Allen v Department of Community Services - [2010] NSWWCCPD 78

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Allen v Department of Community Services [2010] NSWWCCPD 78
APPELLANT:		Tanya Allen
RESPONDENT:		Department of Community Services
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-9568/09
ARBITRATOR:	Ms A Simpson
DATE OF ARBITRATOR’S DECISION:		11 March 2010
DATE OF APPEAL DECISION:		26 July 2010
SUBJECT MATTER OF DECISION:		Section 11A of the Workers Compensation Act 1987; injury wholly or predominantly caused by reasonable action taken by an employer with respect to performance appraisal.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	W G McNally Jones Staff
Respondent:		McLean Lawyers
ORDERS MADE ON APPEAL:		Paragraphs 1 and 2 of the decision of the Arbitrator, dated 11 March 2010, are revoked and the following orders are made in their place:
“1. Award for the Applicant pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,230.00 per week from 8 May 2008 to 30 June 2008 and at the rate of $1,279.20 per week from 1 July 2008 to 24 October 2008. 2. The Respondent is to pay medical hospital and rehabilitation expenses (section 60 Workers Compensation Act 1987) upon production of accounts or receipts. 3. The Respondent is to pay the Applicant’s costs.” The Arbitrator’s order concerning “complexity” which appears at the foot of the determination is confirmed on this review. The Respondent is to pay the Appellant’s costs of this appeal.

BACKGROUND TO THE APPEAL

Ms Tanya Allen, who is 36 years of age, commenced employment with the Department of Community Services (‘the Department’) in January 2002. Ms Allen continues in that employment and is presently a Senior Case Worker. In September 2005, at which time Ms Allen was a Case Worker, she commenced duty at the Department’s Coffs Harbour office. It is alleged that on and before 1 May 2008 at that office Ms Allen was subjected to “undue psychological stressors” causing injury and resultant incapacity. Ms Allen ceased work on 8 May 2008 and remained absent until 10 April 2009.
A claim was made by Ms Allen for workers compensation benefits shortly after her cessation of work. That claim was declined by the Department’s insurer and notice of that decision was given by the insurer to Ms Allen pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) by letter dated 19 June 2008. That notice stated that the reason for the insurer’s decision to decline the claim was that the injury suffered by Ms Allen had been wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the Department with respect to matters addressed by the provisions of section 11(A) of the Workers Compensation Act 1987 (‘the 1987 Act’).

On 23 November 2009 an Application to Resolve a Dispute was filed in the Commission on behalf of Ms Allen seeking orders against the Department in respect of her alleged entitlement to compensation benefits. That Application came before an Arbitrator on 22 February 2010 for conciliation/arbitration. The Arbitrator reserved her determination following that hearing and on 11 March 2010 a Certificate of Determination was issued by her which was accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 11 March 2010 records the Arbitrator’s orders as follows:
“The Commission determines:

1. That there is an award for the Respondent.
2. That there is no order as to costs.

Complexity Order
That this matter is deemed complex and an uplift of 20% to the parties is reasonable in the circumstances.
Reasons:
a)Bearing in mind Smith v RTA NSW (2) [2008] NSWWCC PD141 in arriving at the 20% uplift I have taken into account the substance of the matter, the legal complexity of the 1987 Act, the necessity of multiple witness statements, and the fact that the injury is of a psychological nature.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Appeal against the decision of the Arbitrator was filed with the Commission on 9 April 2010.

ISSUES IN DISPUTE

The documentation which accompanies the Application Seeking Leave to Appeal includes a comprehensive summary of the evidence and detailed submissions suggesting error on the part of the Arbitrator concerning the manner in which that evidence was evaluated as well as challenges to the conclusions reached by her. What does not appear in that documentation is a clear statement defining the grounds of appeal. Notwithstanding the form of those submissions it is clear that the issues raised on this Appeal include the following:
(a) whether the Arbitrator erred with respect to her findings of fact concerning the receipt of injury, in particular,the relevance of Ms Allen’s work conditions from mid 2007 to April 2008 to the question of causation of injury;
(b) whether the Arbitrator’s factual errors gave rise to error concerning the manner in which the provisions of section 11A were applied, and
(c) whether the Arbitrator erred in failing to give adequate reasons for rejecting the expert evidence adduced by Ms Allen as to causation of her injury.

Complaint is also made in the course of submissions concerning an observation made by the Arbitrator in the course of her Reasons that a history had been given by Ms Allen to her general practitioner that her partner had been imprisoned. It is asserted in submissions that no such history was given by Ms Allen to her general practitioner, that the suggestion made by the Arbitrator in her observations had no basis in truth and that the Arbitrator’s error has been caused by a combination of error found in the relevant clinical notes and misconstruction on the part of the Arbitrator.
The matter to which I have just referred has been the subject of an application for leave made by Ms Allen to adduce additional evidence. I am of the view that this particular feature of the Arbitrator’s determination, whilst of some relevance to matters which need to be considered on review, is not of fundamental significance nor relevance to the issues raised on this appeal. Having said that, the subject matter of the suggested error is, understandably, of great significance to Ms Allen and her family members. The additional evidence, the Department’s response to that material and Ms Allen’s submissions are dealt with hereunder.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

ADDITIONAL EVIDENCE

As noted above at [8] Ms Allen seeks leave pursuant to section 354(6) of the 1998 Act to adduce further evidence on this appeal. That evidence is to be found in a statutory declaration sworn by Ms Allen on 9 April 2010. Ms Allen’s further evidence addresses an observation made by the Arbitrator at [17] of her Reasons concerning the content of Ms Allen’s general practitioner’s clinical notes, in evidence before the Commission, which it was said by the Arbitrator to include a notation that “Ms Allen’s partner had been imprisoned”.
Procedural requirements concerning an application seeking leave to adduce such evidence on Appeal is regulated by Practice Direction Number 6. Those procedural requirements have been addressed on behalf of Ms Allen by her solicitors in correspondence addressed to the Registrar dated 7 May 2010. The Department, in part A of its Notice of Opposition to this Appeal has stated, in part, that it “does not object to the first two paragraphs of this Statutory Declaration but does object to the last three paragraphs on the basis that they are hearsay and opinion evidence and of no probative value”.
An examination of the Statutory Declaration reveals that it comprises six substantive paragraphs, none of which is numbered. Having regard to the manner in which the Department has worded its response to this Application I infer that the objection taken is to the last three of those paragraphs. The paragraphs objected to address the standing enjoyed by Ms Allen’s partner in the community as well as his occupational status; an observation by Ms Allen concerning potential repercussions of what is sworn to be an incorrectly recorded notation by the general practitioner; and what appears to be an argument or submission concerning “validity” of the general practitioner’s notes in the context of the factual disputes raised in the proceedings. I accept the Department’s objection to the admission of those last three paragraphs and leave to adduce that evidence is refused.
Leave is granted to Ms Allen to adduce the following evidentiary material found in her statutory declaration sworn 9 April 2010:
“The clinical notes subpoenaed by the Workers Compensation Commission from Northside Health Clinic in Coffs Harbour have been incorrectly taken & recorded by the General Practitioner in relation to my partner.
The Workers Compensation Certificate of Determination Matter No: 9568/09 states in paragraph 17 ‘…her partner’s got arrested in Qld’.
On 27 February 2007 I attended my GP & complained about workloads however at no time did I tell my GP that my partner was arrested or imprisoned in Queensland. This information provided by the GP’s clinical notes is incorrect.”

The question of the relevance of the additional evidence relied upon by Ms Allen is addressed in the course of discussion below.

EVIDENCE

The documentary evidence which was before the Arbitrator was summarised at [7] of her Reasons. Whist there was no sworn evidence given before the Arbitrator it is to be noted that the transcript reveals that in the course of submissions Ms Allen is recorded as responding to questions put to her during argument by the Arbitrator and by her solicitor. It is clear that Ms Allen’s participation and response to those questions was prompted by the need for clarity or further explanation concerning the documentary evidence that had been tendered. Where relevant, reference is made below to those responses by Ms Allen.

