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[2026] NSWCA 77
respondent. Appeal dismissed with costs ([67]).
The employer accepted that BNV’s psychological condition worsened during her employment and that work stressors played some part. The dispute was whether work was the main contributing factor to that worsening. The Court of Appeal concluded that the presidential member understood that question correctly, considered the possible role of BNV’s prior condition and stressors, and found no other contributing factor established by the evidence. The employer’s disagreement with that factual assessment did not establish legal error. The appeal was dismissed with costs.
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8 cited instruments linked from this judgment.
2,282 words · generated 08/10/2026
BNV worked as an office clerk at Royal Prince Alfred Hospital, employed by the State of New South Wales through the Sydney Local Health District, from 25 October 2021 to 25 July 2022. She had a pre-existing psychological condition involving post-traumatic stress disorder and major depression. The judgment identifies associated non-work stressors, including past sexual and domestic abuse, her brother’s sudden death, her daughter’s sexual assault, and her son’s illness and hospitalisation ([3]-[5]).
From December 2021, BNV experienced what she perceived as bullying and harassment at work. She took stress leave from February 2022, returned on 25 July 2022, then left after a further incident and did not return. She was hospitalised the next day ([3]-[4]). She sought weekly workers compensation, claiming that her pre-existing condition had been aggravated in the course of employment and that employment was the “main contributing factor” to the aggravation under s 4(b)(ii) of the Workers Compensation Act 1987 (NSW) ([5], [9]-[11]).
The employer’s insurer accepted two central points: there had been aggravation during the employment period, and work stressors had contributed to it. The dispute was whether employment was the main contributing factor, given BNV’s pre-existing psychological condition and other stressors ([5], [10], [16]).
A Personal Injury Commission member found in BNV’s favour. The member determined that the aggravation was a primary psychological injury, that employment was the main contributing factor, and that BNV had no current work capacity from 4 December 2023 ([11]-[12]). A presidential member dismissed the employer’s internal appeal and confirmed the determination ([6], [13]-[25]). The employer then appealed to the Court of Appeal under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which permits an appeal on a point of law.
The Court of Appeal, in reasons given by Free JA and agreed to by Kirk JA and Adamson JA, dismissed the appeal with costs ([1]-[3], [67]). The judgment is therefore principally about the limits of an appeal on a point of law and how the statutory main-contributing-factor question was approached on the particular concessions and evidence.
The Court first identified the issue left for decision after the employer’s concessions. The existence of a pre-existing disease, aggravation during employment, and some contribution from workplace stressors were common ground. The remaining question was whether employment was the main contributing factor to the aggravation ([36]-[38]).
Section 4(b)(ii) includes as a “disease injury” the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, but only if employment was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration ([34]). The Court did not treat the existence of a work-related contribution as automatically resolving whether that contribution was the main one. Instead, it described the need to consider whether other contributing factors had been established by the evidence. If they had, their relative contribution would need assessment; if they had not, the conclusion that employment was the main contributing factor could follow ([37]).
The employer argued that the presidential member had wrongly treated the pre-existing condition and non-work stressors as irrelevant, or had reasoned that if the pre-existing condition was not sufficient on its own to produce BNV’s later condition, work must therefore be the main factor. The Court rejected that characterisation. It read the presidential member’s reasons as a whole, rather than isolating passages such as [115]. In context, those reasons recognised that the pre-existing condition could theoretically progress or contribute to deterioration during employment, but found no evidential basis for that explanation in this case ([39]-[50]).
The evidence issue was important. The presidential member found no evidence that BNV’s condition deteriorated because she stopped treatment with Dr Manambrakkat or missed a medical review in November 2021. The presidential member also noted that the employer could have advanced an argument that stopping treatment caused regression, but had not advanced that case and lacked medical evidence supporting it ([47]-[49]). The Court held that these findings showed the presidential member was alive to alternative explanations, not that he had excluded them as legally irrelevant ([48]-[50]).
The Court also rejected the argument that there had been a reversal of the onus of proof. The presidential member did not reason that any aggravation in employment automatically made employment the main contributing factor unless the employer disproved it. Rather, he considered the concessions and evidence, found that workplace stressors contributed, and found no other factor shown to have contributed to the aggravation ([63]-[66]).
Finally, the Court distinguished legal error from disagreement about factual evaluation. A conclusion about the causal contribution made by a particular factor involves an assessment of evidence and questions of impression and degree. The employer’s arguments that the evidence should have been evaluated differently were, in substance, merits complaints and did not establish a point of law for this appeal ([44], [58], [61]).
The judgment presents the applicable statutory framework as s 4(b)(ii) of the Workers Compensation Act 1987 (NSW): aggravation, acceleration, exacerbation or deterioration of a disease in the course of employment counts as a disease injury only if employment was the main contributing factor to that change ([34]). The Court also referred to the approach in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34, concerning what “the employment” means as a contributing factor: the work done, an event or occurrence in the course of employment, or characteristics or conditions of the work, rather than the bare fact of being employed ([35]).
The judgment does not announce a new statutory test or state that it changes the law on disease injury. Its principal clarification concerns the appeal route. Under s 353(1) of the 1998 Act, the appellant must identify a point of law arising in the presidential member’s decision. The decision in Fisher v Nonconformist Pty Ltd is applied for the framework, including that an error must be material to obtain relief and that the focus is on the presidential member’s decision ([26]). A claim that a statutory test was misconstrued may raise a point of law, but a claim that the decision-maker simply reached the wrong factual conclusion does not, by itself, meet that requirement ([27], [44]).
The Court also explains how the statutory question operated in this case. The employer’s concessions narrowed the inquiry: the Court was not required to decide whether any aggravation had occurred or whether work stressors had contributed at all. It reviewed whether the presidential member understood and applied the remaining “main contributing factor” question correctly ([36]-[38]). That is a contextual application of the statute, not a rule that an employer’s concession on contribution always establishes that employment was the main contributing factor.
The judgment therefore describes the “after” state narrowly: it confirms that a fact-sensitive challenge to the weight or sufficiency of evidence cannot be transformed into a point-of-law appeal simply by describing it as misapplication of the statutory test. The legal question remains whether the decision-maker applied the correct statutory task, while the assessment of causal contribution is generally factual ([27], [44], [50]).
At [26], the Court states that an appellant under s 353(1) must identify “some issue on a point of law” in the presidential member’s decision. In plain English, this appeal was not a fresh opportunity to argue that the evidence should have been weighed differently. The complaint needed to identify a legal error in the presidential member’s decision.
At [37], the Court said the central question was whether employment was “the main contributing factor”, in addition to being a contributing factor. Put simply, accepting that work played some part did not end the inquiry. The decision-maker still had to consider whether another factor shown by the evidence displaced work as the main factor.
