DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Paterson v State of New South Wales (NSW Police Force) [2025] NSWPICPD 6	
		
APPELLANT:	Lee Paterson	
		
RESPONDENT:	State of New South Wales (NSW Police Force)	
		
INSURER:	Employers Mutual Limited - as agent for the NSW Self Insurance Corporation	
		
FILE NUMBER:	A1-W8157/23	
		
PRESIDENTIAL MEMBER:	President Judge Phillips	
		
DATE OF APPEAL DECISION:	29 January 2025	
		
ORDERS MADE ON APPEAL:	1.	The Certificate of Determination dated 26 February 2024 is confirmed. 
2.	Pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 time for the filing of this appeal is extended to 27 March 2024.
3.	The appellant is to pay the respondent’s cost of the appeal as agreed or assessed.	
		
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – whether the appellant’s injury arose out of the course of his employment, psychological injury predominantly caused by action taken by the respondent with respect to discipline, section 11A of the Workers Compensation Act 1987, Wang v State of New South Wales [2019] NSWCA 263 considered and applied	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr M Hammond, counsel	
	Nikolovski Lawyers	
		
	Respondent:	
	Mr C Smith, solicitor	
	SMK Lawyers	
		
DECISION UNDER APPEAL:	Paterson v State of New South Wales (NSW Police Force) [2024] NSWPIC 83	
		
MEMBER:	Mr B Batchelor	
		
DATE OF Member’s DECISION:	26 February 2024	

INTRODUCTION AND BACKGROUND
1.	Mr Lee Paterson (the appellant) was employed by the respondent as a police officer from November 1997 until 1 March 2020, and he says that during this employment, he was exposed to a number of significant and traumatic events. 
2.	A criminal investigation against the appellant was triggered following events he was involved in between 2017–18 resulting in a Court Attendance Notice (CAN) being served on the appellant on 28 February 2020. 
3.	In May 2021, the appellant was convicted of nine criminal offences at Wollongong Local Court. Two fraud charges in respect of which the appellant was found guilty were dismissed with a caution. In respect of the remaining charges, the appellant was sentenced to a two-year Community Corrections Order. The appellant resigned from his employment with the respondent in July 2021. 
4.	After being served with the CAN on 28 February 2020, the appellant lodged with the respondent a P 902 Incident Notification Form dated 19 March 2020 claiming a psychological injury caused by the traumatic events he witnessed, during the course of his employment, with a date of injury being 28 February 2020. 
5.	The respondent disputed liability on the basis that the appellant’s psychological injury was not caused by the traumatic events he was exposed to during the course of his employment, but rather the disciplinary process pursued by the respondent as a result of the criminal investigation and the court process which led to conviction. The respondent relied on ss 4, 9A, 11A and 14(2) of the Workers Compensation Act 1987 (the 1987 Act). 
6.	The appellant subsequently commenced proceedings in the Personal Injury Commission (the Commission) claiming compensation for permanent impairment, pain and suffering and medical and related expenses. The appellant quite properly conceded that the investigation process which ultimately led to charges being laid, was reasonable for s 11 A of the 1987 Act purposes. 
7.	The issues in dispute before the Member were:
(a)	Did the appellant’s injury arise out of his employment with the respondent (s 4 of the 1987 Act)?
(b)	Was the appellant’s employment with the respondent a substantial contributing factor to injury (s 9A of the 1987 Act)?
(c)	Was the appellant’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, transfer and/or provision of employment benefits (s 11A(1) of the 1987 Act)?
(d)	Was the appellant’s injury solely attributable to serious and wilful misconduct (s 14(2) of the 1987 Act)?
8.	In a decision dated 26 February 2024, the Member found that the appellant suffered psychological injury on 28 February 2020 predominantly caused by reasonable action taken by the respondent with respect to discipline. As a result of this finding, the Member entered an award in favour of the respondent. 
9.	It is from that decision the appellant appeals.
ON THE PAPERS
10.	Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
11.	Having regard to Procedural Directions PIC2 and WC3; 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
12.	There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met. 
13.	There is however a threshold issue about the appeal being filed out of time. Section 352(4) of the 1998 Act requires an appeal to be filed within 28 days of the decision, or such longer period as allowed. The original appeal, which was filed within time, was rejected as deficient due to its failure to attach the Certificate of Determination. This was remedied and the appeal was refiled two days out of time. 
14.	The relevant rule is r 133A(5) of the Personal Injury Commission Rules 2021 (the Rules). This provision provides:
“The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.”
15.	I am not satisfied that exceptional circumstances exist in relation to the late filing of the appeal. The error here was administrative and was swiftly remedied. There is nothing exceptional about this circumstance. I would remark that the absence of exceptional circumstances is not fatal to the exercise of the Commission’s discretion under r 133A(5), but is a factor against its exercise. However I do accept that a failure to extend time would cause a “demonstrable and substantial injustice” to the appellant. The appellant is a former serving police officer who is suffering from an undoubted psychiatric injury. The error which caused the appeal to be filed out of time is not the appellant’s fault. The period that the appeal is out of time is exceptionally minor. Further, I judge or assess the appellant’s prospects on appeal to be arguable. 
16.	I therefore extend the time for the filing of this appeal to 27 March 2024. 
THE EVIDENCE
17.	The appellant, in his statements dated 22 June 2020 and 22 September 2023, recounted several examples of his exposure to significant trauma throughout his policing career. In 2015 the appellant states he attended a scene at Kembla Grange where a male person had committed suicide involving a train. The appellant was required to guard the deceased’s body to keep other officers away and to protect the body from being defiled by birds. He was required to notify the deceased’s family of the death and explain to them why they could not view the body, given the state of the remains.
18.	In 2016 the appellant recollects informing a woman that her husband had died. The woman collapsed into his arms and her children came running outside to see what had happened. The appellant states that he “cried at the scene”.
