1. On 13 May 2025, Member McAdam conducted a conciliation conference and arbitration hearing between the parties at which Mr Perry, of counsel, represented the appellant and Mr Stockley, of counsel, represented the respondent. As the matter could not be resolved, the Member issued a Direction which incorporated a timetable for lodging written submissions in respect of the issues in dispute. The Direction dated 13 May 2025 recorded that:

"The issues in dispute are injury pursuant to s 4 of the 1987 Act and the defence of reasonable action of the employer pursuant to s 11A of the 1987 Act."

1. By its submissions to the Member the appellant argued that the opinion of Dr Khan, the respondent's qualified psychiatrist, was only consistent with a claim for the contraction of a disease pursuant to s 4(b)(i) of the 1987 Act. It emphasised that the respondent did not allege that she suffered an aggravation of a pre-existing condition.[5] It submitted that Dr Khan's opinion should be rejected as he did not consider whether the events alleged by the respondent in her history actually occurred. He did not consider the possibility that they were a manifestation of her "endogenous paranoid or delusional states."[6]
2. The opinion of Dr Khan was further criticised for his failure to grapple with the opinion of the treating psychiatrist, Dr Xu, that the respondent was delusional. The appellant set out in table form the seemingly stark contrast between the respondent's account of bullying and harassment in the workplace and the evidence of the appellant's witnesses including Ms Wiebels. It submitted that the evidence of the respondent was "implausible"[7] or founded on paranoid or delusional ideation. It specifically referred to the evidence of Jacinta Green, who the respondent alleged punctured the tyre of her vehicle and purloined her phone during her visit to Ms Green's home on 9 August 2019.
3. Dr Khan's diagnosis of persistent depressive disorder and generalised anxiety disorder was also tainted by his failure to consider the appellant's lay evidence. The opinion of Dr Xu, the respondent's treating psychiatrist, was similarly flawed as he also did not have access to this evidence. The opinion of Dr Ventura, the appellant's qualified psychiatrist, that the respondent suffered a delusional disorder should be preferred.[8]
4. The respondent submitted that there was no support for Dr Ventura's diagnosis of schizophrenia "across the balance of the medical and psychological evidence"[9] in the case. She referred to the clinical records of the treating medical practitioners and psychologists which were consistent with a diagnosis of psychological stress "related to work issues with a colleague."[10]
5. The respondent argued that the appellant's lay evidence also suggested that, at the commencement of her employment, the respondent was "overwhelmed with the work" and experienced a "communication problem" with her manager Ms Wiebels.[11]
6. The respondent canvassed the evidence of the treating medical practitioners noting that Dr Xu's opinion acknowledged the presence of paranoid symptoms relating to the respondent's experiences at work. She embraced the opinion of Dr Xu, which was "the central evidentiary plank"[12] of her case on causation. Dr Xu had the advantage of communicating with the respondent in Mandarin and had seen the patient "over the more than 50 attendances recorded in his notes".[13]
7. By its submission in reply, the appellant argued that the respondent had entirely misstated her case on injury and had comprehensively failed to bring evidence that employment was the main contributing factor to the contraction "of the disease on which she relies".[14] It reiterated that Dr Khan's opinion was of "no value in the absence of consideration of the [appellant's] evidence as to the actions of its employees".[15] It referred to the reasoning in Paric v John Holland Constructions Pty Ltd in both the New South Wales Court of Appeal[16] and in the High Court.[17]
8. Both parties made submissions in respect of the application of s 11A(1) of the 1987 Act which are not relevant to this appeal.

1. After a consideration of both the lay and medical evidence, the Member accepted the respondent's submission on the issues of diagnosis and causation. At [104] and [105] of his reasons,[18] he said:

"I acknowledge that Dr Khan did not have the voluminous witness statements, which I have considered and referred to above. This does reduce the weight that can be given to his opinion. On the other hand, as the [respondent] submits, Dr Ventura provides a diagnosis without any apparent consideration of the clinical material, which shows from very early on in the employment relationship significant symptoms of anxiety. The diagnosis of a delusional disorder is inconsistent with those clinical records.

I prefer the opinion of Dr Khan. The statements of Ms Xu's colleagues corroborate that she was in an environment where she perceived she was being targeted. She had various communication difficulties. She was not adequately supported from very early on in her employment. The [appellant] may have preferred an applicant that was better able to 'hit the ground running' in the role, but they chose Ms Xu."

1. The Member found that the respondent had contracted a disease in the course of her employment to which the employment was the main contributing factor within s 4(b)(i) of the 1987 Act. He rejected the appellant's defence pursuant to s 11A. Relevantly, he made the following determination:

"1. The [respondent] suffered an injury in the course of her employment with the [appellant], to which employment was the main contributing factor.

1. The [respondent's] injury was not wholly or predominantly caused by reasonable action of the employer with respect to discipline or performance appraisal."
2. The Member remitted the issue of whole person impairment to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act. He stood over the issue of weekly payments of compensation pending the outcome of the medical assessment.

1. The appellant relies on three interrelated grounds of appeal. They are:

(a) Erroneously finding that the worker misperceived real events in the course of her employment - error of fact (Ground 1).

(b) Application of incorrect test for "perception" in the context of psychological injury - error of law (Ground 2).

(c) Failure to engage with the appellant's submissions on causation and/or inadequate reasons - error of law (Ground 3).

1. As the grounds of appeal specifically challenge the Member's factual findings, it is necessary to briefly review the evidence of the respondent and Ms Wiebels, her supervisor, and that of Dr Khan and Dr Ventura, the psychiatrists retained by the parties to express opinions on the issues raised by the respondent's claim. What follows is not a comprehensive summary of all the evidence in the case. Rather, I set out the salient points of the evidence so that the parties can understand the way in which the Commission has resolved the appeal. Further, I note the Member's concise summary of the evidence in his reasons at [8] to [27].

1. The respondent's primary evidence is found in four signed statements. There is also a document headed "My Diary"[19] which is unsigned and was received by the Member as an aide memoire rather than a part of the evidence. The respondent's initial statement of 29 April 2020 commences with the description of an incident on 23 May 2019 concerning her failure to post a water sample. The respondent asserts that she was "abused ... again".[20] She states she was "upset and tearful" in the office. She says that she was given no "guidelines." She felt her supervisor, Ms Wiebels, should not treat her "in this way."[21] When she did not answer her telephone call at 5.15pm, she was further criticised by Ms Wiebels. On the same day, Ms Wiebels was "angry and yelling" at her after she made a mistake with a timesheet. Ms Wiebels refused to sign a "new version" of the timesheet.
2. The respondent says that thereafter, Ms Wiebels' aggressive behaviour "happened nearly every day".[22] She states that she did not "feel comfortable to ask her questions" given this behaviour. Ms Wiebels alleged that her "qualification was not matching" causing her to return to Melbourne to obtain her "original certificate and transcript" to provide to human resources.
3. The respondent recounts that on 30 May 2019, she raised Ms Wiebels' aggressive behaviour with the human resources manager. She states that Ms Wiebels asked her to skip lunch, failed to assist her to complete an overtime claim, and left her without assistance to complete complex tender documents when she went on holidays. She states:

"I tried my best to use all resources in and outside the council and felt so much stress."[23]

1. She experienced similar difficulties completing an INSW report to be forwarded to the Department of Industries. She stayed late in the office and "felt very stressed" but was unable to complete the report to Ms Wiebels' satisfaction.[24]
2. The respondent states that she encountered further difficulty with completing a water project plan. She records that Ms Wiebels "abused me again and again" on her return from holidays. She continues:

"My supervisor had very bad relationship with almost everyone in the council. If other staff made her upset, she would pick on me to release her anger. As a result I was anxious and nervous all the time."[25]

1. The respondent perceived that she was directed to perform duties that fell outside her role as a water project engineer. She states that aspects of her role were "beyond my knowledge and qualification."[26]
2. The respondent recounts several incidents in which Ms Wiebels spoke to her "aggressively with an aggressive face." She records that she asked the Privacy Officer if she could install a camera in her office "to record what was happening to me"[27] and requested moving to an open area where others could hear her conversations with Ms Wiebels. Then, during an absence from work after consulting Dr Haghshenas, she continued to receive text messages from Ms Wiebels to which she did not reply. That was compounded by a complaint from Ms Wiebels that she had not responded to her text messages or telephone call.[28]
3. The respondent then describes a probation period review meeting on 25 July 2019 where she "spent nearly 2 hours" describing her difficulties with Ms Wiebels, her overwhelming workload, and lack of training and guidance. She states that following the meeting:

"I felt very upset and again consulted the counsellor. But at this stage I was too tired to fight as I felt the more and my mental health was declining (sic)."[29]

1. The respondent says that she continued at work with "increasing difficulty." She felt aggrieved with being asked to do "admin work when I am an engineer." Her reluctance to perform these tasks resulted in further conflict with Ms Wiebels and caused her to state that she would make a complaint as she "could not put up with this anymore."
2. The respondent did make a formal complaint about Ms Wiebels' conduct on 30 July 2019, after which the general manager, Roger Bailey, moved her office to the other side of the building and instructed Ms Wiebels not to communicate with her face to face. They were to communicate by email or phone pending the outcome of the complaint. The respondent states that "the abuse" from Ms Wiebels continued in the form of email messages. She concluded that Ms Wiebels would "never be satisfied" with her work. She made a further complaint to human resources stating that she was "so sick of it."[30] She returned to her counsellor for treatment and states that Ms Wiebels "kept on giving some tasks that I was not able to deliver."[31]
3. On 19 August 2019, Ms Wiebels asked the respondent to finalise invoices for a project. The respondent states that she had "no information to finalise the invoices." She states that she:

"couldn't cope with the responsibility in circumstances where I didn't have the training or guidelines and assistance to complete my work together with the constant attacks and aggressive criticism from my supervisor."[32]

1. The respondent states that she left Coolah on 23 August 2019 and has remained in Melbourne ever since. She is under the care of Dr Chiang, a GP, Mr Kimber, a psychologist, and Dr Xu, a psychiatrist.
2. By her supplementary statement of 30 November 2021,[33] the respondent elaborates on her psychological symptoms, their effect on her activities of daily living and her medical treatment.
3. By a further statement of 6 September 2022, the respondent further addresses the physical relocation of her office to the appellant's finance section after her complaint about Ms Wiebels. She states that, after her move, she never spoke to Ms Wiebels as she found her "intimidating."[34] She recounts that she worked with many departments in her short period with the appellant and had "no performance issues or problems working with others, only Cornelia".[35]
4. The respondent maintains that at her 3-month review, Ms Wiebels "wrote an unfair assessment". She maintains that if there had been serious issues with her work she would not have "passed" her performance or probation reviews. Following these reviews her request for further training was approved and she undertook training in Dubbo and Sydney.[36] The respondent reiterates that Ms Wiebels required her to undertake tasks which were "completely unreasonable", outside her job description, or related to transactions which occurred prior to her employment. She states that she was formally dismissed in November 2019. She recounts that, after she shared her feelings about Ms Wiebels, "everyone in the office was supportive of me."[37] She continues:

"They strongly recommended that I stand up and speak out and report my supervisor, Cornelia."[38]

1. The respondent states that, contrary to her written evidence, Carol Nasmith told her that working under Ms Wiebels "made her incredibly stressed and sick."[39] Ms Nasmith suggested that she join the union and keep a diary of day-to-day events. She records that Ms Nasmith:

"asked me to speak out and fight and encouraged me to report Cornelia."[40]

1. The respondent maintains that Melissa Chapple and Lisa Grammar encouraged her to report Ms Wiebels. It was Ms Grammar who contacted human resources to facilitate the respondent making a complaint about Ms Wiebels.
2. The respondent also addresses her visit to the home of Jacinta Green at a time when Council did not employ Ms Green. On the Saturday morning of her visit, Ms Green's husband told her that the tyre of her vehicle was flat. He did not assist her in changing the tyre but told her that she "needed to learn."[41]
3. On her return to the house, her phone was not where she had left it. She states that Ms Green subsequently told her that she worked for Ms Wiebels "as a contractor" and stated that she "was after my job while I was at her house."[42]
4. The respondent also addresses a previous psychological episode in 2006 for which she required short term treatment. The respondent states that she had a "relationship issue and an issue with the tenant."[43] The episode was "short term and minor" and only involved "one or two consultations".[44]
5. By a further statement dated 3 February 2025, the respondent states that she successfully underwent IVF treatment, falling pregnant in late 2022, and giving birth in mid-2023.[45] She states that she continues to live with both her parents. She spends most of her time at home.

1. Ms Wiebels was employed in the role of Manager - Warrumbungle Water at the Coolah offices of the appellant. By her initial statement, Ms Wiebels states that she found that the respondent was "unclear about how to progress tasks".[46] She states she encouraged her to "come and speak with me and clarify the information" before completing the project. In response to a complaint that she "was always busy", she told the respondent:

"that if it was urgent, she could interrupt me there and then, otherwise send me an email or a calendar invite to set aside a time."[47]

She states that she subsequently introduced a 90-minute "catch up session" each week to discuss the projects assigned to the respondent.

1. Ms Wiebels recounts an incident where she told the respondent that she was being "disrespectful"[48] after she flicked her hand "in a dismissive notion toward me."[49] Ms Wiebels recalls returning from 2 weeks' leave and finding that a project that she had assigned to the respondent was "nowhere near completion". As the respondent's enquiries in respect of the project were not evident, she told her that she should have been communicating by email to establish "written records." She states that:

"My belief was that anything that I say to [Ms Xu] about work instructions she reviews as a personal attack."[50]

1. The witness states that the respondent was repeatedly "a few minutes late for work." She spoke to her about this "but the lateness continued." She states:

"I had changed times on her timesheets to reflect the times that she was arriving and told her that she should be punctual."[51]

Ms Wiebels also records her belief that the respondent was ignoring her.