At [40], the Court recognised the theoretical possibility that the pre-existing condition itself could progress and contribute to deterioration during employment. This matters because the judgment does not treat a worker’s prior condition as automatically irrelevant. It says that its possible contribution must be considered where the evidence raises it.
At [44], the Court described causal contribution as a factual conclusion involving “questions of impression and degree”. In plain English, deciding how much a factor contributed is typically an evaluation of the evidence, rather than a pure question of statutory meaning. That distinction explains why the employer’s disagreement with the factual result did not establish legal error.
At [53]-[54], the Court held that the concessions meant a before-and-after comparison was not needed to establish that aggravation occurred, although the presidential member had in fact considered BNV’s condition at both points. The practical point in the judgment is that a concession can narrow what needs to be decided, but it does not remove the separate question of what caused the conceded aggravation.
At [64]-[66], the Court rejected the alleged reversal of onus. The presidential member’s reasoning was described as an assessment of the evidence, reinforced by the employer’s concessions, rather than a legal presumption requiring the employer to disprove the claim. The conclusion followed from what had been established and what had not been established in this record.
The judgment is most directly relevant to a workers compensation dispute involving a pre-existing disease or psychological condition, an alleged worsening during employment, and a dispute about whether work was the main contributing factor to that worsening. The statutory provision discussed is s 4(b)(ii) of the 1987 Act ([34]).
Its appeal reasoning is particularly relevant where a party appeals a presidential member’s decision under s 353(1) of the 1998 Act. The case indicates that the appeal must be framed around a legal issue arising in that decision. Assertions that the decision-maker misunderstood the statutory test may raise such an issue, but a claim that the evidence should have led to a different factual conclusion may not ([26]-[27], [44], [58]).
The judgment also illustrates a situation where key matters are conceded: the pre-existing disease, aggravation during employment, and some contribution by work stressors. In that setting, the contested issue can be narrowed to whether employment was the main contributing factor. The reasoning does not establish that the same result follows whenever those matters are conceded. The role of any other contributing factors remains an evidential question ([36]-[38], [64]).
The alternative explanation issue is also significant. Where evidence is said to show that a pre-existing condition, treatment history, or non-work stressor contributed to deterioration during the relevant employment period, the judgment treats that as potentially relevant to the main-contributing-factor assessment. In BNV’s case, the presidential member considered those possibilities but found the asserted explanations were not established on the evidence ([47]-[50], [60]-[61]).
The judgment itself does not discuss any later judicial treatment of State of New South Wales (Sydney Local Health District) v BNV. It was decided on 5 May 2026, and the text supplied contains no subsequent cases applying, distinguishing, or otherwise considering it. Later treatment therefore cannot be assessed from this judgment alone.
The decision does identify authorities that informed its reasoning. It applies Fisher v Nonconformist Pty Ltd to the requirements for an appeal on a point of law ([26]), and Da Ros v Qantas Airways Limited and Secretary, Department of Education v Dawking in discussing when complaints about statutory application raise a point of law ([27]). It refers to Dawking again concerning the factual character of causal-contribution findings ([44]). It discusses Federal Broom Company Pty Ltd v Semlitch on what may count as “employment” as a contributing factor ([35]).
The judgment also refers to State of New South Wales v Culhana in explaining the presidential member’s appellate function under s 352 ([13]). There is an apparent citation discrepancy within the supplied text: the heading lists Culhana as [2025] NSWCA 1, while paragraph [13] gives [2025] NSWCA 157. This deep dive does not resolve that inconsistency or rely on material outside the judgment.
The judgment expressly leaves one theoretical question undecided. At 50, the Court says it was unnecessary to consider how s 4(b)(ii) applies where a pre-existing condition might be the main contributing factor to deterioration, even though work stressors also made the condition somewhat worse. The Court considered that possibility did not arise on the evidence before it, because the presidential member found no identifiable contribution from the pre-existing condition to the aggravation in question. The statutory treatment of that hypothetical is therefore not resolved by this decision.
The decision also does not establish a general evidential formula for deciding which factor is “main” when several contributing factors are proved. It says that where other factors are established, their relative contribution must be assessed; where none is established, a finding that employment was the main contributing factor may follow on the evidence and concessions ([37], [64]). It does not set out a numerical threshold or a universal method for comparing causal contributions.
Nor does the judgment determine the outcome of claims with materially different concessions or evidence. Here, aggravation during employment and some contribution from work stressors were accepted. The Court’s reasoning should be read in that procedural and evidential setting ([36]-[38]). Whether a before-and-after comparison is required in a case where aggravation is disputed is not decided by the holding at [52]-[54].
Finally, the decision does not provide information about later judicial treatment. Any account of whether subsequent courts have followed, limited or distinguished it would require sources beyond the judgment supplied here.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales (Sydney Local Health District) v BNV [2026] NSWCA 77
Hearing dates: 1 May 2026
Date of orders: 5 May 2026
Decision date: 05 May 2026
Before: Kirk JA at [1]
Adamson JA at [2]
Free JA at [3]
Decision: Appeal dismissed with costs.
Catchwords: WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member
APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law
Legislation Cited: Workers’ Compensation Act 1926-1960 (NSW), s 6
Workers Compensation Act 1987 (NSW), ss 4, 33,
37
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 287A, 352, 353
Cases Cited: Da Ros v Qantas Airways Limited [2010] NSWCA 89
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Secretary, Department of Education v Dawking [2024] NSWCA 4
State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 1
Category: Principal judgment
Parties: State of New South Wales (Sydney Local Health District) (Appellant)
BNV (Respondent)
Representation: Counsel:
M Allars SC / K Balendra (Appellant)
K C Morgan SC / C Tanner (Respondent)
Solicitors:
Turks Legal (Appellant)
Turner Freeman Lawyers (Respondent)
File Number(s): 2025/439629
Publication restriction: The employee has been de-identified by the Personal Injury Commission pursuant to s 132, Personal Injury Commission Rules 2021 (NSW).
[This headnote is not to be read as part of the judgment]
The respondent (BNV) suffered from post-traumatic stress disorder and major depression associated with a number of traumatic stressors in her life. From October 2021 to July 2022, she was employed as an office clerk at the Royal Prince Alfred Hospital (RPA) by the appellant through the Sydney Local Health District (employer). BNV experienced what she perceived to be bullying and harassment at RPA, which aggravated her psychological condition. BNV was hospitalised and became unable to work.
BNV sought compensation from the employer under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act). The employer accepted that BNV’s psychological condition had been aggravated during the course of her employment at RPA, and that her employment was a factor contributing to that aggravation. However, the employer denied liability on the basis that her employment was not the “main contributing factor” to her claimed “disease injury” within the meaning of the Workers Compensation Act 1987 (NSW) (WC Act).
The dispute was dealt with in the Personal Injury Commission, where a non-presidential member found in favour of BNV. On appeal by the employer, that determination was confirmed by a presidential member. The presidential member found that there was no error in the conclusion that BNV’s employment was the main contributing factor to the aggravation to her psychological condition.