Ms Allen

Attached to Ms Allen’s application were three separate documents signed by her which may be described as statements. The first, dated 3 February 2009, is a six page document which represents a response by Ms Allen to a report relied upon by the Department’s insurer which is described as a Psychological Pre Liability Assessment – claim summary, prepared by Pamela Costantini, clinical psychologist, dated 3 June 2008. The second document is a six page statement by Ms Allen dated 1 September 2009.That document, in part, again seeks to respond to the report compiled by Ms Costantini and also contains material that may be properly characterised as argument rather than a statement of evidentiary material. The third document is a statement dated 25 September 2009 made by Ms Allen which addresses the circumstances of her claim generally. There is also in evidence a document prepared by Ms Allen which was treated by the Arbitrator as a response to an email concerning a meeting which had been sent by her manager Ms Cornale and read by Ms Allen on 2 May 2008.
Ms Allen’s evidence may be summarised as follows:
a)Ms Allen is presently 36 years of age and is currently employed by the Department as a Senior Case Worker. Ms Allen commenced employment with the Department in January 2002 and started at the Department’s Coffs Harbour office in September 2005 at which time she held the position of Case Worker. At relevant times Ms Allen was a member of the Intake and Initial Response team at that office.
b)The Coffs Harbour office “rated the highest number of reports in New South Wales for the period approximately November, 2007 to February, 2008 and before and after that particular period it would have been just under the top of the list”. Ms Allen had been trained to participate in the Joint Investigation Response Team and was involved in attendances in cases of severe physical or sexual abuse with the Police Authorities for the purpose of obtaining evidence. Ms Allen’s qualifications include Bachelor of Social Science majoring in Social Welfare and Counselling and Mediation, as well as specialist training in relation to sibling sexual abuse and other matters.
c)From March to July 2007 case loads for case workers in Ms Allen’s team varied from between 15 to 21 cases. That number is “three times the PSA Union case worker workload recommendations/direction to members”.
d)By June 2007 the Coffs Harbour office had been short staffed by reason of industrial issues as well as the absence of a number of staff on workers compensation. At one time Ms Allen was carrying a case load of approximately 18 cases.
e)In September 2007 Ms Allen’s team was without a manager and the case workers “were again acting up in the manager’s position whilst carrying a case load of approximately 15 cases”. The team approached a superior officer Mr Hall, and the PSA Union delegate requesting that issues of lack of staff, excessive workloads and inability to pass work on, be addressed by management.
f)In October 2007 the team’s then manager, Ms Cornale acknowledged that Ms Allen was exhibiting signs of stress”. It is stated that Ms Cornale acknowledged that another team member was also behaving in “a similar manner”. Ms Cornale at that time recommended that neither Ms Allen or her fellow worker replace her while she, Ms Cornale, was on holidays over November 2007 to January 2008.
g)A further approach was made to Mr Hall in November 2007 requesting that management address issues of lack of staff, excessive workloads and inability to pass work on.
h)Ms Allen stated “that prior to MCW [Manager Case Worker] Ms Cornale becoming my manager my performance had never been questioned in six years with [the Department]”
i)Ms Allen took a week’s leave in February 2007, at which time she was working on “approximately 12-15” cases and had experienced conflict with a fellow worker. That absence was taken as sick leave and the medical certificate provided to the Department stated that Ms Allen had been “over stressed”.
It must be stated that the form of the statements made by Ms Allen is such that it is difficult to discern those allegations of fact which she makes concerning events which occurred in May of 2008 including two meetings which had been arranged, as is established in other evidence, between her and Ms Cornale. There is much to be found in those statements which seeks to refute matters alleged by witnesses relied upon by the Department and there is much argument advanced by Ms Allen concerning the manner in which the evidence relied upon by the Department is expressed by those witnesses. It is proposed that, where relevant, reference be made to Ms Allen’s evidence which challenges that of the Department’s witnesses in the course of discussion hereunder.
Ms Allen relied upon the contents of a submission which had been prepared by the PSA, her Union, which had been put on behalf of members to the Special Commission of Inquiry into Child Protection conducted by Justice Wood which had been established by the responsible Minister in late 2007. That document is undated. Reliance is also placed upon the contents of a copy of a PSA newsletter dated August 2006 and a copy of minutes of a PSA meeting conducted on 21 November 2007 at Coffs Harbour. Each of those three documents contains reference to excessive workload and staff difficulties experienced within the Department. Where relevant reference is made to detail in those documents in the course of discussion below.
Ms Allen relied upon the contents of a “Reference Check” signed by Ms Catherine Bettison, Senior Project Officer-Case Worker Development Course, dated 19 September 2007. That document appears to relate to a potential appointment of Ms Allen as Manager Casework, a position in respect of which Ms Allen had apparently expressed interest. That document contained considerable detail and may be described as a most favourable character reference in which much is stated by Ms Bettison which suggests that Ms Allen was both conscientious and capable in her position with the Department.
Ms Allen relied upon a statement provided by Ms Deborah Anne Watson dated 13 November 2008. Ms Watson stated that she had worked with Ms Allen since July 2006. Whilst not in the same team she has had “a lot of dealings” with Ms Allen. Ms Watson, by reason of work stressors, went off work on “stress leave” in May 2007. At that time Ms Watson stated that Ms Allen’s “case load was becoming a real issue for her, she began stating in Unit meetings that her case load was becoming very overwhelming and that Child Protection reports to our unit were increasing and that there were not enough human resources to cope with all the work”. Ms Watson recorded complaints made to her by Ms Allen concerning the increase in case loads and that she was beginning to “get agitated and stressed and that she was feeling very upset that Management was not being very supportive or trying to reduce her case load”.
Ms Watson further stated that, upon her return to work, Ms Allen confided in her that she was “not handling things the way she used to, I believe she was showing signs of stress, such as she was smoking a lot more, she was breaking down and crying when she was at home however, I did witness her on one occasion wiping her face in the ladies toilet wiping her face (sic). She said that she keeps crying and does not know why. I witnessed Tanya become snappy and appeared to be very defensive when she was asked something”. Ms Watson states that she witnessed “a significant change” in Ms Allen over the 12 months before Ms Allen ceased employment. Other evidence establishes that occurred in May 2008.
Ms Allen relied upon the evidence of Ms Roxanne Elizabeth Wagner which is to be found in a statutory declaration made on 7 November 2008. Ms Wagner stated that she has known and worked with Ms Allen at the Department since 2005. Ms Wagner has worked for the Department since January 2002 and commenced work at the Coffs Harbour office in March 2005. She resigned her position in November 2007. Whilst working for the Department she was aware that at one stage Ms Allen was “carrying a case load of 18 or more cases”. Ms Wagner stated that she warned Ms Allen that she risked “burnout”. Ms Wagner stated that in March 2007 a case work manager had been appointed who was inexperienced and she, Ms Wagner and her fellow team members became aware that that manager was “not accepting any new cases from [Ms Allen’s team].” Ms Wagner was aware that Ms Allen’s team had a “huge backlog due to not being able to pass any cases on to our Child Protection Team”.

Ms Wagner further stated that in June 2007 she had a conversation with Ms Allen after hours at the office of the Department in Coffs Harbour at which time she was informed that Ms Allen had a case load of 18 cases. Ms Allen stated there was nothing she could do and that each of the cases was high level that needed “to be allocated”. Those matters could not be allocated because of the manager’s refusal to take “any of them on”. Ms Wagner stated that she observed a significant change in Ms Allen’s demeanour throughout 2007. Changes noted were related to her mood and that she became “more agitated”. During a conversation between Ms Watson and Ms Allen on 9 November 2007, Ms Allen stated that she was extremely stressed. Ms Watson expressed the view that “instead of Tanya’s case load being reduced and instead of Tanya and the other worker being supported, they were reprimanded for speaking up”.
Ms Allen relied upon a report prepared by Ms Laurie Gaye Ellis, psychologist, dated 27 October 2008. Ms Ellis was consulted by Ms Allen on 6 May 2008 at which time a detailed history was taken. Ms Ellis reports that at that consultation Ms Allen appeared visibly distressed and it was noted that on 1 May 2008 Ms Allen had been “accused of not performing home visits on clients. She had explained that her huge case load was the reason for her inability to do this”. Ms Ellis summarised the symptoms experienced by Ms Allen and conducted a number of tests following which a view was expressed that, on the basis of the test results and her history, Ms Allen “has been stressed for nearly a year by an extremely high case load”. It was also stated that Ms Allen had been suffering from chronic anxiety for some months and that “the demands placed upon her in May 2008 were the final straw”.
In a supplementary report dated 3 March 2009, Ms Ellis noted the symptoms which had been recorded in her earlier report and expressed the view that Ms Allen “was suffering from Chronic Anxiety for some months before I saw her in May.” It was further stated by Ms Ellis that “I do not believe that the meetings on 2 (sic) and 8 May wholly or predominately caused Ms Allen’s condition”.
Ms Allen relied upon a report of Dr John Robert Strum, consultant psychiatrist, dated 26 November 2008. Ms Allen had been referred to Dr Strum for consultation by her general practitioner. Dr Strum records a history of symptoms experienced since June 2007 and, following his interview with her, expressed a diagnosis being an Adjustment Disorder with Anxiety and Depressed Mood. Part of the history recorded by Dr Strum included that Ms Allen had been “subjected to an excessive workload”. Dr Strum expressed the view that it was more probable than not that Ms Allen had been suffering from the condition diagnosed before 2 May 2008. Dr Strum, at page seven of his report, gave particular attention to the question of causation of the condition as diagnosed. His conclusion was as follows:
“I believe the illness was not caused by the fact that she was put onto a performance assessment program, but that it was caused by the workload and everything flowed from that”.
Ms Allen relied upon a number of medical certificates and the contents of a return to work plan. Having regard to the issues raised on this Appeal those documents are not directly relevant.