1. While Ms Wiebels believed that the respondent was not meeting expectations, the respondent "believed that she was performing well above average". Ms Wiebels records that "[Ms Xu] has a very different perception of reality than what I do."[52] Ms Wiebels recounts that the respondent refused to perform "administrative" tasks as they were not "part of her duties". These issues were addressed at the respondent's probationary review meeting on 25 July 2019, as evidenced by the letter of 31 July 2019, which was prepared by Christine Kennedy, who also attended the meeting, and signed by Ms Wiebels.[53]
2. On 30 July 2019, Ms Wiebels contacted Ms Kennedy of human resources seeking advice on how to deal with the respondent's refusal to perform an "admin task". Later on the same day, she was informed by Roger Bailey that the respondent had spoken to him "about her concerns of bullying and harassment"[54] and informed him that she intended to lodge a formal complaint.[55] She was informed that the respondent would be relocated to the front of the building, and that she was not to communicate with her verbally.
3. The witness provided a supplementary statement dated 30 June 2020, by which she reiterates that she did not bully the respondent, but rather, the respondent was "incapable of doing the role despite her qualifications."[56] She continues:

"I never raised my voice or yelled at [Ms Xu]. I have had to ask her to lower her voice and not to yell at me."[57]

1. The witness specifically addresses matters raised in the respondent's supplementary statement of 29 April 2020. She addresses the respondent's utilisation of an administrative officer to post a water sample to a consultant, her submission of a late and incorrect timesheet; and the arrangements she made to assist the respondent in her work. She denies the respondent's suggestion that she would "pick at every little thing."[58] Rather, the respondent was not able to accept that she had made errors or was "unable to follow through with instructions". Contrary to the respondent's assertion, Ms Wiebels states that the task which she was required to perform fell within the position description of a water projects engineer.
2. By a further supplementary statement dated 13 June 2023, the witness addresses additional matters raised by the respondent in her statement of 8 September 2022. She refers to the respondent's assertion that Ms Wiebels required her to sign off on invoices raised and paid for before she commenced her employment. Ms Wiebels states that the respondent would have been required to assess and approve progress invoices from professional consultants and report on expenditures for funded projects through an Infrastructure NSW portal.[59] She again denies that she would have asked the respondent to perform work outside the responsibilities of her role as a water project engineer.
3. Ms Wiebels states that the respondent was asked to look for suitable land which could "potentially be used" for a planned water sewage plant. She did this as part of a team. She was not asked to purchase real property.

1. By a report of 16 January 2022, Dr Khan recorded that upon the commencement of employment with the appellant at Coolah, her manager, Ms Wiebels, treated her like a slave and "shouted and screamed at her from the first week of her employment".[60] Her mental state deteriorated, and she developed symptoms of anxiety and panic. The doctor records incidents where Ms Wiebels had human resources check the respondent's qualifications; verbally abused her for failing to follow up the posting of a water sample, and, again, after she made an error with her timesheet.
2. On 31 May 2019, she sought treatment from Dr Haghshenas and was referred for psychological treatment. The doctor also records an incident at the home of Jacinta Green which "particularly distressed" the respondent when she "reportedly had her phone stolen from her and her vehicle tyre flattened."[61]
3. After considering the respondent's past psychological history and conducting a mental state examination, Dr Khan expressed the opinion that she suffered from a persistent depressive disorder and generalised anxiety disorder.[62] He considered that she was subject to protracted workplace psychological stressors during her employment with the appellant:

"whereby he [sic] was targeted, bullied, harassed, isolated, excluded, unsupported, ignored and dismissed by her colleagues as well as management."[63]

1. Dr Khan thought that the respondent would benefit from "comprehensive mental health treatment" which included day treatment at a psychiatric hospital. She was totally incapacitated for work. He did not agree with Dr Ventura's diagnosis and assessment of causation. He continued:

"Although Ms Xu presented with paranoid thoughts, these cognitions are congruent with the protracted workplace psychological trauma she had to endure. She was subjected to extensive abuse and intimidation, which was perpetuated by her manager. Ms Xu was isolated and living in a small rural town where all other residents had known each other for an extended period of time. Her reported trauma is not delusional in nature nor is it 'bizarre', as Dr Ventura presumes. Furthermore, Ms Xu has no previous history of psychotic symptoms; therefore it is improbable that she would suddenly present with psychotic symptoms at the age of 38."[64]

1. Dr Khan thought that it was important that neither Dr Haghshenas or Mr Kimpton, a psychologist, had recorded paranoid symptoms or diagnosed a delusional disorder. He assessed 22% whole person impairment as a result of the diagnosed psychological injury.
2. There is a further report from Dr Khan dated 25 November 2024, by which he reiterates his opinion the respondent suffered a persistent depressive disorder caused by "protracted workplace stressors whereby she felt targeted, bullied, harassed, isolated, excluded, unsupported, ignored and dismissed by her colleagues as well as management."[65]

1. Dr Ventura saw the respondent at the request of the appellant on 24 June 2020 and provided a report dated 1 July 2020.[66] She had access to the statement evidence of Ms Wiebels and other employees of the appellant. The respondent told her that Ms Wiebels was rude and disrespectful towards her and asked her to perform tasks that were not within her job description. She did not accept "her own softer greetings". The doctor records that the respondent became convinced that Ms Wiebels wanted her replaced by Jacinta Green. The latter invited her to her farm and distracted her so that she could "access her phone, spy on her and send the content of her phone and messages to [Ms Wiebels]".[67]
2. The doctor noted that Dr Xu had prescribed Latuda which Dr Ventura states is a "medication for schizophrenia" noting that she was not currently prescribed antidepressant medications.[68] Dr Ventura expressed the opinion that the diagnosis was of delusional disorder or early schizophrenia rather than a psychotic depression. These were constitutional disorders. She found no evidence of a mental illness "which had been caused by employment".[69] She continued:

"Psychotic illness[es] are almost invariably considered to be constitutional disorders. Ms Xu's complaint of her manager Cornelia is that she was rude and that she had a nasty look on her face. She was unable to give any specific examples of how she may have been bullied. The only example she gave of this is that she did not agree with the directions given to her by her manager Cornelia. This is confirmed by the statements of Council witnesses."[70]

1. Dr Ventura expressed the opinion that if the respondent's condition resulted from her employment, it could be attributed to "discipline and/or performance appraisal". She thought that the respondent was totally incapacitated for work and should undergo "long-term treatment for her psychotic disorder".[71]
2. Dr Ventura saw the respondent again audio visually on 5 April 2022 and provided a report of 8 April 2022. The doctor recorded the following history:

"She told me that her injury was caused by her employer when she was working in a small town. She alleged that people in the small town stole her money. She alleged that her boss wanted her replaced and she organised for Jacinta to slash her tyres and steal her phone. She told me that people from work came to her house in the middle of the night and this scared her. She told me that the police could not be trusted. She said, referring to the police and her co-workers 'they are all in it together, there are no laws, there are no rules'."[72]

1. The doctor recorded that the respondent continued to take Latuda, an antipsychotic medication. She expressed the opinion that the respondent's psychiatric disorder was being perpetuated by her lack of adherence to prescribed treatment and a strong dependence on her parents.[73] The doctor also recorded that in 2020 and early 2021 she heard voices at night which said such things as "Chinese people and food are rubbish".
2. Dr Ventura concluded that the diagnosis was now schizophrenia which was complicated by major depressive disorder. The history of both delusions and hallucinations supported this diagnosis.[74] She did not believe that these conditions were caused by the respondent's employment.