The employer appealed to the Supreme Court pursuant to s 353(1) of the WIMWC Act, raising four grounds of appeal:
1. The presidential member erred in applying the requirement in s 4(b)(ii) of the WC Act that the employment be the “main contributing factor” to the injury.
2. The presidential member erred in rejecting the argument that s 4(b)(ii) of the WC Act required evaluation of BNV’s condition before and after commencement of her employment.
3. The presidential member was required to take into consideration evidence about the psychiatric symptoms and treatment regime of BNV prior to her employment, and was required to evaluate those matters as explaining the aggravation of BNV’s condition, but failed to do so.
4. The presidential member erroneously reversed the onus of proof which lay with BNV as the party alleging that she suffered injury.
The Court held (Free JA; Kirk and Adamson JJA agreeing), dismissing the appeal with costs:
As to ground 1 – Alleged misconstruction and misapplication of s 4(b)(ii) of the WC Act
1. An appeal under s 353(1) of the WIMWC Act must be conducted by reference to points of law arising in the decision under appeal. A complaint which asserts nothing more than erroneous application of a legal principle would not on its own be a proper basis for an appeal under s 353(1). The substance of the employer’s complaint is that the presidential member misconstrued the statutory test in s 4(b)(ii). This misconstruction is said to be revealed by the way in which the member purported to apply that subsection. Such a complaint does involve a point or points of law: [26]-[27].
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32, Da Ros v Qantas Airways Limited [2010] NSWCA 89, applied.
2. The reasons of the presidential member must be read in context. It was accepted by the employer before the presidential member that BNV’s employment was a contributing factor to the aggravation of her condition. The question to be resolved by the presidential member distilled to whether BNV’s employment was the main contributing factor, including in light of her pre-existing condition. On a fair reading of the reasons the presidential member did not adopt the position that the only contributing factors which could be relevant for the purposes of s 4(b)(ii) were those which emerged after BNV started work at RPA. The presidential member was alive to the potential relevance of BNV’s pre-existing condition and the possibility that, separate from any role played by work stressors, it may itself have progressed in such a way that it became aggravated during BNV’s employment at RPA. The presidential member found that BNV’s pre-existing psychological condition and the related pre-existing stressors were not contributing factors to the aggravation. Submissions by the employer that this conclusion should not have been reached on the evidence are in substance merits complaints which do not provide a basis for this Court’s intervention in the context of an appeal in respect of a point of law: [33]-[51].
Secretary, Department of Education v Dawking [2024] NSWCA 4, applied.
As to ground 2 – Alleged error in not evaluating BNV’s condition before and after she commenced employment
3. In light of the employer’s concessions that there was aggravation of BNV’s condition during the course of her employment, there was not the usual need to evaluate BNV’s symptoms and treatment regime before and after she commenced work in order to establish that her condition had deteriorated during the period of employment. The presidential member nevertheless did undertake such a comparison. To the extent that there was also a complaint under ground 1 about the presidential member’s assessment of BNV’s ability to “pursue” and “maintain” full time employment, no point of law arises: [52]-[58].
As to ground 3 – Alleged error in failing to take into account the evidence of BNV’s prior symptoms and treatment regime
4. On a fair reading of his reasons, the presidential member did have regard to evidence about the psychiatric symptoms and treatment regime of BNV prior to her employment and was alive to the possibility that such evidence might provide an alternative explanation for the aggravation to BNV’s disease during the course of her employment. No legal error is demonstrated in this approach: [59]-[61].
As to ground 4 – Alleged error in reversing the onus of proof
5. Having found that the evidence did not demonstrate that other factors contributed to the aggravation in BNV’s condition, the presidential member was entitled to find that the employment was the main contributing factor. The presidential member did not reverse the onus, including by adopting presumptions adverse to the employer which it became obliged to rebut. The passages to which the employer refers reflect an assessment of the effect of the evidence, not a reversal of the onus of proof: [62]-[66].
KIRK JA: I agree with Free JA.
ADAMSON JA: I agree with Free JA.
FREE JA: Between 25 October 2021 and 25 July 2022 the respondent (BNV) was employed as an office clerk at the Royal Prince Alfred Hospital (RPA) by the appellant through the Sydney Local Health District (employer). From December 2021 BNV experienced what she perceived to be bullying and harassment at RPA. She took stress leave from February 2022. Although she returned to work on 25 July 2022, there was a further incident that day which caused BNV to leave the workplace. She did not return.
Before commencing work at RPA BNV suffered from a psychological condition, involving post-traumatic stress disorder and major depression. This was associated with non-work stressors, namely past sexual abuse, prolonged domestic abuse, the sudden death of her brother, her daughter’s sexual assault and her son’s illness and hospitalisation. BNV’s condition was aggravated over the period that she was employed at RPA. BNV experienced suicidal ideation and on 26 July 2022 she was hospitalised.
BNV sought compensation from the employer under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act), on the basis that she had suffered an injury arising out of or in the course of employment. BNV claimed that she had suffered a “disease injury”, within the meaning of the Workers Compensation Act 1987 (NSW) (WC Act), because she had suffered an aggravation of her pre-existing psychological condition, and the employment at RPA was the “main contributing factor” to that aggravation. The employer denied liability. It accepted that BNV’s pre-existing condition had been aggravated, and that such aggravation had occurred during the period of her employment. It denied that the employment of BNV at RPA was the main contributing factor to the aggravation of BNV’s pre-existing condition.
The dispute was dealt with in the Personal Injury Commission (PIC) pursuant to the dispute resolution procedures under the WIMWC Act. A non-presidential member, Member Snell, made a determination in favour of BNV on 12 February 2025. Pursuant to s 352(4) of the WIMWC Act the employer appealed that decision. The appeal was heard by Acting Deputy President Parker SC (presidential member). The presidential member dismissed the appeal and confirmed the certificate of determination that had been issued by Member Snell on 12 February 2025. The employer appeals to this Court, pursuant to s 353(1) of the WIMWC Act, on the basis that it is aggrieved by the decision of the presidential member in point of law.
On 8 August 2024 BNV filed an application with PIC to resolve a dispute between BNV and the employer’s insurer. BNV had claimed an entitlement to compensation on the basis that during the course of her employment at RPA she had suffered an aggravation to her pre-existing psychological condition (involving post-traumatic stress disorder and major depressive disorder). She claimed to have been subjected to protracted bullying, harassment, isolation, ostracisation, a lack of support and unrealistic expectations at the hands of her manager and other colleagues. BNV claimed that weekly compensation was payable under s 37 of the WC Act, from 4 December 2023 and on an ongoing basis.
