Anderson v Campbelltown City Council
[2024] NSWPIC 556
•8 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Anderson v Campbelltown City Council [2024] NSWPIC 556 |
| APPLICANT: | Jennifer Anderson |
| RESPONDENT: | Campbelltown City Council |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 8 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); claim for weekly compensation pursuant to sections 33, 36 and 37, and medical and related expenses pursuant to section 60; psychological injury; employer raised section 11A(1) defence; Held – applicant sustained a primary psychological injury in the nature of a disease with a deemed date of injury of 15 February 2024, arising out of and in the course of her employment with the respondent; the applicant’s employment was the main contributing factor to that injury, pursuant to section 4(b)(i); the applicant did not sustain an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to section 4(b)(ii); the respondent has not established a defence pursuant to section 11A of the 1987 Act; the applicant had no current work capacity as a result of the psychological injury from 15 February 2024 to 29 August 2024; the respondent to pay weekly compensation pursuant to sections 33, 36 and 37; a credit is to be applied in respect of sick leave and wages that the respondent paid the applicant during the relevant periods; a credit is not to be applied in respect of ‘special wage payments’ that the respondent paid the applicant during the relevant periods; liberty to apply within 14 days in respect of calculation of the weekly compensation amounts; respondent to pay the applicant expenses in accordance with section 60 upon production of accounts, receipts or Medicare Notice of Charge. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a primary psychological injury in the nature of a disease with a deemed date of injury of 15 February 2024, arising out of and in the course of her employment with the respondent, and the applicant’s employment was the main contributing factor to that injury, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant did not sustain an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act. 3. The respondent has not established a defence pursuant to s 11A of the 1987 Act. 4. The applicant had no current work capacity as a result of the psychological injury from The Commission orders: 1. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the 1987 Act as follows: (a) $1,639.41 per week from 15 February 2024 to 28 March 2024, and (b) $1,668.75 per week from 29 March 2024 to 15 May 2024. 2. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows: (a) $1,405.26 per week from 16 May 2024 to 29 August 2024. 3. A credit is to be applied in respect of sick leave and wages that the respondent has paid the applicant during those periods. 4. A credit is not to be applied in respect of ‘special wage payments’ that the respondent has paid the applicant during those periods. 5. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts. 6. The respondent to pay the applicant’s expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts or Medicare Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Jennifer Anderson (the applicant) was employed by Campbelltown City Council (the respondent) as a Website Content Specialist from June 2019 to 9 May 2024.
On or about 20 February 2024, the applicant initiated a claim for weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychological injury due to various workplace event from about February 2020.
By notices dated 27 February 2024, 7 June 2024, 4 July 2024 issued pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer denied liability for weekly compensation on the grounds that:
(a) it disputed that the applicant sustained an injury pursuant to ss 4 and 9A of the 1987 Act;
(b) it relied on a defence pursuant to s 11A of the 1987 Act on the basis that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, disciplinary action and provision of employment benefits;
(c) it disputed that the applicant had total or partial incapacity as a result of any workplace injury and had any entitlement to weekly compensation pursuant to
s 33 of the 1987 Act, and(d) it disputed that the applicant had any entitlement to reasonable and necessary medical and related treatment expenses pursuant to s 60 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated the present proceedings in the Commission by Application to Resolve a Dispute (ARD) lodged on 25 June 2024, which claims:
(a) weekly compensation pursuant to ss 33 and 36 of the 1987 Act from
15 February 2024 ongoing, and(b) medical and related expenses pursuant to s 60 of the 1987 Act.
The respondent lodged a Reply to the ARD (Reply) on 8 July 2024.
At a conciliation/arbitration hearing, conducted by MS Teams on 29 August 2024,
Mr Dewashish Adhikary, counsel, appeared for the applicant, instructed by Ms Bolin of Carroll & O’Dea Lawyers. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Ms Beattie of Sparke Helmore Lawyers.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.
INTERLOCUTORY ISSUES
Various interlocutory matters were raised and dealt with at the hearing.
Amendment of ARD
In the absence of any objection raised by the respondent, leave was granted to the applicant to amend the ARD, with the effect that the applicant now claims:
(a) weekly compensation for a closed period from 15 February 2024 to
29 August 2024, in particular:(i)from 15 February 2024 to 15 May 2024 (13 weeks), pursuant to s 36 of the 1987 Act;
(ii)from 16 May 2024 to 29 August 2024, pursuant to s 37 of the 1987 Act, and
(b) a general order for medical and related expenses pursuant to s 60 of the 1987 Act.
Pre-injury average weekly earnings and credit for payments made by the respondent
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) is $1,725.69.
The respondent’s counsel noted that, in the event that orders were made for payment of weekly compensation, the respondent should have the benefit of credit for various payments that it has paid to the applicant.
Objection to report of Dr Sandra Wellington dated 27 July 2024
Upon objection by the respondent, and for reasons recorded at the hearing, the Commission determined to exclude from evidence the report of Dr Sandra Wellington dated 27 July 2024.
ISSUES FOR DETERMINATION
At the hearing, counsel confirmed that the following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury in the nature of a disease, arising out of or in the course of her employment and her employment was the main contributing factor to the injury, pursuant to s 4(b)(i) of the 1987 Act;
(b) whether the applicant sustained the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, and her employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, pursuant to s 4(b)(ii) of the 1987 Act;
(c) whether a defence pursuant to s 11A of the 1987 Act applies, on the basis that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to:
(i)performance appraisal;
(ii)discipline, or
(iii)provision of employment benefits;
(d) the extent and quantification of the applicant’s entitlement to weekly compensation, pursuant to ss 33, 36 and 37 of the 1987 Act, and
(e) the extent and quantification of the applicant’s entitlement to medical and related expenses, pursuant to s 60 of the 1987 Act.
EVIDENCE
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) dated 17 July 2024, lodged by the applicant;
(d) AALD dated 19 August 2024, lodged by the respondent, and
(e) AALD dated 22 August 2024, lodged by the applicant, with the exception of the report of Dr Sandra Wellington dated 27 July 2024.
Lay evidence
The lay evidence is extensive and includes witness statements, a timeline of events prepared by the applicant, various correspondence, emails, minutes, reports and various other documents related to the applicant’s employment and the applicant’s allegations.
Treating medical evidence
The treating medical evidence includes Certificates of Capacity, reports and various clinical records of the applicant’s treating general practitioner, Dr Sandra Wellington, and treating psychologist, Jayne Cat.
Independent medical evidence
Dr John Roberts, consultant forensic psychiatrist, provided independent medical opinions, qualified by the respondent.
Dr David Kumagaya, consultant psychiatrist, provided independent medical opinions, qualified by the applicant.
Other evidence
Other evidence includes the applicant’s Schedule of Medical Expenses and the respondent’s Wages Schedule, List of Payments, Leave Report and PIAWE Calculation Sheet.
SUBMISSIONS
Counsel provided written submissions as follows:
(a) respondent’s submissions dated 1 September 2024;
(b) applicant’s submissions in reply dated 6 September 2024, and
(c) respondent’s submissions in reply dated 9 September 2024.