1. 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."

1. By its submissions in reply, the appellant contends that the approach taken by the respondent to Ground 2 "runs the risk of procedural unfairness".[75] It suggests the need for a preliminary conference to address the adequacy of this ground of appeal. I doubt that will advance the appellant's case. I will briefly address this matter further when dealing with Ground 2 below.
2. Otherwise, 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.

1. 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. It was not suggested by either party that the determination of the Member was interlocutory given that no order for payment compensation was made in the Certificate of Determination.

"A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination".

1. Rules 78(2) and (3) of the Personal Injury Commission Rules 2021 (the Rules) are as follows:

"(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker's reasons for the determination that includes the following -

(a) the appropriate decision-maker's findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the appropriate decision-maker's understanding of the applicable law,

(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.

(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker's view of the case made by each party."

1. The nature of an appeal under s 352 of the 1998 Act was recently considered by the Court of Appeal in State of New South Wales v Culhana.[76] Both parties addressed that case briefly in their submissions. It is clear, as the appellant argues, that the approach to s 352 stated in Raulston v Toll Pty Ltd[77] and the cases which follow it, is wrong. The first "general principle" stated in Raulston at [19] is predicated on too narrow a view of the appellate function conferred by s 352. It is also inconsistent with the previous appellate caselaw.[78]
2. The proper approach to an appeal pursuant to s 352 can be found in the reasoning of the High Court in Warren v Coombes,[79] Lee v Lee,[80] and Fox v Percy.[81] In Culhana, Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following passage from Lee as illustrative of the proposition that, when an appellate court is in as good a position as the trial judge to determine the issue, a determination that a conclusion was "open" is erroneous:[82]

"Having rejected the essential planks of the trial judge's reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this 'very closely balanced' case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of 'weighing [the] conflicting evidence and drawing its own inferences and conclusions', and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good. (citations omitted; emphasis added)."

"Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was 'open' to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion."

1. Plainly, as the appellant submits, the advantage of the Member in this matter is constrained by the fact that it was determined on the written evidence. Nonetheless, it remains necessary for the appellant to prove error if it is to succeed on the appeal. It must also remain the case that the mere preference of a Presidential member for another outcome in a factual dispute does not inevitably establish error.[83] Culhana contemplates a rehearing on the basis of the errors asserted in the grounds of appeal and not a review, the statutory methodology for an appeal prior to the 2011 amendments to s 352.

• 74. The recent decision of the Court of Appeal in Mars Australia Pty Limited v Knight[84] confirms that for a decision to be revoked the error found must be material to the outcome and deprive the appellant of a realistic possibility of a different result.

1. By way of introduction to the grounds of appeal, the appellant criticises the "unorthodox"[85] presentation of the respondent's case at the hearing. It criticises the evidentiary value of the document headed "My Diary" apparently without appreciating that the Member treated it solely as an aide memoire. It criticises the respondent's statement evidence as "conclusionary and unhelpful", submissions which were not made by counsel for the appellant at the arbitration hearing.
2. The appellant concludes its introductory review of the respondent's evidence by stating that it should be inferred that the respondent "was relatively happy with her employment situation" at the time of her visit to Jacinta Green's farm on the weekend of 9 August 2019. Thus, the "key causative event"[86] to the respondent's psychological illness "appears to be the flat tyre incident" and related events at the farm on that weekend. The appellant also refers to competing psychological stressors relating to her not having a child and her father's health, which it asserts are significant contributing factors to the respondent's psychological illness. These submissions suggest a misreading of the evidence or the fabrication of an argument for the purpose of the appeal.

Ground 1 - Erroneously finding that the worker misperceived real events in the course of employment

1. The appellant argues that the respondent's statement of 6 September 2022[87] and specifically her account of a visit to the home of Jacinta Green and her husband on 9 and 10 August 2019 is of fundamental importance to the outcome of the case. This statement contains "the real complaint in the case".[88] The respondent "was relatively happy with her employment situation at the time"[89] of her visit to the farm. The argument continues:

"The worker unravelled psychologically because of an admixture of personal problems and a perceived attack on her motor vehicle. The events of this weekend were entirely the result of social interactions at that time - not employment."[90]

1. There was nothing to connect the respondent's visit to the Green farm with her employment. The respondent was not at work at the time and Ms Green had left the appellant's employment many weeks before the incident.

"Pure rumination about a non-work fact, where that rumination colours the (true) factual matter as having a work complexion does not bring that within the course of employment, and nor does it arise out of employment - it arises out of delusional thinking".[91]

1. The appellant then criticises the Member for finding that the worker was not "delusional".[92] It submits that the worker's perception that the Greens had punctured her car tyre with a view to stealing her phone was "unquestionably delusional".[93] Further, in reaching a conclusion that the worker was not delusional, the Member had relied on a single GP record of 24 July 2019 and ignored "better quality evidence" from the respondent's treating psychiatrist, Dr Xu, and Dr Neale.[94] Thus, the Member "failed to engage with the [appellant's] submission on causation", a complaint that is also the basis for Ground 3 below.

1. The respondent submits that the focus on the respondent's perception of the tyre puncture discovered on the morning of 10 August 2019 "misperceives the significance of this event in several respects".[95] First, the event occurred in the context of "a worker already diagnosed with a work related adjustment disorder".[96] Secondly, it equated the test necessary to prove perception based on real events to proof of criminal intent. Thirdly, it:

"fails to engage with the medical opinions of Dr Xu and Dr Khan that the paranoid ideation associated with this event was a product rather than a cause of her illness."[97]

1. The respondent argued that the appellant had not identified the finding or the specific error that it asserts is erroneous. Its failure to do so caused procedural unfairness.

1. The Member noted that the submissions at the arbitration hearing gave rise to "a factual dispute as to whether many of the incidents alleged to have occurred by Ms Xu, actually occurred."[98] He referred to the reasoning of the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler[99] and of Deputy President Roche in Attorney General's Department v K.[100] He deduced from those cases that it was unnecessary for the respondent to prove that "every event complained of occurred" "exactly as alleged by her".[101] Rather, a worker must prove that an environment existed at her place of employment that caused her psychological condition. He adopted the reasoning of Roche DP in Baker v Southern Metropolitan Cemeteries Trust.[102]
2. After reviewing the lay evidence, he found that there were:

"occasions where there were real events, communications or discussions, where Ms Xu misunderstood the tone of Ms Wiebels."[103]

1. The respondent's perception that Ms Wiebels was hostile was based on events which occurred from a time shortly after she commenced employment.[104] Her adverse reaction to her supervisor was corroborated by the "clear and consistent history" of her crying in the workplace recorded by three of the appellant's witnesses. The Member then analysed the interaction between Ms Wiebels and the respondent throughout the period of her employment. He considered Ms Xu's mistake in completing her timesheet on 23 May 2019;[105] Ms Wiebels questioning the respondent's stated academic qualifications;[106] the respondent's complaint that Ms Wiebels' door was "always shut";[107] requiring the respondent to work through lunch during a car trip to Dubbo;[108] and the allocation to the respondent of work that she was unable to complete during Ms Wiebels' absence on holidays.[109]
2. In these cases, and in several others, discussed by the Member there was a factual basis for the respondent's perception that Ms Wiebels had mistreated her. The Member stated that:

"There seems to have been a misunderstanding, from the start, about the [respondent's] role and expectations therein."[110]

1. The appellant commences its submissions by stating this ground "is principally concerned with the actual findings the Member made, and whether they are in error".[111] But the assertion at [25] that the respondent's psychological state was caused by a combination of personal problems and the puncturing of the tyre of her vehicle bears no relationship to the Member's findings on the multiple factual issues in dispute or to the facts proven in the case. It is an example of the strawman fallacy. It was not alleged in the ARD that the event of 9 August 2019 occurred in the course of the respondent's employment.
2. The particulars of injury alleged that the respondent was subjected to repeated overbearing and aggressive comments by her manager and was required to undertake duties beyond the scope of her classification as project manager with insufficient resources and training to undertake such duties. It was not alleged that the events on the weekend of 9 August 2019 were material to her injury. It is unmistakably clear from the Member's reasons that he accepted that the main contributing factors to the respondent's psychological injury were her interaction with Ms Wiebels and related aspects of her employment and that this interpersonal conflict commenced shortly after she commenced work for the appellant.
3. The Member reached this conclusion after considering the "totality of the evidence"[112] and after resolving the "clear factual dispute as to whether certain events occurred".[113] The import of the Member's findings can most readily be seen in his disposition of the issue under s 11A(1) of the 1987 Act raised by the appellant at the arbitration hearing. The Member encapsulated his findings on injury as follows:

"Ms Xu was clearly overwhelmed from very early on in her employment. She was crying in the office on multiple occasions. She had significant difficulties communicating with her supervisor. She was in a new town. Ms Wiebels found her 'incapable of doing the role despite her qualifications'. In this context, Ms Wiebels was critical of her ability to perform simple tasks such as filling in a time sheet, which she made her complete multiple times. Ms Xu is not alone in finding Ms Wiebels' tone confronting. Ms Thompson describes it as 'abrupt'. Others may have been better positioned to cope with her general demeanour and expectations."[114]

"The workplace environment, that Ms Xu felt was 'toxic', as well as the ongoing interpersonal issues she had with Ms Wiebels, her feeling of lack of support, and her perception of real events that occurred are all predominant causes, more significant than any disciplinary measures taken."

1. There is no finding in the above reasons that the respondent's psychological injury was caused or contributed to by the "perceived attack on her motor vehicle". The Member dealt with that issue as it was an important plank in the appellant's submission that the respondent was delusional, not because it was alleged to be an incident of her employment. At [97] of his reasons, the Member recorded that the respondent found metal in her tyre on the morning of 10 August while visiting the Green family farm. He concluded that this was a reaction to a "real event". He continued:

"This was close to Ms Xu ceasing employment with the [appellant]. She had reported psychological symptoms to her doctor. She perceived something that was no doubt innocuous as part of a bigger issue she had with her employer. The event occurred; Ms Xu perceived it to be something different to what it was."

1. At the arbitration hearing, the appellant had submitted that the respondent's account of what happened to her on the morning of 10 August 2019, and Ms Green's contradictory evidence, provided "strong support for the conclusion reached by Dr Ventura" that Ms Xu was delusional.[115] It was necessary for the Member to address this argument. He did not contemplate that she might be in the course of her employment when visiting the Green farm. That is made abundantly clear by his description of the episode as a "weekend getaway" at [96] of his reasons. Rather, he accepted that her reaction to her flat tyre was a manifestation of the psychological illness that she had already contracted in the course of her employment. Because of her existing psychological injury, she perceived sinister intent in an innocuous event.
2. Immediately following his discussion of the incident of 10 August 2019, at [98] of his reasons, the Member reviewed the respondent's attendances on Dr Haghshenas, her general practitioner, on 31 May 2019, 11 July 2019, and 24 July 2019. On each occasion, she presented with psychological symptoms. On each occasion, she had complained of difficulties at work. She was diagnosed with a psychological condition and referred to a psychologist. Each of those consultations occurred before the incident at the Green farm on 10 August. The 10 August incident was merely part of the "bigger issue" that the respondent had with her employer.
3. Both the Member's reasons and the timeline are inconsistent with the appellant's contention that the incident on 10 August 2019 was a significant contributing factor to her psychological condition. By that time the worker had initiated her grievance against Ms Wiebels and had been assigned another location in the Coolah offices.
4. The same conclusion must be reached in respect of the "non-work related" stressors which the appellant asserts are also contributing factors to the respondent's psychological condition. There is nothing in the contemporaneous medical evidence to suggest these factors were operative at the time of the respondent's psychological decompensation. None of the expert witnesses suggest that the respondent's desire to have a child or her father's illness contributed to her decompensation. The latter event seemingly occurred well after the respondent sustained psychological injury. There is no evidentiary basis for the appellant's contention that these events are the real cause of the respondent's injury.
5. By its submissions in reply, the appellant argues that it was immaterial that the events at the Green farm occurred after the respondent had sought medical treatment and been diagnosed with a psychological condition:

"if it be the case (as the appellant contends) that this diagnosis was itself the result of delusional thinking in relation to matters occurring (or not occurring) earlier."[116] (appellant's emphasis).

While the submission is nebulous, I assume it is a restatement of the argument put below that the respondent's psychological condition is a manifestation of her endogenous psychological condition, probably schizophrenia. The complaint is more clearly stated at [6] of its submissions in reply, where the appellant argues:

"the member erred in finding work related causation and the converse is that the member should have found that any causation of injury was the result of delusional thinking and was thus not compensable."

1. In determining this issue against the appellant, the Member carefully considered the undoubted conflict between the evidence of the respondent and the lay witnesses tendered in the appellant's case. He also considered the opinion of Dr Ventura and rejected it as being inconsistent with the other medical evidence. With the exception of its attack on the Member's treatment of the Green farm incident and the alleged non-work-related stressors, the appellant does not identify a specific error in the Member's findings in respect of the lay evidence. The Member clearly stated his reasons for rejecting the opinion of Dr Ventura that the respondent suffered a delusional disorder or schizophrenia.[117] When considering this issue it must be borne in mind that Dr Ventura was the only doctor in the case who expressed this opinion.
2. Dr Khan had access to Dr Ventura's reports. He specifically disputed her opinion as to diagnosis and causation. Dr Xu, who had seen the respondent many times for treatment, and who could converse with her in Mandarin, also rejected Dr Ventura's diagnosis. He thought the respondent suffered from depression/ PTSD with psychotic features caused by her employment.[118] Neither of her treating general practitioners recorded a diagnosis of delusional disorder or schizophrenia and Mr Kimpton, her treating psychologist, thought she had been severely traumatised by events in Coolah. His primary diagnosis was adjustment disorder with mixed anxiety and depressed mood.[119]
3. The appellant tendered a report of Thomas O'Neill, a clinical psychologist, dated 13 January 2023[120] at the arbitration hearing. While Mr O'Neill had doubts about the validity of the respondent's claim, he recorded that he "did not observe any specific psychotic aspects to her presentation".
4. Despite the divergence of medical opinion between Dr Ventura and the balance of the medical evidence, no application was made to cross-examine the primary medical witnesses at the hearing. The Member was left to do the best that he could with the conflicting reports. I am not persuaded that the appellant has established error under this ground. Its primary argument is based on a misconception of the evidence. Its argument that the Member should have found that the respondent suffered schizophrenia is contrary to the weight of the medical evidence. When tested against the treating medical evidence, a diagnosis of delusional disorder or schizophrenia is improbable. Given his long association with the respondent, Dr Xu is in an advantageous position to express an opinion on diagnosis and causation. He did not accept Dr Ventura's opinion. Considering this argument on the correctness standard, in accordance with the reasoning in Culhana, it cannot succeed. This ground of appeal fails.
5. Finally, I note that the Member did not reject the proposition that some aspects of the respondent's presentation were delusional. The medical evidence which he accepted opined that her paranoid interpretation of events was caused by her depression. Whether psychotic episodes are endogenous or consequential on a depressive illness is a well worn area of disputation in compensation cases. It is often difficult to resolve. The evidence that in this case it was consequential on the respondent's psychiatric injury is compelling.