19.	In the 1990’s the appellant recounted attending a scene where a baby had died after “[t]he parents had the baby in their bed and the father suffocated the child by following [sic] over during the night.” The appellant recalls attending the scene where the father, who he described as a “big, strong tradesmen” was crying while holding his deceased baby in his arms. The appellant states that he attended the funeral and was “extremely upset by what had happened”.
20.	In September 2019 the appellant states he attended a scene where a person had been mauled to death by a dog. He “found the body under the bed with the genitals removed and half the skin on the persons left thigh was gone”.
21.	The appellant states there were many other examples of his exposure to traumatic scenes including major vehicle accidents, domestic violence and blood and body parts at crime scenes.
22.	In late 2017 to early 2018, internal investigations were commenced into allegations against the appellant which ultimately resulted in a criminal conviction. The allegations were made by a Senior Constable who resided with the appellant. 
23.	The allegations, of which the appellant was subsequently found guilty, included the following:
(a)	On 29 October 2017 the appellant used the Senior Constable’s Woolworths Everyday rewards card to purchase petrol at Nambucca Heads where he received a discount on petrol. Upon being notified of the transaction, the Senior Constable sent a text message to the appellant telling him to stop using the card and to either return or destroy it.
(b)	On 17 November 2017 the appellant accessed the Boost mobile online function and through his knowledge of the Senior Constable’s personal information, posed as the Senior Constable and disconnected the mobile number from the Boost (Telstra) network. Once the Senior Constable became aware his phone was not active, he accessed the Boost online function and reconnected his phone. Later that same day, the appellant again accessed the Boost mobile function and disconnected the Senior Constable’s mobile phone for a second time. The Senior Constable visited a Telstra store and added further security measures to his account to have his mobile reconnected securely. On 20 November 2017, despite the additional security measures, the appellant transferred the Senior Constable’s mobile number to Optus and took control of the number. The appellant then sent harassing and offensive text messages to the Senior Constable’s girlfriend, ex-wife and his father’s girlfriend causing the woman to be upset and angry. These text messages are noted below:
(i)	Text exchange with the Senior Constable’s ex-wife:
Appellant purporting to be the Senior Constable:
I’m done. I don’t care what I have to do you will never see the girls again. I don’t want them being brought up by you, you’re a shit mother who never wants them. I would rather they die than be with you
Ex-wife’s response:
Wtf is your problem
Appellant purporting to be the Senior Constable:
You’re the problem. I just want to hold my hands around your neck and squeeze the life out of you
(ii)	Text message to the Senior Constable’s father’s girlfriend:
Appellant purporting to be the Senior Constable:
You need to know that dad is cheating on you. Every time he goes away he picks one up. I’m sorry
The father’s girlfriend’s response:
What?? Are you serious???
Appellant purporting to be the Senior Constable:
I’m so so sorry
The father’s girlfriend’s response:
Thankyou for telling me this. I can’t believe it. 
Appellant purporting to be the Senior Constable:
I’ve been through being cheating on and I hate it
The father’s girlfriend’s response:
Not a good feeling. Are you absolutely sure cause this is going to tear us apart. 
Appellant purporting to be the Senior Constable:
100% I’m so sorry
The father’s girlfriend’s response:
Thanks certainly not what I wanted to hear 
(iii)	Text message to the Senior Constable’s girlfriend
Appellant purporting to be the Senior Constable:
Send me a picture of your boobs
The girlfriend’s response:
Very hard to do that at work.
Appellant purporting to be the Senior Constable:
I’ll wait
The girlfriend’s response:
I’m on lunch and heading to the bike shop if you’re still around
I tried for boobs but there is too much clothing. How about we just have car sex later?!
Appellant purporting to be the Senior Constable:
Lucky I have leather seats
The girlfriend’s response:
For future reference my car also has leather seats
(c)	On 1 December 2017, the appellant sent an email to the Senior Constable’s partner stating that the Senior Constable was having a sexual relationship with another woman and alleged that the Senior Constable was a possessive and manipulative person.
(d)	On 7 January 2018 and 24 February 2018, the appellant used the Senior Constable’s Woolworths Everyday Rewards Card where he received a financial advantage.
24.	On 28 February 2018 the appellant’s conduct was referred to the Professional Standards Command for investigation to determine if criminal charges were warranted, which was followed by an executed search warrant of the appellant’s home on 16 March 2018 where mobile phones and computerware were seized.
25.	Upon executing the search warrant and seizing the phones, the appellant denied knowing the PIN to one of the phones despite it being found in his pocket. At a later stage when investigators were examining the phone a ‘start up’ screen was displayed which indicated it had been remotely reset, destroying evidence.
26.	On 28 February 2020 the appellant was served with a CAN in respect of nine charges. These are set out below: 
(a)	two counts of unauthorised modification of data with intent to cause impairment, s 308D of the Crimes Act 1900;
(b)	two counts of dealing with identification information, s 192J of the Crimes Act 1900; 
(c)	three counts of stalking or intimidation with intent to cause fear of physical or mental harm, s 13 of the Crimes (Domestic and Personal Violence) Act 2007, and
(d)	two counts of fraud, s 192E of the Crimes Act 1900. 
27.	On 1 March 2020 the appellant’s partner sent a text message to Police District Commander Smith stating that due to the incidents that occurred on 28 February 2020, the appellant had suffered another breakdown requiring medical intervention and it would be unclear when the appellant would be able to return to work. A medical certificate was attached stating the appellant was unfit for work.
28.	On 19 March 2020 the appellant lodged a P 902 Incident Notification Form in which the appellant said:
“Due to an incident on 28 February 2020 I have been having flashbacks of jobs I have been do [sic] in the past 22 years. Namely a male hit by a train at Kembla Grange, were I had to guard his dismembered body and do a death notification to his family. Other incident is a male partially eaten by a dog in 2019 in Nowra, death of a baby in [R]iverwood late 1990s.”