The employer’s insurer accepted that some aggravation of BNV’s condition had occurred in the course of her employment. It accepted that interactions had occurred during the course of BNV’s employment with RPA which were capable of leading to a perception by BNV that she was bullied and harassed. The insurer also accepted that BNV had no current work capacity, as had been the case since 4 December 2023. However, it did not accept that BNV’s employment at RPA was the “main contributing factor” (within the meaning of s 4(b)(ii)) to the aggravation of her pre-existing condition. The internal decision of the employer’s insurer was that BNV’s incapacity and need for treatment were attributable to her pre-existing injury. The insurer concluded that no incapacity or need for treatment had been shown to result from the aggravation of BNV’s psychological injury in the course of her employment. In the circumstances the employer’s insurer did not accept that BNV had an incapacity to work that “resulted from” an injury arising out of or in the course of employment, as required by s 33 of the WC Act and the definition of “injury” in s 4*.* That decision was affirmed by the insurer on internal review, pursuant to s 287A of the WIMWC Act, on 20 June 2024.
- The applicant sustained primary psychological injury (in the nature of an aggravation of her pre-existing psychological condition) in the course of her employment with the respondent, with deemed date of injury of 26 July 2022, with her employment being the main contributing factor to injury.
- The applicant has had no current capacity for work resulting from the injury from 4 December 2023 to date and continuing.
- As at 4 December 2023, the applicant’s pre-injury average weekly earnings were $1,170 (subject to indexation). The applicant has an entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987 from 4 December 2023 ongoing in accordance with the Workers Compensation Act 1987 at $936 (subject to indexation).
- I accept [BNV’s] pre-existing psychological injury was aggravated in the course of her employment with RPA in that her symptoms “intensified”, “increased” or became “more serious” due to the behaviours she was subjected to while working with RPA, and I am of the view that when considering the competing causal factors (both work related and non-work related) of the aggravation [BNV] suffered, it was the behaviours to which [BNV] was subjected while working with RPA that represent the main contributing factor to the aggravation of her pre-existing psychological injury. While there is no doubt there are a number of non-work factors that have impacted [BNV’s] mental health over time, which are neatly identified by Dr Berry, these non-work factors are stressors that are longstanding and are stressors for which [BNV] was treated before she commenced her employment with RPA in October 2021 and for which she was not treated again until after a reported deterioration in her mental health with complaint of being subjected to concerning behaviours by [BNV’s manager] and her work colleagues in February 2022.
- In circumstances where there is no new non-work factor identified which is a competing causal factor of [BNV’s] injury in the nature of an aggravation of her pre-existing psychological injury, for the reasons outlined I am satisfied on the balance of probabilities that [BNV] sustained injury in the nature of an aggravation of her pre-existing psychological injury, with her employment being the main contributing factor to injury. As required by Nguyen, I feel an actual persuasion of the existence of that fact.
Pursuant to s 352 of the WIMWC Act the employer’s insurer appealed from the determination of Member Snell to the PIC constituted by a presidential member. An appeal of that kind requires the presidential member to determine “whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error”: s 352(5). As the presidential member noted in his reasons for decision, this Court’s decision in State of New South Wales v Culhana (2025) 117 NSWLR 448; [2025] NSWCA 157 has clarified the nature of the appellate jurisdiction of the PIC under s 352. It is not the role of the presidential member in such an appeal to consider whether a challenged finding of fact made, or inference drawn, by the non-presidential member in the decision under appeal was “open”. The appeal requires the presidential member fully to address whether there has been any error of fact, law or discretion. If the presidential member, after making appropriate allowance for any relevant advantages enjoyed by the member whose decision is under review, would reach a different conclusion on a question of fact “he or she should not shrink from giving effect to it”: [91].
The claim had been determined by Member Snell on the basis of the written evidence. As such, the findings under appeal did not depend on impressions about the credibility or reliability of the witnesses formed on the basis of how they gave evidence. No allowance was required in this respect for an advantage having been enjoyed by Member Snell in the assessment of the evidence.
An aspect of the employer’s case which assumes particular significance for the appeal to this Court was a contention that Member Snell had overlooked that the “aggravation” of BNV’s symptoms and pre-existing disease could be attributable to the pre-existing disease and associated stressors. If that was so, the employer argued, then it could not be assumed that because the employment conditions were a new factor that contributed to the aggravation of the pre-existing condition they were the “main contributing factor” in that regard. This argument featured, either explicitly or implicitly, in a number of the grounds of appeal advanced before the presidential member. It features again in a number of the arguments advanced in this Court.
The presidential member did not find any error in the decision of Member Snell. As with the preceding stages in the dispute process, the questions of causation fell to be considered in the context that the employer conceded that BNV had experienced events during her employment at RPA that were capable of leading her to perceive that she was bullied and harassed. It was also conceded that BNV had during the course of her employment at RPA suffered an aggravation of her pre-existing psychological condition. It was further conceded that work stressors had played some part in such aggravation. That was the context in which the presidential member considered the evidence bearing on the question of why there had been an aggravation of BNV’s pre-existing condition.
- Dr Berry’s clear evidence was that:
“Work was a significant factor in the exacerbation of her pre-existing PTSD. Work stress was identified in the medical record of her hospital admission but did not appear to be a significant focus of treatment. In terms of other contributing factors, during the assessment, [the respondent] reported:
• That her daughter’s assault took place four years previously. It did not appear to be a significant factor for [the respondent’s] PTSD
• That she left her abusive partner in July 2020 and that, although this had been stressful, it was ‘not bad stress’. Despite this, given that the relationship had been ongoing for many years and led to [the respondent] losing control over significant areas of her life, this may also have been a contributing factor.”
- Dr Berry says:
“The work issues she experienced in July 2022 would be unlikely on their own to have caused such significant symptoms. Her symptoms were severe because of her background trauma including childhood abuse and spending many years in a controlling relationship with her former husband.”
- In the report of 28 September 2023 Dr Berry says:
“… on balance, work was a significant factor to the exacerbation of symptoms (she presented to hospital the day after ceasing work). However, it was not the main contributing factor. The main contributing factor was a series of stressors which had been ongoing for some time.” (Footnotes omitted.)
The Member’s assessment of the appellant’s submissions with respect to the respondent’s credit may not have been as comprehensive as demanded by the appellant, but her conclusion adverse to the appellant did not depend on the evidence of the respondent’s daughter. The respondent’s pre-RPA history of ill-health or employment was not really an issue with respect to the matters to be determined by the Member. Even if it be assumed, contrary to the evidence of the respondent’s daughter and mother, the pre-existing conditions were florid before the commencement of employment with RPA and that the respondent’s psychological condition impacted on her pre-RPA employment and employability, the evidence does not establish that either was the main contributing factor to the aggravation in the course of employment between 21 October 2021 to 25 July 2022. Those matters were, as Dr Berry said, part of the background stressors.
