A1 Granny Flats v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	A1 Granny Flats v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 707
APPLICANT:	A1 Granny Flats
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
second respondent:	Todd Martin
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	9 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Application pursuant to section 145 of the Workers Compensation Act1987 (1987 Act) by uninsured employer; applicant disputed notice of injury, injury, date of injury, substantial contributing factor, causation, whether it was the last relevant employer, capacity for work and the reasonable necessity of medical treatment and amount paid; applicant relied on section 11A of the 1987 Act in respect of provision of employment benefits; applicant submitted second respondent had told a “litany of lies”; consideration of Inghams Enterprises Pty Ltd v Thoroughgood, Hamad v Q Catering Limited, Finney Pty Limited t/as Cut Price Car Rentals v Chequer, Alto Ford Pty Ltd v Antaw, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Kooragang Cement Ltd v Bates, Poonan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Manly Pacific International Hotel Pty Ltd v Doyle and New South Wales Police Force v Winter; Held – the application is dismissed; the applicant is to reimburse to the first respondent the sum of $110,766.81 in accordance with the notice issued pursuant to section 145 of the 1987 Act.
determinations made:	1. The Application is dismissed. 2. The applicant is to reimburse to the first respondent the sum of $110,766.81 in accordance with the notice issued pursuant to section 145 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The second respondent, Todd Martin (Mr Martin/the worker) was employed by the applicant, A1 Granny Flats (A1) as a sales consultant. He claims to have sustained psychological injury arising out of or in the course of his employment, with a deemed date of injury of 13 August 2020.
The worker completed an undated Worker Claim Form (the claim form) in which he claimed that the date of injury was 27 March 2020 and the time of injury was 13 August 2020. His condition was described as generalised anxiety disorder (GAD), but no detail of the cause of the injury was provided. The date of 27 March 2020 was the date on which the worker was advised by the applicant of a proposed alteration to his contract of employment.
As A1 did not hold a workers compensation insurance policy as at 13 August 2020, payments of compensation have been made to or on behalf of Mr Martin by Workers Compensation Nominal Insurer (iCare/first respondent).
On 3 May 2021, iCare sent Mr Martin a letter confirming that he had been overpaid $1,358, as he had returned to work on 5 April 2021 and received earnings he had not disclosed. He was asked to provide the payslip from 19 April 2021 to 2 May 2021, so that an adjustment could be made.
On 24 June 2021, iCare confirmed that Mr Martin had been overpaid $29,159.53. He was asked to provide a further payslip, after which a further calculation could be made.
By letter dated 25 August 2021, iCare confirmed that an overpayment of $35,459.88 had been made. This was because the second respondent had continued working with Life Without Barriers (LWB) and had not disclosed his earnings. Some amounts had been deducted, leaving a balance of $28,917.45 outstanding. Arrangements had been made to withhold $250 per week until further notice or full recovery.
On 6 April 2022, iCare issued the applicant with a notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) (the notice), seeking reimbursement of the sum of $110,766.81, paid to or on behalf of the worker.
A1 has filed a Miscellaneous Application (the Application) in response to the notice.
The Application was lodged on 22 April 2022. It seeks an order that the amount sought in the notice issued by the first respondent is not recoverable, or in the alternative that it be reduced.
The Application described the matters in dispute as injury; notice of injury; substantial contributing factor; causation; s 11A (of the 1987 Act); capacity; the reasonable necessity of s 60 (of the 1987 Act) expenses; and the amount of the payments.
The first respondent lodged its Reply on 16 May 2022. It submitted that Mr Martin should be joined as a party to the proceedings, as any determination in this matter will have a direct impact on his entitlements.
On 25 May 2022, I directed that the Application be amended to join Mr Martin as the second respondent.
Mr Martin lodged his Reply on 22 June 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    notice of injury;
(b)    injury, including date of injury;
(c)    substantial contributing factor;
(d)    causation;
(e)    whether the applicant was the last relevant employer;
(f)    the application of s 11A of the 1987 Act;
(g)    capacity for work;
(h)    the reasonable necessity of medical treatment, and
(i)    the amount of the payments.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for conciliation/arbitration hearing on 6 September 2022, on the Microsoft Teams platform. Mr Macken appeared for the applicant, instructed by Mr Stefan Dimov; Mr Grant of counsel appeared for the first respondent, instructed by Ms Turnbull, together with Ms Davis, who was observing the proceedings; and Mr McEnaney of counsel appeared for the second respondent, instructed by Mr Ferraro. Mr Martin attended by telephone. Mr Butcher of iCare also attended.
The applicant objected to the admission of documents attached to an Application to Admit Late Documents filed by the second respondent, dated 31 August 2022.
I determined to admit the documents, for reasons that were provided at the hearing, and which were recorded.
In response to my request, the applicant advised that it sought to dispute injury; the date of the injury; causation; substantial contributing factor; capacity; the reasonable necessity of treatment; and whether it was the last relevant employer. It sought to rely on a defence to the claim pursuant to s 11A of the 1987 Act.
The applicant advised that, pursuant to s 11A of the 1987 Act, it relied on its reasonable action with respect to the provision of employment benefits and promotion/demotion.
The applicant had not previously given notice of its intention to rely on its actions with respect to promotion/demotion. It submitted that it did not require leave to do so, as its case was in the nature of a review of a demand for the repayment of compensation to the first respondent.
I determined that the applicant required leave to rely on its actions with respect to promotion/demotion, should it wish to rely on its actions with respect to those matters.
The first and second respondents opposed the applicant being granted leave to rely on its actions with respect to promotion/demotion.
Having heard submissions from all parties, the applicant maintaining that it did not require leave, but providing its submissions in any event, I determined to treat the issue as an application pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to raise a previously unnotified matter.
I determined that the applicant should not be granted leave to rely on its actions with respect to promotion/demotion, for reasons that were provided at the hearing, and which were recorded.
The applicant made oral submissions. Unfortunately, due to the time taken in dealing with interlocutory matters, it was not possible to hear the respondents’ submissions or those of the applicant in reply.
Directions were made for the provision of written submissions, and the parties were advised that, at the end of the period allowed for submissions, the matter would be determined “on the papers”.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    first respondent’s Reply and attachments;
(c)    second respondent’s Reply and attachments, and
(d)    Application to Admit Late Documents dated 31 August 2022 and attachments, filed by the second respondent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Although this Application has not been brought by Mr Martin, I believe it is appropriate to commence with his evidence.