The Department

The Department relied upon the report of Ms Costantini dated 3 June 2008 which is referred to at [19] above. That report relates to an assessment conducted by Ms Costantini on 30 May 2008; it is 32 pages in length and includes a summary of interviews conducted by Ms Costantini with Mr Anthony Hall, Manager of Client Services with the Department, Ms Debbie Cornale, Manager Case Work with the Department and Mr Ray Wilton a Union Representative with the Public Service Association. The report also records that Ms Costantini had attempted to speak to Ms Allen’s general practitioner, Dr Jason Lo Tam, however those attempts were unsuccessful. The report records that Ms Costantini had access to those documents which were described at page 20 of her report. The report, between pages 20 and 24, records a discussion conducted between Ms Costantini and Ms Allen. The report, between pages 29 and 32, records Ms Costantini’s responses to a number of questions which, it seems, had been put to her by the insurer.
The first two pages of that report contain a convenient summary of matters addressed by Ms Costantini. Diagnosis is stated to be an “Adjustment Disorder With Mixed Anxiety and Depressed Mood, Acute”. The view was expressed that Ms Allen “appeared to be suffering from this condition at the time she took leave from work on 8 May 2008 and at the time of the assessment on 30 May 2008. She remains unfit for work at the present time”.
The summary includes a notation as to “substantial contributing factors”. The report records Ms Costantini’s views as follows:
“The following events have been identified as substantial contributing factors to the psychological injury:
Non Work
Nil identified.
Work
Difficulty coping with completion of tasks due to high case load as supported by comments from the union representative.
Issues relating to performance being brought into question by Ms Allen’s Manager and being asked to complete tasks within certain time frames in a meeting on the 1^st May 2008 and a meeting with the union and management on the 8^th May 2008.
Therefore, based on the information contained within this report, employment has been identified as a substantial contributing factor to the injury”.
The summary includes the following notation concerning “predominate industrial contributing factor”:
“The following event has been identified as the predominant contributing factor to the psychological injury:
The process of informal performance management via the meetings of the 1^st May 2008 and the 8^th May 2008.
Based on the information contained in this report, the process of preliminary disciplinary action in relation to performance management was identified as the predominant contributing factor to the development of Ms Allen’s psychological condition.
It also noted that Ms Allen felt bullied and threatened in the meeting of the 1^st May 2008 with her Manager and she felt unable to speak at the meeting on the 8^th May 2008. However, at this time, there was no identifiable evidence gathered from the workplace to indicate any direct bullying or threat of Ms Allen by Mrs Cornale via the performance management process.”
The statement of Mr Hall includes detail of the following matters:
a)   Mr Hall is the Supervisor of Ms Cornale who had advised him of concerns she held concerning Ms Allen’s performance. Those concerns related to Ms Allen’s capacity to complete tasks assigned to her and to close cases.
b)   Mr Hall was informed by Ms Cornale that she felt unable to allocate new work to Ms Allen given the issues and that Ms Allen was being given time to complete tasks and assessments related to her workload.
c)   In the past six months there has been a slow but steady decline in the number of cases Ms Allen had assigned to her.
d)   Mr Hall requested that Ms Cornale conduct a complete file review of a particular matter during a discussion which occurred “about one month ago”. Following that file review Mr Hall and Ms Cornale discussed “some serious issues of performance and quality that needed to be directly addressed with Ms Allen”. Mr Hall described the issues as “sub-standard case work and in effect it could have very well equated to potential risk for the young person”.
e)   Mr Hall was informed that Ms Cornale and Ms Allen met to discuss the outcome of the file review following which Mr Hall became aware that Ms Allen had made contact with the Public Service Association in Sydney. Contact was made by Mr Hall with the regional PSA Organiser seeking assistance. A meeting was subsequently held on 8 May 2008 at which Ms Allen, Ms Cornale, Mr Hall and the PSA Organiser, Mr John Campbell, were present. The issues raised earlier were addressed and timeframes were discussed concerning completion of the work requested of Ms Allen. Mr Hall states that Ms Allen agreed to those arrangements. Ms Allen “subsequently took leave from work in the afternoon and applied for workers compensation”. Mr Hall had not heard from her since.
f)    Mr Hall was not aware of staff in Ms Allen’s team collecting statistics as advised by the union to present to management about high case loads. There had been a change made by management in procedures concerning service provision in terms of roles and responsibilities. That occurred at the end of 2007. There had been a significant increase in demand in terms of the number of reports being made to the unit, however Mr Hall rejects the complaint made by Ms Allen that the number of reports had doubled. The number of reports went on average from 130 reports up to 170-180. Mr Hall states there was some degree of restlessness among the staff and he was aware there was some contact with the union. Mr Hall met with the staff to discuss their concerns.
g)   Ms Allen had been given a significant amount of “isolation time” to complete the required tasks concerning her cases to enable them to be passed on to the Child Protection Team. The purpose of the meeting with her Manager before Ms Allen went off work was an “informal meeting to address the issue of her not completing these tasks, therefore it was not identified as a formal performance management process at this stage”.
The statement taken by Ms Costantini from Ms Cornale may be summarised as follows:
a)   Ms Cornale had been employed by the Department since 2000. Ms Cornale became Manager Case Work of the Intake and Initial Response Team on 1 October 2007. A “work load planner” was conducted with Ms Allen on 7 October 2007. At that time Ms Allen had 14 allocated cases. Ms Allen stated to Ms Cornale that the number of cases was “due to her excessive workload previously”.
b)   Ms Cornale conducted monthly and regular work load planner reviews with Ms Allen. By March 2008, at which time there was discussion concerning Ms Allen going into an “intake position”, Ms Allen had seven cases and that the number of cases was reduced to two by approximately 26 March 2008.
c)   Ms Cornale had been absent on leave from “November 2007 until January 2008” during which time another employee acted in her position as Manager Case Work.
d)   In October 2007, Ms Cornale discussed her concerns about Ms Allen’s work with her. At a team meeting in that month Ms Allen had an outburst of aggression following which a discussion was conducted between Ms Cornale and Ms Allen. Ms Allen stated that her behaviour was due to her stress levels. Ms Cornale stated that her behaviour was inappropriate and gave her certain advice including a suggestion that she may consult the Employee Assistance Counselling Service. By reason of this behaviour and that of another employee both Ms Allen and that other person had been told that it was “best that they did not act in higher duties” that is not to “act up” in Ms Cornale’s role whilst she was on leave.
e)   Upon Ms Cornale’s return from leave in January 2008, Ms Allen had 11 cases. In April 2008, Ms Cornale received notice of a complaint concerning a file that had been transferred to the Child Protection Team which had previously been in Ms Allen’s care. Also in that month Ms Cornale received a complaint concerning Ms Allen’s behaviour towards another case worker. There was no communication between Ms Cornale and Ms Allen concerning this complaint as the matter was able to be resolved directly between the case worker and Ms Allen. The communication concerning the file had been received on 7 April 2008 which led to a review of one of two files in the care of Ms Allen. That took place on 1 May 2008. On that day, in the afternoon, Ms Cornale called Ms Allen to her room and advised that she had completed the file review. Ms Cornale outlined some “areas of case management and documentation lacking”. Those deficiencies were listed by Ms Cornale and Ms Allen responded by way of explanation which included her workload, changes in her management and the competing priorities among the tasks she had to perform.
f)    A further meeting was arranged for 2 May 2008. Before that took place Ms Allen informed Ms Cornale that she was not happy with the issues raised at the earlier meeting and that she had contacted the Employee Assistance Counselling Service as she was stressed. Ms Allen stated to Ms Cornale that she felt that the issues were being used “to hang her out to dry”. Ms Allen further stated that she felt Ms Cornale was “using scare tactics”. Ms Cornale expressed concern that Ms Allen would find cross examination in Court difficult given the lack of active case work and Ms Allen’s “limited rapport with the family”.
g)   Ms Cornale states that Ms Allen was “visibly upset”. The discussion continued and Ms Cornale stated that she was “finding it difficult to build a rapport in our supervisory relationship”. Ms Allen agreed concerning that difficulty and stated that she no longer wished to be in Ms Cornale’s team. Ms Cornale advised Ms Allen of the complaints process. During this discussion Ms Allen spoke in an aggressive manner and tone and looked tired which concerned Ms Cornale. The scheduled meeting did not take place following Ms Allen’s consultation with her union.
h)   A subsequent meeting was arranged for 8 May 2008. Present at that meeting were Ms Cornale, Mr Hall, the union representative and Ms Allen. The outcome of the discussion was that Ms Allen would complete her outstanding tasks by 13 May 2008.
i)    Thirty minutes after that meeting on 8 May 2008 Ms Allen went to Ms Cornale’s office and stated that she could not cope and that she was making mistakes. Ms Allen was visibly upset and Ms Cornale asked what could be done to assist her. Ms Cornale suggested that she see her general practitioner and to access the Employee Assistance Counselling Service. A medical certificate was furnished subsequently. Efforts by Ms Cornale to contact Ms Allen concerning the form of the medical certificate were unsuccessful.
j)    Ms Cornale feels that during the six months that she has supervised Ms Allen she has provided her with “a lot of flexibility to complete her allocated tasks”. Ms Cornale believes that she is approachable and that she endeavours to share her time among her team of seven case workers. Ms Cornale is not sure why the PSA was brought into the matter as she thought that Ms Allen and she could work through the issues.
k)   Ms Cornale’s approach as manager was to implement a lower case load to the Initial Response workers to enable them to process the cases and move forward, rather than accumulating more cases without completing outstanding tasks. Ms Cornale noted that the team agreed on the bench mark number of six to eight allocated cases at a time to improve the team’s ability to flow work onto the Child Protection Teams.