Ground 2 - Application of incorrect test for "perception"

1. While the appellant characterised this ground as an error of law, its first submission is reliant on an acceptance of its argument in respect of the Member's factual findings in Ground 1. These findings, it asserts, suggest "that the Member did not apply the correct legal test on the issue of perception."[121] As I have rejected the attack on the Member's factual findings in Ground 1, it is unnecessary to dwell at length on this ground.
2. In support of its argument, the appellant surveys the case law dealing with psychological injury caused by a worker's misperception of events occurring at the workplace. After quoting from the reasoning of Roche DP in K, the appellant submits that his "analysis clearly excludes pure delusion".[122] It also "excludes a rumination at work about something that occurred outside work." The appellant argues that this distinction can be seen in the reasoning of McGrath CJ in Townsend v Commissioner of Police[123] and in the reasoning of Spigelman CJ in Chemler. On the basis of their reasoning, the appellant submits that:

"Injury caused by perception is only compensable per Chemler if it is a gloss which the worker puts on the underlying objectively true substratum of factual matters occurring at or arising out of work. Here, they do not."[124]

1. Since the insertion of the requirement that the employment be the main contributing factor to the contraction of a disease within s 4(b)(i) of the 1987 Act by the Workers Compensation Legislation Amendment Act 2012:

"the compensable causation component must be the main contributing factor to the totality of pathology. It was not".[125] (appellant's emphasis).

1. The balance of the appellant's submission under this ground is a rehearsal of its attack on the factual basis of the Member's findings. It returns to the attack on the report and opinion of Dr Khan. His history is vague.[126] His opinion is "totally unhelpful" on the causation issue.[127] The questions posed to the doctor by the respondent's solicitor were "inappropriately leading" and the doctor's answers "comprised of a bare ipse dixit on causation".[128] His report contains no "actual facts" and no "delineation between work stressors (if there be any) and non work (which are obvious) stressors."[129] It is doubtful whether these submissions are relevant to the error of law alleged by the appellant.

1. The respondent's submission in respect of this ground is limited to one paragraph. She submits that while the appellant refers to the relevant authorities on the question of misperception, "[i]t does not refer to the Member's conclusion, the test that he applied or how it was erroneous."[130]

1. In its submissions in reply the appellant submits that:

"Ground 2 is a legal complexion added to the factual matrix the subject of ground 1. That is why the submissions made in support of it focus on legal authorities on misperception."[131]

1. It was formerly considered that a misperception of an otherwise innocuous work related event which caused a worker to develop a psychiatric illness was insufficient to found an entitlement to compensation for psychiatric injury. That approach was rejected by the Court of Appeal in Chemler. In K, after considering Chemler and interstate authorities, Roche DP said at [54]:

"The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an 'offensive or hostile working environment', and a psychological injury has resulted, it is open to find that causation is established. A worker's reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker's response was 'rational, reasonable and proportional', as [the appellant] has submitted."

1. The appellant submits that this analysis excludes "pure delusion" or rumination about an event external to the employment. The term "pure delusion" is inexact. But I assume that it refers to delusions which are not causally related to employment. In respect of a disease injury pursuant to s 4(b) in its current form, the appellant's analysis must be correct. To succeed in a case brought pursuant to s 4(b)(i) it is necessary to establish both that the disease was contracted in the course of the employment and that employment was the main contributing factor to the contraction the disease. A worker suffering from a psychiatric condition may misperceive events encountered in the course of their employment by reason of delusional or psychotic thought processes. It does not necessarily follow that such misperceptions have influenced the course of his/her disease or can be characterised as the main contributing factor to contraction of the disease. The question of causation must depend upon the evidence in each case.[132]
2. While its formulation of the law is correct, the appellant does not attempt to establish that the Member misapplied the principles established by Chemler or K or that he failed to appreciate it was necessary to prove that employment was the main contributing factor to the disease entity. A fair reading of the Member's reasons lends no support to the proposition advanced by the appellant that he acted on wrong legal principles. At [64] of his reasons, he commenced his discussion of the "injury" issue by noting that the case was brought "solely" pursuant to s 4(b)(i) of the 1987 Act, which required that the employment be the main contributing factor to contracting the disease and that this was "in contrast to the aggravation, acceleration, exacerbation or deterioration of a disease." At [67] he referred to Roche DP's summary of the law [52] in K. At [68], the Member recited the reasoning in Baker, which led him to state that the respondent "must prove that an environment existed that caused her work injury". There is no suggestion of legal error in this analysis. It is not evident that the Member misapplied those principles in determining the factual dispute between the parties. In its submissions in reply, the appellant theorises that the facts may give rise to the possibility of two discrete psychological diagnoses.[133] Again, this argument was not put at the hearing. The appellant's case was that an acceptance of Dr Ventura's diagnosis of schizophrenia necessarily resulted in the respondent's case failing.
3. By its submissions in reply, the appellant suggested it may be necessary to conduct a preliminary conference because the respondent had not particularised its argument that this ground of appeal did not comply with a procedural direction. Irrespective of whether the submissions comply with relevant procedural directions, it is necessary for the appellant to identify and prove a relevant legal error if it is to succeed. As it has not done so, this ground of appeal fails. A further conference would serve no useful purpose.

Ground 3 - Failure to engage with appellant's submissions on causation/inadequate reasons

1. The appellant argues that the Member failed to engage with its written submissions dated 30 May 2025 and 9 July 2025. These submissions dealt with causation of the respondent's psychological condition.[134] Puzzlingly, the appellant states that while the Member's failure to engage with its submissions is the basis for Ground 3, the factual import of this informs Ground 1. This may mean the factual errors canvassed under Ground 1 also support the alleged error of law under this ground.
2. The submission then recites at length at [46] to [55] from Mr Perry's written submissions at the arbitration hearing. It rehearses the arguments made below. I have summarised these arguments above. The appellant returns to the evidentiary difficulties arising from the fact that Dr Khan did not have the benefit of the written evidence of the appellant's witnesses. That evidence "included no fewer than 14 statements against the worker's case".[135] Given the weight of the evidence in the appellant's case, it was not sufficient to apply the reasoning in Baker "to gloss over factual differences which the Member acknowledged as overwhelming". It was incumbent on the Member "to actually determine the content of the counterfactual such as it was and comprising something in the order of 100 pages of evidence"[136] (appellant's emphasis). It was only after that exercise that the Member "could satisfactorily have preferred the evidence of Dr Khan".
3. The appellant reiterates the argument made at the arbitration hearing that neither the opinions of Dr Khan or Dr Xu were of probative value "as those opinions were not obtained in a 'fair climate'."[137] The appellant again refers to the reasoning of the Court of Appeal in Paric and of the High Court on appeal.
4. In the alternative, the appellant argues that the manner in which the Member dealt with this aspect of its submissions at [104]-[105] of his reasons "constituted a failure to engage" with the key submission in accordance with the reasoning in Dranichnikov v Minister for Immigration and Multicultural Affairs.[138] The appellant says that there was a "failure by the Member to give proper, genuine and realistic consideration to its key submissions".[139] In particular the Member had found in favour of the worker in the absence of any positive finding as to the existence of the worker being targeted, bullied or harassed at work.

1. The respondent submits that the Member at [74]-[94] of his reasons both read and summarised the "overwhelming amount of factual evidence" in the appellant's case.[140] Further, the Member engaged with the appellant's primary submission, that the correct medical diagnosis was that of schizophrenia or delusional disorder and clearly articulated his reasons for accepting this argument.
2. It was unnecessary for the respondent's medical practitioners to "sift through the 100 pages of evidence relied on by the appellant."[141] In accordance with the reasoning in Paric:

"So long as the assumptions made by the doctors were consistent with the Member's finding of fact, their respect[ive] opinions are probative."

1. The respondent submits this ground of appeal do not disclose "sufficient basis to ground appellate intervention"[142] and should be dismissed.

1. In reply, the appellant denied that the appeal was engendered by dissatisfaction with the outcome. Rather, it concerned "what was made of the evidence by the Member" in his determination.[143]

1. There can be no doubt that the Member faithfully recorded the essence of the appellant's submissions at the arbitration hearing. At [47]-[51], he recorded that the appellant had repeatedly contended that the respondent's claim was pursuant to s 4(b)(i) not s 4(b)(ii) of the 1987 Act. He recorded the attack on the opinions of Dr Khan and Dr Xu. The opinion of both medical practitioners was undermined by the fact that they did not have the appellant's evidence. He also recorded the submission that there was no "fair climate" for their opinion. The diagnosis of Dr Ventura was to be preferred. The Member referred specifically to the evidence of Ms Green in respect of the farm visit on the weekend commencing 9 August 2019 as supporting the contention of Dr Ventura that the respondent was delusional and suffered from schizophrenia.
2. At [59]-[61] of the reasons the Member dealt with the appellant's submissions in reply. These addressed alleged deficiencies in the respondent's case. No medical practitioner had undertaken the task of "identifying the work and non work-related factors" that caused the respondent's psychological illness. Thus, there was no evidence that employment was the main contributing factor to the contraction of the disease.
3. In Pollard v RRR Corporation Pty Ltd,[144] McColl JA from [56] conducted an extensive survey of the law relating to the failure to give reasons. Subsequently, Gleeson JA undertook a similar exercise in in Keith v Gal.[145] The relevant parts of their reasons have been reiterated in many recent Presidential decisions, and it serves no purpose to repeat them again.
4. Plainly, the adequacy of the reasons of a member of the Personal Injury Commission must be determined by reference to the obligation in s 294 of the 1998 Act to provide a "brief statement setting out" the reasons for the determination and the requirement of the Rules to state material findings of fact; to refer to the evidence on which those findings were based; and to the reasoning process that led to the conclusions.[146] It is unlikely that the obligation of a member to provide reasons can be equated to that of a judge. The reference to "brief reasons" and the objective of informal and expeditious dispute resolution in the legislation suggests that "adequate" reasons need not be lengthy nor consider every aspect of the evidence. The fact that the members undertake a large volume of work which all too frequently entails determining matters orally or in writing is also supportive of this conclusion. But as the 1998 Act provides for an appeal, it is essential that the reasons are sufficient to permit a Presidential member to discern whether there is error of fact, law, or discretion. From that perspective, the appellate case law on reasons may provide guidance but it does not supplant the legislation.
5. There can be no doubt that the Member's reasons are sufficient to make the parties aware of his view of each party's case as required by r 73(3). The appellant argues that he did not give serious consideration to its lay evidence,[147] brushing aside "overwhelming" factual differences. But I find no basis in the reasons for this criticism. Contrary to the appellant's argument, the Member addressed the entirety of its lay case. Between [14] and [27] of his reasons, he recorded aspects of the evidence of each of the appellant's witnesses. He referred at [66] of his reasons to the "series of factual issues that must be determined", noting that this was "more so than in many cases". Over the following paragraphs, he analysed the inconsistencies between the accounts of the appellant's witnesses and the respondent in respect of specific incidents. He did not reject the appellant's evidence. Rather, he found that the evidence of the appellant's witnesses supported a finding that there were "real events, communications or discussions" which were misunderstood by the respondent. He found that this constituted:

"a perception of real events, rather than the events not actually occurring (which [the Member] would accept takes the matter outside of the realms of AG v K."[148]

1. This reasoning process is crystal clear. The appellant does not challenge the manner in which the Member dealt with the evidence of its individual witnesses. The assertion that the Member "glossed over" the appellant's lay case does not rise above rhetoric.
2. I have addressed the Member's rejection of the evidence of Dr Ventura above.[149] The appellant also argues that the reasons for rejecting its medical case at [104]-[105] were inadequate. But to confine the Member's reasons concerning the rejection of the doctor's evidence to these paragraphs ignores the principle that the decision must be read as a whole.[150] The findings at [104]-[105] are made on the background of the Member's conclusions, after consideration of the lay evidence, that the respondent's mental disorder reflected real events in the workplace; that Dr Ventura was the only medical practitioner who recorded a history of delusions and hallucinations;[151] and that both Dr Khan and Dr Xu had given reasons for rejecting the diagnosis of schizophrenia.[152] Surely, these are sufficient reasons to comply with r 78 and the principle that underlies much of the appellate discussion of the sufficiency of reasons; that they must do justice to the issues posed by the parties' cases.[153]
3. It inexorably follows from the rejection of the argument on the sufficiency of reasons, that the argument based on Dranichnikov must also fail. After canvassing the case law concerning the application of the Dranichnikov principle to administrative tribunals in Ming v Director of Public Prosecutions (NSW),[154] Kirk JA (White and Mitchelmore AJA agreeing) said at [15] :

"The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved."

1. Similarly, in Day v SAS Trustee Corporation[155] Meagher JA stated (with the agreement of Payne and White JJA):

"a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his 'three key issues' were not stated and determined discretely. What he must show is that they raised 'substantial' (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim ...".

1. Similar points were made by Allsop CJ, Markovic and Colvin JJ in CZA19 v Federal Circuit Court of Australia,[156] in considering an argument that a decision of the Federal Circuit Court was infected with jurisdictional error (at [34], citation omitted):

"the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered".

1. The appellant argued at the hearing that its lay evidence rebutted the allegation of interpersonal conflict between the respondent and Ms Wiebels and undermined the assumptions on which Dr Khan expressed his opinion. It emphasised that the diagnosis of Dr Ventura, which assumed a more accurate history, should be preferred. In rejecting these arguments the Member found that an analysis of the appellant's evidence provided a factual basis for the respondent's perception that Ms Wiebels treated her in an "aggressive and overbearing" manner. It also proved a factual basis for the acceptance of Dr Khan's opinion and diagnosis in preference to that of Dr Ventura. There is no proper basis for the assertion that the Member overlooked or fundamentally misunderstood the argument made by the appellant at the hearing.
2. Throughout the argument at the hearing and on appeal the appellant asserted that there was no "fair climate" for the opinion of Dr Khan or Dr Xu in accordance with the reasoning in Paric.[157] There may be two aspects to this criticism. First, it was the foundation of the argument that the opinion of Dr Khan should not be accepted. There can be no doubt that the extent of correspondence between assumed facts in a medical report and the facts proved in evidence is an important criterion for determining the weight to be given to a medical opinion.[158] The decision of the Court of Appeal in Lederer Group Pty Ltd v Hodson[159] provides a dramatic recent illustration of the need to prove the critical matters underlying a medical opinion. The Member acknowledged at [104] of his reasons that the doctor's failure to consider the appellant's evidence went to the weight of his opinion. However, his analysis of the lay evidence established that the respondent's perception of real events during her brief period of employment at Coolah sufficiently corresponded with Dr Khan's history to render his opinion of value. While Dr Khan was not provided with the appellant's lay evidence, he was provided with the primary report of Dr Ventura, who did have access to that evidence, and commented specifically on her findings and opinion. The Member's evaluation of the entirety of the evidence enabled him to conclude that there was a satisfactory factual basis for Dr Khan's opinion. There is no error in this approach.[160] It is consistent with the reasoning of Beazley JA in Hancock.
3. The reasoning in Hancock was considered and approved by McColl JA in Onesteel Reinforcing Pty Ltd v Sutton.[161] At [66] of her reasons her Honour quoted the following passage from the judgment of the High Court in Paric (at 846):

"It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence ... to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense."

1. In State of NSW v Rattenbury[162] at [56] to [59] Roche DP discussed these principles in the context of a claim for psychological injury determined by in the former Workers Compensation Commission. He concluded that discussion by stating:

"It is of no consequence that the Arbitrator did not accept that Mr Rattenbury had been 'bullied or harassed'. That expression is no more than a short hand method of describing events at work that are perceived by the claimant to have created a hostile environment. Consistent with Chemler, the question is whether real events occurred at work that Mr Rattenbury perceived as creating such an environment and whether they caused a psychological injury."

1. Secondly, the appellant asserts that Dr Khan's reports were unhelpful in determining causation as they did not address why employment was the main contributing factor to the contraction of the disease. He recorded, it is argued, an inadequate history of the non-work-related factors which contributed to the respondent's psychological illness. But it is difficult to find in the evidence reference to significant contributing factors to the respondent's psychological illness other than her employment. The two matters raised by the appellant in its introduction to the appeal, namely her childlessness and her father's health, are not mentioned in the medical history contemporaneous with the injury. The deterioration in her father's health clearly post-dated her psychological injury by many months, and probably several years. While the respondent did experience a, probably, short lived psychological problem several years before the onset of her injury, the evidence does not suggest that it had any cogent causal relationship with her psychological illness in 2019. There is no force in the appellant's argument that there was no basis in the medical evidence, and specifically in the evidence of Dr Khan, for a finding that the employment was the main contributing factor to the contraction of the disease in accordance with the reasoning of Snell DP in AV v AW.[163] This ground of appeal also fails.

1. As the appellant has failed in respect of each of the three grounds, the appeal must be dismissed, and the Certificate of Determination dated 30 July 2025 confirmed.

1. The Certificate of Determination dated 30 July 2025 is confirmed.

[1] Application to Resolve a Dispute (ARD), p 239.

[4] Reply to Application to Resolve a Dispute (Reply), p 117.

[5] Appeal submissions and supporting documents (Appeal), p 46.

[16] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 (Paric).

[17] Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844, [9].

[18] Xu v Warrumbungle Shire Council [2025] NSWPIC 364 (reasons).

[75] Appellant's submissions in reply, [9].

[76] [2025] NSWCA 157 (Culhana).

[77] [2011] NSWWCCPD 25 (Raulston).

[78] Culhana, [58], per Leeming JA.

[79] [1979] HCA 9; 142 CLR 531.

[80] [2019] HCA 28; 266 CLR 129 (Lee).

[81] [2003] HCA 22.

[83] See the discussion of the applicability of the correctness standard in White v Redding [2019] NSWCA 152.

[84] [2025] NSWCA 229.

[99] [2007] NSWCA 249 (Chemler).

[100] [2010] NSWWCCPD 76 (K).

[102] [2015] NSWWCCPD 56 (Baker), [114].

[111] Appellant's submissions, [23].

[115] See the discussion at p 62 of the Appeal.

[116] Appellant's submissions in reply, [4].

[120] Application to Lodge Additional Documents 13 May 2025, p 1.

[121] Appellant's submissions, [33].

[122] Appellant's submissions, [35].

[123] (1992) 25 NSWCCR 9.

[124] Appellant's submissions, [38].

[125] Appellant's submissions, [39].

[126] Appellant's submissions, [40].

[127] Appellant's submissions, [42].

[128] Appellant's submissions, [43].

[129] Appellant's submissions, [43].

[130] Respondent's submissions, [20].

[131] Appellant's submissions in reply, [8].

[132] See Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 where a worker's perception of a hostile work environment was not causally related to the employment.

[133] Appellant's submissions in reply, [5].

[134] Appellant's submissions, [45].

[135] Appellant's submissions, [49].

[136] Appellant's submissions, [50].

[137] Appellant's submissions, [55].

[138] [2003] HCA 26; 77 ALJR 1088 (Dranichnikov).

[139] Appellant's submissions in reply, [60].

[140] Respondent's submissions, [22].

[141] Respondent's submissions, [24].

[142] Respondent's submissions, [27].

[143] Appellant's submissions in reply, [10].

[144] [2009] NSWCA 110.

[145] [2013] NSWCA 339, from [109].

[146] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]-[139].

[147] Appellant's submissions, [50].

[150] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.

[153] Moylan v Nutrasweet Co [2000] NSWCA 337, [61], per Sheller JA (Beazley and Giles JJA agreeing).

[154] [2022] NSWCA 209.

[155] [2021] NSWCA 71, [37].

[156] [2021] FCAFC 57; 285 FCR 447.

[157] Appellant's submissions, [61].

[158] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock), [88], per Beazley JA.

[159] [2024] NSWCA 303.

[160] Paric v John Holland Constructions Pty Ltd [1985] HCA 58, [9].

[161] [2012] NSWCA 282, [67]-[68].

[162] [2015] NSWWCCPD 46.

[163] [2020] NSWWCCPD 9.