Evidence of the worker, Todd Martin

Mr Martin’s first statement is dated 2 September 2020.
He had been employed by the applicant as a salesman for 14 months, commencing on 12 June 2019. He was “head hunted” for the position. He had worked for another company for 4.5 years and left them because he was told he was going to be made sales manager.
He was employed on a full time permanent basis, working 40 hours per week. He worked from 8.00am to 6.00pm, Monday to Friday. He was paid weekly by electronic funds transfer and provided with a pay slip. His base wage was $1,346.15 gross per week, with an hourly rate of $35.4251 gross. He was also paid 2% of the total tender price as commission. In the year 2019-2020 he received $140,000 in commission. It was supposed to be paid five days after the signing of the contracts, but it never was. He eventually got paid, but it was always late.
He signed a contract of employment. He was entitled to annual leave, sick leave, paid public holidays, and superannuation, and tax was deducted.
His duties as a salesman were to generate leads from the office, from phone, email, or online enquiries. The office checked to see if the person qualified. If so, they booked a site visit. He confirmed the enquiry and site visit, carried out an inspection, worked out what they wanted and prepared the tender onsite.
He followed up in five to seven days. If they were happy to move forward, he collected the deposit, arranged for the plans to be drawn up, had the client approve the plans, and arranged for contract signing.
He was supervised by Stefan Dimov, one of the owners. (I will refer to Mr Stefan Dimov and Mr Anton Dimov by their given names to avoid confusion, while meaning no disrespect).
In about December 2019, he noticed the preparation of contracts was being delayed, which meant his commissions were delayed. He asked why at times, and they would deny the contracts were being delayed. He was trying to make sure he was paid before Christmas. That commission was about $2,800.
Early in his employment, his work mobile phone bill was not paid, and it was cut off. The same thing happened with his email account. This happened about eight times. He found out Stefan was saving all his emails and those of other staff members. He told Stefan he was not comfortable with this, and he agreed he should not be doing it. Stefan said he had stopped, but he believed he continued to monitor them.
In about November/December 2019, they had issues with their building license being out of date. This caused delays in signing contracts while they applied for a license. He was selling too many and they were having trouble getting insurance coverage, which was why they were not being built.
They did not tell him that was the problem. They eventually got that sorted out, but had they told him he would have understood. They just kept saying they would pay him next week, and it did not happen.
He could have $10,000 to $15,000 outstanding in a month and did not want that carrying over, so he pressed to get the commission paid each month. They would eventually pay him, but he had to chase them all the time.
In February 2020, he agreed to a trial of payment at the end of each month, but that did not happen. He had commissions rolling over from one month to the next and was still chasing to get paid. He was getting more concerned and frustrated with them and the way they were not living up to their agreement.
In about January/February, Stefan started “Josh” (McIvor) as a business development manager (BDM). He did not find out until a week after Josh started. He asked Stefan why, when he was supposed to be the sales manager, he had not told him the guy was starting. Stefan said they had still not decided when they were going to appoint him as sales manager.
He explained he had previous experience as a BDM and could have helped. Stefan just fobbed him off. He started to become concerned and question whether his appointment as sales manager was ever going to happen.
About a month after he started, Josh was moved to a sales role. He answered to Stefan. Stefan reluctantly agreed to let Josh work with him for some training for two weeks. Nothing official was put in place. Josh was not an employee, but a contractor.
Prior to Josh starting, he had spoken to Stefan about putting on more salespeople, but he said it was not the right time. He brought in a very experienced person, who was ready to start, for an interview in December 2019. Stefan said he was not looking to employ anyone until about March/April 2020. He tried to explain they needed someone. He did not listen, and the person got another job.
On 27 March 2020 he received an email from Stefan that he was going to change the conditions of his contract. He replied he was not going to agree, and Stefan said they would have a meeting. No meeting took place. Stefan wanted to change the way commissions were being paid, and they would not be paid until after they had received an extra 5% of the construction price. That could take up to five to six months for approval.
He expressed his concern that that was not the way it was set out in his contract. He could have commissions outstanding for up to six months. They kept pushing the point that the company was losing money in the design and approval, and they had to get it profitable. Stefan said if they put the new system in place his commissions would be paid on time.
He told Stefan he was happy to institute the 5% payment from the customer, but it was never going to be part of his commission deal. Stefan said, “well that is the way it is going to be”, and he said he was not going to agree to it. All June contracts included payment of an additional 5%, but he never got paid his commission on time.
He was having difficulties with his accounts by not being paid commissions on time. This included his credit card and mortgage payments. He had to chase Anton to get paid so he could pay his bills. When he was challenged, his answer was “With what we pay you, you are not on the poverty line”. He thought that was very inappropriate.
In July all customers paid the 5% on contract. His commissions were due on 11 August 2020. He got no notification they were going to be paid. He texted Stefan at 4:24pm and 4:58pm, with no reply. That was normal, he never replied.
On the first of every month, he sent Stefan a list of his sales, so he could pay them on the second Wednesday of the month. On 12 August 2020 at about 10.30am, he called Stefan. Stefan said he had approved the commissions and he asked if he could send him a list of what he was paying, because he never did that.
Stefan then said he was not paying the commission for an address in Castlereagh, as the customer cancelled the contract. He said he had not put in any commission for that address. Stefan said the customer had signed a contract 10 months ago, and had cancelled it, so they were taking back the $3,000 commission out of the commission he was claiming.
That was never part of his contract agreement. Stefan said, “So you want A1 Granny Flats to get a bad name if we do not pay the customer and you want us to pursue the customer through the courts so that we do not get a bad name.”
He said the customer had signed the contract, and if he wanted to close it, there would be penalties. Stefan said, “Well this is the way it is going to be”. He said “This is not acceptable to me so please pay my commissions as per last month’s sales. I will need to seek legal advice, you can’t do this.” Stefan said he would end the call and hung up on him. He tried to call back, but he did not answer. He sent text messages at 11:34am, 11:35am and 11:38am, with no reply. He received a text message later that afternoon saying, “Todd as you are aware I have been self-isolating and will not be in until Monday.”
On 13 August 2020, he sent a text message to Stefan to say he was not feeling well. He had a sore throat and runny nose and was going to the doctor. He replied “Hope you are feeling better. Get a doctor’s certificate”.
He received a text message at about 10:30am from Anton, saying they would call him later after they had a meeting with a customer. He received the call at 5:07pm but was with the doctor and could not take it. He tried to call Stefan about 5:35pm, but there was no answer.
He attended Dr Htin Soe, whom he had been attending for five to six years, on 14 August 2020. He explained what was happening at work and he gave him a normal medical (certificate) showing he was not able to continue his normal occupation from 14 August 2020 to 28 August 2020.
Dr Soe does not do workers compensation matters and referred him to Dr Mohamed Khan from the same practice. He saw Dr Khan the same day and he provided a certificate of capacity (COC) showing he was suffering from anxiety and stress and had no work capacity from 14 August 2020 to 28 August 2020.
He returned to Dr Khan on 28 August 2020 and was issued with a further COC showing he was suffering from GAD and had no work capacity from 29 August 2020 to 1 September 2020.
He got hold of Stefan on 16 August 2020 and he said there was a dispute with one of the commissions and there would be further discussions on Tuesday, and the remaining commissions paid. He replied “There are no disputes mate. You received the money from this customer and more, what are you owed, stop dragging this out. Each month you hold back my commissions for something.”
Stefan tried to call him at 5:07pm and then sent a text to say he tried to call, and it was getting late, “what time are you available tomorrow?” He replied. At that stage, still no commissions were paid.
On Tuesday they sent texts back and forth and he asked Stefan to call him. He spoke to Stefan and Anton about 11.00am. He tried to talk about the commissions being paid, but they mainly wanted to talk about how they tried to call him, and he had not answered. He advised he had given them a time to call, and they had not. He had not received a text and when they called that afternoon it was late, and he was at the doctor’s.
He was trying to ask when his commissions would be paid. They were still going on about taking the $3,000 out of his commission for the cancelled contract, that he had not been paid because of technical difficulties, and they would get back to him. He felt it was delaying tactics again and asked again when they were going to pay his commission. They said they would get back to him, but no date or time was provided.
He tried to call at 2:19pm, with no answer. He left a message “Could you please confirm when my commissions are going to be paid.”
He received an email from “Alex” (Alexandra Hazelman) the accountant, at about 4:30pm on Tuesday afternoon. She said she was paying his commissions in full. He replied requesting that she send a breakdown of what she was paying. She said she would, but on Wednesday he received a payslip of the total amount, with no breakdown of the payment.

On the afternoon of 17 August 2020, he also received an email from Stefan to say they were sending someone to his home to pick up his company car, telephone, and laptop. They wanted to pick them up at 9.00am on Wednesday, but he was unavailable, so they picked them up on Thursday morning. Stefan also told him that all communication was not to take place with the accountant [sic].
On 1 September 2020, he sent through three contracts that commission had to be paid on, and asked when they would be paid, but had not received a reply.
He had prepared a three page document setting out the things that had happened and caused his stress and anxiety. He felt they had been brought about over a period of time due to the way he had been treated at A1 by the owners. He was told he was to be made the sales manager and that never eventuated. He did not believe that was due to his performance, as he sold 90 granny flats in 14 months.
It had been of great concern to him that his commissions were not paid at the agreed times. This had caused problems in managing and budgeting and resulted at times in him having to access his savings account to pay his credit card and mortgage.
Other stress matters had been changes in procedure and in particular his contract, and continually being harassed about his performance. He was told they were concerned about him not having attended three site inspections. He explained he did not always attend after completing a phone interview with the customer to clarify if the granny flat was suitable. One of the addresses had turned into a sale. The other two were not suitable so he had not attended. Stefan backed him up.
He felt he was being micromanaged and had done nothing wrong to his knowledge.
He had a previous claim about 10 years ago, when he was working in a group home. A client threw a knife and he had three weeks off. He had had only about one day off work since commencing employment with the applicant.
On 3 April 2021, Mr Martin responded to evidence from Stefan and Anton. He also made a statement about his “secondary employment”.
He stated that commission was paid irregularly and not on time. He was employed on the understanding that he would become a sales manager.
He was never told there was going to be a meeting and he last spoke to Stefan on 12 August 2020 at around 11.00am.
When he saw the doctor on 13 August 2020 [sic], he was planning to take a few weeks off. He did not intend to lodge a workers compensation claim and did not know of any requirement to inform his employer of his injury. It was only when he saw “Margueritte” (Gossayn), psychologist, for the first time, that she told him he had symptoms of a mental health problem. Before that he was not sure what was wrong.
It is wrong to say he demanded things. He was never aggressive, and asked for things. He did not demand any support for six months. Stefan then employed Joyti Stanojevic and he employed Laura Ellison. This made it harder for him to do his job, because they needed to run everything past Stefan, who did not consult with him before operating the business this way.
He had previously been given very positive feedback for taking sales from 30 to 94 per annum. He attended every site visit. There may have been one or two enquiries that were clearly unsuitable. He did not attend because it was blatantly [sic] obvious there was no sales opportunity.
They took all steps to make sure the sales were compliant. It was a three month process via certifiers. He did his best to make sure the sales were compliant to the point of signing a contract. Then it was up to the approvals department.
Stefan tried to blame him for the regular delays in payment of his commission. The reality is it was largely A1’s fault, and there was always an excuse as to why it could not be paid on time.
He set up the procedures because he [Stefan] did not have any when he got there. He followed the relevant procedures.
It was agreed he could work from home as needed.
“Ron” was meant to pick up the property, but was not available when he was, and vice versa, so it was a scheduling issue and not a matter of him holding on to the assets deliberately.
He was not aware there was a tracking device. He was shocked to learn that. He did take his car to visit investment properties in Albury, but in most cases did not use the company fuel card. He told Stefan he was doing this before he did it. He did not think it was prohibited to use the car for personal reasons, provided it was reasonable.
He did get along better with Anton, as he was more reasonable than Stefan.
He would only use the female toilets if the men’s were occupied, and for a while they were not labelled. It was not his intention to make his female colleagues uncomfortable. He denied he was demanding and stood over them.
He did tell Laura to speak to him first if there was an issue with a customer. He did not do this to hide anything from Anton or Stefan. He felt it was his duty to handle customer issues initially. It could be escalated if needed.
As regards the evidence of Alexandra Hazelman, she is Stefan and Anton’s sister.
He only had a lengthy back and forward with the accountant near the end of the 2019-2020 financial year. He had spoken to his accountant, who had flagged that he was not paying enough tax. He was concerned about his liability. It is otherwise untrue that he always questioned the accountant. Most of the time, it was his employer’s fault when his commission was not paid when it was due. Alexandra always told him, “Stefan is delaying it”.
As regards the evidence of Laura Ellison, he contacted every customer and attended every necessary site visit. There were only two customers that Stefan suggested he did not attend, and one turned into a sale. They also had instructions that, due to Covid, they did not have to attend the site if it was not necessary.
Laura’s personal mobile phone was the only one he had for her, and she used it for work. He never abused her. He suggested if she had an issue, she should first talk to him about it. He found it hard to believe she was intimidated by him. She was a “strong girl who could handle herself well in a professional setting”.
He was initially unaware that contracts needed Stefan’s approval, as a change was made unbeknownst to him. He did not stand over her. He probably walked to her desk and said firmly that it needed to be done because he had promised a client. He did not think she was shaken up, and suspected the employer put her up to this, or she was exaggerating because she did not like him.
His employer had nit-picked his performance and put together statements to give the impression he was dishonest and underperforming. He was never given any warning and was encouraged for increasing sales.
The statements reflect that he was becoming increasingly anxious before he finally had a mental breakdown while driving on the M5.
He had been employed by LWB as a casual worker for approximately 6.5 years. It is an agency for foster children. The work was infrequent, and he received a minuscule amount. The job is considerably different to his sales jobs.
He was employed by the applicant from 12 June 2019 to 13 August 2020; and by Five Star Granny Flats (Five Star) from 21 September 2020 to 25 November 2020. The only time the insurer asked him to report his income was when he started with Five Star.
He had continued working for LWB as it gave him joy, and his psychologist recommended he do something that he enjoyed and to persist with it if he could manage it.
With LWB, he usually drove the children to school and sometimes spent time with them on weekends. He was paid $38.20 per hour and was paid for a minimum of three hours, although the task may take one hour. He had been able to continue it because he could do it in the morning and it did not affect his other work.
The work did not involve dealing with adults, and there was no pressure or stress on him. He would do the job for nothing. Particularly since his injury, he considered it therapeutic.
When he lodged the claim against A1, he notified his initial case manager, “Michelle”, that he had a second job with LWB. His claim was transferred to another department when they realised A1 was uninsured. Michelle advised him that working a few hours would not affect his claim.
He told various people he worked with LWB. He notified iCare’s independent psychiatrist that he had a second job with LWB. Ms Gossayn and his general practitioner (GP) were also aware of this, and recommended he continue if it helped him. His psychologist asked if iCare was aware he was working with LWB and he said he advised them back in the early stages. She may have misunderstood it to be volunteer work.
ICare did not inform him he had to report about LWB, although they were aware he had this second job. He recalled disclosing it on the forms he completed at the beginning of his claim, but he did not have a record of the forms as he did not have a printer. He completed them by hand and posted them. The insurer should have copies.
He had dyslexia, meaning he struggled to read and put sentences together. He did not read all the documents iCare sent, instead speaking by telephone at some length to the case manager at the beginning.
On 21 June 2022, Mr Martin stated that his employment situation had not changed since mid-2021. He continued to work around 15 hours per week on a casual basis with LWB.
He continued to see his GP, Dr Khan, and his psychologist, and to take anti-depressant medication. He agreed that Dr (Abdal) Khan’s report dated 7 April 2022 was accurate.
He continued to feel depressed much of the time and his motivation was very low. His sleep was bad. He spent a lot of time thinking about what happened with A1 and worrying about his future. His attention and concentration were still very poor.
At times he felt life was not worthwhile but did not act on these thoughts because of his wife and children.
He was working with iCare to resolve this issue (the overpayments).
On 1 July 2022, Mr Martin stated that he did not know the exact date of any messages, as they are not dated. The text messages were sent and received from his work phone. He had not had access to it since his employment was terminated in August 2020. Any text from January to August was probably in 2020; and any from October to December was probably in 2019.
He referred to the recipients of text messages in the attachments to the first respondent’s Reply as having been Stefan (page 70); Alex (pages 95-96) and Stefan (pages 113-114, in February 2020).
I note that the text on page 70 of the Reply is addressed to “Todd”, and apparently sent by Stefan (although it is possible Mr Martin was referring to a text he apparently sent, which is at page 69, about a customer complaint). The text on pages 95 to 96 appears to be between Mr Martin and an unknown person (perhaps Alex, although s/he referred to having spoken to the accountants. The exchange was about delay in payment of commissions). The recipient of the third text appears to have been Stefan. It relates to Mr Martin chasing commissions.
Mr Martin is employed in his current employment pursuant to the Social, Community, Home Care and Disability Services Industry Award. The amount he is paid does not directly reflect the hours he has worked. If he works for 30 minutes, he is entitled to be paid for three hours. If he has two shifts in a day, and the break between shifts is not longer than 10 hours, his second shift is paid as double time. His maximum capacity is 30 hours, but it will look like he is paid for 50 hours of work, due to the way the award is structured.

Letter of resignation

By letter dated 18 September 2020, addressed to Stefan, the second respondent “regretfully” resigned his employment with the applicant “due to a health issue”. He and his doctors felt it best that he focus on recovering, “which unfortunately includes stepping down from my duties”, as he was “unable to meet the expectations as sales consultant while struggling with this illness.”
The second respondent thanked the applicant for the opportunities he had at A1. He added “It is my hope that my departure does not cause undue stress or inconvenience” (emphasis in original), and thanked Stefan for his support during his employment.
The second respondent offered assistance with making the transition as smooth as possible and wished Stefan and A1 “the absolute best in the future”.

Evidence of Stefan Dimov

Stefan is a director of the applicant. His statement is dated 3 September 2020. He has referred to the worker as “Todd”.
Todd commenced employment with the applicant on 12 June 2019. He was still employed. He was employed on a permanent basis, working 40 hours per week, Monday to Friday. He was not paid overtime, but was employed on a salary and commission basis, and normally worked his own hours from his home.
Todd was paid on a weekly basis by electronic transfer and provided with a pay advice slip. His base wage was $70,000 per annum, with commission of 2% on all sales, which was later raised to 2.1%. He was paid in accordance with an EBA (Enterprise Bargaining Agreement).
There was a contract of employment, signed on 23 May 2019. Todd was entitled to annual leave, sick leave, paid public holidays and superannuation. Tax was deducted. He was employed as a salesman. His duties were to conduct site visits, speak with customers about what they wanted to do, and advise whether that was permissible by council.
Todd would then provide an accurate quote for the construction, sign the customer up, and refer the matter to the design and approval department. It took over the matter from there.
He first became aware of problems with Todd when he received a call from iCare. They were not initially informed of who had submitted the claim. That information was not provided until last week, when “the lady at iCare” advised it was Todd who submitted the claim.
On 13 August 2020, they had arranged a meeting with Todd to discuss some concerns they had, and the position with commission. They also intended to discuss a restructure of the company and a possible redundancy, but that possibility was not mentioned to Todd.
On the day of the meeting, Todd called in sick, and it never took place. He went off sick and provided an ordinary medical certificate saying he was unable to work. It put him off work from 14 August 2020 to 28 August 2020.
On 26 August 2020, Todd sent an email to Alex Hazelman, asking for annual leave from 31 August 2020 for four weeks, and to be paid upfront for that leave. They did not agree to that, but he was being paid weekly as his leave progressed. He had not returned to work since 13 August 2020. They had not been provided with a WorkCover COC.
The injury reporting procedures included advising the immediate supervisor of the incident or injury. Todd notified him by text on 13 August 2020 that he was taking the day off. The procedures for taking personal leave were set out in his contract of employment.
It had been their intention to eventually make Todd the sales manager. Two things changed that, the first being COVID-19. Due to financial reasons, he was making sales to help make the company some money. The second reason was that they intended to give Todd about a year to settle in, and then make him sales manager.
During that time, he noticed Todd had a very aggressive attitude with the other staff and did not get on well with them. He demanded that things be done. He tried to talk to him about it, with no result. Todd always had a reason for what he had done, but it was not good enough for them.
Todd was being given leads for sales and not attending sites to speak to the customer. This happened multiple times. He should have attended, even if the site was not suitable, to speak with the customer in case something else could be done.
There were a number of instances where Todd had not performed as expected, and he had prepared a document setting out several matters, which formed part of his statement.
Todd had complained about his commissions not being paid on time on a number of occasions. He had provided a document from their accountant, C A Hill & Associates, setting out some of the reasons for delays. He had also provided other reasons for delays that were caused by mistakes by Todd. They were still dealing with his wanting commissions for jobs they were still trying to sort out.
He had sent an email to Todd that morning, advising of problems with three matters. All other commissions had been paid and were up to date. There was a dispute about an amount to be paid. It ended up being correct, but they still had to pay the accountant.
When Todd presented a medical certificate for two weeks off, he had to step in, so he needed Todd’s company vehicle, laptop and phone. He arranged for an employee to pick up the items. It took over a week to get the vehicle and over two weeks for the phone. Todd would not give it to them.
The car was purchased new. When they got it back, it had 56,000 kms on it. It was fitted with a tracking device, of which Todd was aware. The camera had been disconnected and footage deleted up to 13 August 2020.
The navigation system showed that in February/March Todd attended properties in Albury. He believed he used the vehicle to travel to Albury and back, around 1,600 kms, using their vehicle and probably the petrol card. They were for work purposes. It was not provided to drive to Albury. He had not had the opportunity to discuss this because Todd had gone on leave.
As at 13 August 2020, A1 did not hold a workers compensation policy. He and his brother had a partnership that never really traded. When they started the company, they approached a broker for their insurance needs. It was not until Todd claimed that they realised they did not have a policy.

Evidence of Anton Dimov

Anton is a director of the applicant. His statement is dated 3 September 2020.
He handled the construction division. He was also the estimator. He considered Todd a mate. He had little to do with Todd at work, as he mainly dealt with Stefan. Socially, he felt he was a friend and still was.
He knew Stefan had arranged a meeting with Todd on 13 August 2020 to discuss his position, how they were going to re-structure, and the possibility of redundancy. Todd was not aware of the redundancy issue and no decision had been made. They also wanted to speak to him about the possibility of becoming a contractor.
The conversation never took place as on 14 August 2020 at 9:04am he received a text message from Todd saying he was sick and not coming in. Later that day he sent a normal medical certificate showing he was unfit for work from 14 August 2020 to 28 August 2020. No WorkCover COC had been provided.
On 17 August 2020, Todd sent another text saying he was still not well and not coming in.
He was aware Todd was complaining about commissions not being paid on time. Those things were largely of his own making. He would dispute the amounts, which caused a delay while the accountant and Stefan checked. Had Todd been more diligent in his paperwork, the majority of delays would have been eliminated. They paid the accountant about $2,000 to check disputes Todd lodged about commissions.
They had problems with Todd and some female staff, and his using the female toilets. He had also told Laura not to tell him or Stefan about his dealings with customers, and she felt very uncomfortable with that.
He first became aware of a problem when iCare called to say a claim had been submitted and asked for information. At that stage, she did not say it was Todd making the claim. He found out about a week later.
On 26 August 2020, Todd asked to take annual leave from 31 August 2020 for four weeks, and to be paid for all his leave. They did not agree, but he was being paid his annual leave weekly. He had not returned to work since 13 August 2020.
Todd was employed as a salesperson, with the intention to promote him to sales manager, but they had to get to the stage where they were able to employ others for him to manage. They also noticed he did not get on well with the female staff. He was demanding and stood over them.

It came to light that Todd was being given leads for sales but not attending the customer or the sites. He claimed the site was not suitable but should have attended.
Todd was provided with a company vehicle and petrol card. He drove it to and from work, but it was for work purposes.
He never had complaints from Todd about problems relating to his claim. He had not had the opportunity to discuss it because he had gone on leave.

Evidence of Alexandra Hazelman

Ms Hazelman is employed by A1 as accounts management. Her statement is dated 4 September 2020.
Her dealings with Todd had mainly been pay issues, normally by telephone or email. She had to deal with him at least two to three times a month over pay issues. She could not deal with most of the questions and would have to refer it to their accountant.
He was never satisfied with what she told him and wanted to hear it from the accountant, “which is fine”. She never had a situation where she forwarded the accountant’s explanation and he said it was OK. He would come back with something else. It normally went back and forth two or three times before he understood.
Each of these things delayed payment of his commissions. She could not pay anything until the matter was sorted out. He always agreed he understood, and she always apologised for the delay, although it was not caused by her.
She was aware of a situation in August 2020 when Laura was very upset. She mentioned it to Anton and Stefan. She did not know the full circumstances as she was not in the office at the time.
She recalled having told Todd she was paying some commissions the following day. He seemed fine with that, but shortly after sent a text to Stefan saying, “Can you just pay my commissions”. She thought that was very strange because she had just finished telling him the payments would be made the following day.

Evidence of Laura Ellison

Ms Ellison was employed by A1 as a sales assistant. Her statement is dated 4 September 2020.
On 24 June 2020, she reported to Stefan that Todd had not been attending site visits she had arranged. She had been receiving calls from upset clients about this. She understood Stefan raised it with Todd, who then called her personal mobile and harassed, reprimanded, and berated her. He said she should only have told him about the calls.
She felt upset and intimidated. Customers continued to call but she was frightened to tell her employer as she was fearful of Todd’s reaction.
On 6 August 2020 and 12 August 2020, Todd asked her to disregard her employer’s instructions to have any tender approved before writing a building contract. She told him she could not do that. He stood over her and ordered her to write the contracts. He was yelling, harassing her, and demanding she write them.
He was very domineering and towered over her. She felt very upset and intimidated. She had to leave her desk and sit with a co-worker as she was too shaken to continue working. She eventually told Stefan what happened.

Evidence of Carl Fameli

Mr Fameli’s statement is dated 28 May 2021. He had previously worked with Todd at Rescon, which he left six years ago. Todd was still there at that time. They had maintained a friendship.
He caught up with Todd from time to time while he was working at A1. Todd is a very positive, upbeat and exceptional salesperson. He never had any problems with his ethics or behaviour while working at Rescon.
Todd confided that he was unhappy with the constant changes, lack of communication, and clarity in how the job was to be done. He was not happy that no one would respond to him in a timely fashion. He was very disenchanted. He became a different person. He had gone from being very hardworking to being very disenchanted.
Some time ago, he was contacted by an investigator on behalf of iCare. He took a statement over the phone, and he had never heard from him since.

Evidence of Karen Martin

Ms Martin is Mr Martin’s wife. Her statement is dated 21 June 2022.
She had known Todd for 35 years. When he started work for A1, he was excited to start a new role as a sales manager.
She noticed Todd becoming gradually more frustrated and withdrawn after starting with A1. He would come home frustrated and sometimes angry.
He made complaints like “they keep changing my job description”; “they aren’t communicating with me properly”; “I can’t get a hold of the directors to speak to them when I need to”; and “my commission is never paid on time.”
Todd called her and told her he was sitting on the side of the road and couldn’t move. She was on the phone to him for over an hour. He said something to the effect that his brain had snapped and the stress from the issues with A1 had finally overwhelmed him. Since that time, he had been a very different person.
Before his injury, Todd was a go-getter, but the psychological toll of A1 had taken the wind out of his sails. He struggled to get up and do the usual tasks around the home. He previously was very motivated both to keep their home in good order and in his professional life. He had worked two jobs for most of the time she had known him.
He sometimes told her he was only around because of her and their children.
Todd continued to do some work with LWB. She knew it was not usually stressful and he got some psychological benefit from it. However, it was very difficult for her to imagine him working in a sales role or dealing with the types of high pressure jobs he used to excel in. He was even struggling to continue with LWB and had recently taken two weeks off.

Evidence of C A Hill & Associates

By letter dated 28 August 2020, Craig A Hill advised that there had been multiple occasions when they had been engaged in relation to matters involving Todd Martin.
They received emails from A1 asking for a draft pay run to be created. They outlined the commission that was to be paid. The draft was usually ready in a day or two, A1 would be informed, and it finalised the pay run.
Late in 2019, A1 requested them to explain to Todd why he was taxed at 47% on the commission pay runs. They explained the reason. He did not seem to accept the tax of 47% and they conveyed this to A1. He rang them again this year, and they told him he should deal with A1 and not with them directly.
He understood that commissions were often paid months prior to construction commencing. This was creating a strain on cashflow. A change was made requiring 5% deposit on signing the contract. He understood Todd had been aware of and agreed to the change.
He provided a schedule of “line items” for work required in relation to Todd Martin since 18 June 2020. There were five items between 15 July 2020 and 28 July 2020.
From their contact with A1, the only reason the commission due on 29 June 2020 was not paid was because Todd was disputing his prior payslip. It was inappropriate to pay commissions until the issue was sorted out. “And the extent of the cost my clients have been put to solely as a result of Todd Martin’s persistent paranoia (five matters in month of July)”.

