly behind him and angrily slashing boxes with a cutter. The appellant said that the union was of no assistance to the appellant.
[25] Reply, pp 29–36.
A/Prof Kaplan took a further history that a dispute broke out about using cooling towels on a hot day, which had been an issue since prior to Christmas. The appellant said the union was of no assistance, that “things became a bit heated” and the appellant told management that he would take two towels, reported the incident and left work. A/Prof Kaplan noted that the appellant stopped work on 13 January 2018 and consulted Dr Ashraf El Gamal, general practitioner, feeling irate, frustrated and victimised by management. A/Prof Kaplan further noted that the appellant returned to see Dr El Gamal on 27 January 2018 and felt well enough to return to normal duties at that time.
A/Prof Kaplan recorded that since the appellant’s return to work, a new rule was implemented by management about eating in the workplace and the appellant was experiencing friction with other co-workers as a consequence. A/Prof Kaplan also recorded that the appellant was worrying at night before sleep about the work situation, but otherwise the appellant’s lifestyle was unimpeded and there were no difficulties with memory or concentration.
A/Prof Kaplan noted that the appellant had regular contact with his family, liaised with friends and attended the gymnasium. He further noted that the appellant felt he did not require counselling and was not in receipt of treatment.
A/Prof Kaplan observed that the appellant’s mood was good, he did not breakdown and showed no signs of distress. The appellant was neatly dressed and groomed and although the appellant was concerned about the work situation, he was not depressed.
A/Prof Kaplan considered that on the basis of his examination of the appellant, the appellant appeared to suffer from a mild adjustment disorder which triggered the appellant to leave work for a period of two weeks. A/Prof Kaplan was of the view that although the appellant experienced some distress, in the light of the appellant having had no treatment and making a good recovery, the distress more appropriately could be considered an occupational difficulty which was not sufficient to satisfy the requirements of a clinical disorder.
A/Prof Kaplan responded to specific questions from the respondent’s legal representatives. He concluded that:
(a)    the appellant attributed his injury to perceived victimisation and harassment by managers culminating in an incident on 6 January 2018;
(b)    as the appellant did not suffer from a clinical disorder, his “injury” was not a “substantial contributing factor to his condition,”[26]
(c)    there was no evidence of other contributing factors, and
(d)    there was no history of pre-existing problems.
[26] Reply, p 34, [8].
A/Prof Kaplan noted that the appellant had returned to full duties and was of the view that he could continue with those duties and did not require any treatment.
A/Prof Kaplan also provided a supplementary report dated 24 September 2018, following receipt of (unidentified) information from Mr Lumbewe and Dr Oldtree Clark, as well as medical certificates.[27] A/Prof Kaplan indicated that the information did not cause him to change his earlier conclusions and that employment was not a substantial contributing factor to the appellant’s condition.
[27] Reply, pp 37–38.

