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

CITATION:	State of New South Wales (Hunter New England Local Health District) v Chislett [2025] NSWPICPD 18	
		
APPELLANT:	State of New South Wales (Hunter New England Local Health District)	
		
RESPONDENT:	Lauren Chislett	
		
INSURER:	QBE TMF	
		
FILE NUMBER:	A1-W5383/23	
		
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney	
		
DATE OF APPEAL DECISION:	6 March 2025	
		
ORDERS MADE ON APPEAL:	1.	The Member’s orders in the Certificate of Determination dated 28 February 2024 are confirmed.	
		
CATCHWORDS:	WORKERS COMPENSATION – Psychological injury; alleged misuse of concession in respect of ‘injury’; proof of ‘main contributing factor’ where sections 4(b)(ii) and 16 of the Workers Compensation Act 1987 apply; s 11A(1) of the Workers Compensation Act 1987; proof of ‘wholly or predominantly caused by’; alleged multiple errors in fact finding	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Ms N Compton, counsel	
	Hicksons Lawyers	
		
	Respondent:	
	Mr C Joshua, solicitor	
	Hall Payne Lawyers	
		
DECISION UNDER APPEAL:	Chislett v State of New South Wales (Hunter New England Local Health District) [2024] NSWPIC 92	
		
MEMBER:	Mr G Whiffin	
		
DATE OF Member’s DECISION:	28 February 2024	

INTRODUCTION
1.	Lauren Chislett (the respondent) was formerly employed by the State of New South Wales (Hunter New England Local Health District) (the appellant). Before the events which occurred on 15 February 2022, she worked full-time as an administration officer at the emergency department of the Belmont Hospital. 
2.	On 21 February 2022, the respondent was formally notified of allegations of misconduct arising from her actions during the evening shift on 15 February 2022. A letter signed by Jade Osland, the appellant’s acting administration manager, stated that an investigation would be conducted into two allegations. First, that the respondent had approached an 8-year-old patient in the emergency department and offered to remove a fishing hook from his leg with pliers. Secondly, that she had asked the triage nurse to show her how to order x-rays “under her CAP login” in order to assist her. The letter stated that these actions were beyond the scope of her duties as an administrative officer. It implied they were within the province of a registered nurse or other medical professional. 
3.	As a result of a risk assessment undertaken by the appellant, the respondent was removed from the emergency department and rostered on day shift in ward 1FNB “to allow for greater supervision and support whilst the investigation takes place”. She was required to respond in writing to the allegations by providing her version of events and any additional information she wished to be considered in the matter.
4.	On receipt of the letter, the respondent ceased work and availed herself of sick and long service leave. On 10 March 2022, she was advised in writing that both allegations of misconduct had been proven. Her conduct on 15 February 2022 was “not at an acceptable standard” and was “inconsistent with aspects of the NSW Health Policy Directive – NSW Health Code of Conduct.” The letter stated that in acting outside the scope of her position she had “placed the safety of yourself, patients and other staff at risk.”
5.	It was proposed that the respondent be issued with a formal warning; be required to undertake online training modules; and be placed on a formal performance improvement plan (PIP) during which she should work under “increased supervision in the clinical rostering support officer position for Belmont Hospital.” 
6.	The respondent commenced in the clinical rostering support officer (CRSO) role on 21 March 2022. However, on 23 March 2022, she was seen by a Dr Arnold, in the hospital’s emergency department, who issued her with a certificate of unfitness for the period 23 March to 25 March 2022. The respondent did not return to work until 13 April 2022, at which time she was certified fit for a return to work by her treating psychiatrist, Dr David Burton, subject to the provision of “fulsome training, support and orientation to the role”.
7.	Between 1 June 2022 and 28 July 2022, Ms Osland met with the respondent on a weekly basis as envisaged by the PIP implemented by the appellant. On 24 June 2022, the PIP was extended to the 12-week period between 30 June 2022 and 23 September 2022.
8.	After returning to the CRSO position on 19 April 2022, the respondent experienced difficulties communicating with Michelle McGregor, the appellant’s acting Director of Nursing. She perceived that she was unable to please Ms McGregor, who she found demanding and critical. She believed that the outcome of the investigation and the extension of the PIP was unjust. She informed the appellant that she could not “survive financially” on her base rate salary as a CRSO. 
9.	The respondent continued to consult her psychiatrist throughout this period. She also sought the assistance of her union to deal with the implementation of the PIP. On 27 July 2022, during a telephone conversation about staffing needs with Barbara Fazzini, a clinical support officer at the Belmont Hospital, the respondent “broke down” and cried. She told Ms Fazzini that Ms McGregor did not “communicate with her”, made her feel inept; and became angry with her. She stated that, perhaps, she should “just end it all”. Ms Fazzini informed Ms Osland of the respondent’s presentation.
10.	Following her conversation with Ms Fazzini, Ms Osland met with the respondent to discuss her mental health. She offered to take her to the emergency department. However, the respondent declined and went home. On 28 July 2022, Ms Osland and Kellie Grice, of the appellant’s human resources department, again met with the respondent and informed her that they felt she was not fit to attend work. They requested permission to contact her treating psychiatrist. The respondent then attended an EAP appointment organised by Ms Osland. She stated that she was going home to her parents’ place. She has not returned to work.
THE ARBITRAL PROCEEDINGS
11.	Following the cessation of her employment, the respondent made a claim for compensation on the appellant’s workers compensation insurer, QBE Insurance (Australia) Limited (QBE). On 9 September 2022, QBE denied liability to pay compensation for her psychological injury pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It stated that it did not accept that the respondent suffered an injury in the course of her employment or that her employment was a substantial contributing factor to the injury as required by s 9A of the Workers Compensation Act 1987 (the 1987 Act). Further, it stated that any entitlement that the respondent had to compensation was extinguished by the operation of s 11A of the 1987 Act as any psychological injury was wholly or predominantly caused by reasonable action by the appellant with respect to performance appraisal, discipline, and/or provision of employment benefits to workers under s 11A of the 1987 Act.
12.	On 20 January 2023, QBE issued a review notice pursuant to s 287A of the 1998 Act in response to a request by the respondent’s solicitors. It reiterated the reasons for denying liability to pay compensation in the original s 78 notice. It added that:
“… the factual evidence demonstrates that the actions taken by your employer in relation to the events leading up to 27 July 2022 and the meeting of 28 July 2022 were undertaken reasonably and in line with all relevant policies and procedures.”
In those circumstances, it maintained a denial of liability under s 11A(1) of the 1987 Act.
13.	By these proceedings, the respondent claimed weekly compensation from 28 July 2022 and an indemnity in respect of her medical and hospital expenses pursuant to s 60 of the 1987 Act. The Application to Resolve a Dispute (ARD) alleged aggravation, acceleration, exacerbation or deterioration of a disease (being the respondent’s pre-existing psychological condition). The date of injury alleged was 28 July 2022, the respondent’s last date of employment and first date of incapacity for the purpose of s 16 of the 1987 Act. The injury description in the ARD is as follows:
“The [respondent] was subject to unreasonable disciplinary action in or about 21 February 2022. The [respondent] was then performance managed and was moved to a different department in April 2022. From April 2022 to 28 July 2022, the [respondent] was subjected to bullying and harassment by her manager.”
14.	When the matter came on for a conciliation conference and arbitration hearing on 6 November 2023 before Member Whiffin, Ms Dalrymple, of counsel, appeared for the respondent and Ms Compton, of counsel, appeared for the appellant. As the matter could not be resolved it proceeded to a hearing. Other than brief cross-examination of Ms Osland by counsel for the respondent, the matter proceeded on the basis of the written evidence. Given the constraints of time, at the direction of the Member, the parties furnished written submissions.