Ms Costantini’s report contains a summary of her discussion with Ms Allen. The following matters were then addressed :
a)   Ms Allen reported that the work related issue happened on 1 May 2008 and that she tried to deal with the matter on 2 May 2008. It was also stated that she tried to continue working on until a meeting could be organised with the union and management. It was following that meeting on 8 May that Ms Allen left work.
b)   Ms Allen’s workplace issues dated back 12 months and include carrying “a ridiculous case load”. Ms Allen reported that she had a workload “in excess of 16 cases at the one time”. Ms Allen also stated that another issue for her was that she had had three different managers and five acting managers since the middle of 2007. Ms Allen stated that she had been raising the issue of having too many cases for many months.
c)   Other issues that had occurred in the past 12 months included conflict between Ms Allen and a staff member who was acting in the Manager’s role during 2007. Complaint was made by Ms Allen to Mr Hall who recommended mediation. Nothing further was heard from Mr Hall. Ms Allen stated that she took approximately one week of sick leave “toward the end of 2007 and her medical certificates stated she was over stressed”. Ms Allen states that the issue was never resolved.
d)   At the time of the appointment of Ms Cornale as Ms Allen’s immediate superior in October 2007, she had been speaking with the union concerning her case load. Ms Allen and other staff approached Mr Hall concerning workload.
e)   Ms Allen stated that Ms Cornale went on holidays for eight weeks at the end of 2007.
f)    Ms Allen stated that Ms Cornale had asked her to change her holidays at the end of 2007 so that she and another worker could share “acting up” in the manager’s role during her absence. One week before Ms Cornale’s departure on leave that arrangement was cancelled. Ms Allen was informed that because she and her fellow worker “were stressed by the case loads” it would not be appropriate for them to act up in Ms Cornale’s role. Another case worker from Ballina was brought in to act in the role.
g)   Upon Ms Cornale’s return to work in January 2008, Ms Allen had a workload of 12 to 13 cases. That case load was later reduced to two cases. Ms Allen was placed in Intake at the end of March 2008. That position was taken up whilst she still retained the two cases. Ms Allen stated that was “like doing two staff members jobs”.
h)   Ms Allen stated that she was called to Ms Cornale’s office on 1 May 2008 at approximately 4:30pm. Ms Allen states that was the “straw that broke the camel’s back”. During that meeting Ms Cornale made comments such as “they were going to lose (a case) and they could be civilly sued”. Ms Allen felt that Ms Cornale was making threatening remarks. The meeting finished at 5:25pm and when Ms Allen left work she was in tears. Ms Allen felt shocked that Ms Cornale was having “a go” at her work performance when she had such high case loads.
i)    Ms Allen sought to continue the discussion on 2 May 2008 at which time Ms Cornale informed her that she had sent Ms Allen an email. Ms Allen had not read that email at that time. When the email was later read by Ms Allen she “burst into tears”. Ms Allen felt that Ms Cornale was trying to “hang her out to dry” and trying to make the situation look as though it was her fault.
j)    Ms Allen consulted a doctor at the medical centre on the evening of 2 May 2008. Ms Allen subsequently consulted a private psychologist, however she continued to attend work.
k)   A meeting was held on 8 May 2008 at which Mr Hall, Ms Cornale, a union representative and Ms Allen were present. Ms Allen states that she felt “bullied and threatened” at that meeting. She felt that her credibility had been attacked and that Ms Cornale was using supervision out of context. She was concerned that the issues raised would be used against her for disciplinary action which would “stop her advancement”.
l)    Following the meeting Ms Allen informed the union representative that she could not complete the tasks within the timeframe asked of her. She was in “absolute tears” and approached her manager and informed her that she was unable to do what had been asked of her. The manager was informed by Ms Allen that she needed to leave and could not do the work anymore. The manager made an appointment for Ms Allen to see her doctor.
m)Ms Allen consulted her doctor and was given a medical certificate providing for two weeks off work.

The report of Ms Costantini records her unsuccessful efforts to contact Ms Allen’s general practitioner Dr Jason Lo Tam. The report, commencing at page 20, addresses Ms Costantini’s assessment of Ms Allen and diagnosis. At page 23 of the report, Ms Costantini addresses the question of “Time of Onset” where it is stated:
“It appeared that from the information gathered, Ms Allen suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Acute at the time she took leave from work on the 8^th May 2008 when her symptoms became clinically significant and her level of functioning was adversely affected. From the information gathered from Ms Allen, it appeared that her symptoms had been building up over the past 12 months.”