Other evidence

The respondent also relied on a WorkCover certificate of incapacity issued by Dr El Gamal dated 27 January 2018, in which Dr El Gamal diagnosed “work related stress”’ and certified the appellant as being fit for pre-injury duties on 29 January 2018.[28]
[28] Reply, pp 39–41.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues for determination as follows:
(a)    whether the appellant sustained a psychological injury as pleaded pursuant to s 4 of the 1987 Act;
(b)    the extent and quantification of any incapacity resulting from the injury;
(c)    the appellant’s entitlement to s 60 expenses, and
(d) the appellant’s entitlement to s 66 lump sum compensation.
The Arbitrator reviewed the lay and medical evidence relied on by both parties and summarised the submissions made by each party. The Arbitrator quoted s 4 of the 1987 Act, which defines both a personal injury and injury in the nature of a disease, and also quoted from s 11A(3) of the 1987 Act which defines a psychological injury.
The Arbitrator referred to the Presidential decision in Attorney General’s Department v K,[29] and reproduced from that authority Deputy President Roche’s summary of the principles that apply in consideration of a psychological injury and in determining causation of a psychological condition.
[29] [2010] NSWWCCPD 76; 8 DDCR 120 (Attorney General’s Department v K), [52].
The Arbitrator observed that the evidence contained a complex factual and medical history and that the respondent had squarely raised the credit of the appellant as an issue. The Arbitrator noted that the respondent submitted that the appellant’s credit had been undermined by the failure of the appellant to disclose his past history of psychological problems in his statements and in the history he provided to the various medical experts.
The Arbitrator further observed that the respondent also relied on the inconsistent histories provided to Dr Ayliff and Mr Lumbewe in relation to events occurring in February 2018. That is, the appellant had reported to Dr Ayliff that his internet provider address had been hacked, whereas he told Mr Lumbewe that he had in fact made those threats against the respondent himself. The Arbitrator considered that she did not have sufficient information about that evidence to be able to determine that there was in fact such an inconsistency.
The Arbitrator said, however, that she was satisfied that there had been a repeated and significant failure by the appellant to disclose the relevant past history and in fact the appellant denied any such history. The Arbitrator compared the histories taken by Dr Oldtree Clark and A/Prof Kaplan with the history recorded in the clinical notes and the reports of Mr Scicluna, and also noted that Dr Ayliff, who had been the appellant’s treating general practitioner for two and a half years, was also not aware of any prior mental health problems. The Arbitrator said that this denial was patently untrue and impacted both the appellant’s credibility and the reliability of the opinions of the medical experts.
The Arbitrator noted that she was required to weigh all of the evidence before making findings of fact in relation to the events relied upon by the appellant as being causative of a psychological injury. The Arbitrator referred to the decision of Keating P in Brines v Westgate Logistics Pty Ltd,[30] in which his Honour observed that where a worker had given untruthful evidence, it is necessary to take great care and look for independent or objective support from the other evidence before accepting the worker’s evidence as proof of any matter.
[30] [2008] NSWWCCPD 43, [78].
The Arbitrator remarked that the respondent’s evidence did not refute many of the allegations made by the appellant. The Arbitrator pointed to the evidence of Mr Bina and Ms Brown that confirmed that some of the events did occur, but cast doubt on whether those events constituted bullying and harassment. Further, parts of the evidence suggested that some of the events relied upon by the appellant were not real, such as Ms Brown using foul language and the alleged threats made against the appellant.
The Arbitrator concluded that the respondent’s statements did tend to confirm that some workplace events were real, and that the appellant perceived those real events to be hostile. The Arbitrator also noted that some of the events complained of by the appellant were also reported contemporaneously to medical practitioners and, in fact, the appellant consciously ensured that there was a record of events as detailed in the clinical note dated 22 November 2017.
The Arbitrator referred to the appellant’s second statement and the serious nature of the allegations made, which included allegations of criminal conduct, identified as the appellant having:
(a)    his car being scratched, and the tyres being slashed;
(b)    derogatory graffiti written about him on the toilet walls;
(c)    been slapped in the face by a co-worker;
(d)    heard that a co-worker had said that the appellant would be the first person he would shoot if he had a gun;
(e)    his head put in a headlock so that the appellant could not breathe and then being slapped on the back of the head, and
(f)    being taunted and photographed by co-workers.
The Arbitrator pointed out that the respondent had not put in evidence anything to suggest that these events did not occur. Because of her concerns, however, about the reliability of the appellant’s evidence, in the absence of corroborative evidence that they did occur, the Arbitrator was not satisfied that each of those events in fact occurred.
The Arbitrator indicated that she was satisfied that from at least May 2014, the appellant had experienced difficult interactions in the workplace involving his supervisors in relation to the appellant’s physical injuries, the provision of gifts, allocation of work and issue of warnings and reprimands. The Arbitrator also accepted that the appellant experienced particularly difficult personal interactions with Mr Haleblian and the colleague named David. The Arbitrator was also satisfied on the basis of the clinical notes, medical reports and the appellant’s evidence, that the appellant perceived those events as creating a hostile workplace, whether or not that perception was rational, reasonable or proportionate (applying Attorney General’s Department v K).
The Arbitrator noted the respondent’s submission that the events relied upon by the appellant which were the subject of earlier claims should be excluded from consideration in this question of injury, presumably because they were personal, or “frank” injuries. The Arbitrator rejected that submission because in her view there was insufficient information about those claims and because as she understood the appellant’s case, it was reliant upon the cumulative effect of multiple events that occurred between May 2014 and early 2018. The Arbitrator said that “The case does not rise or fall on any one interaction or event.”[31]
[31] Wood v Woolworths Limited [2019] NSWWCC 266 (reasons), [172].
The Arbitrator said that she was required to determine whether the events which she accepted as real caused, or were the main contributing factor to, the appellant contracting a psychological injury. The Arbitrator noted that the appellant’s case had been pleaded and presented as a disease injury in accordance with s 4(b)(i) of the 1987 Act, rather than an aggravation of a disease within the meaning of s 4(b)(ii) of the 1987 Act.
The Arbitrator further noted that the appellant’s reliance on the evidence of Dr Ayliff and Dr Oldtree Clark to establish his case and that both doctors were of the opinion that the appellant had suffered a psychological injury as a result of bullying and harassment in the workplace. The Arbitrator concluded that she was not satisfied that there was a “fair climate” in which to accept their opinions. The Arbitrator referred to passages from both the Court of Appeal decision in Paric v John Holland (Constructions) Pty Ltd[32] and the appeal from that decision to the High Court.[33]
[32] [1984] 2 NSWLR 505.
[33] [1985] HCA 58; 62 ALR 85; 59 ALJR 844.
The Arbitrator observed that at the time of the initial examination of the appellant, Dr Oldtree Clark did not have the medical history that was set out in the clinical notes made by the appellant’s doctors and in fact was given the history that there was no prior psychiatric history. The Arbitrator noted that Dr Oldtree Clark was of the opinion that the appellant suffered from anxiety and depression and diagnosed an adjustment disorder. The Arbitrator said that the matters Dr Oldtree Clark took into account included a referral for psychological intervention, a recommendation to take antidepressants, lost concentration, sleep difficulties, and functional impairments including reminders of past experiences and difficulties with travelling. The Arbitrator further noted that Dr Oldtree Clark made no deduction for pre-existing impairment in his assessment of the appellant’s WPI.
The Arbitrator referred to Dr Oldtree Clark’s supplementary report. She said that the second report did include reference to the prior psychiatric history. The Arbitrator took into account Dr Oldtree Clark’s conclusion, which was that the appellant did suffer anxiety and depression following the birth of his daughter but that there was no evidence at the time of psychiatric impairment and no reason to suggest that there was a significant pre-existing psychiatric impairment. The Arbitrator added that although Dr Oldtree Clark referred to the appellant’s attendances with a general practitioner on seven occasions between 5 March 2008 and 6 November 2009, as well as on 1 May 2012, 15 February 2013 and 8 April 2014, Dr Oldtree Clark failed to engage with what was recorded on those dates and did not refer to the other relevant entries in the clinical notes.
The Arbitrator formed the view that she was not satisfied that the history recorded by Dr Oldtree Clark was an accurate reflection of the clinical evidence. She said that in particular, Dr Oldtree Clark made no reference to:
(a)    the extensive use of prescription medication prior to 2013;
(b)    the multiple consultations with a psychologist;
(c)    the observations of Mr Scicluna, including the diagnosis of hypochondria and presence of certain personality traits, and
(d)    the involvement of a mental health team.
The Arbitrator observed that Dr Oldtree Clark changed his diagnosis to one of major depressive disorder and in doing so relied upon the appellant’s complaint of loss of libido and the need to take a sedative for sleeplessness, which the Arbitrator said were matters recorded in the clinical notes prior to the alleged incidents relied upon.
The Arbitrator also pointed out that Dr Ayliff’s opinions were affected by the same defect, noting that Dr Ayliff was not aware of the prior history of a mental health condition and was of the belief that there were no other psychosocial factors or health issues that precipitated the recent diagnosis of anxiety and depression.
The Arbitrator was not satisfied that the deficiencies in both of those opinions were merely trifling. The Arbitrator took the view that the matters both doctors failed to take into account were of significance and directly relevant to their opinions. The Arbitrator said that had both doctors taken the correct history, they may have supported the appellant’s case in ways suggested in Attorney General’s Department v K, but such opinions were not before her.
The Arbitrator identified a further difficulty in accepting the opinions of Dr Ayliff and Dr Oldtree Clark. That is, both doctors took into account the effects of the termination on the appellant’s psyche, which was not part of the appellant’s case. The Arbitrator pointed out that the appellant made no reference to the circumstances leading to his termination in any of his statements, and the pleadings, which refer only to bullying and harassment, did not specify the termination as being causative. Further, the amended date of injury for this claim and the WorkCover certificates relied on, all pre-dated the termination of the appellant’s employment. The Arbitrator said that she was not satisfied that the appellant had claimed, or the respondent had disputed, that a psychological injury was caused either partly or wholly by the termination of the appellant’s employment.
The Arbitrator said that it was not disputed that the appellant took a period of time off work in early January 2018, following which he was certified as fit for his pre-injury duties. She noted that the current period of incapacity commenced after the appellant’s employment was terminated. The Arbitrator observed that when A/Prof Kaplan examined the appellant, he found no evidence of a diagnosable condition and Dr Ayliff agreed that the appellant may not have appeared depressed at that time. Dr Ayliff’s view was that the appellant became depressed after the termination of his employment.
The Arbitrator considered that there was minimal evidence before her as to the events in the workplace that occurred between late January 2018 and after the appellant’s termination and there was no evidence about the circumstances in which he was terminated. The Arbitrator said that it could be inferred from correspondence between Dr Ayliff and Mr Lumbewe that some threats had been made via Facebook that were traced back to the appellant’s internet provider address. However, the Arbitrator said that there was insufficient evidence before her to enable a conclusion to be reached as to what in fact occurred. The Arbitrator was of the view that the appellant was not relying on those matters in any event and as a result, both Dr Ayliff and Dr Oldtree Clark took into account events that were not part of the appellant’s case when they arrived at their opinions on causation expressed by either of those doctors.
The Arbitrator said that, as a result, she did not place weight on those opinions on causation. She also noted that the appellant’s statement evidence suffered from the same defect as the medical experts in that the appellant initially denied any prior history, and in his last statement gave an account that the Arbitrator considered did not accurately reflect what was recorded in the clinical evidence. The Arbitrator was of the view that Mr Lumbewe did not offer a clear opinion on causation. Further, A/Prof Kaplan did not offer an opinion on causation because he was not satisfied the appellant suffered a psychological injury at all.
The Arbitrator determined that she was not satisfied that the appellant had discharged the onus of proof and that she was not satisfied that the appellant had suffered a psychological injury as alleged.
The Certificate of Determination issued on 5 August 2019 records:
“The Commission determines:
1.Award for the respondent in respect of the claim of psychological injury.”

GROUNDS OF APPEAL

The appellant relies on the following grounds of appeal:
(a)    Ground One: the Arbitrator erred in fact and in law in determining whether the appellant suffered a psychological condition that had a physiological effect;
(b)    Ground Two: the Arbitrator erred in fact and law in considering whether the appellant’s psychological condition was causally related to his employment when that was not an issue for determination;
(c)    Ground Three: the Arbitrator erred in fact and law by failing to consider all of the evidence in the medical records;
(d)    Ground Four: the Arbitrator erred in fact and law by failing to give adequate reasons for rejecting the opinion of Dr Oldtree Clark, and
(e)    Ground Five: the Arbitrator erred in fact and law when she considered that the appellant did not rely on the event of his termination of employment and consequently erroneously relied on that matter to reject the opinions of Dr Clarke and Dr Ayliff.

LEGISLATION

Section 4 of the 1987 Act relevantly defines injury as:
“Definition of ‘injury’
In this Act–
injury
(a) means personal injury arising out of or in the course of employment,
(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
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Subsection 11A(3) of the 1987 Act defines psychological injury as follows:
“(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

SUBMISSIONS

The respondent’s general submissions

The respondent made various general submissions before addressing each ground of appeal. The respondent submits that the role of the Presidential member is to intervene and correct demonstrable error, relying on Northern NSW Local Health Network v Heggie.[34] The respondent says that the appellant challenges the Arbitrator’s findings on:
(a)    the issues that the Arbitrator considered were before her;
(b)    the appellant’s credit, and
(c)    the weight to be afforded to the opinions of Dr Ayliff and Dr Oldtree Clark, noting that there was no challenge to the Arbitrator’s finding in respect of the opinion of Mr Lumbewe.
[34] [2013] NSWCA 255; 12 DDCR 95.
The respondent submits that the appeal must be dismissed, and that the appellant is bound by the case it ran at first instance, relying on the High Court decision in Coulton v Holcombe.[35]
[35] [1986] HCA 33; 162 CLR 1.
The respondent contends that at the arbitration, the appellant did not challenge its submissions in respect of all the issues it raised and there was no suggestion that the Arbitrator had jurisdiction to deal with those submissions. The respondent asserts that the challenge to the appellant’s credit cannot be sustained because that finding was open to the Arbitrator, as was the finding in relation to the weight of the evidence.
The respondent submits that the appellant cannot identify error of the kind required in an appeal to a Presidential member, and that the Arbitrator’s findings were open to her and were undoubtedly correct.

Ground One: the Arbitrator erred in fact and in law in determining whether the appellant suffered a psychological condition that had a physiological effect

The appellant’s submissions

The appellant points out that the Arbitrator concluded that on the basis of all of the evidence she was satisfied that the appellant perceived that the interactions in the workplace involving his supervisors relating to:
(a)    the appellant’s physical injuries;
(b)    the provision of gifts;
(c)    the allocation of work, and
(d)    the issue of warnings and reprimands,
created a hostile work environment, regardless of whether that perception was rational, reasonable or proportionate. The appellant submits that, having made that finding, the Arbitrator was then required to determine whether those events had been causative of a compensable injury.
The appellant submits that in order to make a determination about causation, it must first be determined what injury or condition the appellant had suffered, and in the absence of such a determination, it is not possible to determine the cause of the injury. The appellant contends that different injuries or conditions can have different causes, particularly in circumstances where the primary dispute between the parties was whether the appellant suffered from a diagnosable psychiatric injury in the first place. The appellant says that the Arbitrator was not in a position to evaluate the relevance, if any, of the prior medical history until the issue of whether the appellant suffered a diagnosable psychiatric injury had been determined.
The appellant asserts that this was particularly so when Dr Oldtree Clark was aware of the prior history and formed the view that there was no evidence to show that the appellant was psychologically impaired as he was at the time of the examination. The appellant further asserts that it is obvious that it is necessary to reach a conclusion about the appellant’s current condition and then proceed to a conclusion about the prior condition in order to see if the appellant was as impaired then as he was at the time of examination. The appellant says this must be done before evaluating the opinion of Dr Oldtree Clark.
The appellant contends that the Arbitrator did not make either of those evaluations.

The respondent’s submissions

The respondent indicates that in its view, this ground of appeal should be determined after the rest of the grounds, because it relates in part to the weight to be given to the evidence.
The respondent concedes that the Arbitrator found some of the events complained of were capable of being “real” or “perceived” events but says that as the appellant submitted in its submissions on appeal, the Arbitrator’s role was to determine whether those events were causative of a compensable injury.
The respondent asserts that the appellant’s submission that it was first necessary for the Arbitrator to determine what injury or condition the appellant suffered from is in error because it assumes that the Arbitrator had to make a positive finding as to the appellant’s actual medical condition, regardless of causation. The respondent submits that the Arbitrator’s role is limited to making a determination about compensable injuries and can only do so on the basis of logical and probative evidence.
The respondent contends that the Arbitrator concluded that the opinions of Dr Ayliffe and Dr Oldtree Clark could not be afforded sufficient weight in order to discharge the appellant’s onus of proof. The respondent submits that the Arbitrator’s reasons for that finding, which were set out at [174]–[187] of her reasons, were logical and were lawfully sound. The appellant points out that the Arbitrator also rejected the opinion of Mr Lumbewe, and that has not been challenged on the appeal.
The appellant submits that given there was no satisfactory evidence for the Arbitrator to find medical causation, the appellant could not succeed in his claim and Ground One of the appeal, which the respondent says is circular in nature, cannot succeed.

Ground Two: the Arbitrator erred in fact and law in considering whether the appellant’s psychological condition was causally related to his employment when that was not an issue for determination

The appellant’s submissions

The appellant refers to the dispute notice dated 7 March 2018 issued pursuant to s 74 of the 1998 Act in which the respondent disputed that the appellant had suffered a work related psychological injury. The reason for the dispute was that A/Prof Kaplan was of the opinion that while the appellant had experienced some distress, that did not meet the requirements of a clinical disorder.
The appellant refers to the subsequent dispute notice dated 16 October 2018, which was issued after the respondent was provided with the medical opinions of Dr Oldtree Clark and Mr Lumbewe. The appellant says that the respondent continued to rely upon A/Prof Kaplan’s opinion that the appellant did not suffer from a diagnosable condition, which was clearly the sole matter in dispute.
The appellant submits that the respondent’s reply did not seek to expand the issues in dispute and there was no application made pursuant to s 289A of the 1998 Act to raise an issue as to causation.
The appellant further submits that the respondent relied on the prior history and the appellant’s statements as reasons why the appellant should not be believed. The appellant contends that at no time did the Arbitrator engage in a resolution of the dispute which was actually before her. That is, the Arbitrator did not analyse or make a finding as to whether or not the appellant suffered from a diagnosable psychological condition. The appellant asserts that it can potentially be inferred that the Arbitrator accepted Dr Oldtree Clark’s opinion that the appellant suffered from an adjustment disorder, although the Arbitrator never actually made such a finding.
The appellant says that the Arbitrator ultimately rejected the opinions of Dr Oldtree Clark and Dr Ayliff on the question of causation of psychological injury, which was not an issue that the Arbitrator was required to determine. The appellant submits that apart from that, the Arbitrator made two other errors.

The respondent’s submissions

The respondent submits that the submissions made by the appellant in support of this ground contradict the appellant’s earlier acceptance that the Arbitrator was required to determine causation.
The respondent submits that in any event, the appellant’s submissions cannot be accepted because they amount to a submission that the Arbitrator did not have jurisdiction to deal with a causation issue despite:
(a)    the nature of the dispute notices;
(b)    the acknowledgment by the appellant at arbitration that “injury” was in issue;
(c)    the respondent made detailed and specific submissions about causation, not limited to A/Prof Kaplan’s evidence, without objection from the appellant, and
(d)    the appellant also making submissions and otherwise acquiesced in the case being run on that issue.
The respondent submits that the dispute notices identified “injury” as an issue which necessarily involves an issue of causation. The respondent relies on Raniere Nominees Pty Ltd v Daley[36] as authority for the submission that even if the issue was limited to “injury” the Arbitrator had jurisdiction to determine all issues incidental to that issue, which obviously includes causation.
[36] [2005] NSWCA 121; 5 DDCR 22; 66 NSWLR 594.
The respondent contends that, in the alternative, even if the pleadings were inadequate (which it denied) cases are decided on the evidence tendered and the arguments presented, not on the pleadings, relying on Popovic v Liverpool City Council.[37] The respondent further relies on Banque Commerciale SA (in liq) v Akhil Holdings Ltd,[38] in which Mason CJ and Gaudron J made observations about the function of pleadings and submits that on a fair reading of the transcript and the evidence, in particular the appellant’s statements and the supplementary report of Dr Oldtree Clark, it is quite clear that the Arbitrator decided the matter on the basis of the arguments and evidence presented to her.
[37] [2017] NSWWCCPD 49 (Popovic).
[38] [1990] HCA 11; 169 CLR 279 (Banque Commerciale).
The respondent asserts that it made no attempt to limit the causation argument solely to the evidence of A/Prof Kaplan. The respondent says that such an approach would have been inconsistent with the evidence presented by the appellant about the appellant’s pre-existing state.

Grounds Three and Four: the Arbitrator erred in fact and law by failing to consider all of the evidence in the medical records (Ground Three), and by failing to give adequate reasons for rejecting the opinion of Dr Oldtree Clark (Ground Four)

Each party’s submissions addressed the third and fourth grounds of appeal together. The summary of those submissions is presented in the same manner.

The appellant’s submissions

The appellant refers to the evidence contained in the clinical notes dating from 5 March 2008 and the following entries:
(a)    in March 2008, the appellant reported insomnia and anxiety since the birth of his daughter;
(b)    in June 2008, the appellant was referred to Mr Scicluna;
(c)    by 11 September 2008, the appellant had attended six sessions of psychological therapy, and
(d)    the appellant was again reviewed in March 2009.
The appellant says that thereafter, he attended from time to time for prescriptions of Diazepam or Xanax, which was prescribed for the appellant’s fear of flying, and then from May 2014, the appellant regularly presented with complaints about being stressed and bullied at work, treatment by management and specific instances at work.
The appellant quoted from Dr Oldtree Clark’s report dated 28 February 2019 in which Dr Oldtree Clark recorded:
“Mr Woods has a prior psychiatric history. Following the birth of his daughter, he became anxious. This was in 2008. In March 2009, his GP referred him to a psychologist.
He has also consulted a geneticist. No hereditary element was found in regards to his daughter’s problems.
He attends his GP for physical complaints. He attended his GP for anxiety issues following his workers’ compensation events. This started in 2013 and continued to the present time.”[39]
[39] ARD, p 18.
The appellant further quoted from the same report wherein Dr Oldtree Clark expressed the following opinion:
“Mr Woods did have a depression and anxiety following his daughter’s birth. However, there is no evidence presented that he was psychiatrically impaired on that occasion, as he is now. There is no reason to suggest he therefore had a significant pre-existing psychiatric impairment at the time of the harassment at work.”[40]
[40] ARD, p 19.
The appellant says that Dr Oldtree Clark proceeded to note a number of further attendances with the general practitioner.
The appellant submits that the Arbitrator formed the view that the above history did not constitute an accurate reflection of the evidence. The appellant contends that in doing so, the Arbitrator concentrated on a number of the matters but failed to consider the totality of the evidence. The appellant maintains that the Arbitrator failed to consider the evidence as a whole.
The appellant also asserts that the Arbitrator failed to give reasons. The appellant submits that the Arbitrator, having failed to make any determination about the appellant’s current condition, failed to explain why any of the matters identified by her were relevant or indeed of sufficient significance to enable Dr Oldtree Clark’s opinion to be discounted. In particular, the appellant submits, the Arbitrator did not explain the relevance of the appellant requiring medication before taking a flight. Nor did the Arbitrator explain the relevance of the appellant having six consultations with a psychologist in 2008, which was almost 10 years before the work related injury and occurred at a time when the appellant was stressed about the medical condition of his daughter. The appellant contends that given the timing, and the nature of the consultations recorded between 2008 and 2013, it is not apparent why any of those matters were sufficiently relevant to conclude that Dr Oldtree Clark’s account was not an accurate reflection of that evidence. The appellant says that Dr Oldtree Clark specifically referred to the appellant’s anxiety associated with the birth of his daughter and the referral to a psychologist in 2009.
The appellant maintains that the Arbitrator failed to engage with the totality of the evidence and the totality of Dr Oldtree Clark’s opinion. The appellant points out that the clinical notes disclose that the appellant made repeated complaints since 2013 about the events at work and was prescribed medication as treatment for the consequences of those events. The appellant asserts that the clinical history was consistent with his own evidence and was a “powerful indicator”[41] that the appellant was developing a psychological condition as a result of events at work. The appellant says that Dr Oldtree Clark relied upon those matters when he recounted the psychiatric history. The appellant submits that the Arbitrator made no reference to that evidence when weighing the opinion of Dr Oldtree Clark.
[41] Appellant’s submissions, [33].
The appellant contends that ultimately, Dr Oldtree Clarke discounted the importance of that history because there was no evidence that the appellant was psychologically impaired as he was when Dr Oldtree Clark examined him. The appellant maintains that the Arbitrator did not engage with that opinion and made no finding about what the appellant described as a “critical matter.”[42]
[42] Appellant’s submissions, [34].
The appellant asserts that there was no evidence that prior to the development of the work related condition, the appellant had any impairment to his ability to function. There was no evidence that he required time off work or that he had difficulty functioning in the workplace. The appellant points to the evidence of Dr Ayliff and Dr Oldtree Clark that after March 2018, the appellant was suffering a psychological condition that impacted his ability to function. The appellant says that when those factors are taken into account, it is clear that Dr Oldtree Clark’s reason for discounting the earlier history was entirely correct.
The appellant maintains that the Arbitrator never engaged with those aspects of the evidence and never weighed up the totality of the histories or Dr Oldtree Clark’s reasoning before concluding whether there was a fair climate for his opinion.
The appellant further contends that the Arbitrator did not make any determination of the significance of that history, and that it is not apparent that a degree of anxiety about the appellant’s daughter and a fear of flying were at all relevant to a determination of whether there was a work related depressive condition developing over a number of years.
The appellant submits that the Arbitrator discounted the opinion of Dr Ayliff on the basis that Dr Ayliff was not appraised of the prior psychological history and maintains again that the Arbitrator failed to engage with the evidence. The appellant refers to Dr Ayliff’s report dated 11 July 2018, in which Dr Ayliff said that she was not aware of any prior history of a mental health condition and said that she knew that “there are no significant other psychosocial factors or health concerns which precipitated his recent diagnosis of Depression.”[43]
[43] ARD, p 128, [3].
The appellant indicates that he first consulted Dr Ayliff on 8 December 2015 and Dr Ayliff became his main treating general practitioner from 31 January 2017. The appellant says that Dr Ayliff’s notes became part of the overall record of the practice and it would follow that Dr Ayliff had access to the appellant’s clinical record and would have been aware of the earlier entries. The appellant submits that once that fact is appreciated, it is apparent that Dr Ayliff was of the same opinion as Dr Oldtree Clark, that is, that the earlier matters were irrelevant to the current condition.
The appellant contends that the Arbitrator’s failure to take into account all of the evidence in the medical records resulted in the Arbitrator reaching an erroneous conclusion that there was not a fair climate in which to accept the opinions of both Dr Ayliffe and Dr Oldtree Clark.

The respondent’s submissions

The respondent refers to the appellant’s submissions that the Arbitrator failed to engage with the totality of the evidence, together with the appellant’s complaint about the Arbitrator’s findings in relation to the content of the clinical records and the effect that had on the opinions of Dr Ayliffe and Dr Oldtree Clark. The respondent submits that those submissions were made by the appellant at the arbitration. The respondent says that the appellant made lengthy submissions to the effect that the past psychological condition was so minimal that it was of no consequence and that Dr Ayliffe and Oldtree Clark had an adequate history and should be accepted. The respondent says that it submitted to the contrary and the Arbitrator accepted the respondent’s submissions, finding that the past history impacted the weight to be given to the opinions of those doctors. The respondent asserts that the appellant is seeking to re-run his case.
The respondent submits that the Arbitrator carefully reviewed the evidence, including the evidence of the pre-existing condition. The Arbitrator concluded that the appellant was not a truthful witness, so that she did not accept the evidence of the medical experts who were unaware of that history or did not explain the relevance of that history.

The respondent refers to the Presidential decision in Broadspectrum Australia Pty Ltd v Gunaratnam,[44] to say that the rejection, preference or weight to be given to evidence is generally a matter for the primary decision maker. The respondent contends that the appellant must show that the Arbitrator overlooked material facts, gave undue or insufficient weight to material facts or that the contrary available inference was so preponderant that the decision was wrong. The respondent asserts that the appellant cannot identify an error of that kind and the decision does not warrant appellate intervention.
[44] [2019] NSWWCCPD 36.
The respondent submits that unless the appellant can succeed under these grounds, the appeal must fail because any other individual error would not make a difference to the outcome, citing Stead v State Government insurance Commission[45] as authority for that proposition. The respondent says that this is because the Arbitrator gave two distinct and important reasons for her decision.

Ground Five: the Arbitrator erred in fact and law when she considered that the appellant did not rely on the event of his termination of employment and consequently erroneously relied on that matter to reject the opinions of Dr Oldtree Clarke and Dr Ayliff

[45] [1986] HCA 54; 161 CLR 141.

The appellant’s submissions

The appellant says that the second reason the Arbitrator discounted the opinions of Dr Oldtree Clark and Dr Ayliff was that both doctors considered that the effect of the termination of the appellant’s employment was a factor in the appellant’s condition. The appellant referred to the Arbitrator’s comment that the appellant had not relied on the termination, because it was not mentioned in his statements and was not pleaded in the ARD.
The appellant submits that he indicated that in the ARD he relied on all events occurring through the entirety of his employment. Further, the appellant refers to his statement dated 20 October 2018 where he stated that he ceased employment in February 2018 because he had finally had enough of the bullying and harassment and feared for his life.
The appellant contends that the Commission is not a tribunal of strict pleadings, relying on Far West Area Health Service v Radford[46] as authority for that proposition. The appellant also referred to Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos,[47] in which Roche DP observed that the Commission is required to act with equity, good conscience and the substantial merits of the case, and that the case is to be determined by the evidence, and not by the pleadings. The appellant also referred to Roche DP’s observation in the same case that the issues in dispute are ultimately determined by the way the parties present their cases.
[46] [2003] NSWWCCPD 10.
[47] [2014] NSWWCCPD 23 (Sotiropoulos).
The appellant contends that both Dr Ayliff and Dr Oldtree Clark, whose reports were annexed to the ARD, outlined the events that occurred when the appellant attempted to return to work and those histories were evidence of the fact. The appellant points out that at [139] and [140] of her reasons, the Arbitrator acknowledged that the appellant had made submissions about the significance of the appellant’s attempt to return to work and the further harassment during that time, which resulted in the appellant decompensating and a diagnosis of a psychological condition and incapacity for work. The appellant says that the Arbitrator also acknowledged the appellant’s submission that A/Prof Kaplan’s opinion was irrelevant because he had seen the appellant before these events occurred and the depressive condition developed. The appellant submits that the respondent did not object to those submissions and did not at any time submit that it did not understand that the events occurring during the return to work were relied upon.
The appellant asserts that there can be no doubt that the appellant was relying on these matters as being causative of the injury, and the amendment to the ARD at the arbitration was specifically intended to include those events, including the events surrounding the termination.

The respondent’s submissions

The respondent contends that this ground of appeal must fail. The respondent submits that the appellant solely relied on events in the nature of alleged bullying and harassment, which does not include the termination of his employment. The respondent refers to the transcript, which the respondent says recorded its submission to that effect and submits that the appellant did not object to the submission or make any contrary submission in reply.
The respondent contends that the appellant cannot now say that the termination formed part of the factual matrix. The respondent further contends that the appellant is required to seek leave to raise the issue, which he has not done, and such leave would have to be refused because the respondent would need to adduce evidence about the termination.
The respondent submits that there is no suggestion that the Arbitrator’s finding about the termination and her finding in relation to Dr Ayliff’s and Dr Oldtree Clark’s inclusion of the termination in their opinions on causation were wrong. The respondent maintains that the Arbitrator was correct to discount the opinions of those medical experts on the basis that they included events not relied upon.
The respondent maintains that this ground of appeal must be dismissed and, in any event, would not make a difference to the outcome of the appeal because the Arbitrator rejected those opinions on the basis of two important factors.

DISCUSSION

Ground One

In this ground of appeal, the appellant alleges that the Arbitrator erred in her determination that she was not satisfied that the appellant suffered a psychological injury as alleged.
The question of whether the appellant suffered a psychological injury required the Arbitrator to firstly examine the evidence that formed the factual matrix upon which the appellant relied. The Arbitrator found that the appellant’s evidence was unsatisfactory because of the failure to adequately disclose his past history of psychological symptoms. That finding has not been challenged in this appeal.
The Arbitrator did accept that certain events occurred that were real, which the appellant perceived as creating a hostile work environment.
The appellant is critical of the Arbitrator’s approach thereafter and says firstly that the Arbitrator was required to determine whether those events were causative of the injury.[48] The appellant subsequently submitted that the Arbitrator was required to determine what condition the appellant suffered from before looking to the causative events.[49] Those submissions do not sit happily together.
[48] Appellant’s submissions, [16].
[49] Appellant’s submissions, [17].
The appellant’s further submissions cast some light on the substance of the appellant’s complaint. The appellant contends that a diagnosis of the appellant’s condition was required before the relevance of the prior history could be considered. This submission appears to hinge upon the opinion of Dr Oldtree Clark, who in his report dated 28 February 2019, changed the appellant’s diagnosis from that expressed in his earlier reports (adjustment disorder) to a major depressive disorder.
There are a number of difficulties with this argument.
Firstly, Dr Oldtree Clark appears not to have re-examined the appellant for the purposes of that report. The date of examination was recorded as 19 June 2018, which is the same date of examination as recorded in the earlier reports. In the context of not having re-examined the appellant, Dr Oldtree Clark recorded the same symptoms as those earlier recorded. The sole reason proffered by Dr Oldtree Clark for changing the diagnosis was because an adjustment disorder is clinically expected to be short-lived and if the symptoms persisted, a different diagnosis was warranted.[50]
[50] ARD, pp 18–19.
Secondly, Dr Oldtree Clark’s initial diagnosis of a work-related adjustment disorder was made on the basis of the appellant suffering anxiety and depression as at 19 June 2018.[51] Having then had the benefit of the history of previous non-work related psychological symptoms, Dr Oldtree Clark diagnosed the appellant’s prior non-work-related symptoms also as anxiety and depression.[52]
[51] Report dated 4 July 2018, ARD, p 5, [3].
[52] Report dated 28 February 2019, ARD, p 19.
Dr Oldtree Clark’s change in diagnosis cannot therefore be evidence indicating that some new pathological consequence occurred as a result of work events to warrant a change in that diagnosis.
Thirdly, in determining whether the appellant suffered a compensable injury, it was incumbent upon the Arbitrator to determine whether there was evidence to support the notion that the work related events precipitated the symptoms of which the appellant complained. In her consideration of whether the evidence supported such a causal connection, the Arbitrator turned to assess the evidence of Dr Oldtree Clark.
The appellant submits that in order to evaluate the opinion of Dr Oldtree Clark, the Arbitrator had to firstly reach a conclusion about what the appellant’s current condition was before coming to a conclusion about the prior history. The appellant’s submission overlooks the reason why the Arbitrator proceeded to assess the prior history when she did. The Arbitrator was evaluating the weight that ought to be afforded the appellant’s statement evidence and expert evidence that went to establishing that the appellant had suffered a work related injury. The Arbitrator concluded that the past history was significant, that Dr Oldtree Clark’s evaluation of the significance of the history was unsatisfactory and, on that basis, she could not accept the expert’s opinion. That was a factual determination. There is nothing untoward in the Arbitrator’s approach.
The appellant has failed to show error on the part of the Arbitrator in the manner asserted and Ground One of the appeal, therefore, fails.

Ground Two

The appellant alleges that the Arbitrator fell into error by considering whether the appellant’s condition was causally related to work events, which he says was not in issue. The appellant refers to the opinion of A/Prof Kaplan, which was that the appellant’s distress did not meet the requirements of a clinical disorder. The appellant says that this was the sole dispute raised in the notices, and there was no application made by the respondent to raise causation as an issue. The appellant submits that the Arbitrator erred by giving consideration to the question of causation and not actually determining the issue before her, which was whether the appellant suffered from a diagnosable psychological condition.
I have indicated above at [181] the inconsistency in the appellant’s submission about whether the Arbitrator was required to determine the causation issue.
In the most recent dispute notice issued by the respondent on 16 October 2018, the matters in dispute were identified relevantly as:
(a)    whether the appellant suffered a psychological injury arising out of or in the course of his employment pursuant to s 4(a) of the 1987 Act; or in the alternative
(b)    whether the appellant’s employment was the main contributing factor to the psychological injury; or in the alternative
(c)    whether the appellant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.
While the respondent expressed reliance upon the report of A/Prof Kaplan, I do not accept that the sole issue for the Arbitrator to determine was whether the appellant’s symptoms were sufficient to satisfy a diagnosis of a psychological condition. The respondent clearly disputed that the appellant had suffered an injury within the meaning of s 4 of the 1987 Act. The Arbitrator was required to determine whether any such injury was compensable by looking to potential causes.
I have reviewed the transcript of proceedings and it is also quite clear that the respondent submitted at length on matters that went to causation, the appellant replied to those submissions[53] and otherwise acquiesced to those issues being aired in the arbitration.
[53] T24.10–26.10.
In Chanaa v Zarour,[54] Campbell JA observed (with Bathurst CJ and Tobias AJA agreeing):
“It is indisputable that a trial judge is required to conduct the proceedings in accordance with procedural fairness … One aspect of that requirement of procedural fairness is that the decision should be given on the basis of issues that have been litigated in the course of the trial.”[55] (references omitted)
[54] [2011] NSWCA 199 (Chanaa).
[55] Chanaa, [13].
As was observed by Keating P in Popovic:[56]
“Cases are decided on the evidence tendered and arguments presented, not on the pleadings. This is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case.” (footnotes omitted)
[56] Popovic, [26].
It is apparent from the issue in dispute and the submissions made at arbitration that the issue of causation was a live issue and a matter which the Arbitrator was required to address. It follows that Ground Two of this appeal fails.

Ground Three

This ground of appeal complains that the Arbitrator failed to consider all of the medical records. In his submissions, the appellant refers to the same relevant parts of the report of Dr Oldtree Clark as the Arbitrator quoted in her reasons. The appellant submitted that Dr Oldtree Clark referred to the entries in the clinical notes in March, June and on 11 September 2008 as well as March 2009, and also noted a number of further entries in the clinical notes. The appellant contends that the Arbitrator erred by failing to consider the totality of the evidence when she concentrated on some matters and formed the view that the history taken by Dr Oldtree Clark was not an accurate reflection of the evidence.
The Arbitrator’s dissatisfaction with Dr Oldtree Clark’s evidence was that Dr Oldtree Clark recorded a brief summary of the appellant’s prior history and gave his opinion that the appellant was not significantly psychologically impaired by the prior events. The Arbitrator’s conclusion was based on her own thorough review of the earlier history, which she considered did not accord with the lesser significance afforded to it by Dr Oldtree Clark, taking into account that Dr Oldtree Clark:
(a)    did not engage with the content of the clinical notes recorded in relation to the early consultations;
(b)    made no reference to the appellant’s extensive use of prescription medication prior to the work events complained of;
(c)    appeared to take no account of the multiple occasions on which the appellant attended for psychological counselling;
(d)    did not take into account the observations of Mr Scicluna about the causative factors not related to the appellant’s daughter’s birth (hypochondria and personality traits), and
(e)    took account of certain matters such as sleeplessness and low libido, which were complaints made prior to the consultations in which work related matters were raised.
The appellant says that the clinical notes disclose that the appellant made repeated complaints about work related issues from as early as 2013, for which he was prescribed medication and that this was a strong indicator that he was developing a psychological condition. Further, the appellant contends that the prior issues did not impact his ability to function. The appellant’s complaint is that the Arbitrator failed to take this evidence into account when assessing the evidence of Dr Oldtree Clark. The appellant does not complain that the clinical notes themselves were sufficient to establish injury.
The Arbitrator had clearly appraised herself of the later history recorded in the clinical notes. However, the reasons she provided for discounting the opinion of Dr Oldtree Clark went to the cursory nature of Dr Oldtree Clark’s consideration of the earlier history, and not the import of subsequent complaints. It must be noted that the appellant adamantly described his case as being an injury within the definition of s 4(b)(i) of the 1987 Act. That is, he sought to establish that the alleged injury was one of a disease contracted in the course of his employment to which employment was the main contributing factor, and not an aggravation of such a condition as defined by s 4(b)(ii) of the 1987 Act.
The appellant’s case was that he developed a different condition following the work related events. At [183]–[186] above, I have discussed the absence of support from the evidence of Dr Oldtree Clark for that proposition, and the appellant points to no other evidence to suggest such a proposition is available.
The Arbitrator’s finding in relation to the probative value of Dr Oldtree Clark’s evidence was a finding of fact. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[57] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[58] The Arbitrator’s finding was rational and open to her for the reasons enunciated by her. The appellant has pointed to no proper reason to disturb that finding and Ground Three of the appeal fails.
[57] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
[58] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.

Ground Four

The appellant contends that the Arbitrator failed to give adequate reasons for rejecting the opinion of Dr Oldtree Clark. I have discussed the Arbitrator’s approach and reasons for her finding in that regard at [199]–[201] above. I have concluded that those reasons were rational, based on the evidence and open to her. It follows that Ground Four of the appeal also fails.

Ground Five

Ground Five of the appeal raises the question as to whether the appellant’s termination was relied upon by the appellant as causative of the injury.
The Arbitrator proceeded on the basis that the termination was not relied upon by the appellant. The appellant maintains that it was. The respondent disputes that the termination was part of the appellant’s case, arguing that the termination of employment does not fall within the category of bullying or harassment and was not the subject of submissions on the part of the appellant at the arbitration.
The appellant argues that the injury pleaded, which was expressed to have occurred as a consequence of the “nature and conditions” of employment and described as bullying and harassment from 2012 until the date the appellant’s employment ceased, was sufficient to encompass every event that occurred in the appellant’s employment, including the termination of the appellant’s employment. In the alternative, the appellant argues that the case is to be determined by the evidence and not the pleadings, and Dr Ayliff and Dr Oldtree Clark provided a history of the termination being a factor in the onset of the psychological condition.
I do not accept that the pleadings sufficiently identify the matters relied upon by the appellant as causative. The phrase “nature and conditions” has been the subject of judicial comment, encapsulated by Neilson CCJ in Mirkovic v Davids Holdings Pty Ltd,[59] in which his Honour said:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’. It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16.”
[59] [1995] NSWCC 19; 11 NSWCCR 656, 667.

The use of the phrase in this case does no more than tell the opposing party and the Arbitrator that the appellant relies upon a series of events which culminated in injury. In this case, the description of injury indicates without specificity that those events are of the type considered to be bullying and/or harassment. In order to determine which events were relied on, it is therefore necessary to turn to the appellant’s complaints as set out in his statements and the transcript of submissions made at arbitration.
Nowhere in the appellant’s statements does he complain that the termination of his employment caused or aggravated psychological symptoms.
The appellant’s submissions at arbitration raised various events as being part of the factual matrix relied upon as causative of injury. Those submissions culminated in a reference to the events in January 2018, the appellant returning to work on 30 January 2018 but decompensating in February 2018. The appellant conceded that:
“the precise circumstances in which he goes off work are a little unclear. The applicant says in his statement he went back but just couldn’t cope, he was being harassed further without giving the detail of it but nothing turns on that.”[60]
[60] T 25.34–26.6.
The appellant submitted further that the appellant was stood down in February 2018 pending investigations into threats made to the respondent via the internet. He also referred to the evidence of Mr Lumbewe, in which Mr Lumbewe recorded that the appellant snapped and made threats against employees.[61] It is implicit in those submissions that the appellant relied upon events leading up to his decompensation in February 2018, when his further incapacity arose. The transcript discloses that the respondent submitted that the termination of the appellant’s employment was not a factor relied upon by the appellant, and that it did not constitute “bullying and/or harassment.”[62] The appellant did not cavil with that submission and was completely silent as to whether the termination of the appellant’s employment was a factor.
[61] T 26.6–10.
[62] Transcript of Arbitration Proceedings of 1 July 2019 (T), T 3.13–32.
It was incumbent upon the appellant to adequately set out his case before the Arbitrator. While I accept, as Roche DP observed in Sotiropoulos that the Commission is not a tribunal of strict pleadings and the case is to be determined on the basis of the evidence and not the pleadings,[63] the case to be met must be presented with sufficient clarity to enable the opposing party to meet the case against them and to ensure procedural fairness.[64] As Roche AP said in Shore v Tumbarumba Shire Council,[65] the issues in dispute are ultimately determined by the way the parties present their respective cases.
[63] Sotiropoulos, [51].
[64] Banque Commerciale, [18].
[65] [2013] NSWWCCPD 1, [36].
It is not satisfactory for the appellant to expect the Arbitrator to ascertain what the appellant’s case was without the benefit of a statement setting out those matters relied upon and without having the benefit of submissions on that point. Given the failure of the appellant to assist the Arbitrator by identifying the events relied upon, and the appellant’s silence in relation to the respondent’s submission that the termination of employment was not part of the appellant’s case, it is not surprising that the Arbitrator considered that the termination was not part of the appellant’s case. The Arbitrator provided sound reasons for that conclusion.
The appellant has not established error on the part of the Arbitrator in respect of this conclusion and, therefore, Ground Five of the appeal fails.

Conclusion

None of the appeal grounds raised by the appellant disclose error on the part of the Arbitrator and the Arbitrator’s determination is confirmed.

DECISION

The Certificate of Determination dated 5 August 2019 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

24 February 2020