The only factor relevant to the deterioration in the respondent’s psychological condition between 25 October 2021 and 25 July 2022 were the workplace stressors. There was no competing contributory factor. Unless there was a new non-work factor or the respondent’s pre-existing medical conditions were such as to be responsible for the psychological deterioration, the Member’s conclusion that the work stressors were the main contributing factor was both inevitable and correct.
The presidential member made similar findings in the context of dealing with ground B of the appeal. The employer complained by that ground that Member Snell had relied uncritically on the opinions of Dr Khan (an independent medical witness relied on by BNV) and Ms Lander (a treating psychologist), and ignored the evidence about the psychiatric symptoms of BNV and her treatment regime prior to commencing her employment at RPA, as recorded in the records of Dr Manambrakkat (who provided psychiatric care to BNV between 5 May 2021 and 18 October 2021).
The reasons given by the presidential member for rejecting those submissions included the following, at [114]-[115] (emphasis added):
It was not in issue that the work stressors had played some part in the aggravation of the pre-existing psychological condition. The dispute was as to whether the work stressors with the appellant were the main contributing factor to the aggravation.
This did not depend on the existing condition of the respondent at least in the absence of evidence that the pre-existing condition itself, without the work stressors, would have resulted in the respondent being in the same condition in which she was on 25 July 2022.
By ground C of the appeal the employer argued that Member Snell had erroneously approached the matter on the basis that it was necessary to identify a “new non-work factor” as a competing cause of BNV’s injury, in order to avoid the conclusion that the main contributing factor to the aggravation of the disease was the employment. The employer argued that even in the absence of a “new non-work factor” it was necessary to consider whether the consequences of the pre-existing affliction had otherwise become more serious. This was said to follow from Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626; [1964] HCA 34.
In rejecting those submissions the presidential member observed, at [127], that it was not necessary to evaluate the respondent’s symptoms and treatment regime before and after she commenced work in order to establish that BNV’s condition had deteriorated during the period that she was subjected to work-related stressors. That is because the employer conceded that BNV had, during that period, suffered an aggravation of the pre-existing conditions. The presidential member found that concession to be properly made, according to the evidence. As at 21 October 2021, BNV had been able to pursue full-time employment. As at 25 July 2022, her psychiatric condition had deteriorated to such an extent that she was “totally incapacitated for work”. At that time she required admission to hospital as an inpatient and was psychiatrically very unwell.
The presidential member made the following findings about the lack of any explanation in the evidence for the deterioration of BNV’s condition, other than work-related stressors, at [129]-[131] (emphasis added):
There was no evidence to the effect that the symptoms exhibited by the respondent as at 25 July 2022 were caused by the cessation of her treatment with her psychiatrist or by her non-attendance at the medical review with Dr Manambrakkat on 15 November 2021 …
It would have been open to the appellant to run a case along the lines that because the respondent had failed to persist with her treatment by Dr Manambrakkat, her pre-existing psychiatric condition had regressed. But that is not the case that was advanced by the appellant and there was no medical evidence to support such a contention.
The submission presented by the appellant to the Member that the respondent’s condition was symptomatic and deteriorating immediately prior to her commencing employment with the appellant on 25 October 2021 due to multiple pre-existing stressors is not grounded in the evidence.
Dr Manambrakkat does not say that the respondent’s condition was unstable or that it was likely to deteriorate. There is simply no evidence that the respondent’s “psychiatric condition relating to her pre-existing stressors very likely deteriorated to the point of requiring psychiatric admission on 26 July 2022 absent ongoing psychiatric treatment and review since 18 October 2021.’ There is no medical evidence from Dr Manambrakkat, Dr Khan or Dr Berry.
… [A]n appeal to this Court under s 353(1) of the WIM Act the appellant must identify some issue on a point of law in the decision of the presidential member. The focus should be on that decision, not the decision of the member. The appeal need not involve a decision made by the presidential member on a point of law so long as the grounds raised in this Court are on points of law. Relevant points of law include jurisdictional errors or other errors of law. Any error must be material in order to obtain relief. The point of law need not necessarily have been raised below, for example if a pure issue of law is raised such as an argument that the presidential member has misconstrued the statute. That being said, especially for issues which are not pure matters of law, it will often be the case that a presidential member will not have erred in law if an issue which could have been raised below was not. If the presidential member has wrongly rejected an argument that the non-presidential member made jurisdictional or other legal error, then that will generally manifest legal error by the presidential member.
Ground 1 of the notice of appeal contends that the presidential member “erred in applying” the requirement in s 4(b)(ii) that the employment be the “main contributing factor” to the injury. Given the confined nature of an appeal under s 353(1), it is problematic to seek to complain simply about how a statutory provision was “applied” by a presidential member. A complaint which asserts nothing more than erroneous application of a legal principle would not on its own be a proper basis for an appeal under s 353(1): see Da Ros v Qantas Airways Limited [2010] NSWCA 89 at [26]-[27]. However, when the chapeau to ground 1 is read together with the various sub-grounds, it becomes apparent that the substance of the employer’s complaint is that the presidential member misconstrued the statutory test in s 4(b)(ii). This misconstruction is said to be revealed by considering the way in which the member purported to apply that subsection. Such a complaint does involve a point or points of law: Da Ros at [26]; Secretary, Department of Education v Dawking [2024] NSWCA 4 at [80]. The submissions of the employer confirmed that this is the way in which ground 1 should be understood.
The sub-grounds of ground 1 allege that the erroneous approach to s 4(b)(ii) manifested in the following forms of erroneous reasoning by the presidential member:
holding that if the pre-existing psychological condition was not the main contributing factor, then the aggravation in the course of employment was the main contributing factor. The employer points to [114]-[115] of the reasons as revealing this approach. This is said to involve the adoption of a false dichotomy, and a presumption not supported by the statute (sub-ground 1(i));
assuming that the pre-existing condition was not the main contributing factor because it was not a sufficient factor to cause the injury. The passage cited in support of this sub-ground is [115]. This alleged approach is said to be inconsistent with the “main contributing factor” test (sub-ground 1(ii));
holding that if the pre-existing condition would not have been sufficient on its own to result in BNV’s condition as at 25 July 2022, then the employment was the main contributing factor. Again the employer relies on [115], along with [95]. The alleged approach is said to involve the adoption of a presumption not supported by the statute (sub-ground 1(iii));
finding that if the aggravation in the employment was a necessary condition for the psychological condition as at 25 July 2022, then the employment was the main contributing factor to that condition. Reliance is placed on [115] and [116]. The alleged approach is said to be inconsistent with the “main contributing factor” test (sub-ground 1(iv)); and
assuming that a concession that there was an aggravation in the course of employment also constituted a concession that the work stressors were the main contributing causal factor for the injury, unless this was rebutted. Again reliance is placed on [115].
Ground 1 turns largely, if not entirely, on a fair reading of the reasons of the presidential member. The various sub-grounds advanced by the employer should be rejected because they are based on a misreading of those reasons.