THE MEMBER’S REASONS
15.	By his statement of reasons, the Member recorded the issues in dispute as follows:
“(a)	did the [respondent] sustain a psychological injury in accordance with s 4 of the 1987 Act as a result of employment events occurring during the course of her employment with the [appellant] between 21 February 2022 and 28 July 2022;
(b)	if the answer to (a) is in the affirmative, was the injury (in accordance with s 11A of the 1987 Act) wholly or predominantly caused by reasonable action taken or proposed to be taken by the [appellant] with respect to transfer, discipline, performance appraisal, or the provision of employment benefits, and
(c)	if the answer to (a) is in the affirmative and the answer to (b) is in the negative, whether (and if so, to what extent) the [respondent] has been incapacitated for work as a result of the injury, since 28 July 2022.”
16.	In relation to the first issue, the Member noted what he described as a “qualified concession” by the appellant, which he recorded in full:
“The [appellant] concedes that the [respondent] sustained an injury pursuant to s 4 and [s] 9A, being an exacerbation of an underlying psychological condition, Arising from events which occurred from and relating to 15 February 2022 (the emergency department event), and the subsequent disciplinary process arising from that event. The [appellant] alleges however, that the injury was wholly or predominantly, pursuant to s 11A caused by the reasonable action taken or proposed to be taken on behalf of the employer with respect to discipline, performance appraisal, and transfer, and provision employment benefits arising from the events of 15 February 2022 [sic]. The [appellant] does not concede injury with respect to any other series of events.”
17.	The Member recorded the appellant’s argument that events other than those arising from the events of 15 February 2022 and the associated disciplinary proceedings were not causative of the respondent’s psychological injury. He rejected that argument and found that there were “a number of other employment events” which were causative of her injury. He also held that it was unnecessary for each of the employment events to be found the main contributing factor to the aggravation of a disease. After considering the reasons of Snell DP in AV v AW, he concluded that it was clear:
“that all work factors need to be combined and considered together when determining whether employment is the main contributing factor to the aggravation of a disease.”
18.	The Member accepted that part of the respondent’s disquiet with Ms McGregor may arise from “perception”. Nonetheless, he concluded that they were real events, and that the respondent’s perception of the events affected her psyche.
19.	The Member accepted the evidence of the respondent where it differed to that of the appellant’s witnesses, Ms Osland and Ms North. He also accepted the evidence of the respondent’s treating psychiatrist, Dr Burton, in preference to the other medical evidence in the case. Accepting Dr Burton’s opinion, he concluded that in addition to the disciplinary process following 15 February 2022 involving her transfer, 13 other stressors/events needed to be considered “when determining causation” of the respondent’s psychological injury.
20.	After analysing the medical evidence, the Member held that these events cumulatively contributed to the respondent’s psychological injury. He specifically accepted that the evidence established a significant exacerbation of the respondent’s condition between 14 July 2022 and 28 July 2022. He found this was consistent with the opinion of Dr Burton. He continued:
“The [respondent] alleges the exacerbation to be due to bullying and harassment by McGregor, and in my opinion, during that period, there is little evidence to the contrary.”
21.	The Member then turned to the appellant’s defence under s 11A. He held that an evaluation of the causal potency of the various stressors to which the respondent was exposed in the course of her employment led to the conclusion that the disciplinary process was not the predominant cause of her psychological injury. He found there were multiple factors “which contributed to her psychological injury (especially those events which involved conflict with McGregor)”. He found that the “disciplinary process was not the main, principal or predominant cause of the injury.”
22.	Relevantly, the Member made three critical findings:
“1.	The [respondent] sustained injury in accordance with s 4(b)(ii) of the [1987 Act], being the aggravation, acceleration, exacerbation, or deterioration of her psychological condition in the course of her employment with the [appellant], and to which the employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the condition. The injury will be deemed to have occurred on 28 July 2022. 
2.	The [appellant] has failed to establish (pursuant to s 11A of the 1987 Act) that the [respondent’s] injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to transfer, discipline, performance appraisal or the provision of employment benefits.
3.	The [respondent] has had no work capacity as a result of the injury since 28 July 2022.”
23.	On the basis of these findings, the Member made an award of weekly payments in favour of the respondent and ordered that the appellant pay her medical and hospital expenses in accordance with s 60 of the 1987 Act. 
ON THE PAPERS
24.	Section 52(3) of the Personal Injury Commission Act 2020 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.”
25.	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
26.	There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
EVIDENCE
27.	The Member’s reasons contain an extensive and accurate summary of the lay evidence in the matter including that of the respondent, Ms Osland, and Ms North at reasons [20]–[108]. His recording of this evidence is not disputed. As causation is a central issue in respect of both injury and s 11A, a review of the medical evidence may assist in understanding the issues in dispute and the outcome of the appeal. 
Dr Burton
28.	Dr Burton, psychiatrist, treated the respondent from 2017. In a report of 20 April 2021, he recorded that she was struggling with “prominent frustration and anxiety in relation to her employment”. This was against the background of her pre-existing “OCD” and “PTSD”. The doctor recorded that:
“Lauren has a complex trauma syndrome which has manifested over her life as anxiety with obsessions and compulsions.”
He noted that she was to remain on her medications (sertraline and quetiapine) and that she was to commence treatment with a psychologist.
29.	On 23 July 2021, Dr Burton recorded that there had been a “general lowering of her stress” with her secondment away from the emergency department during the COVID lockdown. However, he recorded that her “affective dysregulation” continued with periods of dysphoria and anxiety in response to stress.
30.	Dr Burton noted that the respondent had not had an “impressive response” to medication. He thought her “main form of management needs to be consistent therapy with diligent application of psychology homework.”
31.	When Dr Burton saw the respondent on 28 February 2022, she was “distressed and highly anxious due to a complaint made against her at work”. He recorded that:
“she became increasingly worried about the registered nurse in charge. She detailed concerns about the nurse’s decision making and her high levels of expressed stress.”
32.	Dr Burton recorded the circumstances surrounding the removal of a fishing lure from a patient’s leg which gave rise to the complaint against her. The doctor recorded that:
“Lauren is experiencing an acute exacerbation of her complex PTSD with a predominantly anxious and distressed mood secondary to a complaint at work. She does not appear to be clinically depressed or at risk, although she is at risk of developing a depressive episode.”
Dr Burton recommended that the respondent should pursue “non-pharmacological management with regular mental state reviews”.
33.	On 17 March 2022, the respondent reported to Dr Burton that a formal warning had been placed on her record, and that she had been placed for “a minimum of 3 months in a supervised role without patient contact”. She thought that this was “unjust” and would “cripple her financially”. She described her mood as “worried” and “angry”.
34.	Dr Burton expressed the opinion that the respondent was experiencing symptoms of “heightened stress with impaired sleep, a highly anxious and worried mood, and low energy”. He proposed a change to her medication. He also proposed to write to management to ascertain “if a less severe response” may be possible.
35.	Dr Burton saw the respondent again by telehealth on 25 March 2022, 31 March 2022, 8 April 2022 and 12 April 2022. Following the latter appointment, he recorded that she was:
“managing to navigate this challenging time although with considerable distress and anger.” 
36.	The doctor recorded that although the respondent continued to present as “defeated and overwhelmed”, there were “also statements that were future focused and an attitude that she would survive this ordeal”. Dr Burton recorded that:
“Lauren is slowly accommodating to the idea that she will need to be seconded to an administration term in rostering for a period of supervised employment. The intensity of her reactivated complex trauma symptoms is settling. She remains overly sensitive in her mood and vulnerable to further decline.”
37.	Dr Burton recorded that the respondent had “found the process of a formal complaint … ‘humiliating’ and ‘overwhelming’” but she was ready to return to work on 13 April 2022 in administration. The doctor provided her with a “clearance” to return to work. He recorded that;
“On one hand she is looking forward to returning to work but she has concerns that she has not received adequate training for her new temporary position. I have written to her supervisors and highlighted the need for high levels of support and thorough orientation to the new role.”
38.	On 22 April 2022, Dr Burton expressed the following opinion:
“Lauren presented as considerably more relaxed and cheerful than previous. She spoke and interacted well. Her speech was spontaneous, fluent, and grammatical. She described her mood as ‘more stable’, ‘improved’ and ‘not too bad’.”
39.	The doctor stated there were no melancholic or despondent themes on examination, although the respondent expressed ongoing frustration with her work and the recent disciplinary processes. He was “pleased” that “she has settled into her new position at work”.
40.	On 20 May 2022, the respondent reported at a telehealth consultation that she continued to experience “prominent frustration, anger and anxiety” with her work situation. She described a “poorly supported position with excessive work.” She was struggling to complete her duties within her allocated work time, she was “unable to take breaks during the day”. Dr Burton wondered whether the respondent was being “utilised by the hospital to fill an untenable position”. He encouraged her to join a union.
41.	On 17 June 2022, Dr Burton wrote to the appellant noting that a request for the respondent’s records from the Belmont emergency department had a “detrimental effect on her mental health”. He continued:
“I have been informed by Ms Chislett that there is no end date for her secondment to rosters and that several aspects of the plan implemented by your service have not been followed through on. She informs me that she still has not received a job description for her current position. I am writing to inform you that these issues are having a highly detrimental and harmful effect on her mental health.”
42.	On 14 July 2022, Dr Burton noted that he had reviewed the respondent on 20 May 2022, 3 June 2022, 10 June 2022, 15 June 2022, 17 June 2022, 21 June 2022, 28 June 2022 and 14 July 2022. He reported that she spoke with “insight and considerably less distress” about her experience at work. He recorded that her level of distress had settled and that she was able to function well with her ability to recruit appropriate support for her current situation.
43.	On 13 December 2022, Dr Burton wrote a letter in which he noted the opinion of the respondent’s general practitioner as to her ability to continue work in rostering conflicted with his letter of 19 August 2022. He continued:
“I can state that my opinion, as expressed in my letter dated 19th August 2022 that Lauren could return to work in rostering was in error. While Lauren certainly expressed a desire to return to full time work in the emergency department she was categorically unfit for any return to work within rostering. Lauren developed a severe acute stress reaction after her treatment by Belmont Hospital and it would be both harmful and potentially dangerous for her to return, at any stage, to any form of employment within rostering. Lauren remains unfit to return to this position and in my professional opinion, due to the severity of her work placed [sic] bullying, she will not have capacity to return to rostering in the future.”
44.	On 22 July 2022, Dr Burton recorded in a note that the respondent’s work remained “stressful with ongoing tension [between herself] and her supervisors.”
45.	A consultation note of 19 August 2022,records the difficulties that the respondent perceived in her work relationship with Michelle McGregor and in her role in rostering. It states:
“She was declared mentally unfit on 27th July.” 
Dr Burton also records:
“Lauren has detailed numerous incidents to me that are of concern. One involving conflicting instruction from Ms Michelle McGregor is of particular concern. Lauren alleges that he has been informed by Michelle McGregor that ‘you creep me out’. Lauren also denies threatening suicide although she admits to statements about being overwhelmed and unable to cope.”
Dr Abhishek Nagesh
46.	Dr Nagesh, a psychiatrist, provided a report to the appellant’s solicitor dated 29 November 2022. He recorded an extensive history from the respondent of the events in the emergency department on the evening of 15 February 2022. He recorded the respondent’s perception that the triage nurse’s “behaviour was deteriorating”; that there were delays in the triage process as the nurse was “distracted”; and that her behaviour was “disruptive”. It also records a history of the respondent’s intervention with the triage nurse to facilitate the removal of a lure which was placing pressure on a fishing hook embedded in a child’s leg. After the use of pliers failed to achieve this, the respondent approached a paramedic (elsewhere described as a trainee paramedic) who cut the line.
47.	Dr Nagesh recorded that the respondent’s actions resulted in a complaint that she had acted outside the scope of her duties on 15 February 2022. The doctor then recorded the respondent’s version of the investigation; her removal from the emergency department; the official warning; and her return to work on a PIP in April 2022. Dr Nagesh also recorded “several incidents’” involving conflict with Ms McGregor whilst working as a CRSO. The history continued:
“the final straw was being daily verbally abused and verbally attacked by Michelle McGregor who Lauren alleged verbally abused her, bullied her, harassed her on multiple occasions. Lauren alleged that the sound of Michelle McGregor’s shoes made her anxious. Lauren alleged that there were no clear guidelines from Michelle McGregor in the last 2 weeks of work.”
48.	After recording a history, including a history of the respondent’s pre-existing psychological condition, Dr Nagesh offered the following opinion:
“Ms Chislett alleged that she was falsely accused of deviating from her role while working in the Emergency Department, she alleged that the investigation into this complaint was not conducted properly, and she was removed from her role as an administrative assistant from the Emergency Department. Lauren also alleged that she was placed as a [CRSO] where proper training was not provided. She alleged being placed on performance management plan inappropriately and she also alleged that while she was working as a [CRSO] she alleged being verbally abused, bullied and harassed by Michelle McGregor. In the context of the above alleged stressors, she has alleged [sic] to have developed the following symptoms:
Depressed mood
Anxiety
Insomnia
Nightmares
Fluctuating appetite
Lack of energy, lack of motivation 
Social withdrawal
Loss of interest in her hobbies
Suicidal thinking
Inability to concentrate
Due to the above alleged symptoms, I am of the opinion Ms Lauren Chislett has suffered from an episode of major depressive disorder of moderate degree with anxiety features.”
49.	Dr Nagesh expressed the opinion that the aggravation of the respondent’s psychological condition resulted entirely from her employment. He stated:
“In my opinion, the [respondent] has suffered a primary psychological injury arising in the course of her employment with the [appellant] as alleged by her. The [respondent] has alleged multiple stressors which has been detailed in the History of Presenting Illness and in the context of the bullying and harassment the [respondent] has alleged to have suffered a primary psychological injury.”
50.	Dr Nagesh also expressed the opinion that while the respondent had a “significant history of psychological injuries”, her “employment with the [appellant] is a substantial contributing factor to her psychological injury”. This was because the respondent’s pre-existing condition was in remission, and she was working full time at the time of the alleged injury. Further, he asserted that employment with the appellant was the “main contributing factor to the development of her psychological disease.” 
51.	The doctor was also asked whether the respondent’s psychological injury was:
“wholly or predominantly caused by the reasonable action taken by the [appellant] with respect to performance appraisal and/or discipline and/or the provision of employment benefits under section 11A(1) of the 1987 Act.”
52.	The doctor responded as follows:
“On the balance of probabilities, in my professional opinion, I consider that the [respondent’s] psychological injury was wholly or predominantly caused by reasonable action taken by the [appellant] with respect to performance appraisal, discipline and the provision of employment benefits under s 11A of the 1987 Act.
My rationale for this is the [respondent] alleges that her symptoms developed in February 2022 which was after complaints were made against her and the outcome of the investigations were provided to her. The complaints made against the [respondent] have also been substantiated after the investigation. The evidence provided to me states that ‘the [respondent] was working as an admin support officer, and she was deviating from her role where she was trying to get involved in a clinical role. The [respondent’s] symptoms have become worse after she was placed on a performance improvement plan and the meetings of 28 July 2022 has been perceived by the [respondent] as being bullied and harassed. Also, the timeline of events where the [respondent] went off work which was on 28 July 2022 where the [respondent’s] behaviour at work indicated that she was not well enough to work has given rise to her alleged psychological injury.”
53.	By a further report of 15 June 2023, Dr Nagesh reiterated his opinion that the respondent’s psychological injury was “predominantly caused by reasonable action taken by [the appellant] with respect to performance, discipline, transfer, and the provision of employment benefits.”
Dr Clayton Smith
54.	Dr Smith, a psychiatrist, saw the respondent at the request of her solicitors on 1 December 2022, and provided a report dated 20 December 2022. He recorded an account of the events of the evening of 15 February 2022 and its immediate aftermath which is consistent with that recorded by Dr Nagesh. He recorded that bullying while working in the rostering role became “a daily occurrence”. He recorded that the respondent thought that her “mental health deteriorated, and she had suicidal thoughts.” The history continued:
“She said she was not coping, was walking on eggshells and felt uncomfortable in the building (the executive admin building). She said she had been isolated from all of her colleagues in the emergency department and was not allowed to talk to them. This left her with no support network.”
55.	The doctor recorded that the “final straw” was an incident involving the director of nursing [Ms McGregor] who told her that she “creeped her out” and criticised the quantity of emails that the respondent sent her. At this time a colleague called her manager informing her that she was expressing suicidal thoughts. The appellant determined that she was unfit for work, and she was stood down “until she was medically cleared”.
56.	The doctor recorded the respondent’s lengthy psychiatric history which commenced when she was a child. After reviewing the documentation, including the reports of Dr Burton and the correspondence from the appellant in relation to the events of 15 February 2022, Dr Smith expressed the following opinion:
“She developed an aggravation of anxiety and depressive symptoms in the context of perceived unreasonable performance management and lack of support from her employer after an incident in February 2022 when she acted outside the bounds of her position. She was placed on a performance improvement plan, moved to alternative duties, alleged ongoing bullying from the Director of Nursing in her new position, was under financial stress due to a drop in income, and had difficulties adjusting to medication with a substantial deterioration in her mental health.”
57.	After reviewing the respondent’s “substantial mental health history”, Dr Smith expressed the opinion that:
“Being declared medically unfit and moved from the emergency department was a significant blow to her sense of self and effectively cut her off from all social support leaving her isolated except for her immediate family in Parkes. She was also under financial duress.”
58.	He continued:
“I consider the current episode to be an aggravation of her pre-existing conditions. The cause of her condition was performance management and transfer, actions that Ms Chislett considered unreasonable and unwarranted. The account provided by Ms Chislett’s employer detailed an employee unable to cope with the demands of their employment due to significant mental health problems.”
GROUNDS OF APPEAL
59.	The appellant relies on seven grounds of appeal which I record verbatim below:
(a)	The Member erred in law in his findings that there was an agreement on injury as a whole [Paragraph 151 and 152]. (Ground 1)
(b)	The Member erred in law in his conclusions with respect to injury within the meaning of s 4(b)(ii) of the Act [Paragraph 249] and the Member erred in law in his finding as to factual causation [Paragraph 154–156]. (Ground 2)
(c)	The Member erred in law in his failing to consider the arguments as to injury as articulated by the respondent worker, and his conclusions with respect to employment being the main contributing factor in accordance with section 4(b)(ii) of the 1987 Act [Paragraph 190]. (Ground 3)
(d)	The Member erred in his conclusions regarding s 11A, that the injury was not wholly or predominantly caused by the reasonable actions of the appellant [Paragraph 222–223; 250]. (Ground 4)
(e)	The Member fell into error with regards to his conclusions with respect to the opinion of Dr Smith – with respect to the s 11A and in turn the opinion with respect to the s 4(b)(ii) conclusions [paragraph 217–219]. (Ground 5)
(f)	The Member erred in failing to consider whether the actions of the appellant were reasonable – the second limb of s 11A. (Ground 6)
(g)	REGARDING INCAPACITY – The Member erred in his conclusions that the worker had no incapacity or work capacity from 28 July 2022 [Paragraph 251], and when considering the matters in s 32A – for which the appellant was not given an opportunity to address [Paragraph 244]. (Ground 7).
Discussion
60.	Ground 6 is otiose. As the Member found that the appellant had not proven that its actions with respect to discipline, transfer, and performance appraisal were the whole or predominant cause of the respondent’s psychological injury, it was strictly unnecessary for him to determine whether those actions were reasonable. Arguably, it is best practice for a Member to determine both the “whole or predominant cause” issue and the “reasonableness” issue, if they are both pressed at an arbitration hearing. That course may lessen the prospects of a successful appeal or diminish the issues to be dealt with on a rehearing. But the failure to address it in this case does not constitute an error and I do not propose to address this ground again.
61.	Ground 1 concerns the use made by the Member of the appellant’s concession on the injury issue, although its submissions also allege a failure to address s 4(b)(ii) and assert that it was “not open” to the Member to “make findings on injury as he concluded”. The arguments in respect of Grounds 2–5 overlap and are repetitive. The arguments do not always relate to the relevant ground of appeal. There are also inconsistencies in the submissions, which largely undermine the appellant’s contentions. Grounds 2 and 3 also allege error in the Member’s approach to injury and his failure to address whether aspects of the respondent’s employment were the main contributing factor to the aggravation of her disease as required by s 4(b)(ii), which the parties accept was the relevant limb of the definition of injury in the circumstances of this case. 
62.	However, the appellant also makes two further submissions. First:
“… that for each of the submitted ‘alleged causes of injury’ as articulated by the Respondent Worker, the member was required to consider to the relevant standard, that is - was employment the main contributing factor to the aggravation acceleration etc [of the disease]…”
Secondly, that there was no medical evidence to support the Member’s findings at [175] that several aspects of the respondent’s employment, other than discipline, contributed to her psychological injury. While the latter argument is not a ground of appeal, the absence of evidence to support a finding may give rise to an error of law. 
63.	The appellant also submits that the Member erred in preferring the respondent’s written evidence to “the timeline of actual events” and “without consideration of the summary attached to the [appellant’s] submissions”. These are criticisms of the Member’s findings of fact. However, the Member was obliged to determine the matter on the evidence not by reference to a summary or chronology.