Medical evidence

Dr Htin Soe/Dr Mohamed Khan – general practitioners

On 20 May 2019, Dr Soe recorded that the worker had been unwell since last week – “stress/overwork exhaustion. Requested med cert retrospective”.
Dr Khan recorded on 14 August 2020 that the worker received an email in March from his employer, wanting to change his contract. He said they could not change it without his consent. Gradually, they stopped communicating with him. They were giving him less work than the other guy. His payment was delayed for two to three weeks every time. This had caused grief, anxiety. He was getting cranky, unable to sleep.
On 21 September 2020, Dr Khan recorded that the worker was getting better. He was getting an offer for a new job. The psychologist suggested getting a new job as the stress was coming from his present job.
On 25 September 2020, Dr Khan recorded that the worker had resigned and was feeling much better. “No stress”.
On 27 September 2020, Dr Khan reported to iCare that the worker had GAD.
The worker had received an email from his employer, who wanted to change his contract without his consent. Then they stopped communicating with him, started giving him less work, and delaying his payments every time. “All this caused him grief and anxiety. He was unable to sleep.” Dr Khan considered work to be a substantial contributing factor.
Dr Khan opined that the worker would be able to return to pre-injury duties in less than one month.
On 12 October 2020, Dr Khan recorded that the worker was unable to cope with the work. He broke down. “Too stressed”. He was still very anxious and having nightmares. He was unable to cope with a new job – “feeling like trapped in sand trap”.
On 26 October 2020, Dr Khan recorded that the worker was getting better. He was less anxious and happy to increase his hours. New capacity was discussed.
Dr Khan recorded on 26 November 2020 that the worker was very stressed. He was put off as he was not performing properly.
The worker was still stressed on 8 December 2020, and “unable to go to work as advised by psychologist”.
Dr Khan reported to iCare on 22 December 2020 that the worker’s diagnosis was GAD. He was very keen to work and thought after an initial break he was ready to go back to work. When he tried, he again suffered periods of anxiety that led to lack of concentration and disinterest in working.
The new employer provided the same environment of stress, which the worker could not cope with in earlier employment. He could not concentrate on work and was eventually laid off.
Dr Khan opined that the worker would be able to return to pre-injury duties in two to four months. He was unfit for work.
Dr Khan recorded on 5 January 2021 that the worker was still stressed. He did not want to risk joining work before he was fit. He made a similar note on 27 January 2021.
On 16 March 2021, Dr Khan recorded that the worker was still the same. “Not much improvement”.
On 14 May 2021, Dr Khan recorded slight improvement.
On 24 May 2021, Dr Khan reported to a rehabilitation provider that the worker was able to work as a sales manager; a sales representative; training and development officer; customer service manager; or youth worker (all in three to six months)
On 10 June 2021, Dr Khan recorded that the worker was still stressed. He could not find any job.
Dr Khan recorded on 9 July 2021 that the worker was still stressed. His ex-employer was trying to sue him for workers comp. He was getting forgetful and had not been able to get in with the psychologist due to COVID.
On 9 August 2021, Dr Khan recorded that the worker was still stressed and could not find any job. His ex-employer was trying to sue him for workers comp as he was not insured.
On 30 August 2021, the worker was still stressed and could not find any job. He wanted an exemption from COVID vaccine, but Dr Khan advised there was no reason for it.
Dr Khan recorded on 6 September 2021 that the worker was not coping with any type of work. His psychologist was suggesting psychiatrist review.
On 1 October 2021, Dr Khan recorded “getting better”.
On 6 October 2021, Dr Khan recorded that the worker was still stressed. He did not like going for a walk, and the gym and swimming places were closed.
Dr Khan recorded on 28 October 2021, “getting better”. The worker was attending gym and starting the pool soon.
On 30 November 2021, the worker was getting better. They discussed increasing his hours, which he wanted to discuss with his psychologist.
On 24 December 2021, Dr Khan recorded that the worker was working 15 hours per week. He was feeling stable. They discussed increasing his hours, but he was not ready.
Dr Khan recorded on 27 January 2022 that the worker was still seeing a psychologist. He was still worried with going to work.
On 16 March 2022, Dr Khan recorded that the worker was still worried with going to work. There was no more part-time work.
Dr Khan recorded on 14 April 2022 that the worker was still worried with going to work. He was doing part-time work. He made a similar notation on 12 May 2022.
The worker was “still the same” on 10 June 2022.

Dr Graham George - psychiatrist

Dr George was qualified by iCare and reported first on 11 November 2020.
The worker indicated that there had been about a six-month build-up of stressful situations at work. He had felt both intimidated and bullied by the owner of the company, who wanted to change his pay structure without any discussion, and just sent him an email.
The worker had been employed for his managerial skills. After he was employed, he was told he was not going to be put in that position. He was employed as a salesperson, and his expectation was that he was to be a sales manager.
After four months of work, “they began to tell me what was happening”. A second salesperson, whom he was asked to train, was employed without his knowledge. This meant he had to divide the sales leads. He started to see a lack of progress and everything he was doing suggested the employer was trying to get rid of him. He questioned the employer about this at some stage.
There were problems with payment of his weekly salary and commission. His payments were late every month. He had to chase them at times. This became very frustrating. Because of the way he was treated, his general efficiency became affected. He did not feel as productive.
The worker was supposed to be paid a commission on 11 August 2020. It did not arrive. He had a phone conversation with Stefan, who said the job had been cancelled. He had been paid his commission, but it was going to be taken from him. It was $3,000. He said the owner could not do that, and the owner said “I can do what I like. This is the way it is” and hung up.
The worker was driving home on the M5 freeway. He started to feel strange. He could not focus. He pulled over. He did not know what was going on and felt unreal. He felt highly anxious and had trouble catching his breath. His heart was pounding. He appeared to undergo severe dissociation, associated with anxiety.
Mr Martin rang his wife and said he could not drive. He had another customer to see. He spent probably about 1.5 hours trying to recover. Eventually, he was able to drive and went to the meeting but seemed to be “on automatic”. He was barely functioning.
The next day, the worker saw Dr Khan, who sent him to Ms Gossayn. He had only had three phone consultations. His GP had put him on Lexapro. When he went off work, his sleep was disturbed. He woke ruminating about events. He remained preoccupied. He was aware of feeling depressed. He gained no enjoyment from activities. He lost initiative and motivation and was also troubled by recurrent anxiety. His GP put him on Escitalopram.
Mr Martin had recently been diagnosed with type II diabetes and was being treated for hypertension. He was unaware of any psychiatric disorder in his family.
Dr George diagnosed the worker with either adjustment disorder with mixed anxiety and depressed mood or major depression with anxiety. He may have moved from the former condition to the latter.
Given the history provided, Dr George opined that it appeared employment had been the main contributing factor to the development of the worker’s condition. He had ongoing symptoms and Dr George did not believe he had any capacity for work. It may be anywhere from three to six months before he had a reasonable recovery. There was not much likelihood of being able to return to work with his previous employer.
Dr George opined that, providing the worker had a reasonable response to treatment, he should be able to look at alternative duties within three to six months. He required further treatment.
On 9 December 2020, Dr George provided a supplementary report.
Dr George opined that it appeared the predominant cause of the worker’s injury related to his employer’s actions in relation to provision of employment benefits. He emphasised that it was important to appreciate the circumstances that led to him leaving work. While he had indicated that the injury related to the employer’s actions, he had not commented on its decisions.

Ms Margueritte Gossayn – psychologist

Ms Gossayn recorded on 18 August 2020 that the worker had had stress related work issues for the past six months. There were “a lot of promises. They don’t want to pay me commissions.” He was supposed to be paid on Wednesday “$12,000”. On Wednesday afternoon there was no confirmation of payment. He eventually got a return phone call about 10am to 10:30am. “↑ anxiety”. Last Thursday he had to pull over to the side of the road.
The worker “can’t handle this. I do all the work. They fail to pay me.” He could not get hold of them.
On 15 September 2020, Ms Gossayn recorded things were slow. The worker was trying to do things around the house. He had tried to follow up commissions. The employer was making excuses not to pay him. He did not know where he stood. He got legal advice, but the cost was more than he was owed. He did not want to stay with the employer – “no trust/confidence”. He did not understand why the employer treated him like this.
Ms Gossayn recorded “fun, social, active”. The worker went to the National Park with his son on Sunday and his daughter was going to have lunch with him. He was going to Richmond to catch up with a mate.
When he sent work an email, he got no response. He wanted to get out of sales and into management. He was doing volunteer work with LWB. He had a job interview on Friday.
On 11 November 2020, Ms Gossayn recorded that everything was going fine. Yesterday was stressful – “lack of support, sales based”. There was a lack of sales. The worker’s mind was not there. He had only one sale in the last month and was frustrated. Their procedures were pre-historic. He was used to computer systems. They were paper-based. This generated delays, with quotes not sent to customers. He did not think it was the right company for him. The only positive was that he was employed.
Ms Gossayn reported to Dr Khan first on 11 January 2021. The worker had presented with anxiety and depression. She had consulted with him for six telehealth consultations.
Mr Martin reported excessive anxiety and panic-like symptoms at the thought of returning to work; restlessness; difficulty focusing; heart palpitations; withdrawal from others; frustration; shortness of breath and tight chest; sleeping difficulty; low self-esteem and self-confidence; and anhedonia.
Ms Gossayn did not believe the worker could return to work until he was better able to manage his symptoms. He was terminated from his position. He was unable to perform to the best of his ability as he was struggling with maintaining his mental health.
The worker was trying to complete three tasks daily, and do something fun, social, and active each day. Even this was an effort.
Ms Gossayn’s report dated 11 February 2021 was in similar terms. She opined that the worker would benefit from physical activity and bodywork.
On 17 February 2021, Ms Gossayn recorded that the worker still worked part time at LWB as a volunteer. He could not cope with stress. His brain was not functioning like before. He could not cope without structure. He had always been “self-managed”. He was under financial strain.
On 3 March 2021, Ms Gossayn recorded that the worker had had to put down his dog. He was agitated and less tolerant but “today a bit better”. LWB was not enough money.
On 9 July 2021, Ms Gossayn reported that she did not believe the worker was able to return to sales-based employment until he was able to better manage his symptoms of anxiety and depression.
On 19 September 2021, Ms Gossayn reported that the worker had shown improvement. He was working at LWB on a casual basis. He reported the struggles involved with this, but she recommended he try to maintain it, even on his bad days, to continue with his routine and provide meaning, purpose, and fulfilment.
Ms Gossayn did not believe the worker was able to return to sales-based employment until he was able to better manage his symptoms and improve his sleep. A medication review would be beneficial.

On 10 February 2022, Ms Gossayn reported that the worker had shown improvement. He was working varying hours at LWB, the most being approximately 30 hours per week. He felt mentally fatigued and exhausted, but she again recommended he try and maintain it.
They were looking at techniques to assist Mr Martin to improve his psychological stamina, so he could look for a return to work in a NON-SALES position in a managerial role with an alternate employer without regression. (Capitalisation in original).

Dr Abdal Khan – psychiatrist

Dr Khan was qualified by the worker and reported first on 27 May 2021.
Dr Khan recorded a history that the worker experienced difficulties a few months after commencing. He “noticed the dialogue had changed” and his employer “went from asking or suggesting to telling” him what to do. Changes were initiated without his input, and he was still expected to sell to customers.
The worker was frustrated that his employer was not utilising his specialist skills, which was the reason he was employed. When he tried to have meetings about his concerns, he felt unsupported, ignored, and dismissed. This caused deterioration in his mental state, with symptoms of depression and anxiety. His wife raised concerns about his behaviour at home.
In the first six months of his employment, the worker was “doing everything…” He set up a new program, sales structure, and sales process. In February 2020, he learned another salesperson had been employed without his knowledge. He was told to fast track training this person. He noticed his depression and anxiety deteriorated, and his GP observed elevated blood pressure.
An approvals person was also employed without the worker’s knowledge and started to give him direction. He was confused, given he had more experience at the company.
The worker said his commissions were not paid from the outset. Around early March 2020, his employer indicated an intention to change the commission structure. When he said he had a contract, his employer advised they did not have to comply, causing further frustration. The employer eventually agreed to pay commissions on time, but on 13 August 2020, it was not paid.
His phone calls were ignored. He was later informed they would be deducting $3,000 and they reportedly refused to provide a reason. The worker was heading to an appointment when he had symptoms that seemed consistent with a panic attack. He had not returned to this workplace since 13 August 2020.
Dr Khan recorded symptoms of low mood; anxious ruminations; panic attacks; reduced motivation, engagement in previously enjoyed activities, energy, and self-confidence; social withdrawal; sleep disturbance with nightmares; impaired attention, concentration, and memory; feelings of hopelessness and worthlessness; passive suicidal ideation; and difficulties with trust in interpersonal relationships.
Mr Martin obtained employment with Five Star on 21 September 2020. He was not coping due to his unstable mental state, and his employment ended on 25 November 2020.
The worker continued to experience pervasive symptoms of depression and anxiety, with a profoundly negative impact on his functioning with self-care and personal hygiene, social and recreational activities, travel, social functioning, and employability. He had not been able to return to sales or sales management but continued casual work with LWB.
Dr Khan diagnosed major depressive disorder with anxious distress. He referred to the history recorded by Dr George. He disagreed with Dr George’s opinion on causation. From his assessment, it was apparent that the worker’s mental state first deteriorated approximately four months after he commenced employment with A1. The provision of employment benefits, or lack thereof, was merely a perpetuating factor for his already deteriorating mental state but was not the predominant cause of his injury. His employment was the main and substantial contributing factor to his injury.
Dr Khan opined that the worker’s prognosis was guarded. He had pervasive symptoms of depression and anxiety, with a profoundly negative effect on his social, occupational, and other important areas of functioning.
Apart from intermittent shifts at LWB, the worker did not have any other capacity to work. It was premature to determine whether he could return to his pre-injury work, as his condition had not stabilised. He was motivated to focus on his recovery, with the aim of returning to employment in sales. He had not reached maximum medical improvement (MMI).
Dr Khan again reported on 7 April 2022. He recorded a consistent history.
There had been limited change in the worker’s mental state. He still had pervasive symptoms of depression and anxiety. He had continued to work on a casual basis with LWB, predominantly driving children from foster homes to and from school.
Dr Khan’s diagnosis remained the same. He again expressed his disagreement with Dr George regarding causation.
The worker’s prognosis remained guarded. Apart from intermittent shifts with LWB, which could vary between 10 to 15 hours per week, he had no other capacity to work. He had reached MMI. His whole person impairment was 8%.

SUBMISSIONS

The parties’ submissions have either been recorded or provided in writing, and a transcript is available. I will therefore provide a summary.

Applicant

The applicant submitted that the starting point is s 145 of the 1987 Act. It concedes in respect of 13 August 2020, and that date only, it was uninsured. If the Commission is not satisfied there was an injury on 13 August 2020, the appropriate order is to find there is no amount payable in respect of the statutory demand.
The applicant submitted the Commission cannot find on the evidence that there was an injury on 13 August 2020. The claim specifically referred to the date of injury as 27 March 2020. That is repeated in the COCs. Theoretically that could be considered the date of the injury, but it’s not the one that compensation has been paid in respect of.
The applicant submitted that 13 August 2020 is not even the deemed date of injury. That would be determined by reference to the first period of incapacity for which compensation benefits are claimed, consistent with the decision in Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 (Thoroughgood). That date is a bit indeterminate, but it would be 18 September 2020. Perhaps the date of claim could be considered but it’s not 13 August 2020. The statutory demand should fail entirely.
In respect of injury generally, the applicant submitted that until August 2020, when he took time off work, the worker had not made a single complaint in respect of any alleged stress or psychological or psychiatric injury, related to work or otherwise. He made a complaint of stress associated with work in June 2019. He saw the doctor between 27 March 2020 and August 2020, without saying anything about psychiatric or psychological injury.
The applicant submitted that the worker got dissatisfied with his work environment. He had decided to leave. He indicated that he wanted to take four weeks off from 31 August 2020. He had a contract with Five Star dated 31 August 2020. It is true that he didn’t start that work. He said he was initially to start on 14 September 2020, but it changed to 28 September 2020. The overwhelming inference is that he had elected to finish with the applicant, go to work for Five Star, and in the meantime take some time off.
The applicant submitted that to this day, the only notification of an alleged injury came from iCare. Section 254 of the 1998 Act precludes payment of compensation where notice of injury is not given as soon as possible and before the person ceases employment. Prima facie, by reason of the failure to give notice of the injury, compensation is not payable.
The applicant submitted that it is wrong to suggest it was not prejudiced. It had no opportunity to address the assertion of injury, consider providing employment assistance, or discuss alternative employment.
Dealing with s 11A, the applicant submitted that it is clear that the complaint by the second respondent is that he wasn’t being paid his commissions. There is abundant evidence that suggests the decision as to how they were dealt with was entirely reasonable. The applicant did everything in a reasonable way that is clearly related to the provision of employment benefits. The worker’s alleged psychological injury was wholly caused by the provision of those employment benefits.
The applicant referred to Dr George’s supplementary report. It submitted compensation would not be payable as s 11A provides a watertight defence. It conceded that that evidence was available as at 9 December 2020. It is perhaps arguable that the first respondent may have been entitled to pay compensation up to that period, but not after.
As regards “last employment”, the applicant submitted that the worker had taken up employment in precisely the same work with Five Star. It referred to Dr Khan’s notation on 25 September 2020, and submitted it is not unreasonable to say the worker had recovered, if he did have a psychological condition.
The applicant referred to Dr Khan’s notation on 12 October 2020 that the worker was unable to cope with the work. It submitted that is either causation, or at the very least, aggravation with the subsequent employer. If I am to take this as a disease case, then it is not the last employer for whom the worker carried out work to the nature of which the disease is due. Liability rests with the last employer.
The alternative proposition, which the applicant urges less strenuously, is that if the worker had an injury with it, he may have been entitled to a very short period of compensation, perhaps in late August or September.
The applicant submitted that I would not accept the second respondent’s evidence where it is contradicted, because there has been “a litany of lies”. It referred to the employment with LWB. The second respondent had not told his GP he was working. He had sought to deceive not only the insurer but medical practitioners who have been treating him. At a time when he was working, he was presenting as completely incapable of working.
The applicant submitted that it was entirely reasonable, particularly in the context of the COVID outbreak, to alter the worker’s employment contract. He agreed to it.
The applicant submitted that the worker had made false declarations on his COCs that he had not engaged in paid employment, self-employment, or voluntary work. He told the doctor about the work after obtaining legal advice. What he told the psychologist was that he was a volunteer. She was labouring under the illusion that he couldn’t work.
In terms of payment of compensation, the applicant submitted that, properly investigated, the claim should not have been paid at all. If the Commission accepts that it could have been paid, at best it would have been paid for a very brief period at some time in September, and perhaps only medical expenses.
The applicant referred to the worker’s letter of resignation, in which he thanked it for its support. It submitted that he was going to “fill in a fake claim for compensation”, “lie” about his employment status, and claim benefits based on psychological injury. It submitted that nothing the second respondent said should be believed. The applicant submitted that its lay evidence contradicted his evidence.
The applicant submitted that the Commission should entirely reject any suggestion that the worker sustained a workplace injury at all. In the alternative, he was “a little bit upset”, enough to see a doctor in September, and then made a good recovery, went to a different job, and reinjured, or perhaps injured, himself.
The applicant submitted that, if iCare should have paid the worker something, it should not be weekly compensation because he was working, but “maybe something” until about December 2020, when it sought and was given specific medical evidence to ground a very strong s 11A defence and did nothing about it.
In terms of quantum of weekly payments, the applicant submitted that iCare paid weekly compensation without proper investigation on the basis that the worker had no current capacity for work, until it filed the Application that finally led to the disclosure of work. His pre-injury average weekly earnings (PIAWE) were $1,346.15, and on some occasions, he earned over $2,000 with LWB.
The applicant submitted that the worker could work for LWB for 10 hours and get paid for 50 hours. He was left with plenty of time to do another job. He could drive an Uber, taxi, or bus. He could work in sales of granny flats. He has capacity that exceeds any possible suggestion of his pre-injury earnings.
The applicant finally submitted that any order under s 145 should require repayments of nil or virtually nil.
In reply to the first respondent’s submissions, the applicant submitted that the only “relevant time” is 13 August 2020. It does not concede it was uninsured on any other date. Injury is disputed for the reasons submitted at arbitration.
The applicant does not concede the accuracy of the chronology. It otherwise does not respond to it, save to point out that the reference to Dr George on 9 December 2020 gives an opinion that the predominant cause of the second respondent’s condition was the provision of employment benefits.
The applicant submitted the statements on its behalf should be preferred to those relied on by the second respondent for the reasons submitted at arbitration, including those as to credit.
The applicant submitted the assertion that the second respondent was suffering from some psychological condition is inconsistent with objective facts. He had elected to take time off work, had entered into a contract with a new employer which, on its face, is dated 31 August 2020, and at that time had provided a resignation that spoke in extremely positive terms about his experience with the applicant.
The applicant submitted the first respondent has mis-stated the applicable test, which is set out in Thoroughgood. If date of injury is deemed by reference to incapacity, it is only by reference to incapacity for which compensation is claimed. It is common ground between the applicant and the first respondent that this date is 18 September 2020.
The applicant submitted it had directed the Commission at the arbitration to the evidence of causal contribution to the second respondent’s condition by his employment at Five Star.
The applicant submitted the difficulty with consideration of the medical evidence is that it is based on an assertion that the second respondent had no capacity for work when he was working. It submitted it was never provided with notification of the injury by the second respondent. The second respondent was aware of the requirements for claiming compensation as he had had a previous claim. It is inconsistent with the facts to say it could be assumed the second respondent provided notice of the injury before he resigned. The terms of the resignation are inconsistent with any suggestion of injury.
The applicant submitted that as the second respondent voluntarily left employment and commenced employment with Five Star, the evidence is more consistent with that employment being a substantial contributing factor to injury and the main contributing factor to any disease.
The applicant submitted that the first respondent’s medical evidence satisfies the requirements of Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad); and the applicant’s actions were reasonable in all respects. It submitted it should be noted that at no time were any of the second respondent’s concerns as to provision of employment benefits found to be legitimately based, despite being repeatedly reviewed by its accountants.
The applicant submitted the second respondent had demonstrated a capacity to earn that is at least equal to or in excess of the relevant PIAWE. As it was not in a position to manage the claim, it has not been in a position to address the reasonableness of the medical expenses. It submitted many were incurred on the incorrect presumption that the second respondent had no current capacity. “In the view of the applicant” they can generally be regarded as unreasonable and unnecessary.
The applicant submitted that even the first respondent had to concede it incorrectly calculated payments and made very substantial overpayments to the second respondent. It submitted the extent of the overpayments is far more substantial than conceded by the first respondent.
In reply to the second respondent’s submissions, the applicant submitted that the date relied on cannot be the deemed date of injury.
The applicant submitted that even it were accepted that the second respondent somehow perceived his work with LWB as volunteer work, this does not detract from the false nature of the declaration in the COCs.
The applicant submitted that not only was there no need to cross examine the second respondent, but it would be inappropriate in circumstances where the only matters in dispute were as between it and the first respondent. The applicant had indicated it had no need or desire to have the second respondent involved. The second respondent elected to remain a party.
The applicant submitted that the second respondent has given no evidence as to the reason for his eventual disclosure of the work he was doing. He “conveniently ignores” the declarations in the COCs.
The applicant submitted that it was the first respondent that made the “forensic” decision to require the second respondent to be a party, as well as the second respondent’s “forensic” decision to remain a party when given the opportunity to accept the discontinuance it offered.
The applicant submitted the determination that should be made in accordance with s 145 of the 1987 Act is that no compensation is payable by the applicant; or in the alternative, a nominal amount paid at most, consistent with its submissions at arbitration.

First respondent

The first respondent relied on the second respondent’s statement dated 2 September 2020, which it submitted supports his allegations of injury. it referred to the issues with payment of commissions, the change to his contract, and his interactions with Stefan and Anton.
The first respondent submitted that the worker had contemporaneous support from the medical practitioners he consulted in August 2020 for his complaints and the development of his psychological condition, referring to Dr Khan’s and Ms Gossayn’s notes. He also had support from Ms Gossayn, Dr Khan (GP), Dr Khan (psychiatrist) and Dr George in drawing a causal link between his complaints and his employment. His employment was considered to be both a substantial contributing factor and the main contributing factor to the development of the condition.
The first respondent submitted that the second respondent’s continuing condition is supported by medical certificates. The applicant has not provided any evidence refuting the allegations raised by the second respondent, nor provided medical evidence to refute that his employment was the cause of his condition, or the level of incapacity on which his medical advisers have provided opinions.
If it was accepted that the second respondent suffered from a disease, as the applicant argued, the first respondent submitted that it is clear his incapacity arose as at 13 August 2020, and by operation of s 15 of the 1987 Act, his injury would be deemed to have occurred at that time.
The first respondent submitted that it is clear that in August 2020 and thereafter, the second respondent was in need of money, but was working with difficulty, as he was suffering the effects of his psychiatric disorder. The work concluded on 21 February 2021 or earlier and there is no evidence it was causative of his condition. The medical evidence for the period to 21 February 2021 and beyond is supportive of the continuance of his condition upon ceasing work with the applicant.

The applicant maintains that the second respondent failed to give notice of the injury within the time required by s 254 of the 1998 Act.
As the first respondent submitted, the applicant was provided with a medical certificate, which Stefan described as an ordinary medical certificate, on 13 August 2020. He was obviously aware that the second respondent claimed to have sustained injury, in the applicant’s employ, and the details of the injury, at least by 3 September 2020, when both he and Anton provided statements to the investigator retained by iCare.
The second respondent has given evidence that at first, he did not intend to claim compensation but this changed when his psychologist advised what was wrong with him. He also said he did not know the requirements for claiming compensation. The claim form states that he became aware of the injury on 13 August 2020.
I do not accept the applicant’s submission that, because the second respondent had made a previous claim for compensation, it must be assumed he was aware of the notice requirement. His evidence is that he made a claim about 10 years before 2 September 2020, when he made his first statement. The claim may have been made on his behalf by his employer, it may have been the employer who first gave notice of the claim, or notice may have been given late, but the point was not taken by the insurer. It is simply impossible to know the circumstances in which it was notified to the insurer.
I also do not accept that, even if notice had not been given earlier than 2 September 2020, the applicant was prejudiced by a failure to give notice earlier. It has provided no evidence of prejudice. As I have noted, by 2 September 2020, both Stefan and Anton had provided statement evidence. Ms Hazelman and Ms Ellison provided statements dated 4 September 2020, and the letter from CA Hill & Associates is dated 28 August 2020, suggesting that the applicant was obtaining evidence to meet the claim as early as about two weeks after the claimed date of injury.
The applicant submitted at the hearing that it had been prejudiced because it did not have the opportunity to address the assertion of injury. It has done that in the evidence I have referred to above. It also submitted that it had not had the opportunity to discuss providing alternative employment. There is no evidence that it would have considered this. It appears to have accepted the worker’s resignation on 18 September 2020 without demur. There is no evidence that it sought at that stage or at any stage to provide him with alternative employment or suitable duties.
I accept that the second respondent was “ignorant” of the requirements of the legislation regarding giving notice of the claim. In any event, I do not accept that the applicant was prejudiced by any failure to give notice.
The second respondent was not precluded by s 254 of the 1998 Act from recovering compensation.

Injury

Section 15 of the 1987 Act provides:
“(1)    If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)     Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.
(3)     Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”
As the first respondent submitted, the second respondent has contemporaneous support from the medical practitioners he consulted in August 2020. He also has support from his GP, his psychologist and psychiatrists Drs Khan and George for a causal link between his complaints and his employment, with employment being considered both a substantial contributing factor and the main contributing factor. His continuing condition is supported by COC’s.
The applicant does not rely on any medical evidence that refutes that the second respondent has sustained injury arising out of or in the course of his employment with it. I have discussed the medical evidence above. It is all one way.
I am satisfied that the second respondent sustained psychological/psychiatric injury arising out of or in the course of his employment with the applicant.
As regards the date of injury, assuming it can be argued, as the applicant maintained, that the second respondent suffers from a disease, it is clear his incapacity arose as at 13 August 2020, which is the deemed date of injury.
The second respondent has given evidence that he was not feeling well on 13 August 2020 and attended his GP on 14 August 2020, when he was certified unfit for work. The reference on the initial COC to 27 March 2020 appears to be a reference to the date on which the applicant advised him of a unilateral change to his contract, to which he objected. I refer to the history recorded by Dr George and the evidence of the second respondent’s wife regarding him sitting beside the road, unable to move.
The applicant disputes that the date of injury is 13 August 2020. It concedes that it was uninsured only at that date, although it relies on no evidence that it has held a policy of insurance at any other time.
The applicant relies on Thoroughgood, maintaining that, in s 15 (and s 16) of the 1987 Act, the date of injury is determined by reference to the first period of incapacity for which compensation is claimed.
In Thoroughgood, Deputy President Roche referred to s 16(1)(a) of the 1987 Act, which provides that the deemed date of injury is the time of the worker’s death or incapacity, or if death or incapacity has not resulted, the time at which the worker made a claim.
Roche DP referred to Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246, in which Sheller JA said at [15]:
“Section 15(4) [which is in the same terms as s 16(3)] provides that in s15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; see s66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs(3) and subs(4) means that the condition for the application of subs(1) of s15 is met. The respondent suffered an injury within the meaning of s15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s66, in 1992 and for the purpose of s66 in 1996.” (emphasis added by Roche DP).
Roche DP said at [55]:
“Critically, the incapacity in 1992, when Mr Antaw found he was unable to work on motor vehicles, was an incapacity that resulted in an economic loss. This is to be contrasted with Mr Thoroughgood’s situation where, accepting that he has an incapacity in the Arnotts Snack Products Pty Ltd v Yacob[1985] HCA 2; 155 CLR 171 (Yacob) sense, he has no economic loss from his incapacity and has not claimed weekly compensation.”
The same may be said of the second respondent as was said of Mr Antaw. When he was issued with the COC on 14 August 2020, he was unable to work (at all) and the incapacity therefore resulted in economic loss.
By operation of s 15 (1)(a), if the second respondent’s injury is deemed to have occurred on 13 August 2020. The applicant concedes it was uninsured at that date.
I do not accept that the second respondent’s employment with Five Star was “employment to the nature of which the disease was due”.
It is clear from the medical evidence that the second respondent was struggling to maintain his employment with Five Star, because he had already sustained injury in the applicant’s employ. As the first respondent submitted, there is no evidence that his work for Five Star was causative of his condition.
The applicant was the last employer of the second respondent in employment to the nature of which the disease was due.

Section 11A(1)

Section 11A of the 1987 Act provides:
“(1)    No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
The applicant has raised the provisions of s 11A(1) in support of its Application. It bears the onus: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) DDCR 206.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that described in [1999] NSWCA 465; (1999) 19 NSWCCR 1818 that whether actions in respect of one of the matters specified in s11A(1) were the whole or predominant cause of psychological injury was “a question of fact and degree, which involves consideration of all the factors which produced (the worker’s) condition” (at [8]).
The applicant relies on its reasonable action with respect to “provision of employment benefits”, that is payment of commissions.
I am not convinced that commissions, which comprised part of the second respondent’s remuneration, may be classified as employment benefits, in the same way as perhaps a discretionary bonus may be so classified. The first respondent submitted that neither failing to pay commissions on time nor the unilateral changing of the second respondent’s contract can be said to fit the requirements of the section. The second respondent adopted its submissions. Notwithstanding my reservations, I will deal with the applicant’s reliance on s 11A(1).
The difficulty the applicant has in establishing that the second respondent’s injury was wholly or predominantly caused by its action with respect to provision of employment benefits is the evidence, much of it unchallenged, that the injury was also caused by matters other than the late payment of his commissions; and while the applicant disputes that the commissions were incorrect, and asserts they were delayed due to the actions of the second respondent, it is clear that they were sometimes paid late.
Other matters raised by the second respondent in his evidence include the delay in preparation of contracts in December 2019, resulting in delayed payments to him; his mobile phone and email account bills not being paid, resulting in the services being cut off; the employment of Mr McIvor without reference to him; and the reversal of a commission of $3,000 he had already been paid. Much of his evidence about this is confirmed by text messages.
A further matter of concern to the second respondent was the unilateral change to his contract in March 2020. It was one of the causative factors recorded by Dr Khan on 14 August 2020.
The second respondent’s evidence, which is not traversed by Stefan, is that, when he protested about the change in his contract, Stefan told him, “Well that is the way it is going to be”. Anton does not deny having told the second respondent: “With what we pay you, you are not on the poverty line”, when he chased up payments because he was having difficulty paying his bills.
Dr George has expressed the opinion in his supplementary report dated 9 December 2020 that it appeared the predominant cause of the second respondent’s injury was related to the actions of his employer in relation to provision of employment benefits. He referred in his initial report to the second respondent always having to chase his employer for payment of wages and being told the employer was going to hold back $3,000 that had been paid to him. He also recorded a history of other stressors.
It is not to clear to which actions of the employer Dr George was referring in his supplementary report. He emphasised that “it is important to appreciate the circumstances” that led to Mr Martin leaving work, but has not elaborated further, except to say that he had (properly) not commented on the decisions the employer made.
Taking into account the other medical evidence, including that of Dr Abdul Khan, who has in my view provided a detailed and balanced report, I am not satisfied that the second respondent’s injury was wholly or predominantly caused by the applicant’s actions with respect to provision of employment benefits.
In the circumstances, it is unnecessary that I decide whether the applicant’s actions were reasonable.

Capacity

I will deal under this heading with the applicant’s attack on the second respondent’s credit.
The second respondent submitted that, given the conclusions the applicant enjoined the Commission to make, it was necessary that it confront him directly in cross-examination, and permit him the opportunity to defend himself.
In Finney, ADP Parker held at [59] that procedural fairness required:
“(a)    the findings of dishonesty, creating false and misleading evidence not be made until those allegations were put squarely to Mr King;
(b)     the Arbitrator should have informed the parties that he had formed a preliminary view with respect to the evidence of Mr King;
(c)     the Arbitrator should have re-convened the hearing;
(d)     the parties should have been invited to make submissions as to what course the proceedings should then take in view of the articulated ‘preliminary view’, and
(e)     the parties should have been permitted to make additional submissions addressing what findings should be made and as to the terms in which the findings should be made.”
The issues of cross-examination and the rules of procedural fairness as they apply in the Commission were discussed in detail in New South Wales Police Force v Winter [2011] NSWCA 330 (Winter), from [81].
Campbell JA said in Winter at [84]:
“The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [18]; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [65]; Parker v Comptroller-General of Customs [2007] HCA ; (2009) 252 ALR 619; Fletcher International Exports Pty Ltd v Lott & Anor [2010] NSWCA 63 at [42], [63].” (Emphasis in original.)
On my reading of Finney, Parker ADP found that Mr King had been denied procedural fairness because the arbitrator should have informed the parties that he had formed an adverse view of Mr King’s credit, and he should have been given the opportunity to address the issue before very serious findings were made against him.
I do not accept the applicant’s submission that it would have been inappropriate to cross-examine Mr Martin because the only matters in dispute were as between it and the first respondent. The applicant made a direct and sustained attack on Mr Martin’s credit in support of its submission that the first respondent should not have made any payments to him or on his behalf, or at most, minimal payments should have been made, because he had among other accusations, told “a litany of lies”.
While the applicant did not give the second respondent precise notice of the case that was put against him (Winter), it is apparent that the second respondent was aware that it may be submitted that he had failed to provide his treating practitioners and iCare with the correct information, so they were misled about his capacity for work.
The second respondent had a reasonable opportunity (Winter) to put evidence and submissions before the Commission concerning the case put against him. He availed himself of that opportunity and was represented by both his solicitor and by experienced counsel at the hearing.
Had it been my intention to make findings adverse to the second respondent’s credit, I believe it would have been incumbent on me, in accordance with the authority of Finney, to inform the parties accordingly, and invite their submissions as to what course the matter should then take.

I do not make the adverse findings as to the second respondent’s credit urged by applicant, and I do not believe the evidence allows me to do so. The second respondent has explained how it came about that iCare and his treating practitioners mischaracterised the nature of his work for LWB. He has given evidence that he told “Michelle” from iCare that he had a second job with LWB, and she said it would not affect his claim. I see no reason not to accept that evidence.
The applicant submitted that the second respondent told his doctor about his work for LWB after obtaining legal advice. That may be the case, but as Mr Martin submitted, it is consistent with him being advised that it constituted “work” within the meaning of the workers compensation legislation. I draw no adverse inference from the timing of the disclosure.
I also do not accept that the second respondent was attempting to mislead when he signed the COCs. He has given evidence that he is dyslexic and did not read everything relating to his claim. The claim form is largely incomplete and does not appear to have been completed by someone with better than average writing skills. The second respondent also ticked the box marked “no” in answer to the question whether he worked only for the applicant, but provided no detail of the other employer/s.
I do not draw any inference against the second respondent from the terms of his resignation letter. It is hardly unusual, and perhaps the norm, for workers resigning their employment to write a polite letter to their manager, and not “burn any bridges”, even if they have had an unpleasant experience in the workplace and are happy to leave it.
It is also not unusual, in my view, that the second respondent accepted other employment in his field and did not feel the necessity to tell the applicant about it. He may well have hoped that, in a new workplace, he would not face the same difficulties he faced with A1 and could make a fresh start.
As regards the applicant’s capacity for work, I accept the submissions of the first respondent and particularly the second respondent.
As the second respondent submitted, the applicant has his payslips with LWB, knows his PIAWE, has not taken issue with it, and is possessed of sufficient information to explain why it maintains he has been overpaid.
The applicant bears the onus in this matter. Apart from asserting that the worker has been overpaid, the overpayments continue, and he has a capacity to earn that is greater than his PIAWE, the applicant has not made meaningful submissions on this matter. It has not filed a wage schedule.
The medical evidence available to iCare is that in evidence in respect of this Application. There is no medical evidence to suggest the worker has a greater capacity for work than that he is exercising. The list of payments attached to the first respondent’s Reply makes it clear that it is taking into account the worker’s earnings with LWB. It has recovered overpayments and excluded them from the s 145 notice.
As regards the reasonable necessity of medical expenses, the applicant relies on no evidence, but merely submitted that many were incurred on the incorrect presumption that the second respondent had no current capacity. It does not follow as a matter of logic that medical expenses are only incurred when a worker has no capacity. For many workers, appropriate treatment is what allows them to maintain some capacity. I do not accept the “view” of the applicant that the medical expenses can generally be regarded as unnecessary and unreasonable.
The applicant has failed to establish that it is liable for no compensation, or in the alternative, a nominal amount of compensation, as it submitted the Commission should find.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 707

9 December 2022