State of New South Wales (Sydney Local Health District) v BNV

1. [1]

   KIRK JA: I agree with Free JA.

2. [2]

   ADAMSON JA: I agree with Free JA.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   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.

7. [7]

   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.

8. [8]

   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 resolution of BNV’s claim in the PIC

1. [9]

   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.

2. [10]

   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.

3. [11]

   After the referral of the dispute to the PIC, the dispute was determined by Member Snell on 12 February 2025. Member Snell issued a certificate recording the following determinations:

4. [12]

   Member Snell decided the matter on the basis of documentary evidence, which included various medical reports (addressed in more detail below). An application by the employer’s insurer to cross-examine BNV was refused. On the question of whether BNV’s employment was the “main contributing factor” to the aggravation of BNV’s condition, the essence of Member Snell’s reasoning appears in the following passages:

5. [13]

   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].

6. [14]

   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.

7. [15]

   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.

8. [16]

   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.

9. [17]

   The presidential member quoted the following passages from the evidence of Dr Berry, the psychiatrist who provided evidence for the employer:

10. [18]

    Ground A of the appeal to the presidential member was that Member Snell had unreasonably accepted lay evidence, in particular the evidence of BNV’s daughter and BNV’s mother. In the course of dealing with and rejecting that ground, the presidential member made the following findings at [94]-[95] (emphasis added):

11. [19]

    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).

12. [20]

    The reasons given by the presidential member for rejecting those submissions included the following, at [114]-[115] (emphasis added):

13. [21]

    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.

14. [22]

    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.

15. [23]

    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):

16. [24]

    After reviewing the evidence of Dr Manambrakkat the presidential member said, at [133]:

17. [25]

    Ground D turned on an alleged discrepancy between the opinion of Ms Lander (that BNV’s incapacity for work was a result of her employment at RPA) and contemporaneous medical and employment records. The presidential member did not accept that there was any discrepancy that pointed to error on the part of Member Snell.

Grounds of appeal and the requirement to identify “points of law”

1. [26]

   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. The concept of an appeal by a party “aggrieved by a decision of the presidential member in point of law” was addressed in detail by Kirk JA (with whom Meagher JA and Simpson AJA agreed) in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [32]-[51]. It is sufficient for present purposes to quote the following summary which his Honour provided at [51]:

2. [27]

   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.

3. [28]

   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:

   1. (1)

      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));

   2. (2)

      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));

   3. (3)

      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));

   4. (4)

      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

   5. (5)

      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].

4. [29]

   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)).

5. [30]

   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.

6. [31]

   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.

7. [32]

   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:

   1. (1)

      applying a presumption, at [127], that where there is a disease injury of aggravation, the employment is a causal factor (sub-ground 4(i));

   2. (2)

      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));

   3. (3)

      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)).

Analysis of ground 1 – The presidential member did not misconstrue or misapply s 4(b)(ii)

1. [33]

   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.

2. [34]

   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:

3. [35]

   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”.

4. [36]

   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:

   1. (1)

      when she commenced employment at RPA on 25 October 2021 BNV had a pre-existing psychological condition;

   2. (2)

      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;

   3. (3)

      an aggravation of BNV’s disease occurred;

   4. (4)

      the aggravation of BNV’s disease occurred during the course of her employment at RPA; and

   5. (5)

      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.

5. [37]

   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.

6. [38]

   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.

7. [39]

   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”.

8. [40]

   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.

9. [41]

   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.

10. [42]

    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.

11. [43]

    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.

12. [44]

    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].

13. [45]

    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.

14. [46]

    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.

15. [47]

    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.

16. [48]

    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”.

17. [49]

    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.

18. [50]

    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:

    1. (1)

       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;

    2. (2)

       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;

    3. (3)

       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

    4. (4)

       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.

19. [51]

    Ground 1 must therefore be rejected.

Analysis of ground 2 – The presidential member did not wrongly ignore a requirement to evaluate the evidence as to BNV’s condition before and after she commenced employment

1. [52]

   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.

2. [53]

   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.

3. [54]

   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”.

4. [55]

   Sub-ground 2(i) therefore fails.

5. [56]

   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.

6. [57]

   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.

7. [58]

   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.

Analysis of ground 3 – The presidential member did not fail to take into account the evidence of BNV’s prior symptoms and treatment regime

1. [59]

   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.

2. [60]

   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].

3. [61]

   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.

Analysis of ground 4 – The presidential member did not reverse the onus of proof

1. [62]

   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.

2. [63]

   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.

3. [64]

   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.

4. [65]

   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.

5. [66]

   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.

Orders

1. [67]

   The appeal should be dismissed with costs.