64.	Grounds 4 and 5 also challenge the Member’s findings of fact in respect of injury and whether the employer’s actions were the whole or predominant cause of the respondent’s psychological condition. The appellant’s submissions allege error in his finding that a “multitude of matters” were causative of her psychological condition. They allege error in his understanding of the conclusions of Dr Smith, the respondent’s qualified psychiatrist, who opined that it was “performance management and transfer” which were causative of injury; and in accepting the opinion of Dr Burton, who relied solely on the evidence of the respondent in forming his opinion.
65.	Ground 7, which attacks the Member’s finding of total incapacity, states that it was made “without reference to the submissions of the parties – and without consideration as to the medical evidence.” The appellant submits there was a breach of procedural fairness as it did not have the opportunity to make submissions on point. It also argues that there was no medical evidence to support the finding.
LEGISLATION
66.	Section 4 of the 1987 Act is as follows:
“injury—
(a)	means personal injury arising out of or in the course of employment,
(b) 	includes a disease injury, which means—
(i)	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) 	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
67.	Section 11A(1) states:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
DISCUSSION
68.	This case was argued on the assumption that the respondent suffered a pre-existing psychological disease. There can be little doubt, as the Member found, that this is correct. In Federal Broom Co Pty Ltd v Semlitch, Kitto J said:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”
69.	Where, as here, it is accepted that an aggravation of the disease is caused by cumulative stressors over a period of time, it has generally been characterised as a work-aggravated disease to which s 4(b)(ii) and s 16 of the 1987 Act apply.
70.	In these circumstances, it will be necessary to consider all of the causes of the aggravation, whether or not they result from the employment, to determine whether employment is the main contributing factor to the aggravation of the disease. As the case law emphatically establishes, it is unnecessary for the work related causes to be the main contributing factor to the disease entity as a whole. To use the language of Einstein J in Murray v Shillingsworth, in an aggravation case, “the only compensation is for the effect of the aggravation and not for the effect of the original non-aggravated disease.” (emphasis in original)
71.	As several of the grounds of appeal involve s 11A, it is instructive to state the fundamental principes applicable to the operation of the section. The exposition of the law in Northern New South Wales Local Health Network v Heggie provides a useful starting point for any decision involving the section. In that case, Sackville AJA relevantly said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the [1987] Act: 
(i) 	A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
 (ii) 	Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
…”
72.	There is a long line of authority emanating from Presidential members of the former Workers Compensation Commission that the word “predominantly” in s 11A can be equated to “mainly” or “principally”: McCarthy v Department of Corrective Services. In See v Commissioner of Police, Neilson DCJ noted that the word “mainly” was used in the 1987 Act in contexts other than s 11A(1). In those circumstances, “predominantly” should be given a different gloss. At [138] his Honour stated: 
“Having reviewed the dictionaries and these authorities, I prefer to gloss ‘predominantly’ with the adverb ‘chiefly’. To me it means much more than merely 51%, which is where ‘mainly’ usually leads. To predominate something must eclipse each other factor and all other factors.”
73.	It was not submitted in this case that the approach in McCarthy and the cases that follow it was wrong. It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue in this case.
74.	As Hamad v Q Catering Limited makes clear, medical evidence may be important in determining whether an employer’s actions within s 11A(1) are the whole or predominant cause of a psychiatric injury. But whether these actions are the whole or predominant cause of a worker’s psychiatric injury remains an issue of fact and degree for the tribunal of fact. In Department of Education & Training v Sinclair, Spigelman CJ (Hodgson and Bryson JJA agreeing) said:
“To avoid the absurdity that arises from a literal approach, and having regard to the context of the legislative scheme and its purpose, it is necessary to understand s 11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to ... discipline”. (emphasis in original)
75.	While s 11A(1) requires an evaluation of those actions that fall within it with all other employment related causes of psychological injury, the identification of the causes of injury remains within the province of the fact finder. Medical evidence as to causation may not always be accepted because it is inconsistent with other evidence. Similarly, lay evidence as to the causes of psychiatric injury may be of little or no weight because it is unreliable or because of a tribunal’s preference for other evidence. 
76.	The principles applicable to fact finding in an appeal under s 352 of the 1998 Act have been discussed extensively in the case law, commencing with the decision of Roche DP in Raulston v Toll. Roche DP said this at [18]–[21]:
“In applying the above provisions, the Commission will have regard to the following general principles and authorities.
First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted [‘Member’] for ‘trial judge’ where appropriate):
(a)	[A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential Member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)	Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member] decision must be displaced’. It is not enough that the Presidential Member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)	It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.’
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”
77.	In Heggie, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”
78.	In Workers Compensation Nominal Insurer v Hill, Basten JA said the following at [20]:
“If, on appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”
Ground 1 – Error in finding “agreement on injury as a whole”
79.	The language of the concession made by the appellant in respect of injury is ambiguous. It is not clear which of the appellant’s actions are caught by the concession. At the arbitration hearing, the appellant submitted that the following issues required determination by the Member:
“a.	Was the injury wholly or predominantly, pursuant to s 11A caused by the reasonable action be taken to be taken [sic] on behalf of the employer with respect to discipline, performance appraisal, and transfer, arising from the events of 15 February 2022.
b.	Did the [respondent] sustained [sic] an injury arising from the performance management between April 2022 and 28 July 2022.
c.	Did the [respondent] sustain an injury as a result of the bullying and harassment that the [respondent] sustained from her manager.”
80.	The appellant argued that in respect of each of these three “alleged causes of injury” the respondent must prove that the employment was the “main contributing factor to the aggravation, acceleration etc” of the disease.
81.	This delineation of the issues for determination suggests that the appellant’s concession related to its actions in investigating the complaint against the respondent, finding that she engaged in misconduct, issuing a warning, transferring her from the emergency department to rostering, and, possibly, to establishing a PIP. It is to those actions that the appellant says that its defences under s 11A(1) apply. While the appellant argued that performance management between April 2022 and July 2022 and bullying and harassment from Ms McGregor were not causative of the respondent’s psychological injury, it did not argue that these actions were caught by s 11A.
82.	In concluding its written submissions, the appellant again drew a distinction between bullying and performance management and its action following 15 February 2022. It submitted that:
“the [respondent] has not established that she suffered an injury arising from her employment regarding the bullying and harassment nor the performance management plan.
The [appellant] further submits that the [respondent’s] injury arises wholly and predominantly from events which occurred from 15 February 2022 and the discipline and performance appraisal and transfer that followed that process.”