It is appropriate to begin with the reasoning of the presidential member at [115]-[116], given that many of the sub-grounds involve an attempt to find error in that part of the reasons. It is elementary that the reasons of the presidential member must be read as a whole, and particular passages (including [115]-[116]) must be understood in their proper context. The critical issue that the presidential member was required to determine was whether the employment of BNV at RPA was the “main contributing factor” for the aggravation of BNV’s psychological condition that occurred during the period of her employment. That involved the application of the definition of “injury” in s 4 of the WC Act, which is in the following terms:
4 Definition of “injury”
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(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.
The concept of “employment” as a contributing factor to an injury (or to an aggravation, acceleration, exacerbation or deterioration of an injury) was considered by Kitto J in Federal Broom Company Pty Ltd v Semlitch, in relation to equivalent words in the definition of “injury” in s 6(1) of the Workers’ Compensation Act 1926-1960 (NSW). His Honour held that when the Act speaks of “the employment” as a contributing factor, “it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must … be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed”.
The issue about the proper application of s 4(b)(ii) of the WC Act to BNV’s situation fell to be determined in circumstances where the following propositions were common ground:
when she commenced employment at RPA on 25 October 2021 BNV had a pre-existing psychological condition;
BNV’s pre-existing psychological condition was, for the purposes of s 4(b) of the WC Act*,* an existing “disease” at the time she commenced her employment;
an aggravation of BNV’s disease occurred;
the aggravation of BNV’s disease occurred during the course of her employment at RPA; and
work stressors arising from BNV’s employment at RPA had played at least some part in the aggravation of BNV’s pre-existing psychological condition.
In light of these commonly accepted propositions, the question to be resolved by the presidential member distilled to the following – in addition to being a contributing factor to the aggravation of BNV’s pre-existing psychological condition that occurred during the course of her employment at RPA, was BNV’s employment at RPA the main contributing factor? If the answer to that question was “yes”, then BNV had suffered a “disease injury” and therefore an “injury” within the meaning of s 4(b)(ii). The circumstances naturally invited a consideration of whether the evidence demonstrated that there were other contributing factors established by the evidence. If so, it would become necessary to consider whether, as between the different contributing factors, employment was the main contributing factor. If not, the conclusion would readily follow that employment was the main contributing factor.
Paragraph [114] in the reasons of the presidential member accurately reflects the nature of the dispute. There the presidential member noted that it was not in issue that the work stressors had played some part in the aggravation of BNV’s pre-existing psychological condition and the dispute was as to whether the work stressors were the “main contributing factor” to the aggravation.
The factual premise of sub-ground 2(i) is that the presidential member failed to consider the condition of BNV before and after she commenced employment at RPA. That premise is unsound. In considering the presidential member’s approach, it is important to bear in mind the concessions made by the employer, as outlined above. In light of those concessions, this was not a situation where there was a dispute requiring resolution about whether there was a disease suffered by a claimant in respect of which there had been a relevant aggravation or deterioration.
The presidential member was correct to observe, at [127], that given the concessions about aggravation it was not necessary to evaluate the respondent’s symptoms and treatment regime before and after she commenced work in order to establish that BNV’s condition had deteriorated during the period that she was subjected to work-related stressors. The presidential member was entitled to treat those matters as established, and to focus on the real question in dispute which was whether the employment of BNV at RPA was the main contributing factor to the aggravation of BNV’s disease that had occurred.
In any event, and in the context of those concessions, the presidential member did have regard to the evidence of BNV’s pre-existing condition, and her condition after her employment at RPA. He found that as at 21 October 2021, BNV had been able to pursue full-time employment. As at 25 July 2022, her psychiatric condition had deteriorated to such an extent that she was “totally incapacitated for work”. At that time she required admission to hospital as an inpatient and was psychiatrically “very unwell”.
Sub-ground 2(i) therefore fails.
By sub-ground 2(ii) the employer complains that the presidential member “erred in law” in finding, at [128], that BNV was “able to pursue full-time employment” at RPA. The employer points to evidence that BNV was unable to hold down a job, which in turn is said to demonstrate that obtaining a job does not prove that BNV was able to hold down a job.
This argument involves some confusion between the terms of the finding that is impugned and the proposition said to falsify that finding. The presidential member expressed a conclusion about the ability of BNV to “pursue” full-time employment. The relevant point was that BNV’s psychological condition was sufficiently stable in October 2021 for her to pursue full-time employment, which she did by seeking employment at RPA. That was to be contrasted with her condition by 26 July 2022, when she was hospitalised with serious psychological difficulties and incapable of maintaining employment. The presidential member’s reasoning does not assume that being able to “pursue” full-time employment is the same as being able to hold down full-time employment.
In any case, sub-ground 2(ii) does not properly identify any point of law. It is nothing more than an attack on the factual conclusion of the presidential member about the medical condition and capacity of BNV at the time she commenced work at RPA.
Ground 3 of the appeal is a contention that the presidential member was required to take into consideration the evidence of Dr Manambrakkat about the psychiatric symptoms and treatment regime of BNV prior to employment, and was required to evaluate those matters as a causal factor in explaining the aggravation of BNV’s condition.
This ground fails for essentially the same reasons as ground 1. The employer’s argument involves reading [116] out of context. In that paragraph the presidential member stated that the evaluation of Dr Manambrakkat’s evidence made no difference to the conclusion that BNV had suffered an aggravation of her pre-existing condition, in circumstances where the issue was whether the conceded work stressors represented the main contributing factor to the aggravation. That reasoning needs to be read together with what follows at [130], where the presidential member observed that it would have been open to the appellant to run a case that the pre-existing psychiatric condition had regressed because of BNV’s failure to persist with her treatment by Dr Manambrakkat, but it did not do so. At [131] the presidential member found that there was no evidence to support a submission that BNV’s condition was symptomatic and deteriorating immediately before she commenced employment at RPA as a result of multiple pre-existing stressors. That analysis was plainly informed by consideration of the evidence from Dr Manambrakkat, as is made clear at [133].
The presidential member therefore did have regard to the evidence of Dr Manambrakkat about the psychiatric symptoms and treatment regime of BNV prior to employment. He was alive to the possibility that such evidence might provide an alternative explanation for the aggravation to BNV’s disease which occurred during the course of her employment. He found that it did not. No legal error is demonstrated in this approach. As with ground 1, the employer’s case is not advanced by arguments that the presidential member should have reached a different factual conclusion based on the evidence of Dr Manambrakkat.
The argument in ground 4 that there was an unwarranted reversal of the onus depends on the notion that the presidential member adopted a number of “presumptions” that were favourable to BNV. That does not withstand scrutiny.
Contrary to sub-ground 4(i), the presidential member did not at [127] adopt a “presumption” that where there is a disease injury of causation the employment is a causal factor. At [127] the presidential member correctly observed that the employer did not advance a case that BNV had not suffered an aggravation of the pre-existing conditions. Put in positive terms, the employer conceded that there had in fact been such an aggravation. The presidential member did not adopt a presumption that any aggravation is necessarily caused by employment. In any event, the employer also conceded that this was the case in relation to BNV.
Contrary to sub-ground 4(ii), the presidential member did not make an erroneous assumption that if there was a lack of evidence that employment was not the main contributing factor, it necessarily followed that employment was the main contributing factor. The presidential member adopted a logical approach to making factual findings in this particular case. As I have sought to explain above, in circumstances where it was conceded that aggravation had occurred and that employment was a contributing factor to such aggravation, it was necessary to consider if the evidence pointed to any other contributing factors. Had any other contributing factors been identified, an assessment of relative contribution would have been required before determining that employment was the main contributing factor. Here there was found to be no evidence to demonstrate that other factors contributed to the aggravation. Having found that to be the case, the presidential member was entitled to find that employment was the main contributing factor.
The presidential member did not, as alleged in the appellant’s written submissions, presume that “where there is aggravation the employment is a causal factor and, in the absence of evidence from the insurer that it is not the main contributing factor, the employment is the main contributing factor”. This characterisation ignores important steps in the reasoning. The presidential member found (consistently with the concessions of the employer) both that aggravation of the existing disease had occurred in the course of employment and that work stressors were a factor contributing to that aggravation. The presidential member did not reason that the onus was therefore cast on the employer to disprove that this was the main contributing factor. He simply found that in circumstances where the employer had not sought to point to any other factors, and on the evidence there were not other factors that had contributed to the aggravation, the appropriate conclusion was that employment was the main contributing factor to the aggravation.
This analysis also demonstrates that sub-ground 4(iii) is without substance. The presidential member did not, in any illegitimate sense, require the employer to “rebut a presumption” that employment was the main contributing causal factor. The assessment of the evidence, reinforced by the concessions made by the employer, led the presidential member to conclude that employment was a contributing factor to the aggravation. That naturally begged the question of whether there was evidence of any alternative explanation, such as might suggest that some other factor was the main contributing factor. The presidential member found on the evidence that there was none.
**********
Amendments made to par [12].
State of New South Wales (Sydney Local Health District)
BNV
(1964) 110 CLR 626
(2024) 114 NSWLR 1
(2025) 117 NSWLR 448
Appeal dismissed with costs ([67]).
For the reasons which follow, the employer has failed to demonstrate that any erroneous approach in point of law affected the determination of the presidential member. The employer’s arguments largely fail because they do not proceed from a fair reading of the reasons for that determination. The presidential member was dealing with a situation where it was conceded that BNV’s pre-existing psychological condition was aggravated in the course of her employment at RPA. It was also conceded that work stressors contributed to the aggravation of BNV’s disease. The presidential member recognised that while these concessions naturally affected the framing of the issues they were not decisive, because in order to find that BNV had suffered an “injury” within the meaning of s 4 of the WC Act it was necessary to find that the employment was the “main contributing factor” to that aggravation.
The presidential member considered the evidence, found that there was no other contributing factor to the aggravation and concluded that BNV’s employment was the main contributing factor. This approach did not involve any error of a legal nature. The appeal should be dismissed, with costs.
The presidential member quoted the following passages from the evidence of Dr Berry, the psychiatrist who provided evidence for the employer:
Ground 2 is a contention that the presidential member erred in rejecting the argument (put as ground C in the PIC) that s 4(b)(ii) of the WC Act required the evaluation of BNV’s condition before and after commencement of her employment. The employer, with reference to [116] and [127], alleges that the presidential member failed to undertake such a comparative evaluation (sub-ground 2(i)).
Sub-ground 2(ii) involves a quite different complaint that the presidential member “erred in law” in finding, at [127], that BNV was “able to pursue full-time employment” at RPA. The employer argues that obtaining a job does not constitute evidence of an ability to hold down a job, and the evidence pointed to a conclusion that BNV was unable to hold down a job.
Ground 3 of the appeal is a contention that the presidential member was required to take into consideration the evidence of Dr Manambrakkat about the psychiatric symptoms and treatment regime of BNV prior to employment, and was required to evaluate those matters as a causal factor in explaining the aggravation of BNV’s condition. The employer contends that the presidential member failed in both respects, as shown at [116]. As with ground 1, this is not on its face a point of law. However, understood in context and with the benefit of submissions, this can be understood as involving a contention that the presidential member failed to perform the task required by s 4(b)(ii) of the WC Act, which must necessarily involve a legal error in construing that section.
By ground 4 the employer alleges that the presidential member reversed the onus of proof which lay with BNV as the party alleging that she suffered injury. This is said to be manifested in the following modes of reasoning:
applying a presumption, at [127], that where there is a disease injury of aggravation, the employment is a causal factor (sub-ground 4(i));
applying a presumption, at [145], that in the absence of evidence that the employment is not the main contributing causal factor, the employment is the main contributing causal factor (sub-ground 4(ii));
requiring the employer to rebut the presumption that the employment is the main contributing causal factor by adducing evidence that this was not the case (sub-ground 4(iii)).
The presidential member went on to state, at the commencement of [115], that “this did not depend on the existing condition of the respondent”. That statement must be read in light of what follows in the balance of the sentence – “at least in the absence of evidence that the pre-existing condition itself, without the work stressor, would have resulted in the respondent being in the same condition in which she was on 25 July 2022”.
The presidential member was plainly alive to the theoretical possibility that, irrespective of any role played by work stressors, the pre-existing condition may itself progress in such a way that it became aggravated during the period of BNV’s employment at RPA. Such a situation could also fit the description of “deterioration” in the pre-existing condition, which is another form of “disease injury” according to the definition in s 4(b)(ii). That in turn could theoretically lead to the conclusion that the “main contributing factor” for the aggravation was in fact the pre-existing condition (and associated non-work stressors). Logically, that could be the case even though work stressors also played some contributing role in the aggravation. The very notion of a factor being “the main contributing factor” admits of the possibility that there may be more than one contributing factor where a disease has become aggravated, or has deteriorated. A fair reading of the reasons indicates that the presidential member, in applying s 4(b)(ii), appreciated these theoretical possibilities.
The point being made by the presidential member at [115] was that there was no evidence that this was the correct conclusion to be drawn from the evidence about BNV’s disease. The same analytical approach and the same factual conclusions find expression in a number of other paragraphs of the reasons. The relevant parts of the reasoning have been emphasised in the passages extracted above.