Ms Costantini’s report also included, at page 26, an “Analysis” of the material that had been obtained for the purposes of the report. The following views were expressed at page 27 of the report:
“In considering the information available in this report, it is my opinion that Ms Allen was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Acute at the time of taking leave from work on the 8^th May 2008. The main events leading up to this was the meeting she had with Ms Cornale on the 1^st May 2008 where her performance and completion of tasks was brought into question and the meeting with management and the union on the 8^th May 2008 where she was asked to complete certain tasks within certain time frames.
Therefore, it is also my opinion that the process of preliminary disciplinary action in relation to performance management substantially contributed to the development of Ms Allen’s psychological condition which caused her to take leave from work and apply for Workers’ Compensation. This conclusion was based on the information gathered from Ms Allen and the Employer representatives. Therefore, employment was identified as a substantial contributing factor to the development of Ms Allen’s current psychological condition and the issue of preliminary disciplinary action related to the performance management process was identified as the predominant contributing factor to the development of her condition.”
Ms Costantini’s responses to the questions apparently put to her by the insurer included an “outline of causative factors”. It seems Ms Costantini was requested to address both work-related and non work-related factors and was asked to “please weight the predominant factor to the Injured worker’s disorder or emotional distress”. Ms Costantini identified no non work-related factors and proceeded to address work factors as follows (this is in terms similar to the summary referred to in [34] above):
“Difficulty coping with completion of tasks due to high caseload as supported by comments from the union representative. (20%).
Issues relating to performance being brought into question by Ms Allen’s Manager and being asked to complete tasks within certain timeframes in a meeting on 1^st May 2008 and a meeting with the union and management on the 8^th May 2008. (80%).
Therefore, based on the information contained within this report, employment has been identified as a substantial contributing factor to the injury.”
A number of documents were attached to Ms Costantini’s report including a copy of the Department’s Performance Management Framework. That is an 11 page document which includes an entry headed “Managing Unsatisfactory Performance”. Included under that heading is the following:
“It should be noted that it is not acceptable for a person’s work performance to be allowed to deteriorate to the point where formal action is a first response. It is expected that performance issues will be raised and resolved initially through daily contact between the supervisor and staff member. If the problem continues it might be addressed via targeted coaching, advice and assistance and noted in the “Ongoing Support, Supervision and Review” meeting.
The Department relies upon the contents of an email communication forwarded by Ms Cornale to Ms Allen dated 2 May 2008. The time noted on that email is 8:24 am. That email represents a summary of Ms Cornale’s recollection of events which occurred during the meeting between herself and Ms Allen which occurred on 1 May 2008. Where relevant, detail of this evidence appears below.
The Department relies upon the clinical records of Ms Ellis, psychologist, produced to the Commission. Those documents included a letter of referral signed by Dr Lo Tam which had been prepared on 8 May 2008. That correspondence included the following summary of Ms Allen’s relevant history:
“child protection case worker at DOCS
not coping, under tremendous stress – many months
high case loads
told by boss her work not good enough
saw boss – advised stress leave
saw psychologist yesterday – Gaye Ellis, to see today as well
can’t think straight
crying all the time
sleep poor
energy poor
mind racing
poor appetite”
Documents produced by Ms Ellis include handwritten clinical notes which relate to consultations with Ms Allen between 6 May 2008 and 26 August 2008. Those notes contain detailed history including problems and difficulties encountered by Ms Allen in her early life. The matters recorded which concern Ms Allen’s allegation of work related injury include that history recorded on 14 May 2008 which appears from the client file notes as follows:
“14.05.08 Not sleeping for months
Totally exhausted – pass out
Lie awake, thinking work
6/12 – work consumes her
June 2007 started saying too much work
18 cases – asked her to do data remediation
Started refusing work Sep-Oct – ‘ridiculous’
Approached union in Nov
Josh, Jane, Lisa, Tanya
Approaching Tony – ‘whole office not functioning’.
Taking people out of other teams
She had barney with Julie Gill – took week off stress leave.”
The Department tendered in evidence the clinical notes produced by Northside Health Coffs Harbour, the general practice attended by Ms Allen. The evidence establishes that Ms Allen, over time, had consulted a number of different practitioners at that practice including Dr Jason Lo Tam. A number of WorkCover NSW medical certificates were issued by members of that practice, the earliest of which is dated 20 May 2008 and relates to a period of unfitness between 8 May 2008 and 8 June 2008. The injury on that certificate is described as “stress related to high volume workloads and cases dealt with”. The date of the injury is stated as being “started around June 2007”. The records of attendances by Ms Allen from time to time are included amongst those documents produced. The earliest note relates to a consultation which took place on 20 June 2006. Subsequent consultations are dated up until 19 March 2007 however the notes thereafter, which appear to be electronically produced, do not include a notation of the date. In one entry, at which time a medical certificate (not a WorkCover certificate) was issued for the period of 8 May 2008 until 22 May 2008, notation is made that Ms Allen had consulted a psychologist “yesterday”. It was on that occasion that the history in Dr Lo Tam’s letter of referral referred to at [44] above was recorded.

ARBITRAL PROCEEDINGS

Submissions

The claim with respect to weekly compensation was particularised by Ms Allen’s solicitor at the Arbitrator’s request before the commencement of submissions. It was made clear that her claim was in respect of total incapacity between 8 May 2008 and 24 October 2008. It was stated by Mr Brennan, solicitor for Ms Allen, that his client remained off work and was partially incapacitated until her return to duties on 10 April 2009. It was made clear that there was no payment sought in respect of weekly payments beyond 24 October 2008, given that Ms Allen had been granted Special Leave between October 2008 and April 2009.
Counsel appearing on behalf of the Department properly conceded that there was no issue between the parties concerning the occurrence of injury nor was there any dispute that such injury gave rise to incapacity as alleged. Counsel, again properly, acknowledged that “[Ms Allen] had some pre-1 May 2008 problems, that she saw the doctor about them but that she kept working and her attendances – there appears to be a gap in her attendances for a period of about a year. That is, attendances in relation to this psychological condition” (at T11). Counsel then stated the substantive issue in dispute as follows:
“That’s not to say that the condition went away. At the moment I’m not contending that but this is an argument based on section 11A and it in one sense boils down to a consideration of whether or not a psychological injury (sic) which occurred on 1 May 2008 is the predominant cause of the applicant’s injury – admitted injury and economic incapacity”.

Counsel summarised the evidence of Ms Cornale and argued that it was clear that her dealings with Ms Allen constituted, what was described in submissions as “an informal work performance review process”. It was further argued that Ms Allen had “an adverse reaction to this process” which led to her consulting Dr Tam.
Counsel for the Department made reference to the evidence of Ms Costantini. Particular attention was directed to Ms Costantini’s expression of opinion which appears at page 27 of her report which identified the main events leading to Ms Allen’s disorder as being the meeting which occurred on 1 May 2008, at which time her performance and completion of tasks was brought into question, and that direction was given in respect of completion of certain tasks within timeframes.
Counsel, placing reliance upon Ms Costantini’s opinion, argued that it was:
“clear that in accordance with that opinion, the main events that led up to that anxious and depressed mood that the applicant was suffering from were the meetings that she had on 1 May and, possibly, 8 May although it appears, certainly from the applicant’s perspective and from the respondent’s perspective, that 1 May was by far the more significant” (at T14).
Counsel (at T15) properly accepted that the onus was upon the Department to establish that the subject injury was wholly or predominantly caused by reasonable action taken on behalf of the Department “with regard to the nominated areas”. Attention was given to the proper construction of the word “predominantly” as it appears in section 11A. Counsel referred to the Macquarie Dictionary entry which included “to be the stronger or leading element” or “to surpass others in influence” or “to be more noticeable than something else”. It was argued that the meeting of 1 May 2008 was the “leading element” concerning causation of Ms Allen’s injury which resulted in incapacity and that “those events of 1 May and possibly 8 May surpass in terms of influence the pre-existing events”. It was argued that the defence available to the Department founded upon section 11A should be found to have been made out on the facts and there should be an award in favour of the Department.
Ms Allen’s solicitor argued that the events of 1 May 2008 did not “amount to performance appraisal” within the meaning of section 11A. It was asserted that the activity on that day constituted a file review.
The evidence of Ms Costantini was challenged upon the basis that her report had not been “signed”.
It was argued that the evidence supported a conclusion that Ms Allen had suffered from the anxiety condition before 1 May 2008. Reference was made to the medical evidence concerning that matter and the lay evidence concerning Ms Allen’s behaviour, her attitude and the complaints made by her concerning overwork.
An argument was advanced on behalf of Ms Allen that, upon acceptance of Ms Allen’s evidence that she was not advised that she was “on performance management” until her interview with Ms Costantini, would lead to the conclusion that the Department’s action in convening the meetings was not reasonable within the meaning of section 11A.
Submissions were put on behalf of Ms Allen challenging Ms Costantini’s view that the meetings amounted to 80 per cent of causation of her condition and that the high case load and ongoing problems amounted to 20 per cent causation. It was argued that if the meetings were treated as the “straw that broke the camel’s back” then the appropriate evaluation would be that the meetings represented 20 per cent of causation rather than 80 per cent as postulated by Ms Costantini.
Submissions were made which appeared to go to the issue of Ms Allen’s credit worthiness concerning her years of service that had given rise to no complaint by the Department. It was at that time that Ms Allen informally stated that Ms Bettison, the woman who provided the reference referred to in [23] above, had been her manager before the appointment of Ms Cornale.
The evidence was summarised in the course of submissions, with particular emphasis upon the evidence of Ms Watson and Ms Wagner, and the history as recorded by Ms Ellis and Dr Strum. It was put that Ms Allen was suffering from the condition diagnosed prior to May 2008 although such condition was not diagnosed until that time. The psychiatric condition as diagnosed “existed before May and it caused the incapacity”.
Counsel appearing on behalf of the Department replied to Ms Allen’s submissions. It was put that the issue for determination involves the “relative impact which the work had and the meeting had on [Ms Allen] and the very technical provisions of section 11A and whether or not section 11A applies in this case”. Counsel also drew attention to the history as recorded by Dr Strum concerning a “particularly stressful incident involving her superiors” in May 2008 which caused Ms Allen to suffer from agoraphobia and other symptoms as listed in his report. It was put that, regardless of the observations made by Dr Strum later in his report, it was clear that the meeting was a particularly stressful incident and that there was a very serious deterioration in Ms Allen’s symptoms at that time.