83.	The dichotomy between the events that followed 15 February 2022, on the one hand, and the PIP on the other, may reflect the assumption that an employer’s actions in maintaining an extended PIP do not fall within s 11A(1). There is a long-standing authority for the proposition that neither a PIP nor performance management is necessarily commensurate with the term “performance appraisal” in s 11A. In Irwin v Director General of School Education, Judge Geraghty referred to “performance appraisal” as being something like an examination. That is something that occurs over a relatively short period of time. By contrast, a PIP may persist over weeks, and training months and years.
84.	In Dunn v Department of Education and Training, after referring to his earlier decision in Irwin, Geraghty CCJ concluded that an enhancement program to which a teacher was subjected for well over a year did not fall within the phrase “performance appraisal”. In Bottle v Wieland Consumables Pty Ltd, Nielson CCJ followed the reasoning of Geraghty CCJ. He expressed the opinion that the term performance appraisal was equivalent to a process of putting a monetary value on work. These cases are well-known and have been repeatedly applied by members and Presidential members of the Workers Compensation Commission and the current Commission.
85.	In Chisholm v Thakral Finance Pty Ltd t/as Novotel Brighton Beach, Roche DP criticised an arbitrator for substituting the term “performance management” for “performance appraisal”. He stated that the former term is “not in s 11A and the Arbitrator erred in referring to it.” Equally, it should be borne in mind that “performance improvement plan” is not a term used in s 11A(1) although I accept, given the width of the term “with respect to”, that a PIP may, in some circumstances, fall within one or more of the actions of the employer enumerated in the section. However, that argument was never put or developed in this case. 
86.	In its submissions, the appellant emphasises that the concession which it made at the commencement of the hearing “was only with respect to events arising from 15 February 2022”. It did not extent to the other stressors “which were separately alleged to cause exacerbation to the condition.” While the concession is ambiguous, I do not accept that the Member misunderstood or misapplied it. While the first sentence of [151] of his reasons, read in isolation, may give rise to the impression that the Member overlooked the limitation inherent in the concession, the reasons must be read as a whole. It is plainly evident from his reasons that he was acutely aware of the limited nature of the concession. He quoted the concession verbatim in his reasons. At [151] he noted that the appellant argued that “injury only arose from the disciplinary process” following the events of 15 February 2022 and that:
“it does not accept that the [respondent] suffered any injury ‘with respect to any other series of events’.” 
87.	The Member also records that the appellant made “extensive submissions” that events other than the disciplinary process were not causative of the respondent’s psychological injury. He proceeded to make specific findings that, contrary to these submissions, there were “other employment events” which were causative of the respondent’s injury.
88.	The Member enumerated a number of factors “other than the disciplinary process (and her PIP)” which arose from consideration of her evidence. These included multiple conflicts with Ms McGregor, Ms Osland’s perceived reluctance to deal with those conflicts, and the appellant’s failure to provide her with a job description in the CRSO role. He stated that while the respondent’s evidence addresses her dissatisfaction with the events which arose on 15 February 2022, it also:
“details the events referred to at para 165 above, specifically her conflicts with McGregor and her complaints about training and workload in her clinical rostering support role.”
89.	These findings do not rely on the concession in respect of injury but on an analysis of the evidence. It follows that there is no proper basis for the assertion that the Member erred in his understanding of the concession in respect of injury. The appellant also submits under this ground that the Member “did not consider or determine the case which the respondent worker put forward”. This assertion is also ambiguous. It probably relates to the allegation that the Member did not correctly apply s 4(b)(ii) of the 1987 Act and is best dealt with as part of Ground 2.
Ground 2 – The Member erred in law in his conclusions with respect to injury within the meaning of s 4(b)(ii) of the Act and erred in his finding as to factual causation
90.	The appellant’s submission under this ground is prefaced by a concession that, if taken literally, undermines much of its argument on appeal. It submitted that:
“The Member quite rightly stated that there was substantial medi[c]al evidence to support the conclusion [151] that there were other employment events which were causative factors of the Respondent Worker’s injury.”
91.	The appellant also concedes that the Member was “clearly correct” in holding that all factors need to be combined when determining whether employment was the main contributing factor to the aggravation of the disease. The appellant, however, submits that the Member did not make a finding as to whether these events were the main contributing factor to the aggravation of a disease. 
92.	There is no conceivable basis for this argument. At [190] of his reasons the Member found that the stressors /events which he set out at [165] (see [103] below) caused the respondent’s psychological injury. He also found that, together with disciplinary process, these events were:
“the main contributing factor to the aggravation of her psychological condition, pursuant to s 4(b)(ii) of the 1987 Act.” 
93.	Plainly, the Member found that it was an accumulation of stressors between 15 February 2022 and 28 July 2022 that were causative of this aggravation. All of the events which are referred to in the reasons are closely connected with the respondent’s employment. As the respondent submits, it is not evident that either party suggested at the arbitration hearing that the aggravation of the respondent’s pre-existing psychological condition was caused by factors outside the scope of her employment. A review of the evidence confirms the absence of non-employment causative factors in the aggravation of the respondent’s injury. Moreover, Dr Nagesh, the appellant’s psychiatrist, expressed the opinion that the aggravation was entirely due to her employment. It must inexorably follow that employment was the main contributing factor to the aggravation of a disease. For convenience, I use the term “aggravation” throughout to refer to the statutory formula of “aggravation, acceleration, exacerbation or deterioration”. In these circumstances the appellant’s tenacity in criticising the Member’s approach to the determination of “main contributing factor” in s 4(b)(ii) throughout its submissions is difficult to understand.
94.	In his discussion of the law at [154]–[156], the Member quoted extensively from the reasoning in AV. The appellant does not suggest that AV was wrongly decided or that the principles which the Member distilled from it are erroneous. As the appellant concedes, the Member was correct to consider whether the employment stressors “combined” were the main contributing factor to the aggravation.
Ground 3 – Error in failing to consider the “arguments as to injury as articulated by the respondent worker”
95.	Under this ground the appellant reiterates the argument that the Member did not make “any findings with respect to the events which occurred after the 15 February 2022 event with regards to injury”. As I have demonstrated above, the Member made a clear finding at [190] of his reasons that the stressors which he enumerated at [165] were causative of the respondent’s injury. All but the first two of the thirteen episodes enumerated by the Member are connected with the operation (as opposed to the implementation) of the PIP or fall under the rubric of “bullying and harassment”; the term utilised by the respondent in the ARD to describe her difficulties with her supervisors. The Member, therefore, did address the issue raised by the parties. He was not obliged to determine the matter in precisely the terms submitted by the parties. More so when the appellant erroneously submitted that the respondent suffered multiple injuries rather than the one injury, namely the aggravation of a disease that is deemed to have occurred by s 16 of the 1987 Act on the first day of incapacity. The contest between the parties required the Member to determine the events/stressors that contributed to that injury and whether those which arose from the employment were the main contributing factor to the aggravation of a disease.