Counsel’s submissions have been considered in full and will be discussed in relation to the various matters that I am required to consider.
FINDINGS AND REASONS
Injury
The law
The term “injury” is relevantly defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) ...”
The applicant has the onus of proof in establishing that there is an injury within the terms of
s 4 of the 1987 Act.In AV v AW,[1] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1] [2020] NSWWCCPD 9.
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[2] Roche DP (as he then was), summarised the principles to be applied:[3]
[2] [2020] NSWCCPD 76.
[3] [2020] NSWCCPD 76, at [52].
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on a ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52]).”
And said:[4]
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”
To discharge the onus of proof in relation to the alleged injury, I “must feel an actual persuasion of the existence of that fact”.[5]
[4] [2020] NSWCCPD 76, at [54].
[5] Department of Education & Training v Ireland [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The relevant factual events
In her statement dated 26 May 2024, the applicant gave evidence that, after she commenced employment with the respondent as a Website Content Specialist in June 2019, she was subjected to various treatment at work, which included:
(a) being subjected to excessive workload;
(b) being directed to perform information technology work outside the scope of her contracted duties;
(c) not continuing to be paid an allowance to supervise and train her assistant after a period of six months;
(d) the applicant’s repeated complaints regarding her workload, pay allowance, lack of clarity in relation to her role and issues regarding the information technology work not being adequately addressed;
(e) after making repeated complaints, the applicant was further undermined by performance issues being raised against her and being given added responsibility and increased workload that was outside her job description, and
(f) some of the applicant’s complaints were resolved only after a lengthy period and the applicant obtained the assistance of a trade union.
Further, the applicant stated that:
(a) by February 2021, she found it very difficult to psychologically cope with her work situation;
(b) in December 2021, she attended her general practitioner and had a few weeks off work solely because of the work stressors, however the applicant did not then lodge a workers compensation claim because she “did not want to create a fuss”;
(c) the situation continued through 2022 and the applicant took a number of days and short periods off work for the same reason;
(d) during a weekly meeting on 28 November 2023, the applicant’s manager, Kia Stockdale, stated to the applicant that she was “coming across as being aggressive and disrespectful to others”, which the applicant denied. The applicant and Ms Stockdale then exchanged emails over the issue;
(e) subsequently, Ms Stockdale subjected the applicant to “further bullying and micromanaging” the applicant, moved her desk so that it was right in front of the applicant, demanded that the applicant “show her literally everything that I had”, reallocated the applicant’s work tasks and projects on a continuous basis with limited consultation, took several major projects off the applicant and reallocated them to other team members;
(f) the applicant was “overwhelmed and deeply distressed” by those actions which the applicant believed to have occurred “simply because I was raising what I considered to be legitimate concerns”. The applicant “felt unable to continue at work” and obtained a certificate from her general practitioner to remain off work for a period of two weeks from 7 December to 15 December 2023. Subsequently, the applicant remained off work and took leave;
(g) after the applicant returned to work in January 2024, Ms Stockdale “continued to bully me”, even after the applicant reported her concerns to Amanda King, Executive Officer, and Nicole Jenkins, Executive Manager, People and Performance;
(h) on 12 January 2024, with the assistance of the union, the applicant lodged a formal grievance in relation to the conduct of Ms Stockdale and Amanda King. An investigation was conducted. The applicant was required to provide information to the investigators whilst also being required to perform all her normal work duties and ongoing workplace issues. The applicant was forced to attend a meeting on 8 February 2024 with Ms King and Ms Stockdale. The respondent denied the applicant’s request, made through the union, not to be directed to attend meetings with Ms Stockdale until the grievance process was closed, and to be supplied an alternative reporting line;
(i) the respondent then raised false allegations against the applicant, effectively ostracising her, and
(j) on 15 February 2024, before the applicant could respond to the false allegations, the respondent stood the applicant down from her work on the ground that she needed to present a Certificate which certified that she was fit to perform her normal duties.
The applicant’s evidence included a chronology of events which detailed various workplace events.
The evidence includes emails, other correspondence, minutes and other documents which detail various communications between the applicant and others within the respondent. Those documents are generally consistent with the general chronology of events described by the applicant.
Clinical records of the applicant’s treating general practitioner, Dr Sandra Wellington, record a reported history which is generally consistent with the applicant’s evidence. Clinical records of the applicant’s treating psychologist, Jayne Cat, are also consistent with the applicant’s evidence. A similar history is recorded by the independent medical experts, Dr Roberts and Dr Kumagaya.
There are no witness statements of Ms King nor Ms Stockdale in evidence. The respondent has not challenged the applicant’s credibility nor the general factual background alleged by the applicant. There is no witness evidence which directly addresses and denies the applicant’s evidence in relation to the alleged workplace events.
On that basis and having regard to the evidence as a whole, I accept on the balance of probability, the applicant’s evidence in relation to the factual events which I have set out above. In particular, I accept that there were various events in the workplace which included the applicant being directed to perform duties outside the scope of her contracted duties, being subjected to an excessive workload, bullying and harassment by her managers and human resources, micromanagement of her duties and lack of support. On that basis, I accept on the balance of probability, that there were various real events at work which the applicant perceived as bullying and harassing treatment.
The applicant’s psychological condition
The applicant’s evidence
The applicant’s evidence is that she suffered psychological injury as a result of those events in the workplace. The applicant stated that:
(a) by February 2021, she found it very difficult to psychologically cope with her work situation;
(b) in December 2021, she attended her general practitioner and had a few weeks off work solely because of the work stressors, however the applicant did not then lodge a workers compensation claim because she “did not want to create a fuss”;
(c) during 2022, the applicant took a number of days and short periods off work for the same reason;
(d) from 7 December 2023 to 15 December 2023, the applicant felt unable to continue at work due to ongoing bullying and was certified by her general practitioner to be unfit for work;
(e) subsequently, the applicant remained off work and took leave, until January 2024 when she returned to work;
(f) on 15 February 2024, as a result of the undue stress caused by ongoing bullying by her direct supervisors and human resource management, the applicant submitted a Workers Compensation Claim;
(g) since that time, the applicant has been unable to work and she suffers ongoing symptoms of difficulty focusing, concentrating and interacting with people and is unable to work, and
(h) the applicant continues to attend her general practitioner but she has been unable to continue treatment with a psychologist due to her financial hardship.
In a supplementary statement dated 31 July 2024, the applicant did not deny speaking with her general practitioner, Dr Wellington, about various previous life stressors during her attendances in 2013, 2015, 2016 and 2017. However, the applicant stated that:
“From my point of view I feel I was attending the doctor for health matters and I mentioned life concerns that I had at that time. From my point of view, if I was feeling under stress at those times and if not feeling a little depressed about things that were impacting on my life on those occasions, it was only very much a temporary situation on those occasions. In all other respects, at those times I was coping perfectly well. Any feelings that I had at those times certainly did not have an impact on my ability to carry on with my day to day activities including my work through that period. From my perspective these were events in my life which are normal stress factors in anyone’s life and did not impact upon me in any significant way.”