Arbitrator’s Reasons

At [5] of Reasons the Arbitrator identified the issue requiring determination as follows:
“Whether [the Department] is entitled to a defence to the claim pursuant to section 11A Workers Compensation Act”.
The Arbitrator considered the provisions of section 11A. Between [9] and [12] of her Reasons consideration was given to the relevant authorities concerning the proper construction of that section. Particular attention was given to the meaning of the word “predominantly” as it appears in that section as well as the concept of “reasonableness”. The Arbitrator also noted those authorities which establish that the onus of proving any of the matters which arise under section 11A falls upon the employer.
The Arbitrator summarised Ms Allen’s contentions as including an argument that her injury “has no relevance to performance appraisal”. The Arbitrator also noted Ms Allen’s contention that she had been suffering from psychological problems, which had been brought on by an excessive workload, for some time prior to the meeting conducted on 1 May 2008.
The Arbitrator noted the Department’s contention that the psychological injury suffered by Ms Allen “was wholly and predominantly brought on by the meeting on 1^st May 08 which was a meeting for a performance appraisal of [Ms Allen], and that the conduct of [the Department] was reasonable”.
Following a summary of the expert medical evidence and those matters recorded in Ms Allen’s general practitioners’ clinical notes together with that evidence given by Ms Cornale, the Arbitrator concluded (at [25]) “in my view [Ms Allen’s] injury was wholly and (sic) predominantly caused by the meeting of 1^st May”.
The Arbitrator considered the evidence and concluded that the meeting conducted on 1 May 2008 “was a performance appraisal meeting” (at [28] of Reasons).
The Arbitrator, between [29] and [32] of Reasons, considered the question as to whether the Department’s action concerning the performance appraisal, as found, was reasonable within the meaning of section 11A. Following a summary of the evidence and arguments raised on behalf of the parties the conclusion was reached (at [32] of Reasons):
“In my view all these actions on the part of the employer are reasonable. They do not have to be unreasonable for the Applicant to be successful, but simply reasonable for the Respondent to be successful. I accept that Ms Cornale acted as Manager in a reasonable fashion in a very difficult situation with a large workload to assist a member of staff who was not performing up to the standard expected; she provided strategies to enable Ms Allen to improve her performance; she undertook the exercise of a file review which as Manager she had a responsibility to carry out; she identified further problems with Ms Allen’s work; and she arranged a meeting to discuss the performance issues with Ms Allen, devise strategies to overcome the problems and also a follow up meeting to keep the strategies on track.”
The Arbitrator concluded (at [34] of Reasons) that “[Ms Allen’s] psychological injury was wholly and predominantly caused by the reasonable actions of the Respondent with respect performance appraisal”. Upon the basis of this finding an award was entered in favour of the Department.

SUBMISSIONS ON APPEAL
Ms Allen

Written submissions provided by Ms Allen on this appeal challenge the Arbitrator’s findings of fact which led her to the conclusion that section 11A afforded the Department a defence to her claim. It is asserted that the medical evidence in its totality “was to the effect that [Ms Allen] suffered a psychiatric injury in the course of her employment with [the Department] due to her over-work in the period from mid 2007 to April 2008”.
A separate argument was advanced on behalf of Ms Allen that the evidence established there were multiple causes for her injury being overworked from mid 2007 to April 2008 and her reaction to a performance appraisal in May 2008. The argument appears to be that, accepting the Department’s case at its highest, and “assuming [the 1 May 2008 meeting] was a significant contributing factor to Ms Allen’s injury, this does not negate the earlier work-related stressors that incontrovertibly made a significant (at least 20%) contribution to her injury”.
The Arbitrator’s reasoning is the subject of criticism in the course of submissions upon the basis that there had been error committed, being an observation made in the course of Reasons that Ms Allen’s partner had been “imprisoned”. It is suggested in that submission that the “highest the evidence reached was that [Ms Allen’s] partner’s son had been arrested in Queensland”.
It is argued that the Arbitrator erred in failing to give adequate reasons for rejecting the evidence of Dr Strum and Ms Ellis as to “the cause of [Ms Allen’s] injury”.
Ms Allen’s submissions are critical of the factual findings made by the Arbitrator concerning a suggested inaccurate history having been given to Dr Strum, Ms Ellis and Ms Costantini.
Ms Allen argues that the reasoning of the Arbitrator reveals that her conclusion was not the true and correct view of the evidence and that her conclusion can be corrected on this appeal.

The Department

The Department has provided written submissions in support of its notice opposing this appeal. Concerning the argument advanced by Ms Allen that factual errors had been committed by the Arbitrator concerning her partner and the statement concerning imprisonment, it is put that the general practitioner may well have recorded an incomplete history concerning that matter but that it “is clear that at the time of that consultation there were many aspects of [Ms Allen’s] personal life which were giving rise to a number of symptoms including, apparently, depression”.
The Department draws attention to the Arbitrator’s summary of the medical evidence, in particular that of Dr Strum, and the argument is advanced that the Arbitrator gave adequate reasons for her conclusions and that it was open to the Arbitrator to accept the evidence of Ms Costantini in preference to that of Ms Ellis.
It argues that the state of the evidence as found in the various expert reports is such that the Arbitrator’s finding that histories had been incomplete was one open to her.
The Department reiterates on appeal its submissions put before the Arbitrator and again emphasises that, prior to 1 May 2008, Ms Allen continued with her employment duties whereas after that date she ceased work as a result of her symptoms. It is again argued that any evidence before the Arbitrator from the Union (PSA) is no more than “industrial propaganda” which include ambit claims and ambit allegations none of which had evidentiary weight.
In its submission the Department draws particular attention to the opinion expressed by Dr Strum in his report. It is said that the “particularly stressful incident” referred to by Dr Strum could only mean the meeting of 1 May and possibly that of 8 May 2008. It is submitted “that there was at least a very serious deterioration in [Ms Allen’s] symptoms at that time consistent with the fact that she went off work”.

The Department submits that the Arbitrator’s decision should be confirmed and the appeal dismissed.

DISCUSSION AND FINDINGS

At the hearing before the Arbitrator there was no issue between the parties that Ms Allen had received a psychological injury in the course of her employment with the Department and that such employment was a substantial contributing factor to that injury. Ms Allen’s claim was found by the Arbitrator to have been defeated by the operation of section 11A of the 1987 Act upon the facts as found by her. That section, so far as is presently relevant, 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”
The onus of proving those matters which give rise to a defence pursuant to the section is, as noted by the Arbitrator and accepted by the Department, upon the employer.
It may be seen that successful reliance upon section 11A requires proof by the employer that the injury was caused wholly or predominantly by action taken or proposed to be taken by it in relation to one or more of the matters referred to in that subsection and, further, that such action was reasonable.
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 ‘Zheng’ where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ”