96.	The submission also reiterates the argument before the Member that for each of the of the “alleged causes of injury” the Member was required to consider the “relevant standard”, that is, whether the “employment was the main contributing factor to the aggravation”. The submission cannot stand with the concession that the Member was “correct” in considering all work related factors “combined” when determining whether employment was the “main contributing factor”. The submission also ignores the clear finding at [190] that the events which the Member enumerated at [165] were the main contributing factor to the aggravation of the respondent’s psychiatric disease.
97.	The Member’s finding at [154] that it was unnecessary for each employment event or each series of events to be found to be the main contributing factor is consistent with authority and the scheme of the 1987 Act. The respondent suffered one psychological injury. While the appellant suggested in its submissions that the respondent’s injury was caused by three discrete events, the Member was correct to consider the “repeated stress that the [respondent] was subjected to right up to 28 July 2022” when determining causation and main contributing factor. 
98.	The balance of the submissions under this ground are largely a rehearsal of the arguments put to the Member at the arbitration hearing. They attack the finding of injury in the summary section of the Member’s reasons. The appellant argues that the Member failed to consider the medical evidence; that there was no medical evidence to support a finding that the matters enumerated at [165] were “the cause of [the respondent’s] injury”; and that he erred in accepting the respondent’s evidence. The appellant submits that:
“The failure to consider and apply due weight to this factual evidence resulted in a clear error with regard to the acceptance of the evidence of the respondent worker, and the failure to consider the causative issues of the injury.”
99.	The criticism of the Member’s preference for the evidence of the respondent is essentially an assertion that his reasoning on this issue is manifestly illogical. This argument is not made out. There is no doubt that he gave extensive reasons for his acceptance of the evidence of the respondent in the “minor areas” where there were inconsistencies. In making this finding he relied on the contemporaneous documentary evidence and the complaints recorded by medical practitioners in the period leading up to her being stood down on 28 July 2022.
100.	It must be borne in mind that the Member did not find that the behaviour of Ms McGregor or Ms Osborne was inappropriate. He merely found that there were real events in their relationship with the respondent, which she perceived as “relentless”, “degrading” and “belittling” to quote but some of the contents of the documentary evidence said by the Member at [176] to be consistent with her statement evidence. The reports of Dr Burton also record the respondent’s contemporaneous complaints of the difficulties that she perceived in her relationship with Ms McGregor and the work that she was undertaking as a CRSO. A record of these complaints is contained in my summary of the doctor’s reports. But they include a “poorly supported position with excessive work”, and ”the absence of a job description.” This evidence is entirely inconsistent with the assertion made by the appellant in its submissions that the respondent only raised these workplace issues at the time, or shortly before, she went off work.
101.	The Member’s consideration of whether or not to accept the respondent’s evidence by testing it against her contemporaneous complaint in the documentary and medical evidence is a perfectly conventional approach. His conclusion that he should accept her evidence was reached after a consideration of all the relevant evidence, and, importantly, in the absence of evidence from Ms McGregor. This does not suggest error. Undoubtedly there is conflicting or contrary evidence, but there is no appropriate basis for a finding that his conclusion was wrong in accordance with the principles enunciated in Raulston and the cases referred to at [76] to [78] above. It was plainly open to the Member to accept the respondent’s evidence.
102.	The appellant also alleges that there is no medical evidence to support the Member’s findings at [190] that “both the lay evidence and the medical evidence” enabled him to find that the “events referred to at paragraph 165” were causative of the respondent’s psychological injury. The causes of the respondent’s psychological injury in this case are complex. Certainly, they include her pre-existing psychological condition, the disciplinary process, and transfer to the role of a CRSO. In those circumstances, it would be an error to find that a particular stressor was causative of the aggravation of her pre-existing psychological condition in the absence of medical evidence from which causal nexus could be demonstrated or inferred. Inferences may, of course, be drawn from proven facts. In my opinion, the medical evidence sufficiently addressed these issues to permit the Member to make a finding of causal nexus in each case.
103.	The factors arising from the respondent’s perception of events at work considered by the Member at [165] are as follows:
“(a) 	the [appellant] not providing a safe working environment to her on 15 February 2022 due to the actions on that date of Remmerswaal and the presence of an inexperienced second administration officer – referred to (in some detail) in her grievance letter dated 19 July 2022;
(b) 	North being rude and dismissive, with an abrupt tone of voice, during her meeting with North and Osland on 21 February 2022;
(c) 	receiving inadequate training for her role as a clinical rostering support officer – despite raising the inadequacy of the training on numerous occasions;
(d) 	Catford (her ‘best mate at work’) becoming angry at her on 23 March 2022;
(e) 	North contacting Dr Arnold from the ED on 23 March 2022;
(f) 	an excessive workload in her clinical rostering support officer role;
(g) 	North’s behaviour during the meeting between herself, Clayton, and North on 13 April 2022 – which included North lying to her;
(h) 	Booth lecturing her on 11 May 2022;
(i) 	multiple conflicts with McGregor between 30 May 2022 and 27 July 2022 – referred to in detail at paragraphs 37 and 53–59 above;
(j) 	Osland not dealing with these multiple conflicts;
(k) 	Kellie Grice being rude and dismissive to her on 18 July 2022;
(l) 	being called into an unannounced meeting with Osland and Kellie Grice on 28 July 2022, and
(m) 	the [appellant’s] failure to provide her with a job description for her role as a clinical rostering support officer – despite her requests.”
104.	The appellant’s qualified psychiatrist, Dr Nagesh, took a history of many of these matters. He recorded the respondent’s dissatisfaction with the triage nurse during the evening of 17 February 2022; her perception that Ms North was “rude and dismissive” during their meeting; the delay in providing her PIP; the absence of a job description; the difficulties that she encountered while working as a CRSO; and the “straw” that broke the camel’s back being “bullied and harassed” by Ms McGregor on multiple occasions. At the risk of unnecessary repetition, I restate Dr Nagesh’s opinion:
“In my opinion the [respondent] has suffered a primary psychological injury arising in the course of her employment with the [appellant] as alleged by her. The [respondent] has alleged multiple stressors which has been detailed in the History of Presenting Illness and in the context of the bullying and harassment the [respondent] has alleged to have suffered a primary psychological injury.” (emphasis added)
105.	The above evidence together with that of Dr Burton was considered as part of the Member’s analysis of the causation issue. There was sufficient medical evidence to permit the finding at [190]. That is not to say that each of the factors referred to by the Member at [165] was of equal weight. Plainly, the Member emphasised the respondent’s difficulty in performing the work of a CRSO and her conflict with Ms McGregor as important causative factors which did not fall within the appellant’s actions with respect to “discipline”, “transfer” or “performance appraisal”.
106.	As the appellant has not proven error, this ground of appeal fails.
Ground 4 – Error in finding that injury was not wholly or predominantly caused by the acts of the appellant within section 11A
107.	Other than repetition of the arguments under earlier grounds, the appellant submits that the Member placed “no weight on the medical evidence” and failed to “consider the medical evidence and evaluate”. There is no basis for these assertions. After reviewing the case law relevant to s 11A(1), the Member undertook a comprehensive analysis of the evidence of the three specialist psychiatrists to determine whether it supported the appellant’s contention that its actions with respect to discipline and transfer were the predominant cause of the appellant’s injury. He accepted the opinion of Dr Burton on this issue. He said:
“In contrast, Dr Burton’s 23 September 2022 report contains in my view the most significant opinion as to the predominant cause of the [respondent’s] psychological injury. Although the doctor does not use the word ‘predominant’, he uses the word ‘central’ to describe the [respondent’s] bullying and harassment by McGregor, and her removal to a position of high stress, as causes of her injury.” 
108.	It is beyond dispute that by 27 June 2022, the respondent’s psychological condition was so precarious that the appellant thought she should not work. As the respondent submitted at the hearing, that suggested a deterioration in her condition between April and 28 June 2022 while she worked for Ms McGregor as a CRSO. The Member accepted this submission. He attributed the deterioration in the respondent’s psychological health to her employment.
109.	Once it is accepted that “bullying and harassment” between April and July 2022 was “a central” cause of the respondent’s injury, the appellant’s defence under s 11A(1) is vulnerable. As discussed above, the evaluation of the causal potency of the proven causes of injury is fact sensitive. In this case, there was evidence that supported an alternative conclusion. However, the finding that the appellant had not discharged the onus of demonstrating that its actions within s 11A(1) were the predominant cause of the respondent’s psychological injury was open to the Member. It cannot be said that the probabilities clearly favoured the alternative conclusion in accordance with the reasoning in Raulston. 
Ground 5 – Error in conclusion as to the opinion of Dr Smith
110.	While this ground of appeal suggests an error of principle, the appellant’s submissions merely engage in a reprise of the arguments made at the arbitration hearing with respect to s 11A(1) and in Ground 6. The appellant states that Dr Smith’s opinion was that “performance management” and “transfer” caused the respondent’s psychological injury. It then argues “error” in the “acceptance” of Dr Burton’s evidence; and error in rejecting Dr Nagesh’s opinion that “discipline” was the predominant cause of the injury. For completeness, it reiterated the argument that there was no medical evidence to support the Member’s conclusion that bullying and harassment by Ms McGregor exacerbated the respondent’s psychological condition.
111.	The latter submission ignores the evidence of Dr Burton, who stated in his report of 23 September 2022 that the “central events” causative of the respondent’s injury were her removal to a “new position of high stress and the onset of work placed [sic] bullying”. It also ignores the opinion of Dr Nagesh that the respondent’s injury developed “in the context of workplace bullying”. Advancing an argument that is obviously without foundation undermines all of the appellant’s arguments on appeal.
112.	It is true, as the appellant submits, that Dr Smith stated that the causes of the respondent’s injury were performance management and transfer, actions that Ms Chislett considered unreasonable and unwarranted. However, he also he records under the heading “Account of Injury” a history of the development of the respondent’s psychological condition after she returned to work in April, which recounts her difficulties with Ms McGregor, and an incident on the last day she worked which he described as the “final straw”. Under the heading “Psychiatric Opinion”, he referred to “alleged ongoing bullying from the Director of Nursing in her new position” as causative of her psychological condition.
113.	Undoubtedly, as Dr Smith opined, the transfer of the respondent away from her role in the emergency department had quite profound implications for her psychological health. It removed the respondent from all of her, already meagre, social support. Equally, the removal of shift penalties threatened to undermine her financial security. Thus, it was arguable, on the respondent’s own medical case, that the appellant’s actions within s 11A(1) were significant factors in her psychological injury. If the respondent had the onus of proof on this issue, this evidence may have been compelling.
114.	However, there was also evidence that the respondent had returned to work on 13 April 2022 and that her condition had “improved” by the time of her consultation with Dr Burton on 22 April 2022. The Member found that her conditions of employment and difficulties with Ms McGregor significantly exacerbated her condition and led to her being stood down on psychiatric grounds on 28 June 2022. The weighing up of these matters led the Member to conclude that he was not satisfied that the appellant had proven that its actions with respect to discipline and transfer were the predominant cause of her injury. He concluded that:
“Relying upon my acceptance of the [respondent’s] perceptions in relation to the events which occurred as outlined at paragraph 165 above, my acceptance that there was conflict between herself and [Ms] McGregor which caused agitation to her, my acceptance that she had difficulties with her working conditions in her clinical rostering support officer role, my finding as to the lack of reliable medical evidence concerning whether her disciplinary process and her PIP were the predominant cause of her injury, and my acceptance of the records and opinions of Dr Burton; I find that the respondent has failed to discharge its onus of proof regarding its defence to the [respondent’s] claim pursuant to s 11A of the 1987 Act.”
115.	 While there is an alternative view of the evidence, the finding was open to him and the appellant has not proven error. This ground of appeal fails.
Ground 7 – Error regarding incapacity
116.	This ground of appeal should be considered against the background of the opinion expressed by Dr Nagesh, who saw the respondent on 12 November 2022 at the request of the appellant. He diagnosed major depression. He expressed the following opinion on the issue of incapacity:
“The [respondent] remains symptomatic and has no capacity for work to resume preinjury duties.”
117.	While the doctor’s opinion is ambiguous, it seems probable from the context that he was of the view that the respondent remained unfit for work. This view of the evidence is confirmed by the exchange at [19] of the doctor’s report. In answer to a question of whether the respondent could perform “selected duties”, the doctor responded:
“Currently the [respondent] remains symptomatic and has no capacity for any sort of work. However, when her symptoms resolve, she can return to normal work duties.”
118.	The appellant complains that it was denied procedural fairness as it was not given the opportunity to address the incapacity issue. It is difficult to accept that submission. The appellant undoubtedly knew that this was a claim for weekly payments of compensation and that on receipt of submissions, the Commission was obliged to determine the dispute. The Direction dated 8 November 2023 contained the standard procedural order that:
“At the conclusion of the time allowed for submissions, the dispute will be determined ’on the papers’.”
119.	It was open to the appellant to raise the issue of capacity at the arbitration hearing or to submit on it in its written submissions. The Direction issued by the Member did not confine the issues. It left it open to the parties to formulate the content of the submissions. The appellant’s failure to deal with the incapacity issue left the Member to deal with it as best he could in the circumstances of the case. The manner in which he addressed it does not prove error.
120.	Dr Smith, who saw the respondent on 1 December 2022, expressed the following opinion on capacity:
“This question is best addressed to a vocational assessment expert. Her current capacity is limited to low-stress, low-stimulus environments with limited demand on her interpersonal skills. She is certified three hours per day, two days per week. This should be in alternative duties and not in her substantive role. In line with the benefits of good work, she might cope with quick shifts, basic administration work, and frequent breaks. She is at risk of being easily overwhelmed.”
121.	The Member did not err in ascertaining whether the respondent was fit for “suitable employment”, as that term is used in s 32A of the 1987 Act. He applied the principles in Wollongong Nursing Home Pty Limited v Dewar. Given the limitations imposed on her employability by Dr Smith and her general practitioner, it is unsurprising that the Member determined that the evidence did not reveal any “real job” that the respondent was capable of performing in the labour market. The appellant had the opportunity to address on these issues at the arbitration hearing. It did not do so. This ground of appeal also fails.
DECISION
122.	As the appellant has not succeeded on any of its seven grounds of appeal, the orders in the Certificate of Determination dated 28 February 2024 are confirmed.

Paul Sweeney
Acting Deputy President
6 March 2025