Treating medical evidence
Dr Sandra Wellington, general practitioner
The applicant’s treating general practitioner, Dr Sandra Wellington, gave the following evidence:
(a) in a report dated 9 June 2022, Dr Wellington stated that the applicant had been suffering from work related stress and that the applicant should continue to work from home until the work environment improved. Dr Wellingtons stated that the applicant reported that the stress “has been caused by a number of factors, including excessive work load, the team environment, the broken trust within the team and with management, the lack of certainty in relation to work matters and absence of support from the managers for both work related and person matters”;
(b) in a report dated 12 August 2022, Dr Wellington recommended that the applicant trial working in the office one day per week from 5 September 2022 until the end of December 2022 “on condition that the work related stress isn’t exacerbated”. Dr Wellington stated that “If at any time [the applicant] feels that the office environment is putting her undue pressure [sic], [the applicant] is to leave and contact me for consultation immediately”;
(c) in a report dated 14 December 2023, Dr Wellington stated:
“It is my opinion that any concerns that [the applicant] currently has are all due to unresolved work issues i.e. excessive work load, the team environment, the broken trust within the team and with management, the lack of certainty in relation to resolving work matters and absence of support from the managers for [the applicant] to perform her role effectively (due to under-resourcing and a lack of skilled people to deliver their part of the work).
[The applicant] feels that labelling this as 'non-work' related injury is an attempt to push her out and slander her reputation. And in my opinion labelling this as 'non-work related injury' is deliberately ignoring previous medical certificates and information which state the opposite.
[The applicant] is fit to perfom [sic] all the duties of the website specialist role.
I recommend that [the applicant] continue to work from home until the issues around what I perceive to be an unsafe work enviroment [sic] are addressed in a fair and equitable way”, and
(d) in a report dated 10 April 2024, Dr Wellington stated a diagnosis of “anxiety, likely an adjustment disorder with depressed and anxious mood and possibly PTSD from the prolonged lack of support and bullying in the workplace”. Dr Wellington expressed the opinion that the applicant’s “employment is 100% the contributing factor” to the applicant’s psychological conditions.
Dr Wellington recorded the following detailed history of work-related stress since
January 2022:“[The applicant] reported stress at work in January 2020. This escalated over the next few years which resulted in [the applicant] experiencing anxiety about going to the workplace, lost [sic] of confidence in herself, a lost [sic] of trust in others and in organisations, and a progressive deterioration in her mental health.
[The applicant’s] reported that her work load was unreasonable since 2020 and this persisted over the next few years. During this time [the applicant] sought help via the appropriate channels within the workplace to try and just do those things that were in her job description and part of her responsibility.
[The applicant] got very little help, and likely due to her continuing to advocate for her self her managers at work started to not respond to her emails, refused to engage in conversations about this, left her out of the loop when it came to what was going on in the office, made it difficult for her to do her job, expecting her to be on call 24/7 and started to criticise her, and personally attack her, at times not providing the resources she needed to do her work.
There was dispute with in the [respondent] with the IT department trying to push their work onto [the applicant] (who was 1 person), when [the applicant] worked for communications, and was a web content specialist, and wasn't responsible for that area. This took a prolonged time to be resoloved [sic] and required a lot of emotional energy from [the applicant] to advocate for her self, when she was already working with an unreasonably high work load.
At times [the applicant] found it very stressful that there were no patches or upgrades, which left the website at risk, which was part of her responsibility, but she wasn't able to get the things necessary so she could mitigate this risk to the website.
There was a lot [of] pressure to work outside of her job description, fill in for others who didn't want to do the work, and do the work for others who didn’t have the skills to do their own work.
In addition, [the applicant] was often having to support people/ train people (including her managers), on how to do their jobs which further increased her workload. It was my impression that [the applicant] worked most of this time understaffed and expected to do the work of at least 2 people.
During this time when [the applicant] asked for help, she was threatened by her manager in term of restructuring so that [the applicant] would be out of a job.
By 2021 instead of working towards reasonable work conditions for [the applicant] in a professional way, - she felt her managers started to target her, criticise her, make complaints about her, and turn others against her in the work place. [The applicant] had to use what little emotional energy she had left to defend herself against these 'complaints'. This was extremely draining and determental [sic] to [the applicant]'s mental health.
[The applicant] was devoted to her job, and held a high standard for herself in terms of her work ethic. She felt that she was trying to obtain reasonable work conditions for herself, improve the business, solve problems, and wanted to make things better in general in her area of responsibility.
It is my opinion that [the applicant] was stonewalled over a few years while her work load was unreasonably high, and despite asking for reasonable help, she was ignored, and then criticised, targeted, treated unprofessionally and bullied (in many different subtle ways), and then sufferened [sic] personal attacked [sic] her character, and finally, in retaliation it seemed that her managers started to make serious complained [sic] about [the applicant]. Her issues about over work load were never addressed in any substantial way, [the applicant] was wasn't given the things necessary to do her job at times.
[The applicant] saw many people in her work place leave when they were treated badly, some on stress leave for the same thing, there was a suicide and she saw other staff let go for lesser reasons that hers.
During Covid pandemic, people were allowed by legislation to work from home, but this was denied by her work-place. [The applicant] would have found this beneficial in terms of her mental health, (as she was feeling increasingly unsafe at work, due to bullying), [The applicant] had to see me, her GP, over and over to obtain certificates to allow her to work from home and was left constantly worried that this would be disallowed.
During the time, [the applicant] received 2 'Bold Awards' from her colleagues as she was very well-liked by many of them. This goes to her character and personalty [sic] in the workplace.
The ongoing stress of having to advocate for herself over and over from 2020 to 2023 was enormous and took a toll on her mental and physical health such that [the applicant] has lost her self confidence, has ongoing anxiety which fluctuated in severity over the last few years and is now very bad and constant. She has felt like she was close to having a breakdown many times.
[The applicant] has lost her trust in people and organisations and doesn't like to leave her house. Is fearful of people, fearful of travelling on public transport. She wonders if she will be able to work elsewhere or even travel to work on public transport if she did get a job elsewhere as she feels unsafe and overwhelmed with lots of people around her.
[The applicant’s] presentation has varied over time, from tearful, sad, anxious, low, and often quite distressed, to more optimistic that she could 'weather the storm' and survive the work place stress, eventually get some help in terms of the unreasonable work load, and unfair and unkind treatment.”
Dr Wellington issued medical certificates which certified that the applicant was unable to attend work:
(a) from 7 December 2023 to 21 December 2023 due to “work related stress, due to unresolved workplace issues”, and
(b) from 4 January to 12 January 2024 due to “work place bullying”.
Dr Wellington also issued Certificates of Capacity which certified that the applicant:
(a) had no current work capacity from 20 February 2024 to 4 March 2024 as a result of “workplace related psychological insult with anxiety and low mood due to bullying and unfair treatment by direct supervisor/executive manager” with a stated date of injury of 2 December 2021;
(b) had no current work capacity from 6 March 2024 to 10 March 2024 and capacity for some type of work (being work from home on less demanding tasks) from
11 March 2024 to 5 April 2024 as a result of “Adjustment disorder with anxiety and low mood due to bullying and unfair treatment” by direct supervisor with a stated date of injury of 2 December 2021, and(c) had no current work capacity from 7 May 2024 to 7 June 2024 as a result of “Adjustment disorder with anxiety and low mood due to bullying and unfair treatment” by direct supervisor with a stated date of injury of 2 December 2021. Dr Wellington stated that the applicant would not be able to return to work with the respondent but would be fit to work elsewhere in a supportive and suitable environment.