The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit.”
In the present matter the Arbitrator addressed the question as to whether the injury was wholly or predominantly caused by reasonable action as provided in section 11A(1) between [18] and [33] of Reasons. The Arbitrator firstly addressed the subject of “wholly or predominantly” as it appears in that subsection and, following a summary of certain aspects of the evidence concluded “In my view, [Ms Allen’s] injury was wholly and [sic] predominantly caused by the meeting of 1^st May”. That finding by the Arbitrator may be criticised upon the basis that the subsection speaks of action “wholly or predominantly” causing injury. A similar, though distinguishable, error was made by the Arbitrator in the matter of Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (‘Smith’). In that matter the Arbitrator made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the Respondent employer. As was stated by Snell ADP in that matter, the concepts “wholly” and “predominantly” are different concepts and if such findings were to be made “it needed to be one or the other” at [62].
In the present matter neither party has made any submission with respect to the manner in which this finding was expressed by the Arbitrator. It is important to note that immediately following that finding, the Arbitrator made reference to the decision of Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 where the Commission gave attention to the proper construction of section 11A with particular attention given to the meaning of the word “predominantly”. The Arbitrator accepted that the word “predominantly meant, as stated by Handley ADP ‘mainly or principally caused’”. It is plain from the manner in which the Arbitrator has expressed her reasoning that her conclusion of fact was that the subject injury had been predominantly caused by relevant action within the meaning of section 11A.
The Arbitrator acknowledged that relevant history provided to Ms Costantini, Ms Ellis and Dr Strum included allegations of significant work stresses over a long period. She expressed the view that such history is “not consistent with the clinical notes of the GP leading up to the meeting on 8^th May 08”. Reference is made by the Arbitrator to “significant personal problems” which had been reported to the general practitioner but which had not been volunteered by Ms Allen when giving history to those practitioners earlier mentioned.
The Arbitrator made reference to the unsigned report of Ms Costantini, however she made it clear in the course of her Reasons (at [25]) that she had “drawn more considerably” from that evidence being the email sent by Ms Cornale to Ms Allen which related to the meeting of 1 May 2008 and Ms Allen’s response to that email referred to at [19] above. It is therefore implicit that the Arbitrator has placed more reliance upon those two documents produced by Ms Cornale and Ms Allen than other evidence which was before the Commission. The question is raised on this review as to whether the Arbitrator’s finding that injury was predominantly caused by the meeting of 1 May was correct.
Having reviewed the evidence in its entirety I have reached the view that the Arbitrator has erred in her evaluation of the evidence leading to her findings which I have summarised immediately above. The Department does not challenge Ms Allen’s evidence that she and her co-workers had for a very considerable period of time been burdened by an unreasonable workload. Ms Allen’s situation had come about, in part, by reason of difficulties encountered passing individual cases from her Intake and Initial Response team to another team. As noted at [48] above, counsel appearing on behalf of the Department acknowledged in the course of his submissions that Ms Allen had experienced “problems” prior to 1 May 2008. The first difficulty which arises upon examination of the Arbitrator’s Reasons, is that whilst she has “drawn more considerably” on the email sent by Ms Cornale and Ms Allen’s response thereto, the Arbitrator has failed to state in the course of her Reasons how that evidence is relevant and persuasive with respect to the question as to whether the meeting of 1 May was the predominant cause of injury.
The email sent by Ms Cornale to Ms Allen on 2 May 2008 at 8:24 am as reproduced in the evidence includes at the heading the word “tracking” which indicates that the recipient, Ms Allen, read the communication on that day at 10:08 am. That is consistent with Ms Allen’s assertion, as reported by Ms Cornale to Ms Costantini, that during the conversation between her and Ms Allen early on the morning of 2 May, Ms Allen stated that she had not seen the email. The content of the email appears to be a precise and detailed summary of the discussion conducted on 1 May with particular attention given to suggested shortcomings in performance by Ms Allen and a summary of reasons given by Ms Allen for the problems which had been highlighted during the meeting. The email also contained a very careful summary of what Ms Cornale perceived to be the outcome of the discussion.
Ms Allen’s response to the email amplified matters as summarised by Ms Cornale and includes the following statement:
“This email attacks my credibility as a senior case worker – I resent this; I have been complaining to management and the PSA about the workloads and my inability to do my job to the best of my ability for many months now – I am now being attacked for not doing all the work. The responsibility for work allocation, workload planners, resources and priorities rest with management not case workers”.
I have formed the view that Ms Cornale’s email and Ms Allen’s response represent perhaps the clearest statement available in the evidence of the perception of management and that of the case worker. Nothing in those documents would permit any inference being drawn that the meeting which is addressed in those documents predominantly caused the injury received by Ms Allen. That question required, in my view, an assessment of the evidence as a whole and I am of the view that there is evidence of far more relevance and of significant weight before the Commission that would permit a proper determination of the issue.
I have summarised the evidence of Ms Watson and Ms Wagner between [24] and [27] above. That unchallenged evidence corroborates Ms Allen’s evidence as to her excessive workload and its detrimental effects upon her for many months prior to 1 May 2008. On this review I accept that evidence and conclude that Ms Allen had experienced stress, agitation, spontaneous crying and other symptoms as described by those witnesses during 2007 and into 2008, but before 1 May of that year. Reference was made to that lay evidence by Ms Allen’s solicitor in the course of submissions before the Arbitrator, however no reference is made to that evidentiary material in the course of the Arbitrator’s Reasons. The evidence of Ms Costantini includes an apparent acceptance that Ms Allen’s symptoms “had been building up over the past 12 months”. Addressing the question of “precipitating events” Ms Costantini stated that Ms Allen “has experienced difficulties at work over the past 12 months due to having to manage a higher case load on the initial response and intake team”. The views of Ms Ellis and Dr Strum concerning Ms Allen’s experience of anxiety for many months prior to the meeting with Ms Cornale are summarised between [28] and [30] above. Those views, which support an inference that injury had occurred well prior to the date of the subject meeting, and that symptoms of considerable significance had been experience by Ms Allen, was apparently rejected by the Arbitrator upon the basis firstly that the history is not supported by an examination of the general practitioner’s notes and, secondly, that those practitioners had not been given a full and accurate history, particularly concerning other stressors experienced by Ms Allen between the relevant period.
An examination of the general practitioner’s notes reveal that Ms Allen attended the practice on five occasions between 27 February 2007 and 7 May 2008. The first three of those consultations are recorded with a date. The second occurred on 13 March 2007 and the third on 19 March 2007. During the February consultation a history of work-related stress by reason of staff shortages is recorded. It is correct, as stated by the Arbitrator, that other troubling matters were recorded as part of the history. The notes recorded on this occasion include those matters which were wrongly recorded, as stated by Ms Allen, and wrongly construed by the Arbitrator. Attention is given to this matter below. Entries made on the occasions of the March 2007 consultations do not make reference to work other than a notation on 13 March that Ms Allen had returned to her workplace. The fourth consultation, the date of which is unknown, contains no history of work-related stress. The fifth relevant entry may be dated having regard to a notation that a certificate was issued concerning unfitness from 8 May 2008 to 22 May 2008. That consultation plainly occurred after the subject meeting, however the history recorded corresponds with that summarised at [44] above where the general practitioner’s letter of referral was summarised. The history recorded plainly states that Ms Allen had experienced stress over a period of many months by reason of high case loads. Notwithstanding that this record of history post dates the meeting, such evidence is entirely consistent with that of Ms Watson and Ms Wagner.
I do not consider that the contents of the general practitioner’s clinical notes can in any way cast doubt upon Ms Allen’s assertions that she experienced symptoms of stress and anxiety for many months prior to the subject meeting. Over a period of 15 months there were five consultations and complaint was made by Ms Allen concerning work related stressors in the first and the last consultations during that period. That there had been no other consultation during that period in which the history of work related problems is recorded cannot in my view afford a sound basis for drawing an inference that such stress and anxiety had not been experienced during that time. The Arbitrator in the course of her Reasons at [25] appears to discount the relevance of Ms Allen’s reporting to her general practitioner that she experienced “palpitations”. That consultation occurred on 22 June 2006 at a time much earlier than that at which Ms Allen alleges experiencing stress and anxiety symptoms and accordingly can have no relevance to an assessment of the credibility of those complaints reported later by Ms Allen.
The Arbitrator made reference to “very significant personal problems” reported to her general practitioner. It is undoubtedly the case that the Arbitrator was referring to the entries found in the general practitioner’s clinical notes concerning the consultation on 27 February 2007. The following record was then made by Dr Chalaby of that practice:
“Subjective:
‘about to explode’
Can’t control what she’s saying and how she react to people
For 2 weeks
Been there for some time
Works for DoCS, Child Protection worker
Build up of stress at work
Not enough staff
Got psychological 2 months ago at work
Carrying a lot of case load
Family problems, her partner’s got arrested in QLD.
Ex-husband moved to Coffs, trying to get more access to her children, her son regressing because of that
Trying to see a solicitor
Needs time off work
Everything on top of her
Can’t afford any counselling now
Offered her an antidepressant but she declined
Actions:
Letter Created – re.. Certificate”
It is clearly established by the additional evidence which has been admitted on this appeal that the Arbitrator’s assumption (Reasons [17]) that, included among the stressors reported to Dr Chalaby on that occasion, Ms Allen’s partner had been imprisoned in Queensland, was false. Whilst there is no evidence on the subject it has been suggested by Ms Allen’s solicitor in the course of submissions that the entry referring to an arrest in Queensland concerned not her partner but her partner’s son. Those facts are of no relevance to the issues raised on this appeal other than the erroneous nature of the Arbitrator’s assumption. Ms Allen’s submission at [7.3] of written submissions that “this erroneous conclusion led in large part to the Arbitrator, wrongfully, rejecting all the medical evidence before her” has considerable force. It is plain from those matters stated by the Arbitrator at [25] of Reasons that the evidence of Ms Costantini, Ms Ellis and Dr Strum had been heavily discounted by reason of the suggested absence of the full and correct history having been provided by Ms Allen. However it is plain on the evidence that Ms Allen had for some time, before February 2007, been experiencing significant stressors by reason of workload and staff shortages at the Department.
As is pointed out by Ms Allen in her submissions, her evidence concerning work related stress and the difficulties suffered by her in the course of her employment have not been challenged before the Arbitrator. Those submissions also direct attention to the history that Dr Strum took from Ms Allen concerning her son’s diagnosis and treatment, and detail of the breakdown of her relationship with her former husband and continuing difficulties. Those submissions direct attention to notations by Ms Ellis in her clinical notes concerning Ms Allen’s separation in August 2002 from her former husband and detail of her son’s diagnosis.
It is apparent that the Arbitrator has declined to give any weight to the views as expressed by Dr Strum and Ms Ellis and has discounted the views expressed by Ms Costantini by reason of her erroneous construction of what has been recorded in the general practitioner’s notes, and her erroneous view that relevant history had not been given to those practitioners by Ms Allen. It is therefore necessary that the evidence be reviewed to determine the correctness or otherwise of the Arbitrator’s conclusion that Ms Allen’s psychological injury was predominantly caused by reasonable action taken by the Department.
As put in argument, Ms Allen’s evidence concerning workload and staff shortages at the Coffs Harbour office of the Department was not in any way challenged. That those conditions gave rise to symptoms of anxiety is established by the evidence of Ms Allen herself, the two lay witnesses whose evidence is before the Commission and, to an extent, the clinical notes of her general practitioner’s practice. I accept the evidence of Dr Strum that because of Ms Allen’s excessive workload she developed an illness being an adjustment disorder and that her performance dropped because she did not have the time or energy to do what she was supposed to do. My acceptance of the evidence as to the existence of Ms Allen’s symptoms during the course of 2007 leads me to accept the opinion as expressed by Dr Strum that he considered it more probable than not that Ms Allen was suffering from the condition diagnosed before 2 May 2008.
The clearest description of the symptoms experienced by Ms Allen prior to May 2008 is perhaps found in the evidence of Ms Ellis. The history recorded by that practitioner was that Ms Allen had been suffering from insomnia, no appetite, loss of interest in friends or any social life and no sex life for at least six months. Upon the basis of that history, her findings during the course of consultation and the result of her evaluation following testing, Ms Ellis in her report of 3 March 2009, expressed the view that Ms Allen was suffering from Chronic Anxiety for some months before the consultation which took place on 6 May 2008. That view is consistent with that expressed by Dr Strum and I accept that Ms Allen had received injury being a psychological injury by reason of her work conditions during the course of 2007.
It is clear on the evidence that the events of the workplace in May 2008 were, in part, causative of the injury in the sense that those events caused an aggravation of the then existing anxiety condition. The question remains as to whether those events in May were the predominant cause of injury. The term “predominantly” as it appears in section 11A(1) was considered by Snell ADP in Smith at which time earlier authority of both the former Compensation Court of New South Wales and the Commission were considered. I respectfully agree with Snell ADP in Smith where it was stated at [31]:
“I accept ‘mainly or principally caused’ is the meaning that should be ascribed to the word ‘predominantly’ in section 11A(1). The test on causation to be applied, as was observed in Temelkov, is the test enunciated in Kooragang Cement Pty Limited v Bates”.