The employer in its submissions put particular emphasis on the statement in [94] that BNV’s “pre-RPA history of ill-health or employment was not really an issue with respect to the matters to be determined by the Member”. The employer submits that this sentence reveals that the presidential member fell into error, as a result of submissions made by BNV, by adopting the position that the only contributory factors which could be relevant for the purposes of s 4(b)(ii) were those which had emerged after BNV started work at RPA. The corollary of that erroneous approach was said to be that the presidential member regarded the pre-existing condition and associated pre-existing stressors as irrelevant to the exercise of identifying and evaluating factors that may have contributed to the aggravation of BNV’s disease.
Had the presidential member adopted such an approach, it would have been erroneous. However, it is plain that he did not. The sentence emphasised by the employer in the reasons at [94] has to be read with the surrounding analysis. The presidential member proceeded immediately after that sentence in [94] to consider what would have followed if it was demonstrated (which it had not been) that BNV’s pre-existing psychological conditions were florid prior to 25 October 2021 or that her psychological condition at that time impacted on her employability. The member concluded that this would not have gone anywhere because the effect of the medical evidence was that these were only background stressors, and were not shown to be the main contributing factor to the aggravation that later occurred to BNV’s condition.
The employer argues that this conclusion should not have been reached, given the evidence that was before the presidential member. But that response does not deal with the question of what the reasons disclose about the presidential member’s understanding of the statutory task. It also goes nowhere in the context of an appeal in respect of a point of law. It is in substance a complaint about the merits of the factual conclusion reached by the presidential member. A conclusion about the causal contribution made by a particular factor is a factual conclusion, following a process of evaluation involving questions of impression and degree: Dawking at [42]-[43], [95].
The presidential member’s analysis turned on his assessment of what was demonstrated by the evidence, and not on any erroneous assumption that the pre-existing condition and/or the pre-existing stressors were irrelevant or incapable of being contributing factors, or the main contributing factors, in the aggravation to BNV’s disease after 25 October 2021. To the contrary, the analysis implicitly accepts that theoretical possibility. On the employer’s hypothesis that the presidential member regarded these matters as legally irrelevant, there would have been no reason to refer to them and the presidential member would not have done so.
The point is made more explicitly in [95]. That paragraph starts with an observation about the factual conclusion to be drawn from the evidence, namely that no contributing factor other than the workplace stressors had been identified to explain the deterioration in BNV’s psychological condition between 25 October 2021 and 25 July 2022. The final sentence of [95] states the logical proposition that in those circumstances it was inevitable for the member to have concluded that work stressors were the major contributing factor to the aggravation “[u]nless there was a new non-work factor or the respondent’s pre-existing medical conditions were such as to be responsible for the psychological deterioration”. Again, the point being made was that on the evidence the respondent could not point to any such new non-work factor. Nor did the evidence support a conclusion that the pre-existing conditions contributed to the deterioration.
The presidential member made essentially the same point in his reasons at [129]-[131]. The presidential member was there addressing an argument that the non-presidential member had overlooked the evidence about the condition of BNV when she consulted with Dr Manambrakkat and was prescribed a treatment regime before she commenced work at RPA. At [129] the presidential member found that there was no evidence that the aggravation of BNV’s condition (as shown in the symptoms she exhibited on 25 July 2022) was caused by the cessation of her treatment with her psychiatrist or her failure to attend a medical review with Dr Manambrakkat in November 2021.
The unstated premise is that it could have been significant if the evidence had pointed to such an alternative explanation for the aggravation of BNV’s condition. In other words, the presidential member appreciated that it might be relevant for the purposes of s 4(b)(ii) if the evidence showed that a non-work factor, including the pre-existing condition itself, contributed to the aggravation or deterioration of the disease. That is confirmed by what follows at [130], where the presidential member noted that “[i]t would have been open to the appellant to run a case along the lines that because the respondent had failed to persist with her treatment by Dr Manambrakkat, her pre-existing psychiatric condition had regressed”. The decisive point which follows was that this was not the case the employer had advanced, and there was “no medical evidence to support such a contention”.
At [131] the presidential member found that although a submission was made by the employer that BNV’s condition was symptomatic and deteriorating immediately before she commenced employment at RPA and as a result of “multiple pre-existing stressors”, that submission was “not grounded in the evidence”. Likewise at [133] the presidential member found that there was no medical evidence from Dr Manambrakkat, Dr Khan or Dr Berry to support the employer’s submission that BNV’s psychiatric condition deteriorated as a result of pre-existing stressors.
With the benefit of this analysis of the reasoning of the presidential member, it can be seen that each of the sub-grounds of ground 1 attributes to the member a mode of reasoning which he did not adopt:
contrary to sub-ground 1(i), the presidential member did not reason that if the pre-existing psychological condition was not the main contributing factor, it must follow that the course of employment was the main contributing factor, such as to introduce a false dichotomy or erroneous presumption. Such reasoning is not revealed at [114]-[115] or anywhere else in the reasons. The point was rather that the evidence simply did not demonstrate that any factor other than work stressors could explain the aggravation that occurred to BNV’s disease;
contrary to sub-grounds 1(ii) and 1(iii), the presidential member did not proceed on the basis of an “assumption” that because the pre-existing condition was not a sufficient factor to cause the injury it followed that it was not the main contributing factor, and the work stressors were the main contributing factor. The point being made in [115] was that there was an absence of evidence that the pre-existing condition would have resulted in BNV being in the same deteriorated condition, even without the work stressors. Read in isolation, that might leave unaddressed the theoretical possibility that the pre-existing condition was the main contributing factor to the deterioration of BNV’s condition, even though it was also made somewhat worse by work stressors. But it is unnecessary to consider how that theoretical possibility sits with the definition in s 4(b)(ii) of the WC Act. That is because the point did not arise on the evidence here. The presidential member found that the evidence did not establish that the pre-existing condition had made any identifiable contribution to the aggravation that occurred to that condition;
contrary to ground 1(iv), the presidential member did not reason that because he had found that employment was a necessary condition for the aggravation in BNV’s condition, it followed that employment was the main contributing factor to that condition. The presidential member recognised that in applying s 4(b)(ii) it was necessary to take into consideration any other factors that had been shown to contribute to the aggravation found to have occurred. On the evidence before him, the presidential member was not satisfied that any other such factors had been established; and
contrary to ground 1(v), the presidential member did not assume that because the employer had conceded that there was an aggravation of BNV’s disease in the course of employment it followed that it was also conceded that the work stressors were the main contributing causal factor for the injury, unless this was rebutted. Nothing in [115], or any other passage of the reasons, supports that characterisation of the approach adopted by the presidential member. To the contrary, the member recognised that the concessions by the employer were confined to an acceptance that aggravation of BNV’s disease occurred in the course of her employment and that work stressors contributed to the aggravation. The presidential member recognised that it remained to be determined if employment was the “main contributing factor” to such aggravation. He was satisfied on the evidence that it was. As explained further below, this did not involve casting a formal burden of proof on the employer to “rebut” a presumption.
Ground 1 must therefore be rejected.