Clinical records of the applicant’s treating general practitioner record the applicant’s medical history which included:
(a) on 12 October 2013, Dr Wellington recorded that the applicant was stressed and not sleeping in the context of challenging life circumstances including having lost her job, relocating interstate to live with her mother, her temporary job finishing soon and a lack of support;
(b) on 28 October 2013, Dr Wellington recorded that the applicant was very stressed in the context of such ongoing circumstances. Dr Wellington queried a diagnosis of adjustment disorder with anxiety and prepared a Mental Health Care Plan and referral to a psychologist;
(c) on 14 February 2015, Dr Wellington recorded that the applicant was “stressed++” in the context of challenging life circumstances and a lack of support;
(d) on 28 October 2015, Dr Wellington recorded that “work stressful – narricsstic [sic] boss” and that the applicant was given counselling regarding her “work/life situation”;
(e) on 16 September 2016, Dr Wellington recorded that the applicant was “stressed++” and received counselling in relation to whether to stay or go from her job;
(f) on 17 November 2017, Dr Wellington recorded that the applicant was referred to a psychologist in relation to ongoing stressful circumstances;
(g) on 30 January 2020, Dr Wellington recorded that the applicant reported work being stressful in the context of retrenchments;
(h) on 15 May 2020, Dr Wellington recorded that the applicant was stressed in the context of various life circumstances;
(i) on 18 March 2021, Dr Wellington recorded that the applicant reported anxiety in the context of various circumstances including excessive workload, being unsupported and underpaid in the workplace, conflict in the workplace and being scared that she would lose her job. Dr Wellington prepared a Mental Health Care Plan;
(j) on 17 May 2021, Dr Wellington recorded that the applicant reported stress at work in the context of toxic work relationships and her having fought hard to not have to do work that she was not responsible for;
(k) on 31 May 2021, Dr Wellington recorded that the applicant reported stress in the context of various life circumstances. The applicant reported that “3 people (manager) – all key to her stress have resigned/been moved on in her workplace”;
(l) on 24 June 2021, Dr Wellington recorded that the applicant reported that “bully bosses over time have worn her down” and that ongoing workplace bullying, unfair and unreasonable treatment including in relation to a refusal to allow employees to work from home, little leadership, bullying, excessive work demands, ceasing to pay an allowance and threats of losing her job, were taking a toll on her mental health. Dr Wellington issued a Medical Certificate;
(m) on 25 June 2021, Dr Wellington recorded that the applicant reported workplace stress and anxiety. Dr Wellington prepared a Mental Health Care Plan;
(n) on 2 December 2021, Dr Wellington recorded that the applicant reported being very stressed in the context of her being the subject of workplace bullying and targeting with false allegations after she raised issues regarding her pay, workplace practices and workplace policies. The applicant reported that she had been “battling this for 2 yrs” and that the work situation was “escalating”.
Dr Wellington stated a diagnosis of adjustment disorder from bullying at work.
Dr Wellington issued a medical certificate and a Certificate of Capacity;(o) on 3 December 2021, Dr Wellington recorded that the applicant reported distress about ongoing work problems;
(p) on 14 March 2022, Dr Wellington recorded that the applicant reported her mental health suffering as a result of being bullied, unfairly treated and targeted at work after she raised various workplace issues. Dr Wellington issued a medical certificate;
(q) on 22 March 2022, Dr Wellington recorded that the applicant was emotionally distressed in the context of reported ongoing workplace bullying and work stressors;
(r) on 12 April 2022, Dr Wellington recorded that the applicant reported ongoing work stressors;
(s) on 10 May 2022, Dr Wellington recorded that the applicant reported that the respondent had still not addressed issues that she had raised about workplace bullying, work overload and unfair treatment and that she was still being subjected to an unreasonable workload. Dr Wellington issued a medical certificate;
(t) on 7 June 2022, Dr Wellington recorded that the applicant reported work stress and anxiety in the context of unresolved workplace issues including excessive workload and workplace bullying. Dr Wellington issued a medical certificate;
(u) on 7 July 2022, Dr Wellington recorded that the applicant reported ongoing work problems;
(v) on 12 August 2022, Dr Wellington recorded that the applicant reported ongoing work problems in the context of her returning to work in the office and unresolved work issues including workload and bullying;
(w) on 15 August 2022, Dr Wellington recorded that the applicant reported ongoing stress from work;
(x) on 2 December 2022, Dr Wellington recorded that the applicant reported still having an excessive workload although she was now allowed to work from home;
(y) on 25 August 2023, Dr Wellington recorded that the applicant was emotionally distressed in the context of reported workplace bullying and excessive workload. Dr Wellington issued a medical certificate;
(z) on 31 August 2023, Dr Wellington recorded that the applicant reported “burnout” due to excessive work demands. Dr Wellington issued a medical certificate;
(aa) on 3 November 2023, Dr Wellington recorded that the applicant reported stress and anxiety from workplace bullying, unsafe work environment and the stress of having to advocate for herself at work. Dr Wellington issued a medical certificate;
(bb) on 30 November 2023, Dr Wellington recorded that the applicant reported worsening work stress in the context of excessive workload, bullying, harassment, manipulative conduct, being victimised and undermined.
Dr Wellington issued a medical certificate;(cc) on 7 December 2023, Dr Wellington recorded that the applicant reported symptoms of anxiety in the context of being bullied and undermined in the workplace. Dr Wellington issued a medical certificate;
(dd) on 14 December 2023, Dr Wellington recorded that the applicant reported that the respondent required a medical certificate which certified that she was fit to work. Dr Wellington issued a medical certificate;
(ee) on 4 January 2024, Dr Wellington recorded that the applicant reported that she was the subject of ongoing workplace bullying and unfair treatment, including changing records, malicious sabotage and undermining conduct. Dr Wellington issued a medical certificate;
(ff) on 12 January 2024, Dr Wellington recorded that the applicant reported ongoing work issues in the context of an investigation of her formal grievance;
(gg) on 16 January 2024, Dr Wellington recorded that the applicant reported ongoing work problems in the context of her formal grievance;
(hh) on 1 February 2024, Dr Wellington recorded that the applicant reported significant stress in the context of work pressure and bullying since she made a formal grievance;
(ii) on 15 February 2024, Dr Wellington recorded that the applicant reported the respondent making unreasonable demands in relation to a lengthy questionnaire, bullying and trying to discredit her which was taking a toll on her mental health;
(jj) on 20 February 2024, Dr Wellington recorded that the applicant reported being emotional and broken that the respondent required her to respond to questions as part of an investigation and to meet with two people who were bullying her, refused to change the reporting lines and made untrue accusations against her. Dr Wellington issued a Certificate of Capacity;
(kk) on 23 February 2024, Dr Wellington recorded that the applicant reported being emotionally upset and exhausted by requests for information regarding investigation of her grievance;
(ll) on 29 February 2024, Dr Wellington recorded that the applicant was emotionally distressed in the context that she reported being required to continue to work with people who she had made a grievance about and being overwhelmed by excessive information. The applicant reported that the respondent was trying to discredit her following her lodging a grievance about overwork and bullying;
(mm) on 6 March 2024, Dr Joseph Nicholas recorded that the applicant reported psychological problems in the context of two years of workplace incidents which had escalated over the last three months. Dr Nicholas noted that the applicant reported that an independent investigator was involved but the respondent refused to change the reporting lines. Dr Nicholas stated a diagnosis of adjustment disorder with mixed anxiety and depressed mood and recommended psychological treatment.
Jayne Cat, psychologist
Clinical records of the applicant’s treating psychologist, Jayne Cat, record that on
15 March 2024, the applicant was assessed to have severe depression and extremely severe anxiety. The applicant reported a history which included investigation of her grievances about being bullied by two managers, being required to continue to report to those managers, being micro-managed, being bullied by the human resources personnel, being stood down from work and her claim for workers compensation being refused.
Independent medical evidence
Dr John Roberts, consultant forensic psychiatrist, qualified by the respondent
In a report dated 29 April 2024, Dr Roberts stated a diagnosis of mixed anxiety-depressive disorder which is longstanding, chronic and pre-existing.
Dr Roberts stated that the clinical records of the treating general practitioner showed the presence of psychopathology that pre-dated the alleged psychological injury. Dr Roberts concluded that:
“It is clear that prior to the nominated date of injury, 22 February 2019, there is a history of virtually identical psychopathology.
If a condition is assumed, it would by virtue of past history be an aggravation of a preexisting state.
It would also need to be considered on reasonable psychiatric grounds that the behaviour of [the applicant] was a pattern of behaviour that was pre-existing and precipitated by, prior to the date of injury 22 February 2019, by employment and what occurred subsequent to the date of injury was simply a manifestation of a pre-existing condition.
In my opinion on reasonable psychiatric grounds [the applicant’s] behaviour in the workplace is a manifestation of pre-existing longstanding psychopathology and would be from the psychiatric viewpoint, a circumstance that would be as outlined in the case of Sirikci.
That from the psychiatric viewpoint the behaviour of [the applicant] in relation to the date of 22 February 2019, was simply a manifestation of pre-existing psychopathology.”
Dr Roberts expressed the opinion that the applicant’s psychological condition was pre-existing and was not a new condition caused by her employment with the respondent. He stated that the applicant’s “response to the circumstances of her employment is dictated by matters considered in Sirikci”, being Sirikci v Hewlett Packard Pty Ltd (2015) NSWWCCPD 45.
Dr Roberts stated that, in his opinion “[the applicant’s] condition would have been transiently aggravated by reasonable action taken or proposed to be taken on or on behalf of the employer with respect to performance appraisal, discipline and/or provision of employment benefits”.
In a further report dated 29 April 2024, Dr Roberts stated that he did not consider that the applicant’s level of psychopathology has in any salient way been altered by the alleged workplace incidents.
Dr Roberts maintained his opinion in a further report dated 5 June 2024.
Dr David Kumagaya, consultant psychiatrist, qualified by the applicant
In a report dated 26 April 2024, Dr Kumagaya stated a diagnosis of persistent depressive disorder with anxious distress. Dr Kumagaya expressed the opinion that the applicant’s employment was the main contributing factor to her psychological condition.
Dr Kumagaya stated that the applicant reported a series of workplace stressors characterised by excessive workload, pressure to attend to tasks that were beyond her purview of responsibility, an unsupportive workplace environment, belittling and undermining, which resulted in the onset of her psychological symptoms in 2019, and a perpetuation of such thereafter.
Dr Kumagaya stated that the applicant reported a brief period of psychological therapy in 2017 in the context of workplace and familial psychosocial stressors, however she otherwise denied any further pre-injury or pre-existing psychiatric background.
In a supplementary report dated 26 July 2024, Dr Kumagaya stated that, having reviewed the contemporaneous medical evidence, including the independent medical examination reports by Dr John Roberts and the medical records of the treating general practitioner, he maintained his opinion that the applicant did not present with a significant pre-existing psychological condition. Dr Kumagaya stated that:
“Attention is drawn to the fact that such records by [the applicant’s] general practitioner, at most, reference ‘stress’ in the context of psychosocial stressors, for which she received counselling with her general practitioner and psychological therapy with her psychologist. It is noted that no formal psychiatric/psychological diagnoses are ascribed by Dr Wellington, nor are the symptoms documented of a sufficient nature for a psychiatric / psychological diagnosis to be made.
It is highlighted that ‘stress’ is representative of a psychological symptom. The mere presence of ‘stress’ does not unilaterally equate to the presence of a psychiatric/psychological condition, for which there must be a constellation of correlative features, in addition to significant distress and/or psychosocial impairments. Dr Wellington’s progress notes reference [the applicant] persisting with her occupational engagements, engaging in an exercise regime, as well as pursuing further studies. Such, again, is not in keeping with the requisite degree of psychosocial impairments required for a formal psychiatric/psychological diagnosis.
Having reviewed the totality of the available evidence, I maintain my previous medical opinion that [the applicant] did not present with a significant pre-existing psychological condition.”
Further, Dr Kumagaya stated that:
“[The applicant’s] workplace primary psychological condition, persistent depressive disorder with anxious distress, is a de-novo psychiatric condition arising out of her experiences of prejudicial workplace psychosocial stressors during her vocational tenure with [the respondent]. It does not represent the manifestation of a pre-existing condition, nor the aggravation or exacerbation of such.”
Consideration of the issue of injury
On behalf of the respondent, Mr Stiles submitted that the evidence supports a finding that the applicant did not sustain a primary psychological injury arising out of or in the course of employment. Mr Stiles submitted that the evidence of Dr Roberts should be preferred to the evidence of Dr Kumagaya who did not have proper history of the applicant’s prior psychological history. Mr Stiles submitted that the evidence supports a finding that the applicant had a history of pre-existing mental health and psychological issues and symptoms and, further, that the applicant’s current presentation is a continuation of that long-standing, pre-existing psychological condition. Mr Stiles submitted that there is no evidence of active treatment and the complaints are not in keeping with a new psychological injury or condition.
On behalf of the applicant, Mr Adhikary submitted that the evidence supports a finding that the applicant sustained a psychological injury pursuant to s 4(b)(i) of the 1987 Act, due to various employment related, and not disputed, matters, which included her being overworked, underpaid, and also due to interpersonal conflict at work, such as her being bullied and harassed, as well as due to a lack of assistance provided to her.
Turning to the evidence, Dr Roberts diagnosed longstanding, chronic and pre-existing mixed anxiety-depressive disorder. Notably, Dr Roberts considered that the medical records of the treating general practitioner demonstrated a prior history of virtually identical psychopathology. Dr Roberts opined that the applicant’s current psychological condition was pre-existing and was not a new condition caused by her employment with the respondent.
However, in his supplementary report, Dr Kumagaya diagnosed persistent depressive disorder with anxious distress, being a de-novo primary psychological condition arising out of the applicant’s experiences of prejudicial workplace psychosocial stressors during her employment with the respondent. Dr Kumagaya expressly rejected Dr Roberts’ opinion that the applicant had a significant pre-existing psychological condition. Dr Kumagaya stated that the mere presence of ‘stress’ does not unilaterally equate to the presence of a psychological condition. Dr Kumagaya’s opinion is that the clinical records do not evidence symptoms of a sufficient nature for a pre-existing psychological condition to be diagnosed. Dr Kumagaya maintained that the applicant’s psychological condition did not represent the manifestation of a pre-existing condition, nor the aggravation or exacerbation of a pre-existing condition.
I note that, whilst Dr Kumagaya’s initial report was not based on a consideration of the clinical records of the treating general practitioner, Dr Kumagaya’s supplementary report dated 26 July 2024 was based on a review of the contemporaneous medical evidence, including the independent medical examination reports by Dr Roberts and the medical records of the treating general practitioner. In the circumstances, I do not accept the respondent’s submission that Dr Kumagaya’s opinion contained in that supplementary report was not based on a proper history.
The clinical records of the applicant’s treating general practitioner do record various reports of stress and psychological symptoms prior to the applicant commencing employment with the respondent, in the context of concurrent life events including workplace events. In 2013, Dr Wellington queried a diagnosis of adjustment disorder with anxiety and prepared a Mental Health Care Plan and referral to a psychologist. In 2017, Dr Wellington referred the applicant to a psychologist.
I note that in her report dated 10 April 2024, Dr Wellington diagnosed “anxiety, likely an adjustment disorder with depressed and anxious mood and possibly PTSD from the prolonged lack of support and bullying in the workplace”.
On behalf of the respondent, Mr Stiles submitted that the similarity of that diagnosis and
Dr Wellington’s queried diagnosis in 2013 of adjustment disorder with anxiety supports a finding that the applicant has longstanding and pre-existing psychopatholgy.However, Dr Robert’s opinion that the applicant has a longstanding, chronic and pre-existing mixed anxiety-depressive disorder rather than a new condition caused by her employment with the respondent is not consistent with various other evidence.
As noted by Dr Kumagaya in his supplementary report, there is no evidence of a formal psychiatric diagnosis being made at any time prior to the commencement of the applicant’s employment with the respondent. Further, the clinical records make various references to the applicant persisting with various activities including work and do not demonstrate significant psychosocial impairments during that time.
That can be contrasted with evidence of the applicant’s treating general practitioner and psychologist to the effect that the applicant had a diagnosable psychological condition and impairment as a result of her employment with the respondent.
In her reports dated 14 December 2023 and 10 April 2024, the treating general practitioner, Dr Wellington, gave unequivocal evidence that the cause of the applicant’s psychological condition and impairment was solely a result of her employment with the respondent, specifically: excessive work load, the team environment, the broken trust within the team and with management, the lack of certainty in relation to resolving work matters, absence of support and bullying in the workplace. This is consistent with the medical certificates and Certificates of Capacity issued by Dr Wellington during the period of the applicant’s employment with the respondent.
Dr Wellington’s evidence is consistent with the evidence of the treating psychologist, Ms Cat, who diagnosed severe depression and extremely severe anxiety in the context of a reported history of workplace incidents including being bullied by two managers, being required to continue to report to those managers after lodging a grievance and being micro-managed.
It is clear from the clinical records that Dr Wellington treated the applicant since at least 2013 and was familiar with the applicant’s psychological history and circumstances during that time. I consider that Dr Wellington would be well placed to form a sound knowledge-based opinion regarding the applicant’s current psychological condition. Dr Wellington provided a detailed and reasoned explanation for her opinion.
Further, I note that Dr Wellington’s opinion is consistent with the applicant’s own evidence to the effect that the various stresses that she reported to Dr Wellington prior to commencement of her employment with the respondent, were relatively temporary life stresses and did not impact on the applicant’s ability to carry on with her day to day activities and work nor impact upon her in any significant way.
I note that Dr Roberts stated that the applicant failed to disclose her previous mental health history. The respondent has not generally challenged the applicant’s credibility. I consider that the applicant has explained in her evidence that she did not consider that she had a significant pre-existing psychological history. Having regard to the evidence as a whole, I accept the applicant’s explanation and evidence in that regard.
On balance, I prefer and accept the evidence of Dr Kumagaya because, in the context of the evidence as a whole, I consider that it provides a most logical and likely explanation for the applicant’s symptoms and diagnosis. Further, I consider that it is largely consistent with the treating medical evidence, which I find to be persuasive.
Considering the evidence as a whole and for all of the above reasons, I feel an actual sense of persuasion, and I find, that the applicant sustained a primary psychological injury in the nature of a disease, arising out of and in the course of her employment with the respondent, and that the applicant’s employment was the main contributing factor to that injury, pursuant to s 4(b)(i) of the 1987 Act.
On the basis of Dr Kumagaya’s opinion, I accept that the applicant’s psychological condition is a new and not a pre-existing condition. Accordingly, I do not find that the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act.
On that basis, I find that the applicant has a psychological injury pursuant to s 11A(3) of the 1987 Act.
Defence pursuant to s 11A of the 1987 Act
The law
Section 11A(1) 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.”
The respondent maintains a defence pursuant to s 11A(1) of the 1987 Act on the grounds that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to:
(a) performance appraisal;
(b) discipline, or
(c) provision of employment benefits.
The respondent has the onus of establishing such defence.
Wholly or predominantly caused by performance appraisal, discipline or employment benefits
Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions with respect to performance appraisal, discipline or employment benefits.
In Hamad v Q Catering Limited,[6] the Commission suggested that medical evidence is necessary to determine the causation issue. In Smith v Roads and Traffic Authority of NSW,[7] Snell ADP accepted “wholly” and “predominantly” are different concepts.
[6] [2017] NSWWCCPD 6.
[7] [2008] NSWWCCPD 130.
In relation to the term “performance appraisal”, in Irwin v Director-General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998 unreported), Geraghty J stated:
“It is important to consider the meaning of the term ‘performance appraisal’. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes like ‘transfer’, ‘demotion’, ‘promotion’, retrenchment or ‘dismissal’ of workers. It must be seen in this context. Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged. ‘Performance appraisal’ is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”
In relation to the term “discipline”, in Kushwaha v Queanbeyan City Council,[8] the Court said that:[9]
“... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”
[8] [2002] NSWCC 25; 23 NSWCCR 329.
[9] [2002] NSWCC 25; 23 NSWCCR 329, at [152].
In Northern NSW Local Health Network v Heggie,[10] (Heggie) the Court of Appeal said that a broad approach is to be taken to the expression “action with respect to discipline” in
s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action.[10] [2013] NSWCA 255; 12 DDCR 95.
On behalf of the respondent, Mr Stiles submitted that s 11A(1) of the 1987 Act applies as a complete defence to the applicant’s claim, on the grounds of performance appraisal.
Mr Stiles submitted that the applicant’s various complaints about work-related issues which were recorded in the clinical records, were simply general complaints and workplace issues, similar to those that pre-dated the applicant’s employment. Mr Stiles submitted that there is no evidence of psychopathology, psychological diagnosis nor treatment provided in relation to those matters. Mr Stiles submitted that the evidence demonstrates that the predominant cause of the applicant’s psychological injury was the applicant’s meeting with Ms Kia Stockdale on 28 November 2023 and subsequent communications in relation to the applicant’s work performance. Mr Stiles submitted that the respondent’s actions in relation to performance appraisal were reasonable.It is apparent from the clinical records of the applicant’s treating general practitioner, that
Dr Wellington issued medical certificates to the applicant on 24 June 2021,
2 December 2021, 14 March 2022, 10 May 2022, 7 June 2022, 25 August 2023,
31 August 2023 and 3 November 2023 in the context of the applicant having reported work stress and anxiety from excessive workload, workplace bullying, manipulative conduct, being victimised and undermined at work. Further, Dr Wellington prepared a Mental Health Care Plan for the applicant in the context of such reported issues on 18 March 2021 and
15 June 2021.I note that Dr Wellington provided a detailed report of the various work issues which she considered to be the cause of the applicant’s psychological condition. This included a history of excessive workload since January 2020, which persisted over the next few years, and a lack of support, bullying and harassing conduct, which resulted in an escalation of the applicant’s psychological symptoms.
As I stated above, I consider that, as the applicant’s treating general practitioner for a relatively lengthy period, Dr Wellington would be well placed to form a sound knowledge-based opinion regarding the applicant’s current psychological condition. Dr Wellington provided a detailed and reasoned explanation for her opinion. Further, Dr Wellington’s evidence in that regard is consistent with the evidence of the treating psychologist, Ms Cat.
Dr Wellington’s evidence in relation to the issue of causation of the applicant’s psychological condition is also supported by the evidence of the independent medical expert,
Dr Kumagaya.For all of the reasons that I have outlined above, I consider the evidence of Dr Wellington and Dr Kumagaya in relation to the issue of causation to be particularly persuasive. In the context of the evidence as a whole, I consider that it provides a logical and likely explanation for the applicant’s psychological condition which has developed as a result of the ongoing workplace issues since 2020, rather than simply the applicant’s meeting with Ms Kia Stockdale on 28 November 2023 and subsequent communications in relation to the applicant’s work performance.
Having regard to the medical and other evidence, I feel a real sense of persuasion and I am satisfied that the cause of the applicant’s psychological condition was multi-factorial. I am satisfied that at least a significant cause of the applicant’s psychological injury was the various real events at work which the applicant perceived as bullying and harassing treatment, which preceded the applicant’s meeting with Ms Stockdale on 28 November 2023, and which were not related to performance appraisal, discipline or provision of employment benefits.
Accordingly in my view, the respondent has not established, on the basis of probabilities, that the applicant’s injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to performance appraisal, discipline or provision of employment benefits. On that basis, the respondent has not established a defence pursuant to s 11A of the 1987 Act.
Reasonableness
Having regard to my finding above, I am not required to address the issue of reasonableness of the relevant actions of the respondent.
Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?
The applicant now claims weekly compensation for a closed period from 15 February 2024 to 29 August 2024, in particular:
(a) from 15 February 2024 to 15 May 2024 (13 weeks), pursuant to s 36 of the 1987 Act, and
(b) from 16 May 2024 to 29 August 2024, pursuant to s 37 of the 1987 Act.
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
….”
Work capacity
Section 32A defines “current work capacity”, “no current work capacity” and “suitable employment” as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”
“no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
On behalf of the respondent, Mr Stiles accepted that the medical certificates indicate that the applicant had total incapacity from 20 February 2024 to 10 March 2024. Mr Stiles submitted that the medical certificates from 11 March 2024 to 7 June 2024 suggest that the applicant has capacity. Mr Stiles submitted that from 11 March 2024 to 5 April 2024, the applicant had capacity for full-time work with an alternate command chain. Mr Stiles submitted that from
7 May 2024, the certificate states that the applicant is unfit for work, but then also states that the applicant is fit to work in the same role for any employer but for the respondent. Mr Stiles submitted that there are no certificates which cover the period from 7 June 2024 up to the end of the closed period. On that basis, Mr Stiles submitted that the applicant had capacity for full-time suitable employment as a website content specialist from 11 March 2024 to date, and that she would have been earning at least the agreed PIAWE of $1,724.69 in such suitable employment. Further, Mr Stiles submitted that, accordingly, the applicant would have no entitlement to weekly compensation in any event and an award should be made in favour of the respondent.To the extent that an award for payment of weekly compensation was made, Mr Stiles submitted that in accordance with s 46 of the 1987 Act, the respondent should be given the benefit of payments previously made in respect of the relevant periods.
The applicant relies on the decision of Westpac Banking Corporation v Mani [2019] NSWWCCPD 41 at [177], where it was stated:
“Even if the appellant had provided evidence as to the ‘suitable duties’ that were to be made available, the requirement that the respondent be retrained, coached and guided during that working process indicates that the particular position was not a ‘real job’ against which the respondent’s earning capacity should be measured.”
On behalf of the applicant, Mr Adhikary submitted that in this case, there is no evidence of any real job against which the applicant’s capacity can be measured.
On behalf of the respondent, Mr Stiles submitted that the medical evidence (particularly the medical certificates) are clear to the effect that the applicant has capacity to undertake her pre-injury roles as a website content specialist and the only restriction is that she cannot return to her employment with the respondent. Mr Stiles submitted that the treating medical evidence supports capacity for full-time work with another employer.
As noted above, the relevant period during which the applicant seeks weekly compensation is from 15 February 2024 to 29 August 2024.
The applicant’s treating general practitioner, Dr Wellington, issued the following certificates in relation to the applicant’s work capacity as a result of the psychological injury:
(a) medical certificates which certified that the applicant was unable to attend work from 7 December 2023 to 21 December 2023 and from 4 January to
12 January 2024 due to “workplace bullying”;(b) Certificates of Capacity which certified that the applicant:
(i)had no current work capacity from 20 February 2024 to
4 March 2024;(ii)had no current work capacity from 6 March 2024 to 10 March 2024 and capacity for some type of work (being work from home on less demanding tasks) from 11 March 2024 to 5 April 2024, and
(iii)had no current work capacity from 7 May 2024 to 7 June 2024.
Dr Wellington stated that the applicant would not be able to return to work with the respondent but would be fit to work elsewhere in a supportive and suitable environment.However, in a report dated 10 April 2024, Dr Wellington stated that the applicant had significant ongoing psychological symptoms, her prognosis was very guarded and that her goal of returning to work may be in jeopardy.
In a report dated 26 April 2024, the independent medical expert Dr Kumagaya stated that the applicant did not currently present with any vocational capacity in her pre-injury role, nor in any other role that is in keeping with her education, training and experience.
In a report dated 29 April 2024, the independent medical expert, Dr Roberts, stated that the applicant reported that she would be prepared to accept any employment, including with the respondent, that would enable her to save her home. On that basis, Dr Roberts expressed the opinion that that the applicant had work capacity and she “could perform [her] normal duties as they were before the injury if the opportunity was there and if [she] desired”.
In a further report dated 29 April 2024, Dr Roberts stated that “in regard to the comment in regard to returning to work, such would indicate that her current level of pathology is of such a severity that it would not in her view, impact upon her work”. Dr Roberts maintained that view in his further report dated 5 June 2024.
However, the applicant stated that such a comment was misleading in the context of communications she had received from the respondent and her desire not to lose her employment. The applicant stated that attempts were made by the respondent for her to do alternative work not in proximity to the people who she felt were making her life difficult, however the respondent refused to give the applicant constant alternative duties and repeatedly suggested that she find and apply for an alternative role. The applicant stated that she was forced to use up all her sick and personal leave and then was on unpaid leave until her employment was terminated by the respondent on 3 May 2024. The applicant further stated that she has been unable to work and that she has not engaged in any other employment. The applicant stated that she experiences difficulty focusing and concentrating on things and she does not feel in a position to interact with people on a personal level and certainly not at work. The applicant stated that she continues to regularly see her general practitioner.
I am satisfied that the applicant has explained her comment to Dr Roberts in the context of her concern about losing her employment with the respondent.
In the context of the evidence as a whole, I found Dr Kumagaya’s evidence to be most compelling because it was based on a consideration of all of the evidence and it was consistent with the applicant’s own evidence, which I accept.
Having regard to the evidence as a whole, I am satisfied the applicant had an inability arising from the psychological injury such that she had no current work capacity, either in her pre-injury employment or in suitable employment during the period from 15 February 2024 to
29 August 2024.
The award to be entered in respect of weekly compensation
Section 36 of the 1987 Act states:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The parties agreed that initial PIAWE of $1,725.69 is applicable for the purposes of calculating any entitlement to weekly compensation.
On behalf of the respondent, Mr Stiles submitted that, pursuant to ss 46 and 50 of the 1987 Act, the respondent should have the benefit of a credit for wage payments, special wage payments (during the period the investigation was being undertaken) and sick leave paid by the respondent up to 21 May 2024.
On the behalf of the applicant, Mr Adhikary conceded that ss 49 and 50 of the 1987 Act are applicable and that relevant adjustments ought to be made for sick leave and any actual wages that the applicant received during the relevant period. Mr Adhikary submitted that no credit should be applied in respect of ‘special wage payments’ made by the respondent because they are not the applicant’s wages. In that regard, Mr Adhikary relied on the decisions of Kirkbride v State of New South Wales (Ambulance Service) [2019] NSWWCC 236 (Kirkbride) at [62] and [65], and Wijanto v Metcash Trading Ltd [2021] NSWPIC 345.
Section 46 of the 1987 Act provides:
“(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2) Any such order shall have effect according to its tenor.
(3) This section does not affect the operation of section 49 or 50.”
Section 50 of the 1987 Act provides:
“(1) Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave-
(a) that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and
(b) the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.
(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period-
(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and
(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.
(4) If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period-
(a) if the worker has not also been paid wages for sick leave in respect of that period-be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or
(b) if the worker has also been paid wages for sick leave in respect of that period-be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).
(5) The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.
(6) In this section-
‘compensation’ means weekly payments of compensation under this Division.
‘wages’ means wages, salary, allowance or other payment.”
Mr Stiles submitted that the ‘special wage payments’ were paid during the period the investigation was taken and that they effectively represent earnings during the period of incapacity for work.
It appears from a report on leave taken that the applicant was paid ‘special leave’ (as opposed to ‘special wage payments’) in respect of the dates of 16 February 2024,
19 February 2024, 21 February 2024, 22 February 2024 and from 26 February 2024 to
29 February 2024. A notice dated 4 July 2024 which was issued by the respondent pursuant to s 287A of the 1987 Act refers to different dates in January and February 2024 when the applicant was provided approval to utilise paid work hours to complete responses to allegations.However, it is unclear from the evidence precisely what are the ‘special wage payments’ referred to in the respondent’s submissions. Further, the evidence is unclear as to the basis for payment of such ‘special wage payments’. It is unclear from the evidence what, if any, such payments were made “in respect of the incapacity for work” as required by s 46 of the 1987 Act.
In such circumstances, I am not satisfied that the provisions of s 46 of the 1987 Act are enlivened in that regard.
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 15 February 2024 to 15 May 2024, pursuant to ss 33 and 36 of 1987 Act as follows:
Date from
Date to
Weeks
PIAWE[11]
Rate Claimed
Weekly Amount
Actual Earnings
Entitlement
15.02.24
28.03.24
1 – 6
$1,725.69
95%
$1,639.41
Nil
$1,639.41
29.03.24
15.05.24
7 – 13
$1,756.58
95%
$1,668.75
Nil
$1,668.75
[11] As indexed from 1 April 2024 pursuant to s 82A of the 1987 Act, based on a B/C factor of 1.0179 (as stated at 2.3.1 of the State Insurance Regulatory Authority Workers Compensation Benefits Guide).
Further, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 16 May 2024 to 29 August 2024, pursuant to ss 33 and 37 of 1987 Act as follows:
Date from
Date to
Weeks
PIAWE[12]
Rate Claimed
Weekly Amount
Actual Earnings
Entitlement
16.05.24
29.08.24
14 - 28
$1,756.58
80%
$1,405.26
Nil
$1,405.26
[12] As indexed from 1 April 2024 pursuant to s 82A of the 1987 Act, based on a B/C factor of 1.0179 (as stated at 2.3.1 of the State Insurance Regulatory Authority Workers Compensation Benefits Guide).
It is appropriate that the respondent should have the benefit of credit for sick leave and wages that it has paid to the applicant during the relevant periods.
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
Medical expenses
In a report dated 10 April 2024, Dr Wellington recommended that the applicant undergo psychological and psychiatric treatment.
In a report dated 26 April 2024, the independent medical expert Dr Kumagaya stated that reasonably necessary treatment to address the applicant’s psychological injury included regular counselling with her general practitioner, psychological therapy and possibly psychiatric consultations and psychotropic medications.
The respondent did not make any submissions which specifically dealt with the claim for medical expenses.
Having regard to the evidence as a whole and my findings above, I am satisfied that it is appropriate to make an order for payment of medical expenses pursuant to s 60 of the 1987 Act.
SUMMARY
The Commission determines:
The applicant sustained a primary psychological injury in the nature of a disease with a deemed date of injury of 15 February 2024, arising out of and in the course of her employment with the respondent, and the applicant’s employment was the main contributing factor to that injury, pursuant to s 4(b)(i) of the 1987 Act.
The applicant did not sustain an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act.
The respondent has not established a defence pursuant to s 11A of the 1987 Act.
The applicant had no current work capacity as a result of the psychological injury from
15 February 2024 to 29 August 2024.
The Commission orders:
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the 1987 Act as follows:
(a) $1,639.41 per week from 15 February 2024 to 28 March 2024, and
(b) $1,668.75 per week from 29 March 2024 to 15 May 2024.
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(a) $1,405.26 per week from 16 May 2024 to 29 August 2024.
A credit is to be applied in respect of sick leave and wages that the respondent has paid the applicant during those periods.
A credit is not to be applied in respect of ‘special wage payments’ that the respondent has paid the applicant during those periods.
Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.
The respondent to pay the applicant’s expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts or Medicare Notice of Charge.
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