Ms Ellis in her report of 3 March 2009 expressly states that she does not believe that the meetings on “2 (sic) and 8 May” wholly or predominantly caused Ms Allen’s condition. Dr Strum’s view is that “the illness was not caused by the fact she was put onto a performance assessment program, but that it was caused by the workload and everything flowed from that”. Ms Costantini, at page 30 of her report, expressed a view that causative factors of the injury included Ms Allen’s difficulty coping with completion of tasks due to high case load (20%) and issues relating to performance being raised at the meeting of 1 May and a meeting on 8 May (80%).
The Arbitrator did not in the course of her Reasons expressly state that she accepted the apportionment as to causation expressed by Ms Costantini. It is reasonably clear that, having rejected the evidence of Ms Ellis and Dr Strum, the Arbitrator gave weight to the matters expressed in Ms Costantini’s report. That reliance was placed upon that material was acknowledged by the Arbitrator at [25] of Reasons. I have reached the view that the aggravation occasioned to Ms Allen’s underlying psychiatric injury by the events in May 2008 were but part of the many factors causative of the condition. It is true that incapacity followed very soon after the meeting of 1 May 2008, however, the occurrence of such incapacity is not determinative of the question which was before the Arbitrator, namely whether the injury was wholly or predominantly caused by the actions of the employer which were taken in May. It has been stated by Ms Allen in evidence that her experiences in May were “the straw that broke the camel’s back”. That description is in keeping with the expert medical view expressed by Ms Ellis and Dr Strum and I accept that, as expressly stated by Ms Ellis, the actions taken by the Department in May 2008 did not wholly or predominantly cause the subject injury. I find Ms Allen’s poor work performance was causally related to her excessive workload. That workload caused anxiety, which by May 2008 had been present for months.The work performance appraisal concerned a consequence of the workload. That workload was the predominant cause of injury.
Whilst I reject Ms Allen’s submission on appeal, as summarised at [70] above, I conclude on this review that the Department has failed to establish that the events of May 2008 wholly or predominantly caused the subject injury. In the circumstances it is unnecessary to determine whether the Department’s action was reasonable action taken with respect to performance appraisal however, should I be in error in my determination concerning causation, I propose to deal briefly with those latter two issues.
In my view there can be little doubt that the meeting on 1 May and indeed subsequent dealings between Ms Allen and Ms Cornale including the meeting of 8 May constituted a performance appraisal. The Arbitrator, correctly in my view, accepted that the file review conducted by Ms Cornale had been completed prior to the meeting and that the purpose of the meeting concerned the state of a particular file and Ms Allen’s discharge of her duties with respect to its management.
As to whether the action taken by the Department at that time was reasonable within the meaning of section 11A it should be noted, that whilst argument was raised concerning that issue before the Arbitrator, no argument has been advanced concerning reasonableness on this Appeal. In the circumstances it is arguable that the Arbitrator’s finding with respect to “reasonableness” should remain undisturbed on this review. Notwithstanding these circumstances I have considered the arguments raised on behalf of Ms Allen before the Arbitrator and I conclude that the Arbitrator was correct with respect to her finding as to the reasonableness of the action as expressed at [33] of Reasons.
It may be seen that I have reached a conclusion that the Department’s reliance upon section 11A fails. In the circumstances the Arbitrator’s orders require revocation and substitution by those orders which appear hereunder.
For the reasons which I have to outlined above, I find that as a result of injury received in the course of her employment Ms Allen was totally incapacitated for work between 8 May 2008 and 24 October 2008. I note that at [11.3] of Ms Allen’s submissions on appeal the claim is expressed to extend to a date in November 2008. I have disregarded that submission having regard to Counsel’s submissions at the arbitration hearing, correctly defining the period of the claim. Ms Allen’s entitlement to weekly compensation is to be calculated in accordance with the provisions of section 36 of the 1987 Act. It was agreed at the hearing that Ms Allen’s current weekly wage rate up until 30 June 2008 was $1,230.00. Thereafter her current weekly wage rate was $1,279.20. A general order with respect to payment of medical, hospital and rehabilitation expenses as sought in the original application is to be made.

DECISION

Paragraphs 1 and 2 of the Arbitrator’s determination dated 11 March 2010 are revoked. Those orders are to be substituted with the following orders:
“1. Award for the Applicant pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,230.00 per week from 8 May 2008 to 30 June 2008 and at the rate of $1,279.20 per week from 1 July 2008 to 24 October 2008.
2. The Respondent is to pay medical hospital and rehabilitation expenses (section 60 Workers Compensation Act 1987) upon production of accounts or receipts.
3. The Respondent is to pay the Applicant’s costs.”
The Arbitrator’s order concerning “complexity” which appears at the foot of the determination is confirmed on this review.

COSTS

The Respondent is to pay the Appellant’s costs of this appeal.

Kevin O’Grady
Deputy President
26 July 2010

I, MARGOT UNDERCLIFFE CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE