XCI Pty Ltd (in liq) v Thompson - [2016] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	XCI Pty Ltd (in liq) v Thompson [2016] NSWWCCPD 58
APPELLANT:	XCI Pty Ltd
RESPONDENT:	Jamie Thompson
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1321/16
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	7 July 2016 (amended 14 July 2016)
DATE OF APPEAL DECISION:	6 December 2016
SUBJECT MATTER OF DECISION:	Challenges to the reliability of evidence; parties bound by the conduct of their counsel; Smits v Roach [2006] HCA 36; 227 CLR 423; appellants are bound by the forensic decisions made during the conduct of a hearing; Delaney v Winn [2015] NSWCA 124
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gillis Delaney Lawyers
Respondent:	Beilby Poulden Costello
ORDERS MADE ON APPEAL:	1. Pursuant to s 162 of the Workers Compensation Act 1987 a declaration is made that XCI Pty Ltd (in liq) has entered into a contract with QBE Workers Compensation (NSW) Ltd in respect of liability under that Act, and has commenced to be wound up after entering into that contract. 2. The Arbitrator’s Amended Certificate of Determination of 14 July 2016 is confirmed.

INTRODUCTION

The worker claimed lump sum compensation in respect of a primary psychological injury arising from an accepted injury on 7 September 2010.
Apart from some minor complaints at the time of injury, a substantial period of time elapsed before the worker reported symptoms which were subsequently diagnosed as post-traumatic stress disorder. The claim was disputed in the s 74 notice for a number of reasons including the worker’s reliability in terms of having failed to report symptoms for over two years and upon feigning results during the course of neuro-psychological testing.
The reliability of the worker was not pressed during the hearing before the Arbitrator. The appellant’s counsel eschewed the opportunity to raise a credit issue in relation to the delayed reporting of symptoms. In the circumstances the Arbitrator concluded that he could not determine the matter on the basis of an adverse credit finding.
For the reasons explained in this decision, the appeal is unsuccessful primarily on the ground that parties are bound by the conduct of their case at arbitration.

BACKGROUND

The respondent worker, Jamie Thompson, was employed by the appellant employer, XCI Pty Ltd (formerly Eire Contractors Pty Ltd), as a pipe layer/labourer.
On 7 September 2010, Mr Thompson had been working in a deep trench for the purpose of repositioning a sling around pipes that were being manoeuvred into position. Whilst undertaking this activity Mr Thompson was crushed between two pipes and was injured.
On 11 October 2010, Mr Thompson resigned from his role with the employer. Thereafter he was self-employed as a maintenance worker until 2013.
The appellant’s insurer QBE Workers Compensation (NSW) Ltd (QBE) paid Mr Thompson weekly benefits in respect of the injury of 7 September 2010 for a short closed period; the precise dates are unclear.
On 13 October 2014, Mr Thompson wrote to QBE requesting that his previous claim for compensation be reopened due to “further illness/injuries related to the original accident.” He said that since the injury of 7 September 2010 he had “developed Post Traumatic Stress Disorder, Depression/Anxiety, and Chronic Neck and Knee pain”. He attached a current WorkCover NSW Certificate of Capacity completed by his general practitioner, together with copies of specialist reports to support this claim. He claimed compensation for loss of wages, medical expenses, psychiatric impairment, and pain and suffering.
On 5 December 2014, QBE issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability in respect of the injury of 7 September 2010. QBE stated that the evidence indicated that Mr Thompson no longer suffered a psychological injury or an injury to his neck or head within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). QBE also denied that employment was a substantial contributing factor to those injuries (s 9A of the 1987 Act). It further stated that ongoing treatment was no longer reasonably necessary. In its notice it referred to CT scans of Mr Thompson’s brain which were normal, neuropsychological tests which were indicative of malingering, and the absence of early complaint of depression.
On 10 December 2014, QBE issued a second s 74 notice which appears to be in the same terms as the 5 December 2014 notice, except for the formatting of the notice.
On 22 April 2015, Mr Thompson’s legal representatives made a claim for compensation for 15 per cent whole person impairment in respect of a psychological injury. This claim was made in accordance with the report of Dr Oldtree Clarke, consultant forensic psychiatrist, dated 27 February 2015.
On 13 October 2015, QBE issued a third s 74 notice in which it denied liability in relation to Mr Thompson’s claim for permanent impairment pursuant to s 66 of the 1987 Act on the basis that he did not sustain any permanent impairment as a result of the injury. That notice referred to assessments conducted by various medical specialists, including Dr Vickery, psychiatrist, Dr Vickery remained of the view the diagnosis was malingering or somatoform chronic pain disorder and chronic adjustment disorder arising from failed attempts to gain compensation and financial stressors. The notice also noted Dr Vickery’s reference to Dr Batchelor’s neuro-cognitive assessment which displayed “grossly exaggerated deficiencies which were not credible and were indicative of malingering.” It further noted Dr Schwarcz’s report which considered Mr Thompson’s complaints to be inconsistent with his presentation and “grossly exaggerated.”
On 16 March 2016, Mr Thompson lodged an Application to Resolve a Dispute (the Application) with the Commission. He sought an order for lump sum compensation, weekly benefits and medical expenses in respect of an injury on 7 September 2010 to the “[h]ead, neck, lower part of the back, left knee and primary psychiatric injury, traumatic brain injury.”
On 24 March 2016, the appellant filed a Reply to the Application relying on the s 74 notice.
On 16 June 2016, the matter was listed for conciliation/arbitration proceedings before a Commission Arbitrator. The pleadings were amended and the only issue in dispute which remained was the claim for lump sum compensation in respect of Mr Thompson’s psychological injury. He claimed 15 per cent whole person impairment pursuant to s 66 of the 1987 Act.
On 5 July 2016, the Arbitrator delivered his reasons extempore. He found that Mr Thompson suffered a primary psychological injury in the course of his employment.
On 7 July 2016, the Commission issued a Certificate of Determination. On 14 July 2016, the Commission issued an amended Certificate of Determination. The amendment related to the documents to be referred to the Approved Medical Specialist and has no bearing on the present appeal. The amended Certificate of Determination is in the following terms:
“The determination of the Commission in this matter is as follows:
1.       Amend the name of the respondent to XCI Pty Ltd.
2.       Delete what appears under the heading injury description in part 4 of the Application, save for the words “primary psychiatric injury”.
3.       Delete the claim for weekly payments of compensation in part 5.1, the claim for medical expenses in part 5.3 and the claim for permanent impairment compensation in part 5.6, save for the claim for psychological injury.
4.       That the applicant suffered primary psychological injury, namely major depressive disorder arising out of, and in the course of his employment on 7 September 2010.
5.       Remit the matter to the Registrar for referral to an approved medical specialist to certify the degree, if any, of whole person impairment resulting from the primary psychological injury.
6.       Approved medical specialist to have access to the Application, the Reply and the Application to Admit Late Documents and the documents attached to each and a copy of the transcript of my reasons for my reasons for this decision.”
The appellant appeals the Arbitrator’s determination.

PRELIMINARY MATTERS

On 1 December 2016, the appellant advised the Commission that Mr Thompson was employed by Eire Contractors Pty Ltd (Eire Contractors) at the time of the accepted injury on 7 September 2010. Eire Contractors subsequently changed its name to XCI Pty Ltd. XCI Pty Ltd was placed into liquidation on 27 June 2014.
The respondent confirmed that, as at the date of Mr Thompson’s injury on 7 September 2014 Eire Contractors had a valid policy of insurance with QBE Workers Compensation (NSW) Ltd, with respect to any liability under the 1987 Act to Mr Thompson.
On 5 December 2016, Mr Thompson’s legal representatives made an application under s 162 seeking a declaration that an employer has entered into a contract with an insurer in respect of liability under the 1987 Act.
In the circumstances, I make the following declaration:
(a) Pursuant to s 162 of the Workers Compensation Act 1987 a declaration is made that XCI Pty Ltd (in liq) has entered into a contract with QBE Workers Compensation (NSW) Ltd in respect of liability under that Act, and has commenced to be wound up after entering into that contract.

Other matters

There is no issue that the threshold requirements of s 352(3) of the 1998 Act as to the quantum of compensation in issue have been satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

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.”
The appellant sought an oral hearing. It submitted that the Arbitrator misunderstood his role in determining proceedings and the role of counsel in representing the parties in making submissions. It also submitted that the outcome of the appeal “will have far reaching consequences affecting the manner in which cases are conducted before the Commission” and should be accompanied by oral submissions.
The appellant further submitted that the outcome of the appeal may be affected by “an analysis of the submissions made by Counsel at the hearing and it is submitted that the recording of those submissions should be heard and Counsel should have the opportunity to comment on the recording.”
Mr Thompson opposes the need for oral submissions.
I do not accept the appellant’s submissions. The parties have been given every opportunity to make submissions on the issues on which this appeal will be decided, and have made detailed submissions. The transcript of the extempore decision was issued to the parties on 12 July 2016 and the transcript of the arbitration proceedings was issued to the parties on 17 August 2016. The parties have had ample opportunity to provide submissions based on those transcripts.
I do not accept that the issues on appeal are sufficiently novel to warrant an oral hearing. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that is the appropriate course in the circumstances.

EVIDENCE

Mr Thompson

In Mr Thompson’s letter of 13 October 2014 to QBE he recorded that it has “taken some time” for the injuries of “Post Traumatic Stress Disorder, Depression/Anxiety, and Chronic Neck and Knee pain” to develop. He also recorded that approximately one month after the accident he had to resign from his position as he “no longer felt safe and was uncomfortable working around machinery.” He further recorded:
“This was the beginning of the PTSD, however I was unaware of it at the time. I also developed fatigue, and hence started my own business to work around this. After 2 years of running the business, my PTSD continued to get worse as it was left undiagnosed and untreated, leading to me having to close the business due to illness. I had employed staff to help me with the business, however I still could not manage to continue. It was then that I first approached a GP for help.”
Mr Thompson added that his general practitioner diagnosed and treated him for depression. He also added that his solicitor at the time referred him to a neuro-psychologist which was the “first time that PTSD was diagnosed. However, my GP at the time failed to treat me for this other than to refer me to a psychologist.” He further added that at the beginning of 2014, he and his family moved due to family illness. As a result he had to find a new general practitioner, which he said was “a blessing” because he is “now receiving all the correct care and treatment” needed to deal with his medical issues.
Mr Thompson also recorded that he had been “suicidal” and “been to emergency twice in the last month”, and that much of this was “due to the financial strain that has been put on myself and my family as a result of the accident and everything that it has affected in the past 4 years.”
In evidence is a statement by Mr Thompson dated 9 March 2016. He stated that he had a “brief bout of psychological symptoms” arising in April 2010 which he understood to be due to depression relating to a relationship break-up. He said he was not treated for this and had “certainly recovered from this prior to 7 September 2010.”
Mr Thompson describes the incident of 7 September 2010 as follows:
“I was laying on top of a pipe which was being moved by the excavator. The pipe was rocking because the excavator was ‘homing’ the pipe into a flange. The excavator moved the pipe. I am not certain that the excavator operator was aware of the precise positioning of the pipe or myself when this occurred. I was crushed between two pieces of piping and my helmet was crushed in the process.”
He stated that after the accident he had physical symptoms which affected his “neck, back and left knee” and he was also “significantly troubled by having to work in and around machinery and trenches.”
On 15 September 2010, Mr Thompson returned to his duties. However, he stated that he was “not coping psychologically and had not received any adequate advice or treatment in relation to this.” He added that after the accident he “would get very tired during the day” and was “getting headaches all the time and experiencing left knee weakness.” He said that he “did not feel ‘myself’ at all.”
Mr Thompson stated that on or after 11 October 2010 he “did not report to work” with the employer, as he was “unable to face turning up to work for reasons that related to [him] being physically restricted and psychologically unfit.”
In January 2011, Mr Thompson started up his own business and commenced self-employment as a maintenance worker. He stated that he was “unable to cope with managing the business” and he filed for bankruptcy in late 2013. Mr Thompson also stated that he has not worked since.
Mr Thompson further stated:
“I understand that the doctors who finally diagnosed post-traumatic disorder accept that my condition arises from the injury that I sustained in confined spaces within a trench in circumstances where I feared that I could die.”
Mr Thompson said that he has “very significant levels of dysfunction in relation to the psychological symptoms” and stated that his “sleep is severely affected by [his] psychological injuries.”
In evidence is Mr Thompson’s email of resignation to the employer dated 18 October 2010, which recorded that Mr Thompson resigned as of 11 October 2010. He noted several reasons for resigning including not feeling “comfortable being back at the sites at pump station and surf beach sewage treatment site”, not being treated “very fair from aidan” since he returned to work, and because he is “unable to work from 7am till 5pm 5 days a week” as his “children need parental supervision before and after school.”

Batemans Bay Medical Centre clinical notes

In evidence are clinical notes from Batemans Bay Medical Centre, where Mr Thompson sought medical advice prior to moving to Port Macquarie. In those clinical notes Mr Thompson saw several general practitioners, including Dr Peter James, Dr Ruth Przychodzka, Dr Andrew Gibson and Dr Shannon Bill. The following clinical note entries are relevant.
The clinical notes record prior symptoms of depression. In the clinical notes of 6 April 2010, Dr Przychodzka recorded “symptoms of depression and anxiety”. In the clinical notes of 12 April 2010, Dr Przychodzka recorded that a letter had been written “re. Mental Health Assessment” and “re. Mental Health Plan”. In the clinical notes of 10 September 2010, Dr James recorded “[d]epression improved”. Dr James also recorded:
“Head injury at work 7/9/10. crushed between 2 pipes. Went to A&E CT-N
         Mild headache since, tender l. side of neck, small abrasions on L. ear
         O/E CNS NAD
         L. TM-N, tender L. sternomastoid muscles, neck movements full but painful”
In the clinical notes of 25 February 2013, Dr Gibson referred to the incident of 7 September 2010 and recorded that Mr Thompson had “about 10 days off”. He also recorded that Mr Thompson returned to “work, lethargic, headache, anxious about working around work place” and that he left his job “after 2 weeks” and commenced his own business in home maintenance in December 2010 but had to close it down last month. He added that Mr Thompson is “continuously exhausted” and “[b]ecomes anxious around machinery and loud noise”. He further added “[d]epression for last year Had depression before that” and “K10 Assessment: Score 44”.
In the clinical notes of 25 February 2013, Dr Bill recorded that Mr Thompson scored 28 in a mini mental state examination. Dr Bill recorded that this result indicates that “no significant cognitive impairment has been identified”.
In the clinical notes of 14 March 2013, Dr Gibson diagnosed Mr Thompson with “Severe, Chronic Depression” and recorded that Mr Thompson is “to see neuro-psychologist”. He also recorded “K10 Assessment: Score 46”. He further recorded: “[o]bviously depressed ?? PTSD” and prescribes Cymbalta, an antidepressant.
In the clinical notes of 16 October 2013, Dr Gibson recorded that Mr Thompson had been diagnosed with “PTSD” and added “[n]o ph depression except after relationship breakup [n]o fh mental illness”.

Jennifer Batchelor

In evidence is a report by Jennifer Batchelor, clinical neuropsychologist, dated 28 August 2013, qualified by Mr Thompson’s previous solicitors. Ms Batchelor conducted a neuropsychological assessment on Mr Thompson, with the assistance of Mr Campbell, a registered psychologist.
Ms Batchelor recorded Mr Thompson’s response to a question, of whether his thinking and behaviour had been affected as a result of the accident, in the following terms:
“He now suffers ‘exhaustion’ which is primarily mental rather than physical. He rises at 6.30 or 7.00am and by 9.00 am is extremely fatigued. He ‘cannot handle noise’. Since the time of the accident he had been very forgetful. For example, he forgets on which days his children play sport. If distracted from the task at hand, he will forget what it was that he was doing. When he fills his car with petrol he forgets whether or not he has replaced the petrol cap. Each night he suffers nightmares relating to the accident. He is now easily startled, scared, irritated and quick to anger. He suffers intrusive memories ‘all the time’. He experiences ‘panic attacks’ which occur at least daily and usually, four times per day. He feels ‘down’ and ‘disappointed’ in himself as he is not happy with ‘the way I am’.”

Ms Batchelor recorded that Mr Thompson returned to his previous position but resigned, after a period of one or two months, because “he ‘couldn’t cope’ with the noise in his work environment and was ‘scared of being around excavators’”.
She also recorded that in January 2012 Mr Thompson opened his own maintenance business, which he closed approximately 18 months later because he “was unable to operate the business due to exhaustion and also his inability to cope with noise (which precluded him engaging in activities such as lawn mowing).”
Ms Batchelor recorded that:
“the results of current assessment indicated that he was not working to the best of his abilities on each of the tests administered…Were Mr Thompson operating at the level that his test results would suggest he would not be capable of providing the information that he did on interview or of maintaining any form of open employment. His results on measures of effort confirmed his failure to fully apply himself to testing.
The information relayed on interview would strongly suggest that Mr Thompson is suffering post-traumatic stress disorder.”

Dr Ahmed

Dr Murtaza Ahmed, general practitioner, commenced treating Mr Thompson on 7 February 2014. In the clinical notes dated 7 February 2014, Dr Ahmed recorded that Mr Thompson had a work injury three years prior resulting in a head injury and concussion. He was unable to continue work and had since “suffered from depression.”
In a series of clinical notes from 6 March 2014 to 11 August 2014 there are several entries referring to Mr Thompson presenting with depression. On 11 August 2014, Dr Ahmed recorded that the depression had worsened and “PTSD sypotoms [sic] – dreams back to the accident – reactions every time he hears a loud truck Suicidal thoughts – has had for a while – thought about a few ways – thought of wife and children stop him.”
On 19 August 2014, Dr Ahmed recorded that the depression was the same. He referred Mr Thompson to Dr Brian Neale, consultant psychiatrist and also Dr Esther Jesudason, psychiatrist, regarding the PTSD. The referral letters dated 11 August 2014 record that Mr Thompson suffered an injury in 2011 and since then suffered from chronic neck and back pain and also “PTSD regarding the incident.” They also recorded the medication prescribed and noted that Mr Thompson’s “PTSD is not controlled and he suffers from suicidal thoughts and nightmares of the incident on a daily basis.”
On 21 August 2014, Dr Ahmed recorded that Mr Thompson was admitted to hospital after becoming “acutely suicidal”. He recorded:
“All too much for him
         been hiding it for years
         hidden from famikly [sic]
         now all out”
Mr Thompson attended on Dr Ahmed on a number of occasions from 2 September 2014 until 25 September 2014, in the clinical notes ongoing suicidal thoughts and depression is recorded. In the clinical notes of 25 September 2014, Dr Ahmed recorded that Mr Thompson had been in hospital again after “another suicidal episode”. He recorded that the “PTSD has been under the surface.” He added that Mr Thompson has “[b]een to solicitors – never approached work cover themselves [m]aybe this is what he needs to do been under significant financial strain – bankruptcy was filed for Discussed Pension also – is applying.”
On 2 October 2014, Dr Ahmed recorded no more suicidal attempts but that Mr Thompson continued to have thoughts.
On 14 October 2014, Dr Ahmed recorded that Mr Thompson is stable; “still feels 10/10 depression and PTSD all the time” and that there have been “no more suicidal episodes” but still had “thoughts but not the plans or intent.” Dr Ahmed recorded ongoing symptoms of depression from 28 October 2014.
Dr Ahmed referred Mr Thompson to Dr Liz Cooper, psychologist, following a break down in his relationship with Dr Tim Holman, registered psychologist, who had been treating him.
In a mental health plan prepared by Dr Ahmed dated 18 September 2014, it is recorded that Mr Thompson was diagnosed with post-traumatic stress disorder and that the accident led to this. It is also recorded that he recently saw a “psychiatrist after a suicidal episode.”

Dr Schwarcz

Mr Thompson was referred by Dr Ahmed to Dr Emma Schwarcz, consultant psychiatrist. In a report dated 25 August 2014, Dr Schwarcz diagnosed Mr Thompson with post-traumatic stress disorder with secondary depressive episode in the context of the work-based accident. She recorded that Mr Thompson suffered characteristic symptoms of PTSD including “nightmares, avoidance of machinery, increased irritability and panic attacks”. She noted that he had reduced his socialising.

Dr Holman

Mr Thompson was referred by Dr Ahmed to Dr Holman. In a report dated 22 September 2014, Dr Holman recorded a history of the incident consistent with Mr Thompson’s statement. He recorded that Mr Thompson only returned to work for two weeks before it “became too stressful for him.” He found proximity to large machinery and the noise created by those machines caused him to feel “extremely agitated and panicky.”
He recorded that Mr Thompson met the diagnostic criteria for PTSD, with frequent nightmares, anxiety, and the feeling that he is re-living the trauma. He also recorded that Mr Thompson met the diagnostic criteria for major depression.
In a report dated 24 September 2014, Dr Holman recorded that Mr Thompson had been “manifesting symptoms of PTSD following a workplace accident in September 2010.” He recorded that in addition to suffering physical trauma from the incident, Mr Thompson “cited on-going financial difficulties, inability to work and the stress of failed legal attempts to gain compensation. These pressures culminated in his recent suicidal episode and hospital presentation.”
In a report dated 29 October 2014, Dr Holman recorded that he saw Mr Thompson that day for a sixth session of therapy. He also recorded that Mr Thompson had reported a “reduction in the intensity of his memories and cued reactions to his workplace accident in 2010”.

Dr Neale

Mr Thompson was referred by Dr Ahmed to Dr Brian Neale, consultant psychiatrist. In a report dated 22 September 2014, Dr Neale recorded a history of the incident consistent with Mr Thompson’s statement. He noted that “proximity to large machinery and the noise created by the machines made [Mr Thompson] feel extremely agitated and panicky.” Dr Neale found that Mr Thompson met the diagnostic criteria of PTSD and major depression.
In a report to Dr Ahmed, dated 16 February 2015, Dr Neale recorded that Mr Thompson “felt miserable” and said “he no longer had the energy to fight the symptoms of PTSD and pain. He said that all day long all he can think about is the accident. He has intrusive images which he described as a picture of the pipe descending on his head.” He added that Mr Thompson said that “at times he wishes that he had died because he feels so useless and like a deadbeat. The family is facing significant financial stress.”
Dr Neale provides a series of other reports dated 27 October 2014 and 26 November 2014 in which he recorded ongoing depression with nightmares.
In a report to Dr Ahmed, dated 31 March 2015, Dr Neale recorded that Mr Thompson “appears to be more depressed and quite exhausted.” In a further report to Dr Ahmed, dated 22 May 2015, Dr Neale recorded a history that Mr Thompson reported that “he was not feeling any good and felt like he was ‘just hanging in there’.” He also recorded that Mr Thompson continued to struggle with symptoms of PTSD and major depression, including nightmares and panic attacks. He has had suicidal ideations but “he has no plans.”

Dr Vickery

Mr Thompson was referred to Dr Graham Vickery, by the employer’s insurer. In a report dated 3 November 2014, Dr Vickery recorded a history of physical symptoms and “panic attacks associated with palpitations and hyperventilation”. He recorded that Mr Thompson is “extremely scared of being hurt again and it brings back the accident and it’s like there is this adrenaline in my body.” Amongst other things, he added that there is “depression and suicidal ideation” and recorded that Mr Thompson said “I feel so useless now and it’s like I’m in a big black hole and it’s hard to get back out.”
Dr Vickery also recorded a history of the incident consistent with Mr Thompson’s statement.
Dr Vickery recorded Mr Thompson’s mental state. He recorded that there was evidence of anxiety and depression. He further recorded that there was “no paranoid delusional ideation, formal thought disorder or any gross cognitive impairment in concentration or memory.” He added that there are “identical recurring nightmares” and that he is anxious around loud machinery.

Dr Vickery referred to Dr Holman’s report of 24 September 2014 and recorded that:
“It is significant that the recent psychosocial stressors resulting in his depression and suicide attempts in September 2014 and which were not directly related to his work injury and are non-compensable.”
Dr Vickery found that Mr Thompson satisfied the criteria for a chronic adjustment disorder. He diagnosed Mr Thompson with somatoform chronic pain disorder with psychological factors and chronic adjustment disorder with anxiety and depressed mood. He added that in view of the neuropsychological assessment conducted by Ms Batchelor on 28 August 2013 “there are also signs of malingering.” He also added that it was significant that all of the neurocognitive testing displayed “grossly exaggerated deficiencies which were not credible and were indicative of malingering.” He further added that Mr Thompson’s neurocognitive complaints were “inconsistent with his presentation and are grossly exaggerated.”
In response to a request to comment on whether Mr Thompson’s behaviours or symptoms can be attributed to a disorder, Dr Vickery recorded:
“The diagnosis of Malingering is directly related to the lack of any medically proven basis for this alleged physical or neurocognitive symptomatology.
There have been significant financial and social stressors.”
Dr Vickery recorded that Mr Thompson’s employment was “not considered to be a substantial contributing factor in Somatoform Chronic Pain Disorder.” He diagnosed Mr Thompson with somatoform chronic pain disorder with psychological features, chronic adjustment disorder and signs of malingering. He recorded that Mr Thompson’s psychological symptoms were “grossly exaggerated”, “are unusual and not what could be reasonably expected in the situation.”
He was of the opinion that the incident of September 2010 did not directly contribute to the onset of any psychiatric condition or the development of any alleged incapacity.
On 16 September 2016, Dr Vickery provided a further report to the appellant’s solicitors. He recorded a history that Mr Thompson was experiencing disturbed sleep patterns with nightmares and was feeling depressed. He stated that Mr Thompson said “I’m only just hanging by a thread and I’m feeling suicidal.” Dr Vickery said that Mr Thompson had “no evidence of clinically significant paranoid delusional ideation or formal thought disorder” and there was no apparent cognitive impairment.
Dr Vickery referred to the correspondence of treating psychiatrist Dr Judy Raymond of 24 June 2013 which noted Mr Thompson “complains of a poor memory and difficulty with concentration and reported that he cannot read as well as he used to be able to however on 2 May 2013 he scored 30/30 on the MMSE cognitive screening test”.
Dr Vickery noted that it was significant that all of the neurocognitive testing displayed “grossly exaggerated deficiencies which were not credible and were indicative of malingering.” He also added that it was significant that his neurocognitive complaints were considered inconsistent with his presentation and consistent with “being malingered or are somatoform in nature.” He further added:
“The diagnosis is malingering or Somatoform Chronic Pain Disorder and Chronic Adjustment Disorder which has been documented arising from his failed efforts to gain compensation and financial stressors.”
Dr Vickery further found that the injuries “as reported by Mr Jamie Thompson cannot be related by way of aggravation or acceleration to the accident at work.”

Dr Oldtree Clark

In evidence is a report of Dr Thomas Oldtree Clark, consultant forensic psychiatrist, qualified by Mr Thompson’s solicitors, dated 27 February 2015. He recorded a history of the incident consistent with Mr Thompson’s statement. He also recorded:
“Mr Thompson complains of fatigue and feeling exhausted. He suffers nightmares, panic attacks, anxiety reactions, a fear that his leg will give way in his knee and he has had suicidal thoughts.
He says he can no longer work…
Mr Thompson is a withdrawn character now. He does not like to go on planes nor trains, does not like noises or crowds but can drive his own car.”
Dr Oldtree Clark recorded that Mr Thompson “has had thoughts and vague plans to commit suicide.” He added that Mr Thompson attended a psychiatrist who treated him and now attends a psychologist for PTSD. He further added:
“On psychiatric state examination Mr Thompson shows no signs of psychosis. He suffers no hallucinosis, expresses no delusionary beliefs and his thought systems are normal. He does suffer flashbacks he says, but he knows his recurrent dreams and vision of the accident are all in his mind.
…
Mr Thompson’s self-care seems good but he cannot exist independently without care from his wife. His social activities are most restricted, particularly with regard to his daughter…
He cannot concentrate on tasks and finds himself sleeping during the day some three to four hours. He certainly cannot work in the same position.”
Dr Oldtree Clark diagnosed Mr Thompson with post-traumatic stress disorder with ensuing or concomitant major depressive disorder. He said that there is a direct connection between this condition and the accident. He found that Mr Thompson was “not fit for his former work and would need some very careful rehabilitation before he can return to any useful work.”
In a supplementary report also dated 27 February 2015, Dr Oldtree Clark assessed Mr Thompson with a permanent impairment of 15 per cent in respect of major depressive disorder.

Other

In a WorkCover NSW certificate of capacity dated 10 October 2014, it is recorded that Mr Thompson had “been hospitalised twice because of attempted suicide due to PTSD” and that he was reviewed by a psychiatrist who confirmed “PTSD dating back to the workplace accident.”
Also, in evidence are the notes from Port Macquarie Base Hospital, dated 19 September 2014, regarding Mr Thompson’s admission for suicidal thoughts. In the hospital notes the Registrar Dr Mathanhi Jegatheeswaran recorded that Mr Thompson was admitted after he attempted to jump from a bridge. He added that Mr Thompson said:
“… that he was extremely down and it was because he was over his neck pain & his PTSD. He is sick of not being able to do what he wants to do i.e. finding a job/going back to work. Denies any specific trigger to todays episode.
4 years ago he was stuck between two sewerage pipes and he has since had neck pain and has nightmares with certain triggers”

THE ARBITRATOR’S REASONS

The only issue requiring the Arbitrator’s determination was whether Mr Thompson suffered from a primary psychological injury on 7 September 2010. The appellant conceded that Mr Thompson suffered a physical injury at that time, but emphatically disputed that he suffered a primary psychological injury.
The Arbitrator recorded Mr Thompson’s history of the incident on 7 September 2010. Briefly stated, he said that he struck his head on a service pipe and suffered a momentary loss of consciousness. Eventually Mr Thompson was taken to Batemans Bay Hospital where he was treated. He noted Mr Thompson’s evidence that after the accident he had a range of physical symptoms affecting his neck, back and left knee and was significantly troubled by having to work in and around machinery in trenches. Mr Thompson stated that he believed he returned to work on 10 September 2010 but was not coping psychologically. He said that he had not received adequate advice or treatment in relation to his condition. Mr Thompson added that he got very tired during the day, was getting headaches frequently and did not “feel myself at all”.
By the time he left work with the appellant on 11 October 2010, Mr Thompson felt difficulty turning up for work because of his physical and psychological state. He described being off work for three months and then commencing a period of self-employment, mainly in a supervisory capacity. Ultimately Mr Thompson said that he was unable to cope with the management of the business, it failed and he declared bankruptcy. He said that at that time his psychological state was such that his sleep was severely affected and he was seeking treatment from Dr Ahmed and Dr Neale.
Contrary to the history given to some medical practitioners, Mr Thompson suffered from anxiety and depression prior to the accepted injury. He sought treatment on two occasions in April 2010, and in June reported to Dr James that his depression had improved.
The contemporaneous medical evidence at the time of the injury indicated that following a CT scan, no fracture and no evidence of any subdural or extradural haematoma was detected and Mr Thompson’s Glasgow coma scale score was 15 out of 15 therefore not indicative of any significant loss of consciousness.
The next relevant matter was Mr Thompson’s attendance at Batemans Bay Hospital on 31 January 2013, some two years and three months after he ceased employment with the appellant. The Arbitrator then described in some detail the history and findings of Mr Thompson’s treating doctors and those qualified for the purposes of these proceedings which I have outlined earlier and I do not repeat.
The Arbitrator noted (at T20.1) that on all of the material, he had formed the preliminary view that not everything Mr Thompson said to his doctors and in his statement could be accepted. The Arbitrator gave a number of reasons.
First he noted the dichotomy between the period during which Mr Thompson was not seeking treatment but was running a business in the two years or more following the injury. He noted that during the subsequent period, despite considerable treatment, Mr Thompson experienced increasing psychological and physical difficulties. The Arbitrator said (at T20.13) “that, to me, does not seem explicable on any logical, common sense basis”.
Second, the Arbitrator found that there was no evidence of any injury to the left knee or neck, yet Mr Thompson continued to complain over the last several years of significant back pain.
Third, Mr Thompson complained of significant pain on palpation of the neck or shoulders and as Dr Neale recorded even light palpation. The Arbitrator noted that that was in contrast to the post injury period where Mr Thompson worked, perhaps with some difficulty, but performed home maintenance without once complaining to a medical practitioner of any problems in the neck, back or left knee and without any complaint of psychological problems. Indeed Mr Thompson attended Dr James on two occasions during this period but made no complaint of any of the multiple symptoms which are alleged to have been caused by the injury.
Fourth, the objective evidence seemed to suggest that Mr Thompson had not performed tests for cognitive functioning and memory to the best of his ability. Dr Vickery described that as malingering. The Arbitrator noted two clear instances of it, one during the consultation with Dr Batchelor and the other during the consultation with Dr Raymond, where Dr Raymond recorded Mr Thompson’s performance on mental state examination was inconsistent with a claimed memory loss.
The Arbitrator noted that all of those matters were evidence relevant to an assessment of Mr Thompson’s reliability. However, when he specifically asked Mr Barter, counsel for the appellant, whether he wished to say anything in relation to Mr Thompson’s reliability Mr Barter eschewed that opportunity.

When the Arbitrator asked counsel if he was suggesting that there was an ex post facto rationalisation or a reconstruction, counsel for the appellant made no decisive response. The Arbitrator stated (at T21.35):
“In those circumstances, it seems to me that it would be inappropriate to determine the matter against [Mr Thompson] on the basis of reliability or credibility. If the [appellant] does not raise it in submissions, it seems to me that [Mr Thompson] does not have the opportunity to deal with it. While I did press Mr Morgan about some of the matters which I have addressed in these reasons at the arbitration, there was simply nothing put by the [appellant] in respect of credibility or reliability which would have called upon Mr Morgan to absolve his client or rehabilitate his client from an attack on his credit.”
The Arbitrator noted that it was the appellant’s assertion that the issue in this case was one of causation. There was, as the Arbitrator indicated, a reference to the undoubted gap in complaints of symptomatology. He described it as a “long and troubling gap”. He concluded the gap in complaints was simply evidence which suggested that Mr Thompson did not have the symptoms of which he complained in that period. The Arbitrator said (at T22.18) “in other words, it is an attack upon [Mr Thompson’s] reliability and credibility”.
The Arbitrator added (at T22.22):
“In the circumstances of the case that I have outlined, it seems to me, I must conclude that [Mr Thompson] has given a reliable account of his symptoms, and even though I have some grave reservations as to whether that is correct. Disputation in the Commission is an adversarial system. It is up to the parties to raise issues and to raise matters during arbitration. If they are not raised, or when they are specifically put to one side, it seems to me that it would be wrong to reach a conclusion based upon an aspect of the case that the party has not pressed.”
Another “odd aspect” of the matter, noted by the Arbitrator was that Dr Vickery the appellant’s qualified expert, diagnosed malingering. That certainly suggested a lack of credibility, however it was not raised at the arbitration.
That by way of background identified the issues the Arbitrator grappled with leading him to observe (at T23.9): “Leaving aside the question of reliability, how does the Commission then decide the case?”
The Arbitrator concluded that a chasm remained in relation to the objective account of matters occurring during 2010, 2011 and 2012. Nevertheless he accepted that Mr Thompson said that he was experiencing psychological problems during that period whilst he was performing supervisory work. The Arbitrator concluded that with considerable reluctance he accepted Mr Thompson’s evidence on the basis that he was obliged to do so (T23.20). The Arbitrator further concluded that Mr Thompson had established “a reasonable factual matrix upon which Dr Neale and other doctors can express an opinion in relation to post-traumatic stress disorder”.
Dr Neale’s opinion was based on his acceptance that Mr Thompson suffered nightmares, reactions to sound, flashbacks and the like. Mr Thompson’s evidence was that those symptoms persisted for a very long time even though they were not reported to all medical practitioners for two years after the injury.
The Arbitrator accepted Dr Ahmed’s evidence that Mr Thompson was unable to work around machinery for psychiatric reasons as well as orthopaedic problems. He resigned two weeks later because he was unable to tolerate the environment. Mr Thompson received medical assistance a year later but was diagnosed with depression only. The post-traumatic stress disorder was not identified. This condition significantly worsened as did the neck pain. The Arbitrator accepted that that history, although not entirely accurate, like the histories of Drs Neale and Batchelor, provided a sufficiently accurate history for the opinions of those doctors to be accepted.
The Arbitrator was clearly troubled by the evidence of malingering which he noted could not stand with an acceptance of Mr Thompson’s evidence. He concluded, however, that if what Mr Thompson said about himself and his symptoms is reliable then, it was not open to the Arbitrator to conclude that Mr Thompson was malingering.
Dr Vickery pointed to a number of causes of Mr Thompson’s condition. Nevertheless the assumption upon which his evidence was based, namely that Mr Thompson developed the psychiatric symptoms as late as 2014, was as found by the Arbitrator “completely out of kilter with the evidence” (T25.18).
Mr Thompson said that he developed his symptoms earlier than 2014. There was reference to depression as early as the beginning of 2013 and for some time earlier in the Batemans Bay Medical Centre clinical notes of Drs James and Przychodzka. The Arbitrator did not accept the assertion that Mr Thompson’s depression arose in 2014 merely as a consequence of stresses which occurred at that time.
Contrary to what Mr Thompson told some medical practitioners, he sought treatment for depression on two occasions prior to the subject incident. The Arbitrator noted that Mr Thompson saw a doctor on 6 April 2010, at which time complaint of symptoms of anxiety and depression were recorded, and on 12 April 2010, at which time a referral for a mental health assessment was made. It was also noted that “some 10 weeks or so before the injury” (T4.22) Mr Thompson reported to Dr James that his depression had improved.
The Arbitrator accepted the submission, of Mr Thompson’s counsel Mr Morgan, that not a lot turned on the previous depression because the consultation prior to the injury noted that the depression had improved (T14.24). The Arbitrator weighed Mr Thompson’s account of symptoms of depression prior to the injury in forming his preliminary view that Mr Thompson was unreliable. The Arbitrator added: “[h]owever, if one accepts what he says, then that too, I suspect, can be put to one side” (T26.9).
The diagnosis that Mr Thompson suffers from a somatoform disorder suggests that he has genuine psychiatric problems which are not feigned.
The Arbitrator concluded that there was a sufficient factual basis to support the opinion of Dr Neale, namely that Mr Thompson suffered a primary psychological injury at the time of the accepted work injury. He found (at T26.20):
“It is plausible that [the psychiatric condition] was worsened by subsequent events. Dr Neale’s opinion, as I earlier indicated, is similar to that of Dr Batchelor’s. It is more readily understood than the confusing evidence of Dr Vickery, and it [is] also consistent with the opinion of Dr Schwarcz … and the opinion of Dr Ahmed.”
The Arbitrator further concluded that Mr Thompson suffered from a primary psychological injury and remitted the matter for assessment of the degree of permanent impairment by an Approved Medical Specialist.