29.	Following a hearing at Wollongong Local Court between 21–23 April 2021, the appellant was convicted of all nine criminal offences against him. 
THE MEMBER’S REASONS
30.	The appellant accepted that the respondent’s disciplinary actions in relation to the appellant’s behaviour were reasonable, however submitted that the appellant’s behaviour could be explained by the diagnosis of post-traumatic stress disorder (PTSD), which was caused by the exposure to several traumatising events throughout the course of his employment with the respondent. 
31.	The appellant submitted that the salient aspect of the case relates to diagnosis and if the Commission was satisfied the diagnosis was either post-traumatic stress disorder or that the psychological injury, to any extent, was occasioned by the exposure to the traumatic incidents, then it cannot be satisfied that disciplinary action taken against him by the respondent, late in the appellant’s police career, was the whole or predominant cause of the psychological injury. 
32.	The appellant submitted the case involved analysing the expert medical evidence and relied on the opinion of psychiatrist Dr Chow, who provided medico-legal reports dated 25 April 2022, 16 January 2023 and 2 October 2023. The appellant submitted that Dr Chow maintained his diagnosis of post-traumatic stress disorder and major depressive disorder despite being aware of the appellant’s history regarding the criminal investigation and provided cogent reasons for doing so.
33.	The respondent’s defence was largely based on ss 11A and 14 of the 1987 Act. In its submissions regarding the s 11A defence, the respondent argued that the appellant’s psychological injury was caused by the disciplinary action taken against him by the respondent for the criminal behaviour in which he had engaged. In support of this submission, the respondent noted the importance of the chronology as it goes to the issue of causation. 
34.	The respondent highlighted the opinion of its retained psychiatrist, Dr Young, in his report dated 25 July 2022 who stated:
“The most marked inconsistency is that there is no history of symptoms of acute stress disorder preceding the onset of PTSD and no other evidence that symptoms were present prior to the commencement of disciplinary procedures. [The appellant’s] denial of any adverse psychological impact from these proceedings and from the later criminal conviction is frankly implausible.” 
35.	The respondent also referred to the evidence of Dr Avenido who was the appellant’s treating practitioner, submitting that the appellant consulted Dr Avenido on 8 August 2018 stating he had problems at work since March 2018. There were various other subsequent attendances where it was noted the appellant was still having issues at work. It was not until a report from Dr Avenido dated 13 July 2021 where the doctor diagnosed the appellant with “Adjustment Disorder with Anxiety and Depression exacerbating a vulnerability to trauma symptoms, post-traumatic stress disorder as result of police work”.
36.	At reasons [181] the Member found the following:
“I do not accept the opinion of Dr Chow that the post-traumatic stress disorder from which he diagnosed that applicant as suffering was responsible for his actions in late 2017 which led to his conviction of criminal offences and his resignation from the police force. When regard is had to:
(a) 	the evidence of the consultations with Dr Avenido from 8 August 2018 onwards; 
(b) 	the fact that the [appellant] returned to work in about late 2019 at Nowra and continued working until he was served with the Court Attendance Notice on 28 February 2020; 
(c) 	his immediate decompensation thereafter; 
(d) 	the Incident Notification Form dated 19 March 2020, which includes a reference therein to an incident in 2019 which could not have been responsible for the post-traumatic stress disorder which the [appellant] claims to have caused him to act in the way that he did in late 2017; 
(e) 	the serious nature of the charges which the [appellant] faced as a result of his actions towards his colleague, and the consequences of a conviction thereon, both in respect of his future employment and liberty. I find it difficult to accept that [the appellant], as an experienced policeman, cannot have been unmindful of the illegality and consequences of his actions. That is probably why he expressed such concern to Dr Avenido in 2018 about the progress of the investigation into those actions. That is also an explanation for the dramatic reaction of [the appellant] to service on him of the Court Attendance Notice on 28 February 2020; 
(f) 	the apparent maintenance by the [appellant] in his history to Dr Young that his psychological injury was directly caused by the fact that the “false allegations” were made, and that he was entirely unconcerned by the consequences of the allegations, and 
(g) 	the acknowledgement by the [appellant] that the case (against him) played on his mind, confirmed by the attendances on Dr Avenido from 8 August 2018.”
37.	The Member was ultimately satisfied that the respondent had discharged its onus to show the psychological injury from which the appellant suffered was predominantly caused by the reasonable action taken by the respondent with respect to discipline.
38.	The Member found that the appellant’s claim pursuant to ss 4 and 9A of the 1987 Act failed as the appellant’s own criminal conduct in 2017 was done in his own personal capacity and was not related to his employment.
39.	The Certificate of Determination issued on 26 February 2024 records:
“1.	The [appellant] suffered psychological injury on 28 February 2020 predominantly caused by reasonable action taken by the respondent with respect to discipline. 
2.	Award for the respondent.”
GROUNDS OF APPEAL
40.	The appellant pursues five grounds of appeal. They are as follows:
(e)	Ground One: Error of fact and law – No finding as to the nature of the psychological injury and no finding as to a diagnosis of PTSD.
(f)	Ground Two: Error of fact and law – Accepting Dr Young’s opinion and not properly considering the psychometric testing conducted by Ms Britt.
(g)	Ground Three: Error of law, fact and discretion in failing to properly consider the treating and independent expert evidence.
(h)	Ground Four: Error of fact and law – Failing to consider the question of causation in determining the respondent’s defence under s 11A of the 1987 Act. 
(i)	Ground Five: Error of law, fact and discretion in denying the appellant procedural fairness. 
LEGISLATION 
41.	Section 11A(1) and (3) of the 1987 Act provides:
“11A 	No compensation for psychological injury caused by reasonable actions of employer
(1) 	No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(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.”
42.	Rule 34 of the Personal Injury Commission Rules 2021 (the Rules) sets out the requirements for calling witnesses in Commission proceedings: 
“34 	Calling witnesses
(1) 	A party to Commission proceedings who proposes to rely on the oral evidence of a witness must lodge, together with the information and documents required to be lodged and served under Part 7, Division 2, a document containing—
(a) 	the name of the witness, and
(b) 	a written statement of the evidence to be given by the witness, signed by the witness.
(2) 	The party must also serve the documents and information on the other parties to the proceedings.
(3) 	A party may not, in Commission proceedings, call a witness to give oral evidence that has not been included in a document lodged and served as required under this rule unless—
(a) 	the party has lodged and served with the information and documents required under Part 7, Division 2 a statement indicating—
(i) 	the specific nature of the evidence, and
(ii) 	the reliance the party intends to place on the evidence, and
(iii) 	the reasons why the evidence has not been included in a statement as required under this rule, and
(iv) 	the time the evidence is expected to be included, and
(b) 	the evidence is included in a written statement lodged and served on the other parties as soon as practicable after the statement can be obtained.
(4) 	Subrule (3) does not prevent the party from calling a person to give the evidence if—
(a) 	the person refuses to sign a statement of the oral evidence to be given in proceedings by the person, and
(b) 	the party has served a summons issued under rule 56 in relation to the person.
(5) 	Despite subrule (3), the Commission may, for the avoidance of injustice, allow a party to introduce oral evidence that the party would otherwise be prevented from introducing by subrule (3).
(6) 	If a party proposes to give oral evidence, this rule applies to the party as though the party was a witness for the party.”
43.	Rule 67 sits within Division 2 of the Rules, which is titled “Documents in applicable proceedings”. Rule 67 instructs:
“67 	Documents lodged under division
(1) 	A document or bundle of documents must not be lodged under this division unless the document or bundle—
(a) 	has consecutively numbered pages, and
(b) 	does not contain a document or part of a document that—
(i) 	has previously been lodged in the applicable proceedings, or
(ii) 	is included more than once in the document or bundle of documents, and
(c) 	is indexed and sorted by document category.
(2) 	A party may not introduce evidence that has not been—
(a) 	lodged and served as required by this division, or
(b) 	provided to another party as required by enabling legislation or these rules.
(3) 	A document is taken to be served on each other party to proceedings if lodged and served in accordance with Divisions 4.3 and 4.4.”
44.	Procedural Direction PIC1 – Conduct of parties during proceedings, at [38], provides:
“Parties will be given an opportunity to present their case through providing oral or written submissions, and, where leave is granted, through examination of a witness. Hearings are recorded. A copy of the recording will be made available to the parties in accordance with the Commission’s policy Audio recordings and transcripts.” (emphasis added)
DISCUSSION 
45.	There was no contest before the Member that the appellant was indeed suffering from a psychiatric injury. What was in contest was whether this condition was caused by various traumatic events encountered by the appellant during the course of his employment as a police officer or by the reasonable action taken by the respondent with respect to discipline from 2017 onwards. The appellant takes no issue about the reasonableness of the disciplinary action, rather the appellant contends that his injury was as a result of matters unrelated to this action, namely his being exposed to several traumatic events over the years. This was the essential nature of the dispute that fell to be decided by the Member. 
As to Ground One 
46.	The appellant says that the Member was obliged to make a finding about the precise diagnosis of the of the appellant’s psychiatric condition. Namely, the appellant asserts that his “primary position at the hearing at first instance was that his psychiatric diagnosis is post traumatic stress disorder (PTSD) and that that diagnosis would render the Respondent’s 11A defence unmaintainable.” 
47.	The appellant says that the Member fell into error by failing to make “a finding as to whether or not the Appellant’s primary diagnosis is PTSD.” The appellant concludes by remarking that it is not necessary in all cases for a decision maker to make a finding about the exact nature of the psychiatric injury, but it was necessary to deal with this point given that it was the primary position advanced by the appellant. 
48.	In a brief supplementary submission dated 17 April 2024, the appellant refers to his submission at page 5, line 19 of the hearing transcript to support an argument that the Member has made an error of the type referred to in Dranichnikov v Minister for Immigration and Multicultural Affairs. Namely, the appellant asserts that it was put to the Member that the question of diagnosis was important and had to be resolved. The appellant submitted that this was a “substantial, articulated argument” and in the Dranichnikov sense, had to be determined.
49.	In response, the respondent says that the determination of causation is an evaluative process for the Member. The respondent identifies the competing arguments that the Member had to decide on the question of causation, and then proceeds in the succeeding paragraphs, by reference to the evidence, the parties’ submissions and the Member’s reasons, to argue why the Member was not in error. The respondent concludes by submitting the following:
“42. 	Explicitly, at paragraph [181 of the reasons], the Member states that he does not accept the opinion of Dr Chow in relation to post-traumatic stress disorder being responsible for the appellant’s actions. The many important inconsistencies in the appellant’s history and presentations indicated that the appellant’s reported history simply could not be accepted (paragraph [182 of the reasons]). The Member has made a finding that the respondent has discharged the onus that the psychological injury from which the appellant suffers was predominantly caused by the reasonable actions taken by the respondent with respect to discipline, and not in relation to traumatic events. That is the thrust of the evidence. The preceding references which the Member dealt with give support to that.
43. 	Notwithstanding that, it is outside the scope of a Member’s role to diagnose the appellant himself, and that the whole system would be thwarted if it was expected that a Medical Assessor examine each worker to identify a diagnosis of psychological injury before a dispute can proceed, it is incumbent upon the Member to have regard to the whole of the evidence and the issue of injury in an evaluative process, to provide sufficient explanation to engage in the process and to ensure that the conclusions he or she reaches are open on the evidence.
44. 	The Member respectfully has been careful and exhaustive in his analysis of the evidence and has formed the view that the psychological injury sustained by the appellant was not due to any historical traumatic events, which the Member has not accepted as reliable reports, but has accepted the more plausible explanation, given the temporal connection and the lack of report of traumatic events noted above, that psychological injury was caused by the actions of the respondent which were reasonable and were with respect to the issue of discipline. It is clear that he does not accept the role of any traumatic events on the question of causation.
45. 	The appellant raises supplementary submissions after receiving the transcript of the proceedings. There is nothing of import here as the Member in his [reasons] specifically spelt out the appellant’s contention that he relied on a diagnosis of post traumatic stress disorder and endeavoured at length to deal with that but ultimately accepting that psychological injury was caused rather by the disciplinary actions of the respondent which were reasonable (not in dispute [reasons at [167]]). To the extent that the appellant raises Dranichnikov … as to whether the Member misunderstood and failed to address Appellant’s case or failed to accord natural justice, this is disputed. It is plain that the Member was across the appellant’s case and evaluated it correctly.”
Consideration 
50.	There is no contest that the appellant suffers from a psychiatric injury arising from his employment as a police officer. The appellant says that it is PTSD caused by exposure to several traumatic events over the years working as a police officer. The respondent to the contrary maintains that the appellant’s injury was wholly or predominantly caused by the investigation into his misconduct from 2017 onwards. 
51.	I would remark that upon an examination of the treating medical opinions, the medical practitioners posit various diagnoses of the nature of the appellant’s complex psychiatric condition. The Member noted that Dr Avenido’s opinion included various conditions; depressive anxiety disorder, anxiety related insomnia, working condition problems and alcohol excess. And further at reasons [110]: 
“In a report dated 13 July 2021 Dr Avenido reported to Roselyn Graham, UHG Case Manager, in answer to questions posed to her that the [appellant’s] diagnosis was ‘Adjustment Disorder with Anxiety and Depression exacerbating a vulnerability to trauma symptoms, post traumatic stress disorder as a result of police work.’” 
52.	The Member stated that Rodney Ward, psychologist, records that the appellant showed signs of post-traumatic stress disorder, and a differential diagnosis was stated to be an Adjustment Disorder with mixed disturbance conduct and emotions. The Member also recorded Marie Britt’s opinion that the appellant’s presentation was consistent with PTSD.
53.	In terms of the medico-legal opinions, Dr Chow, retained by the appellant, was of the view that the appellant’s psychiatric injury was twofold, namely PTSD and as a result of harassment from a colleague leading to the end of his career.
54.	Dr Young for the respondent is noted by the Member as having an opinion that the appellant meets the criteria for a Major Depressive Disorder and says that if his history is accepted at face value, the appellant also meets the PTSD criteria. Dr Young ultimately discounts this diagnosis in his second report dated 25 July 2022. Dr Young says that the appellant suffers from Alcohol Use Disorder and an Adjustment Disorder or Persistent Depressive Disorder. The reason Dr Young discounts the PTSD diagnosis is what he describes as “important inconsistencies in his history and presentation which indicate that the reported history cannot be taken at face value.” This leads to Dr Young stating that the diagnosis of PTSD cannot be “confidently sustained”.
55.	The Member, in the Consideration section of his decision, said about the treating evidence:
“I accept that, on the evidence, Dr Avenido, Rodney Ward, and Marie Britt were not fully informed of the serious nature of the criminal proceedings that the [appellant] was facing when they treated him after March 2020. They diagnosed the [appellant] as having symptoms consistent with post-traumatic stress disorder. Whatever the diagnosis, it is clear that from at least the time that these practitioners commenced their treatment of the [appellant] he was suffering from a psychological or psychiatric illness. Prior to that date, Dr Avenido had recorded a depressive anxiety disorder from which he was suffering on 8 August 2018.” (emphasis added)
56.	The task confronting the Member was to decide what was the “whole or predominant cause” under s 11A of the 1987 Act of the appellant’s psychiatric condition. As can be seen from a review of the medical evidence, the appellant had a complex psychiatric presentation, with several different psychiatric conditions being present depending upon the author of the medical opinion. I would note that nowhere does the Member discount the assertion that the appellant is afflicted by PTSD. Indeed, the Member seemed to accept Dr Chow’s PTSD diagnosis at face value at reasons [181], but he simply found that it was not responsible for the appellant’s actions in late 2017 and that which occurred thereafter. I do not accept the appellant’s argument that the Member was duty bound to make a finding about whether or not the appellant was afflicted by PTSD. This argument suggests that the Member was confronted with a simple, binary choice regarding the diagnosis. I do not accept this submission. The Member’s task was a different one, as I have stated above, namely to ascertain what was the “whole or predominant cause” of the appellant’s psychiatric injury. 
57.	In approaching this determination, the Member was undertaking an evaluative judgment about what was the whole or predominant cause of the appellant’s psychiatric injury. 
58.	In Australian Air Express Pty Ltd v Langford, McColl JA (Ipp and Tobias JJA agreeing) made the following observation in relation to the exercise of an evaluative judgement by a first instance decision maker: 
“The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
59.	The findings made by the Member at reasons [181]–[186], where he decides that the appellant’s PTSD was not responsible for his psychiatric injury, is precisely an evaluative assessment of “fact and degree” of the kind referred to in Langford. It was the proper approach for the Member to take. 
60.	The Member was not in error, this aspect of Ground One is not established. 
61.	This leaves the appellant’s supplementary argument based upon the decision of Dranichnikov. 
62.	Dranichnikov was an immigration case. Mr Dranichnikov was a Russian citizen who sought a protection visa on behalf of himself, his wife and child. The basis on which he sought such a visa was twofold. Firstly, that as a Russian businessman he is at risk from criminal organisations who operate in Russia who have links to the authorities. Secondly, he asserted that he was part of a more limited group consisting of businessmen who had publicly criticised law enforcement authorities for failing to take action against criminals.
63.	In dealing with Mr Dranichnikov’s case, the Refugee Review Tribunal at first instance accepted that Mr Dranichnikov was a witness of credit, and therefore accepted the correctness of his account of the situation in Russia. 
64.	But the Refugee Review Tribunal dismissed his case, and failed to deal with the argument that he was a more limited class of businessman who had taken a public stance against law enforcement authorities for failing to take action against criminals. It is failure to deal with this latter argument which gave rise to the error of law. The decision of the Refugee Review Tribunal was quashed by the High Court, and it was directed to review the delegate’s decision in accordance with law. 
65.	In Wang v State of New South Wales, the Court of Appeal was called upon to deal with a Dranichnikov submission in that it was asserted that the primary judge had failed to address written submissions advanced by the appellant. The Court of Appeal said as follows:
“The submission invoked the decision of the High Court in Dranichnikov … in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.
As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language … and the submissions in relation to wrongful arrest ... Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.” (emphasis added)
66.	Dranichnikov requires that there was a clearly articulated argument being put to the decision maker, based upon established facts, which was not dealt with. As I stated above, the Member has not positively found that the appellant did not suffer from PTSD, indeed there appears to be a tacit acceptance of it by the Member at reasons [181]. Consequently, I accept that the existence of that condition is the ‘established fact’ for the purposes of considering the appellant’s Dranichnikov submission. 
67.	The Member has at reasons [23]–[27] accurately described the appellant’s argument about PTSD being the relevant condition and how this was not related to any disciplinary action. No issue has been taken with respect to this formulation of the appellant’s argument. On appeal the appellant asserts that this was his “primary position”. At reasons [23], the Member described the PTSD diagnosis as being at the “heart of [the appellant’s] case”. Clearly, given this description, the Member well understood the importance the appellant ascribed to this argument. This was the argument that the Member referenced at reasons [156]–[157] before the Member then proceeded to decide this precise argument.
68.	The Member undertook a detailed examination of the evidence, both lay and medical, before the dispositive passages at reasons [171]–[186]. In these passages, the Member found that the psychological injury was predominantly caused by the action taken by the respondent with respect to discipline (at reasons [184] in particular) and not the PTSD. This was the matter at the crux of the dispute as put by the appellant. In my view, a fair reading of the decision as a whole reveals that the appellant’s argument was dealt with. 
69.	I have outlined above an extract from Wang. Wang describes the proper approach to dealing with an argument based upon Dranichnikov. 
70.	Consistent with Wang, I am satisfied that the Member has dealt with the “nature and materiality of the argument in the context of the issues in the proceedings.” At reasons [171]–[186] the Member is deciding, in real terms, the argument advanced by the appellant, ultimately finding that the predominant cause of the appellant’s injury was action with respect to discipline, and not PTSD. I do not accept that the Member failed to address the argument advanced by the appellant. 
71.	This submission based upon Dracnihnikov has not been established. This second limb of Ground One fails.
72.	Both arguments advanced in Ground One have not been successful. Ground One is dismissed. 
As to Ground Two
73.	The appellant frames his argument in this ground in the following way: 
“At the arbitration hearing there was a substantial argument mounted regarding Dr Young’s opinions and that he had opined as to the necessity of psychometric testing to rule in or rule out a PTSD diagnosis.
As was submitted at first instance, psychometric testing was carried out by Ms Britt, which in her opinion confirmed the diagnosis.
Whilst Member Batchelor did reference that evidence in his decision, he did not explain how or why that did not lead him to reject Dr Young’s opinions The Member ought to have provided the reasoning for his decision.”
74.	In reply, the respondent relies upon its responses to Ground One and then proceeds to submit the following about Dr Young’s opinion:
“Dr Young does not say that it is mandatory that the appellant undergo psychometric testing for a diagnosis stress disorder to be made. Dr Young has considered many important inconsistencies in the history and presentation of the appellant. And says that without further factual and objective evidence such as psychometric testing, he did not believe that a diagnosis of post-traumatic stress disorder can be confidently sustained.”
And:
“This ground is premised on the fact that the Member did not properly consider psychometric testing conducted by Ms Britt. The respondent relies on the submissions raised in Ground 1 above but also re-agitates the proposition that the Member simply did not accept that the histories that were provided to the medical practitioners including Ms Britt were reliable.
In the absence of a reliable history, and without the foundational basis for the psychometric testing including the testing itself and the results therefrom, the appellant cannot criticise the Member for not properly considering psychometric testing conducted by Ms Britt. Ms Britt’s report is found at ARD 63. She is a psychologist, (not a psychiatrist or neuropsychologist) who has provided an interim assessment report and has based her results on the self-reporting by the appellant. Moreover, none of the other practitioners appear to have had regard to the psychometric testing to form their conclusions. The Member should not be expected to elevate himself to a position which has not been expected by the appellant from the medical practitioners.”
Consideration 
75.	The essence of the appellant’s complaint in this ground is that the Member failed to explain why he did not reject the opinions of Dr Young. 
76.	As I read the decision, it is apparent that the Member neither rejected nor preferred Dr Young’s opinion to that of the appellant’s medical evidence. Dr Young’s opinion is considered in terms of the history the doctor recorded from the appellant and how the unreliability of that history affected Dr Young’s opinion. Given how Dr Young’s opinion was dealt with by the Member, the alleged error in this ground does not arise. 
77.	In terms of the Member’s decision, it is apparent that the Member reached the following conclusions. Firstly, the Member was not persuaded by the appellant’s medical case. Secondly, on the basis of what he decided at reasons [181], the Member was satisfied that the respondent had discharged its onus under s 11A of the 1987 Act. 
78.	The fact that the Member did not provide reasons why he did not reject Dr Young’s opinion is, in my view, not relevant to this decision. Even if this was an error, which has not been established, this error cannot have affected the result. 
79.	Ground Two has not been established. Ground Two is dismissed.
As to Ground Three 
80.	The appellant submits as follows:
“The medical evidence, other [than] Dr Young presented an overwhelming body of expert evidence supporting the Appellant’s case.
The Member was bound to accept that evidence despite some issues in the histories provided to the experts.”
81.	In reply the respondent asserts that the Member was not bound to accept medical evidence that he had found to be unreliable.
Consideration
82.	Intervention on appeal requires the identification of error. 
83.	It is insufficient to establish error for the appellant to advance the broad, unparticularised submission as appears in this ground. The appellant’s task is to show how the decision was wrong. 
84.	In this case the Member was unconvinced by the evidence of Dr Chow for the reasons expressed at [181]. There is no submission or argument from the appellant as to why the Member was in error in reaching the decision he did at [181]. Indeed this appeal ground proceeds as if that finding had not been made. 
85.	In terms of the appellant’s treating doctors the Member said at reasons [165]:
“I accept that, on the evidence, Dr Avenido, Rodney Ward, and Marie Britt were not fully informed of the serious nature of the criminal proceedings that the [appellant] was facing when they treated him after March 2020. They diagnosed the [appellant] as having symptoms consistent with post-traumatic stress disorder. Whatever the diagnosis, it is clear that from at least the time that these practitioners commenced their treatment of the [appellant] he was suffering from a psychological or psychiatric illness. Prior to that date, Dr Avenido had recorded a depressive anxiety disorder from which he was suffering on 8 August 2018.”
86.	Nowhere does the appellant challenge this construction of the treating evidence by the Member or say why it was wrong. 
87.	With respect to Dr Smith, the Member found the following at reasons [176]:
“Dr Smith does not give an opinion on the causation of the [appellant’s] illness. Like the other treatment providers, he was concerned about his treatment.”
88.	Nowhere does the appellant state why this approach to Dr Smith’s evidence was wrong. 
89.	I do not accept the appellant’s submission that the Member was bound to accept that evidence. To the contrary, the Member was bound to carefully consider and weigh the evidence and decide whether it constituted a sufficient basis to make findings in the appellant’s favour. The Member clearly did not accept that it did and the appellant has failed to show how the Member was wrong. 
90.	Ground Three is dismissed.
As to Ground Four 
91.	The appellant asserts that in a s 11A matter the respondent bears the onus of proof, which submission I accept as the correct formulation of the provision.
92.	The appellant submits as follows:
“In considering if the Respondent had discharged the onus of proof on this matter, the Member ought to have addressed the question of causation with consideration to the medical evidence and circumstances of the matter. 
The test of causation, as observed by Snell ADP in Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130 is ‘the test enunciated in Kooragang Cement Pty Limited v Bates’ which was described to be by Snell ADP, a ‘question of fact to be determined on the evidence in each case’.
Dr Young, as engaged by the Respondent, opined:
‘If his history is taken at face value, he also reports symptoms meeting DSM5 criteria for Post-Traumatic Stress Disorder. There are however many important inconsistencies in his history and presentation which indicate that the reported history cannot be taken at face value’ and ‘[w]ithout further factual and objective evidence such as psychometric testing, I do not believe that a diagnosis of Post-Traumatic Stress Disorder can be confidently sustained’.’ [appellant’s emphasis]
This view is maintained by Dr Young in his further report.
There was no further factual and objective evidence (such as psychometric testing) produced by the Respondent. In the absence of any evidence negating the [appellant’s] history, the Member ought to have made the determination that the history could be taken at face value upon the evidence in support of the [appellant’s] psychological injury arising out of the nature of his employment.
Further, the Member in his determination, makes the finding that he does not accept the opinion of Dr Chow when regard is had to the various matters outlined in paragraph [181].
The matters considered in paragraph [181] do not undermine the history or submission by the [appellant] that he was employed as a Police Officer for over twenty (20) years with the Respondent and was exposed to traumatic events related to his employment including suicides, domestic assaults and murders.
As such, with regard to the medical evidence and circumstances of the matter, the Member erred in fact and law by making the determination that the Respondent had discharged the onus of proof on this matter.”
93.	The respondent asserts that the effect of the appellant’s argument in this ground amounts to a criticism that the Member ought to have accepted the appellant’s evidence at face value, without the Member interrogating the evidence. This approach, the respondent says, would be in error. 
Consideration 
94.	I do not consider that the appellant’s argument in this ground fairly reflects the approach taken by the Member. It is true that Dr Young cautioned against accepting the appellant’s history at face value, suggesting that further evidence is required. But the Member did not decide the matter on the basis of this statement by Dr Young. Rather the Member, as was his duty, undertook the evaluative exercise of assessing the entirety of the evidence in order to reach his conclusions. The appellant’s submission appearing at paragraph [33] of the appeal submissions does not accord with this duty and, as a consequence, I do not accept it.
95.	I now turn to the second argument advanced by the appellant regarding the Member’s finding at reasons [181]. As I have stated above, intervention on appeal requires the identification of error. The appellant’s submission about what appears at reasons [181] fails to state why the Member was wrong to approach Dr Chow’s evidence in that manner. The submission fails to state how any of the matters appearing in sub paragraphs (a) to (g) at reasons [181] are wrong. This aspect of the appeal ground is, in reality, an impermissible complaint about a factual finding without identifying relevant error. 
96.	This ground has not been established. Ground Four is dismissed. 
As to Ground Five 
97.	The appellant submits that he was denied procedural fairness by the Member. While the appellant asserts that this occurred in “various findings of fact throughout his determination”, only two instances where this is said to have occurred are identified. They are: 
“[O]n the evidence, Dr Avenido, Rodney Ward and Marie Britt were not fully informed of the serious nature of the criminal proceedings that the [appellant] was facing when they treated him after March 2020”. 
And: 
“I find it difficult to accept that Mr Paterson, as an experienced policeman, cannot have been unmindful of the illegality and consequences of his actions.”
98.	The appellant argues that “[t]he Member ought to have afforded the [appellant] procedural fairness by way of cross examination to provide the [appellant] with the opportunity to provide an explanation of his presentation and address any conclusions the Member may come to.” 
99.	The appellant then relies upon “Practice Direction (No 18) – ‘Hearing of Proceedings’ issued pursuant to r 18.1 of the 2011 Rules” – presumably referencing the former Workers Compensation Commission Rules and Practice Directions, which the appellant says suggest cross-examination should occur where credit is in issue. 
100.	The respondent says that the issue of procedural fairness does not arise and that it “is not for a Member to flag with a party a difficulty he or she may have with parts of the evidence as the proceedings evolve.” The respondent also says that the rules of the former Workers Compensation Commission have no application to the proceedings. 
Consideration 
101.	There are a number of principles that I will set out before dealing with the substance of this appeal ground.
102.	Firstly, the rules of evidence do not apply to Commission proceedings. Secondly, I agree with the respondent’s submission that the Workers Compensation Commission Rules have no application, those rules having been repealed on the establishment of the Commission on 1 March 2021. To the contrary, the situation is governed by the following rules and instrument. The applicable rules are the Personal Injury Commission Rules 2021, r 34 (Calling witnesses) and r 67 (Documents lodged under division). These rules are supported by Procedural Direction PIC1 at paragraph [38], which states that leave is required for the examination of a witness. I will deal with this ground on the basis of the applicable rules and Procedural Direction. Thirdly, by a combination of the rules I have just recorded, each party must lodge and serve the material, including witness statements, which they intend relying upon. Fourthly, there is no right to cross-examine in the Commission. While the principles set out in Aluminium Louvres at [37] were stated in respect of the former Workers Compensation Commission, the principles are equally applicable to the Commission having regard to the legislation, rules and Procedural Direction I have set out above. Fifthly, in the context of Commission proceedings, there is no denial of natural justice if the party is aware of the case that he or she has to answer and there is an opportunity to reply. Sixthly, a Member of the Commission is bound to observe the obligations of procedural fairness. However, the extent and application of this right must be considered in the light of legal context in which the decision maker is operating. Seventhly, a tribunal decision maker is not required under the rules of procedural fairness to give a “running commentary” upon what the Member is thinking about the evidence. Eighthly and finally, a party is bound by the conduct of their case.
103.	At the hearing of the matter before the Member, counsel for the respondent submitted that the medical practitioners had been given incomplete or false histories. The submission was put that the appellant had tried to downplay or undermine the effect that the criminal proceedings had upon him. Counsel for the appellant did not submit that he was not on notice of this allegation or that it caught the appellant by surprise. Rather the submission was put that, in light of the respondent’s submissions, that allegation as a matter of procedural fairness ought to have been put to the appellant in cross-examination. I would remark that in Dr Young’s report of 25 July 2025, the doctor raised issues with the reliability of the histories provided by the appellant. The doctor states: “[the appellant’s] denial of any adverse psychological impact from these proceedings and from the later criminal conviction is frankly implausible.” And later: “I note especially that [the appellant] maintains that the allegations made against him are false and that he has given minimal details of these issues to Dr Chow.”
104.	In short, before the application was filed by the appellant, he was well aware of the existence of issues pertaining to his credit and how he responded to the criminal charges.
105.	As I have described above, there is no right to give oral evidence in the Commission. Leave is required pursuant to Procedural Direction PIC 1 (paragraph [38]). No such application to examine a witness was made by either party. As stated above, a party is bound by the manner in which the case was conducted. If the appellant considered that it was necessary for him to give evidence to deal with these issues, that application for leave should have been made. 
106.	The issues had been framed in the evidence that had been exchanged by the parties. The two issues raised by the appellant under this ground were live issues in the proceedings. In terms of the second issue of the appellant understanding the consequences of his actions with respect to the criminal charges, this is an unremarkable statement and was part of the evaluative exercise undertaken by the Member. I would remark that the appellant had made much of his long period as a police officer, with previously unblemished service prior to the events which led to the investigation and the laying of charges. I would also remark that Dr Young recorded that the appellant told him that he was “entirely unconcerned by the consequences of the allegations, specifically the disciplinary matters and criminal conviction stating, ‘I was desensitised’ and ‘by that stage I did not care, I didn’t even give evidence’ and maintains that these have had no significant negative psychological impact”. I would note that the appellant responded specifically to this aspect of Dr Young’s report in his third statement. This is to be contrasted with Dr Chow’s history which includes the following statement: “He stated that he was under criminal investigation for 2 years. In February 2020, he was given a notice to attend Court. He stated that he knew that this would affect his career …”. The Member was entitled to look critically at this history and evaluate it, as he did. There is no error or want of procedural fairness in this approach. 
107.	The appellant complains that he ought to have been informed by the Member of the view the Member was taking and afforded an opportunity to be heard. As I have stated above, a Member is not required to provide a running commentary on what the Member is thinking with respect to the evidence, which this argument is suggesting. I do not accept this submission. 
108.	As was described in Winter, the Commission operates in the context of its rules, procedural directions and practices. The parties exchange all their material which frames the issues which are in dispute and which require determination. This was done in this matter and importantly there was no complaint that either of the two issues complained about on appeal were not previously notified.
109.	There has been no denial of procedural fairness.
110.	Ground Five is dismissed. 
COSTS
111.	The respondent has sought an order that the appellant pay its costs of the appeal. I would note that the appellant has also sought costs of the appeal. The usual order is that costs follow the event, there will be an order for costs in favour of the respondent. 
DECISION
112.	The Certificate of Determination dated 26 February 2024 is confirmed. 
113.	Pursuant to s 352(4) of the 1998 Act, time for the filing of this appeal is extended to 27 March 2024. 
114.	The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.
Judge Phillips
President
29 January 2025