GROUNDS OF APPEAL

The appellant alleged that the Arbitrator erred in fact by:
(a)     concluding that Mr Thompson suffered from a primary psychological injury, a conclusion which was not supported by the evidence;
(b)     concluding that the evidence of Mr Thompson was not challenged, and
(c)     finding that counsel for the appellant abandoned the challenge to the reliability of Mr Thompson’s evidence as disclosed in the pleadings.
It is further alleged that the Arbitrator erred in law by:
(a) finding that he was bound to accept the evidence of Mr Thompson notwithstanding contradictory evidence where Mr Thompson’s credit has not been directly challenged during the hearing of the matter, and
(b) misleading himself as to the adversarial nature of the jurisdiction.
It is convenient to deal with whether there was a challenge to Mr Thompson’s evidence first.

THE ALLEGED ERRORS OF FACT

Was the reliability of Mr Thompson’s evidence challenged?

The appellant’s submissions

The appellant submitted that the material referred to in the s 74 notice dated 13 October 2015 referred to, among other things, Mr Thompson’s underperformance in neuropsychological testing and evidence of pre-existing anxiety and depression. Although not expressly stated in the appellant’s submissions, I infer that it is submitted that this was sufficient to put Mr Thompson on notice that his reliability as a witness was challenged.
The appellant’s counsel’s submissions in relation to the gap in the medical evidence between 2010 and 2013 were at least inferentially an attack on Mr Thompson’s credit. The appellant submitted:
“The matters specifically and directly drawn to the Arbitrator’s attention with respect to causation necessarily challenges the respondent worker’s evidence and at no stage did Counsel for the appellant state that reliability and credibility were not in issue.”

Discussion

The s 74 notice to which the appellant refers was a long and complex document. It raised numerous matters upon which QBE’s decision to decline liability was based. I accept that one of the matters raised therein concerned a challenge to Mr Thompson’s credit.
However at the arbitration hearing on 16 June 2016, when invited to address the Arbitrator, Mr Barter said (at T16.35):
“MR BARTER: Well, I’ll be very brief. The issue, as the [appellant] sees it, are really threefold. The first is the severity of the injury occurring at the time. The second is the gap in the medical evidence and the third is the pre-existing depressive condition …”
Mr Barter addressed the medical evidence at some length but made no direct challenge to the reliability of Mr Thompson’s evidence. Addressing the delay in the alleged reporting of symptoms, the following exchange took place (at T23.3):
“ARBITRATOR: Can I ask you this? What is [sic, does] the gap [in reporting symptoms] go to in your submission? Does it simply go to causation?
MR BARTER: Yes.
ARBITRATOR: And you say does it go - is there some issue as to reliability?
MR BARTER: I don’t think it necessarily goes to question of reliability. It goes to a question of causation in the circumstances where you’ve got a minor injury and you’re reflecting back on it in order to explain a condition some years later. Now, my friend says that in that period - - -
ARBITRATOR: What do you say, there’s some sort of ex post facto rationalisation, the event, is that - - -
MR BARTER: I don’t know whether there is or isn’t but - - -
ARBITRATOR: Just this, Mr Barter, it’s the old story that if the worker’s evidence is accepted, then by and large one of acceptance history is as well and that’s why I enquired.
MR BARTER: Well, it just depends on - - -
ARBITRATOR: I mean, I don’t think that the gap in symptoms - the gap in symptoms - always the gap in symptoms, the gap in complaint can always be explained but I acknowledge it’s an exceedingly long gap and it’s an extremely worrying gap but it’s a question what one makes of it, I suppose, and that’s why I asked you that question. All right. Do you want to say anything more?
MR BARTER: No. The only other thing was the pre-existing depressive illness.”
It is plain from the exchanges that took place that the appellant’s counsel Mr Barter eschewed the opportunity, when invited by the Arbitrator to do so, to challenge Mr Thompson’s reliability as a witness. It is clear that Mr Barter restricted his challenge to three discrete areas as identified above. That may have been because he had perceived a forensic advantage in doing so, however, whatever his reasoning, no submissions were made before the Arbitrator which directly challenged Mr Thompson’s reliability.
In Browne v Dunn (1894) 6 R 67 Lord Herschell LC at 70–71 stated an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted:
“…if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity to make any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
Lord Herschell LC added that there was no obligation to raise such a matter in cross examination where it is:
“... perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling ... All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”
The passage quoted above was applied in West v Mead [2003] NSWSC 161.
The Arbitrator was alive to this procedural fairness point. He said (at T21.35):
“In those circumstances, it seems to me that it would be inappropriate to determine the matter against [Mr Thompson] on the basis of reliability or credibility. If the [appellant] does not raise it in submissions, it seems to me that [Mr Thompson] does not have the opportunity to deal with it.”
It would have been a simple matter for the appellant’s counsel in response to the Arbitrator’s invitation to indicate that the appellant maintained its stance in relation to the reliability of Mr Thompson’s evidence disclosed in the s 74 notice. Not only did the appellant’s counsel not do that, he eschewed reliance on Mr Thompson’s reliability, stating instead that the gap in the reporting of his symptoms was not a matter that went to his reliability but went to the issue of causation. The appellant’s counsel made no submission or reference to evidence of alleged underperformance with respect to the neuro-psychological assessments, nor were any submissions or references made to the record of malingering in the s 74 notice.
I reject the submission that an inferred attack on Mr Thompson’s credit was sufficient for the issue to remain a live issue in the proceedings. The case that was run before the Arbitrator was a vastly different case to that stated in the s 74 notices. Many of the pleaded injuries were not pursued. It was reasonable given the way in which the matter proceeded for the Arbitrator to conclude that Mr Thompson’s credit was not an issue. If the employer wished to pursue a challenge to Mr Thompson’s credit he should have made that plain. He did not do so.
I also reject the submission on appeal that “at no stage did counsel for the appellant state that reliability and credibility were not in issue”. In my view that is precisely what counsel for the appellant did at T23.8 where the following exchange took place:
“ARBITRATOR: And you say does it go - is there some issue as to reliability?
MR BARTER: I don’t think it necessarily goes to question of reliability. It goes to a question of causation …”
For these reasons I reject the submission that there was a live challenge to Mr Thompson’s reliability given the way the case was run before the Arbitrator.

Was any challenge to Mr Thompson’s reliability abandoned?

The appellant’s submissions

The appellant submitted:
“… The correct interpretation of the submissions made by counsel [referred to at [126] of this decision] was that the reliability of [Mr Thompson’s] evidence need not necessarily be challenged by the gap in medical evidence between 2010 and 2013 for the Arbitrator to be unable to conclude, on basic principles of causation, that a primary psychological injury resulted from the incident upon which [Mr Thompson] relied.”
Based on a commonsense test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) it is unlikely that an illness diagnosed in 2013 results from an incident in 2010 when there is no history of symptoms in the intervening period sufficient to warrant medical treatment and there is no medical evidence to otherwise support the proposition.
Further it is submitted that there was a “significant body of evidence” which challenged Mr Thompson’s evidence, in particular the reports of Drs Batchelor and Vickery.
It is submitted that the appellant’s counsel addressed on these matters and the absence of a recorded history of a prior depressive illness, all of which were sufficient to raise doubt about the chain of causation, irrespective of Mr Thompson’s evidence, for the claim to fail.
The appellant further submitted:
“In the context of the non-adversarial nature of proceedings and the informal style of address the arbitrator was wrong to conclude that the reliability of [the] worker’s evidence was unchallenged.”

The respondent’s submissions

The respondent submitted that Mr Thompson’s reliability was not challenged in the s 74 notice.
The respondent further submitted that the matters identified above were not complaints that could be characterised as submissions or argument going to the credit of Mr Thompson.

Consideration

The appellant’s submissions go to the question of causation and the nature of the appeal proceedings. There is no compelling submission or indeed any reasoned argument directed to the alleged error which essentially concerns whether the Arbitrator was correct to conclude that any challenge to Mr Thompson’s reliability as a witness was abandoned.
The matters upon which the appellant relied were adequately dealt with by the Arbitrator once it was accepted that there was no challenge to Mr Thompson’s reliability. The appellant has not directed my attention to any aspect of the hearing before the Arbitrator where there was a direct challenge to Mr Thompson’s reliability.
I reject the submission that “the non-adversarial nature of proceedings and the informal style of address” led the Arbitrator to wrongly conclude that the reliability of Mr Thompson’s evidence was unchallenged. Mr Thompson’s reliability was challenged in the s 74 notice, and I reject the respondent’s submission to the contrary. However, for the reasons referred to in dealing with the second ground of appeal, the Arbitrator was correct to conclude that Mr Thompson’s credit was not in issue in the proceedings before him.
In any proceedings before the Commission it will be remembered that, when informing itself on any matter, the Commission is to bear in mind the principles stated in r 15.2 of the Workers Compensation Commission Rules 2011 namely:
“(1) evidence should be logical and probative,
(2)     evidence should be relevant to the facts in issue and the issues in dispute,
(3)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)     unqualified opinions are unacceptable” (emphasis added)
Cases are decided on evidence tendered and arguments presented, not on pleadings (per Dawson J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (Banque Commerciale) at 296–7). This is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case (s 354(3) of the 1998 Act applied in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56).
It was therefore necessary for the Arbitrator to determine the case on the issues presented. Although the Arbitrator expressed grave misgivings about accepting Mr Thompson’s evidence, misgivings which I share, as Mr Thompson’s credit was not challenged in the proceedings before him the Arbitrator correctly found that he was bound to accept it.
Accordingly this ground fails.

The allegation that the finding of primary psychological injury was not supported by the evidence

The appellant’s submissions

The appellant submitted that Dr Holman is the only doctor who obtained a history that Mr Thompson thought he was going to die in the incident on 7 September 2010.
Evidence supporting a conclusion contrary to that found by the Arbitrator included:
(a)     that Mr Thompson was certified fit to resume duties on 14 September 2010;
(b)     the failure to disclose a pre-existing depressive condition;
(c)     the terms of Mr Thompson’s resignation letter;
(d)     Mr Thompson’s ability to conduct a maintenance business for two years, and
(e)     the substantial gap in the reporting of symptoms.

The appellant alleged that both Dr Batchelor and Dr Schwarcz failed to make any relevant link between Mr Thompson’s condition and the accepted work injury.
It is conceded by the appellant that Dr Neale was supportive of Mr Thompson’s case. However, this was based on a history obtained four years after the event and did not deal with the question of causation.
The appellant highlighted that Dr Clarke failed to obtain any relevant history and that both Drs Vickery and Holman identified factors unrelated to Mr Thompson’s condition that were not related to his employment, namely his failure to secure compensation and other financial stressors.
The appellant submitted that the Arbitrator erred (at T22) by concluding that in the circumstances he outlined he was bound to accept that Mr Thompson had given a reliable account of his symptoms even though he expressed grave reservations.
The appellant further submited that there was clear evidence to refute Mr Thompson’s evidence. It alleged that the Arbitrator erred in accepting Mr Thompson, even if his reliability was not challenged, when there was a substantial body of evidence that should have led the Arbitrator to find against him.

The respondent’s submissions

The respondent submitted that the Arbitrator relied in particular on the opinion expressed by Mr Thompson’s treating specialist Dr Neale in addition to Mr Thompson’s own evidence. The Arbitrator addressed the relevant evidence in his reasons at T23.25 and following, namely that Dr Neale’s opinion was based on an acceptance that Mr Thompson suffered from nightmares, reactions to sound, flashbacks and the like, which symptoms had been persisting for a very long time even though they remained unreported for two years.
The respondent also relied on the Arbitrator’s analysis of the progression of symptoms gained from Dr Ahmed’s report. In short, that analysis was that Mr Thompson was pressured to go back to work even though he wasn’t ready. He expressed a difficulty working around machinery which together with his orthopaedic injuries led him to resign because he was unable to tolerate his employment. He received treatment a year later but was diagnosed with depression only. A post-traumatic stress disorder was only diagnosed when the problems intensified over a period of time.

Discussion

This is an appeal brought pursuant to s 352 of the 1998 Act. An appeal under s 352 is characterised by the identification and correction of error. It is not a rehearing. Much of the appellant’s submissions under this ground seek to ventilate the merits of the dispute rather than identify the alleged factual error.
After concluding that Mr Thompson gave a reliable account of his symptoms, the Arbitrator articulated his reasons for deciding the causation question in his favour from T23. His reasons were:
(a)     Mr Thompson established a reasonable factual matrix for the acceptance of the opinion of Dr Neale and other doctors who diagnosed a post-traumatic stress disorder;
(b)     Dr Neale recorded a history of nightmares, reactions to sound and flashbacks which, accepting Mr Thompson’s evidence, persisted for a very long time even though they remained unreported for several years;
(c)     there was a sufficient factual basis from the history recorded by Dr Neale together with Mr Thompson’s evidence for the acceptance of Dr Neale’s opinion;
(d) the explanation of Drs Ahmed and Schwarcz for the incremental unfolding of the full extent of Mr Thompson’s symptoms (see also the respondent’s submission at [158] above);
(e)     Dr Vickery was wrong to assume that Mr Thompson developed the condition as late as 2014 which the Arbitrator found was “out of kilter with the evidence”;
(f)      there were reports of depression to treating doctors as early as 2013;
(g)     the diagnosed somatoform disorder suggests a medical condition that is not feigned, and
(h)     that the prior history of depression in 2010 can be put to one side on the basis of an acceptance of Mr Thompson’s evidence that the condition improved prior to the subject accident.
Accordingly it was on the basis of these factual findings that the Arbitrator concluded that Mr Thompson suffered a primary psychological injury at the time of the accident.
The Arbitrator concluded that Dr Neale’s opinion was more readily acceptable than that of Dr Vickery, and was consistent with the opinion of Dr Schwarcz and Dr Ahmed. These findings were open on the evidence and do not involve error.
Once it was accepted that Mr Thompson gave reliable evidence that formed a satisfactory basis for the acceptance of the medical evidence as outlined above. It was open to the Arbitrator to find in Mr Thompson’s favour on the issues before him. The Arbitrator adequately explained his preference for the conclusions reached. Accordingly, no error is demonstrated and ground one fails.

THE ALLEGED ERRORS OF LAW

The Arbitrator erred in law in finding that he was bound to accept the evidence of the respondent worker notwithstanding contradictory evidence, where the credit of Mr Thompson had not been directly challenged during the hearing of the matter

The appellant’s submissions

The appellant submitted that there is a “body of medical evidence” to support Mr Thompson’s claim that he was suffering from a psychological condition since January 2013 but which did not attribute the diagnosis to the injury Mr Thompson complains of. The evidence in this category includes that of Dr Batchelor and Dr Holman who considered that there were a number of factors contributing to Mr Thompson’s condition including failed legal attempts to gain compensation. Dr Neale diagnosed PTSD and major depression and obtained a brief history but that did not address the issue of causation.
To determine the causation issue it was necessary for the Arbitrator to consider a number of issues, only part of which concerned the reliability of Mr Thompson’s evidence.
The appellant submitted:
“The role of counsel is to ensure that the Arbitrator has all relevant evidence and understands the issues according to the party counsel is representing and drawing attention to the evidence supporting the position taken by that party together with any relevant law.
An Arbitrator is not bound by the submissions of counsel and should not draw conclusions adverse to the party represented based on those submissions unless an unequivocal concession is made by counsel.
In non-adversarial proceedings an Arbitrator is not required to accept the evidence of any witness over any other witness simply because counsel has not ‘pressed’ the question of reliability of the witness.”

The respondent’s submissions

The respondent submitted that the Arbitrator weighed all aspects of the evidence and gave due weight to the history recorded in all examining doctors’ reports, both treating and qualified, together with Mr Thompson’s own evidence.
The respondent submitted:
“The complaint that weight ought to have been accorded to one body of evidence rather than another in a different fashion to that the arbitrator determined is not an error of law unless it can be shown that there was an error in the arbitrator’s part in considering certain aspects of the evidence.
Once the arbitrator makes a determination as to what he does and does not accept with due regard to the weight to which he might accord those pieces of evidence and if his reasoning process is explained, as here, there is no error of law.”

Consideration

The submission that the Arbitrator was not bound by the submissions of counsel is plainly wrong: Smits v Roach [2006] HCA 36; 227 CLR 423. In a joint judgment, Gleeson CJ, Heydon and Crennan JJ held (at [46]):
“The adversarial system of litigation operates upon the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes … Similarly, if [counsel] had decided not to pursue a certain line of argument, or press a possible point of law, the appellants could not have complained to an appellate court that he had failed to consult them about the matter.” (footnotes omitted) (emphasis added)
The proposition that appellants are bound by the forensic decisions made in the conduct of the hearing was discussed by Ward JA, (Emmett and Gleeson JJA agreeing), in Delaney v Winn [2015] NSWCA 124. Justice Ward said (at [69]): “[t]he appellants are bound by the forensic decisions that were made in the conduct of the hearing…”
No reasoned argument or authority was advanced for the submission that the Arbitrator was “not required to accept the evidence of any witness over any other witness simply because counsel had not ‘pressed’ the question of reliability of the witness”. This was not a case where the Arbitrator accepted the evidence of one witness over the other. The appellant was unsuccessful in the proceedings because, notwithstanding the Arbitrator’s misgivings, an adverse credit finding could not be made in circumstances where no submission to that effect had been put during the course of the arbitration. On that basis the Arbitrator correctly concluded that Mr Thompson’s evidence should be accepted. That in turn provided a sufficient factual basis for the acceptance of the expert evidence which the Arbitrator concluded, as a question of fact, was sufficient to find in Mr Thompson’s favour.
It follows that this ground of appeal fails.

The Arbitrator misled himself as to the adversarial nature of the jurisdiction

Submissions

The appellant challenged the Arbitrator’s statement that disputation in the Commission is based on an adversarial system. It submitted:
“The appellant employer submits that it is not an adversarial system, that the parties are to raise issues before (not during) arbitration and that issues were not at any stage put to one side.”
The appellant relied upon the explanatory comments of the conciliation and arbitration process as articulated in “Practice of the Conciliation Arbitration Process in the Workers Compensation Commission” issued by me in February 2011 in the following terms:
“•     Arbitrators are to play a pro-active role in assisting the parties to reach a resolution of the dispute. If a determination of the dispute is required, the proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter requires (section 354 of the 1998 Act).
•       Parties are entitled to procedural fairness consistent within the non-adversarial character of the process and the objectives of the Commission (sections 367(1) (a) & (2) of the 1998 Act, Rules 15.2 & 15.3(c)). Timeliness and consistency of procedure are strong elements of fairness in this method of dispute resolution.
•       Evidence used as a basis for any final arbitral decision-making will usually be in documentary form. There will be limited opportunity for oral evidence to be given (Rules 14.2 & 14.3).”
The appellant submitted that the proceedings in the Commission are deliberately “front end loaded” so that parties know the issues involved prior to the arbitration.
In Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) Deputy President Roche observed (at [291]) that there is no right of cross-examination in the Commission and there is no need for an Arbitrator to question a witness before making an adverse credit finding. The Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a substantial body of credible evidence.
The absence of a direct submission as to Mr Thompson’s reliability did not mean that his evidence was unchallenged or that the Arbitrator was obliged to accept his assertions. There was a substantial body of evidence inconsistent with Mr Thompson’s evidence which the Arbitrator was required to assess and weigh.
The appellant submitted:
“In a system that is conciliatory in its nature it is inappropriate to challenge a claimant with medical support for a condition of PTSD or Major Depression by calling him a ‘liar’ or a ‘malingerer’ (depending on what is meant by ‘pressing’ the issue), if there is the available option of considering the question of causation by reference to the weight of all the evidence in the context of the pleadings.”
It is submitted the Arbitrator misunderstood the extent of his obligation to assess the reliability of the evidence and the conclusions he should draw in the context of the pleadings and all of the evidence presented at the hearing independently of the submissions made by counsel.

Consideration

The appellant’s submissions essentially repeat the submissions made in respect of the preceding grounds of appeal; which have been adequately dealt with.
The document to which the appellant refers, “Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission” (the Practice), is a document which provides a general overview of the dispute resolution system within the Commission. It is accompanied by the “Guideline for the Practice of the Conciliation/Arbitration Process” issued by the then Registrar Sian Leathem in February 2011 (the Guideline). That document explains, among other things that, if some or all issues are not resolved at the conciliation phase, the purpose of the telephone conference is to clearly identify the issues remaining in dispute and to ensure that the matter is ready for the next phase.
There is nothing in either the Practice or the Guideline that supports the appellant’s submissions. The Arbitrator was correct to state that it is up to the parties to raise issues before and during the arbitration which if not raised or put to one side may reasonably lead the Arbitrator to conclude that the particular issue is not pressed.
Nothing in the Arbitrator’s approach to the assessment of the evidence in this case was inconsistent with the decision in Jaffarie. The Arbitrator was acutely aware of evidence which if accepted would lead to an adverse credit finding. The Arbitrator set out that evidence at some length which I have attempted to summarise at [97]-[102] of this decision. As I have indicated in dealing with the previous grounds, the Arbitrator noted the evidence adverse to Mr Thompson’s credit, but concluded, correctly, that when he asked counsel whether he wished to say anything in relation to Mr Thompson’s reliability he received a negative response (T21.25).
It was on that basis that the Arbitrator concluded that he could not determine the matter against Mr Thompson on the basis of his reliability or credibility. The Arbitrator was correct to conclude (at T22.3) that if the appellant did not raise the matter in submissions, Mr Thompson did not have the opportunity to deal with it and therefore Mr Thompson’s counsel was not called upon “to absolve his client or rehabilitate his client from an attack on his credit” (T22.9).
The failure to challenge Mr Thompson’s credit cannot be put down to the conciliatory nature of the proceedings or the Arbitrator’s perception of his role. Mr Thompson’s credit might well have been challenged without the necessity of resorting, as the appellant submitted, to calling him a “liar” or a “malingerer”. All that was necessary was for the appellant’s counsel, particularly when the matter was squarely raised with him, to indicate his reliance on the matters the Arbitrator had identified as factors placing Mr Thompson’s credibility in issue. For reasons that are not readily apparent, he elected not to do so.
I reject the submission that the Arbitrator misunderstood the extent of his obligation to assess the reliability of the evidence and the conclusions he drew in the context of the pleadings and the evidence presented by counsel. The Arbitrator meticulously identified and weighed the evidence both favourable and unfavourable to Mr Thompson. No error in his approach to the task has been established.
It follows that this ground fails.

ORDERS

Pursuant to s 162 of the Workers Compensation Act 1987, a declaration is made that XCI Pty Ltd (in liq) has entered into a contract with QBE Workers Compensation (NSW) Ltd in respect of liability under that Act, and has commenced to be wound up after entering into that contract.
The Arbitrator’s Amended Certificate of Determination of 14 July 2016 is confirmed.

Judge Keating
President

6 December 2016