Australia Indigenous Leadership Centre v icare Workers Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Australia Indigenous Leadership Centre v icare Workers Insurance & Ors [2023] NSWPIC 514
APPLICANT:	Australian Indigenous Leadership Centre
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Emma Louise Cutmore
MEMBER:	Gaius Whiffin
DATE OF DECISION:	28 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by uninsured employer pursuant to section 145(3) that it is not liable in respect of the compensation payments made by the first respondent to the second respondent; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of the circumstances of the second respondent’s injury and whether it was a compensable injury in accordance with section 4; consideration of whether the second respondent’s employment with the applicant was connected with New South Wales in accordance with section 9AA; Martin v R J Hibbens Pty Limited, Workers Compensation Nominal Insurer v O’Donohue, Avon Products Pty Limited v Falls, Attorney General’s Department v K, AV v AW, and Klemke v Grenfell Commodities Pty Limited considered; Held – the second respondent sustained a disease injury in the course of her employment with the applicant, in accordance with section 4; the injury will be deemed to have occurred on 21 July 2020, in accordance with section 15; the second respondent’s employment as at 21 July 2020 was connected with New South Wales, in accordance with section 9AA; the first respondent has made a payment of $133,298.17 to or in respect of the second respondent in relation to the disease injury, and has issued a valid notice dated 16 November 2022 to the applicant, in accordance with section 145(1), requiring the applicant to reimburse that amount to it; pursuant to section 145(3), the applicant is liable in respect of the payment made of $133,298.17; the order sought by the applicant is refused.
DETERMINATIONS MADE:	The Commission determines: 1. The second respondent sustained a disease injury in the course of her employment with the applicant, in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. The disease injury will be deemed to have occurred on 21 July 2020, in accordance with s 15 of the 1987 Act. 3. The second respondent’s employment as at 21 July 2020 was connected with New South Wales, in accordance with s 9AA of the 1987 Act. 4. The first respondent has made a payment of $133,298.17 to or in respect of the second respondent in relation to the disease injury. It has issued a valid notice dated 16 November 2022 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it. 5. Pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $133,298.17. The Commission orders: 1. The order sought by the applicant pursuant to s 145(3) of the 1987 Act, that it is not liable in respect of the payment made by the first respondent to or in respect of the second respondent in the amount of $133,298.17 (as referred to in its notice to the applicant dated 16 November 2022 and issued in accordance with s 145(1) of the 1987 Act), is refused.

STATEMENT OF REASONS

BACKGROUND

Emma Louise Cutmore (the second respondent) is 35-years-old and commenced employment as a senior program leader in 2018 with the Australian Indigenous Leadership Centre (the applicant).
The second respondent alleges that she sustained a psychological injury due to events which occurred during the course of her employment with the applicant, as a result of interpersonal conflict with her manager, Paulette Thacker (Thacker) as well as with the applicant’s CEO, Robyn Forester (Forester). She submitted a certificate of capacity in relation to her alleged injury on 22 July 2020, and has not worked for either the applicant or any other organisation since.
It is conceded by the applicant that during the second respondent’s employment with it, it was not maintaining in force a policy of insurance in respect of its liability to the second respondent for compensation in accordance with the Workers Compensation Act 1987 (the 1987 Act).
As a result, the second respondent claimed compensation from the Workers Compensation Nominal Insurer (the first respondent) with respect to her alleged psychological injury in accordance with s 140(1) of the 1987 Act. The first respondent made payments of compensation in this regard.
By way of a notice (the reimbursement notice) in accordance with s 145(1) of the 1987 Act (dated 16 November 2022), the first respondent has required the applicant to reimburse to it an amount of $133,298.17 (the reimbursement amount), being in relation to compensation payments that it has made to or in respect of the second respondent with respect to her alleged psychological injury.
The applicant seeks a review of this notice and has lodged a Miscellaneous Application (the Application) with the Personal Injury Commission (Commission), seeking a determination as to its liability in respect of the reimbursement amount, in accordance with s 145(3) of the 1987 Act.

ISSUES FOR DETERMINATION

The applicant has raised two issues which it wishes to dispute regarding the reimbursement notice, as follows:
(a) the circumstances of the second respondent’s injury, and
(b) the connection of the second respondent’s employment with New South Wales.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The dispute was listed for conciliation/arbitration before the Commission on 3 July 2023. On that occasion, the applicant was not legally represented but appeared by its CEO, Robyn Forester. Mr Stuart Grant of counsel appeared for the first respondent, instructed by
Mr Dolan. Mr Stephen Hickey of counsel appeared for the second respondent, instructed by
Mr Grady. Ms Merchant was also present representing the interests of the first respondent, and the second respondent was further present. The conciliation/arbitration proceeded via the MS Teams platform.
During the conciliation phase, the applicant made it known that it wished to seek legal advice. The parties further agreed that further settlement negotiations might be possible following the obtaining of that advice.
After discussions with the parties, and especially considering the applicant’s lack of legal representation, I considered that principles of procedural fairness as well as the Commission’s guiding principle (pursuant to s 42 of the Personal Injury Commission Act 2020) to facilitate the just, quick and cost-effective resolution of the dispute, meant that the most appropriate path forward was for:
(a)    the applicant to outline the issues it wished to raise regarding the reimbursement notice - see paragraph 7 above;
(b)    the first respondent to make oral submissions;
(c)    the second respondent to make oral submissions;
(d)    the applicant to then have the opportunity to obtain legal advice, and to (if the dispute was still unable to be resolved) then lodge written submissions - with the benefit of access to the recording made of the oral submissions of the first and second respondents, and
(e)    the first and second respondents would then be given leave to lodge written submissions in reply, if they wished.
Unfortunately, the dispute is still unable to be resolved, and the Commission has received written submissions from the applicant as well as written submissions in reply from the first respondent. The second respondent has not lodged written submissions in reply.
In accordance with my amended direction dated 21 July 2023, I will now determine the dispute.

EVIDENCE

Documentary evidence

All parties consented to the following documents being in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    the first respondent’s Reply (first Reply) and attached documents;
(c)    the second respondent’s Reply (second Reply) and attached documents;
(d)    the first respondent’s Application to Admit Late Documents dated 18 April 2023 (respondent’s AALD) and attached documents, and
(e)    the applicant’s Application to Admit Late Documents dated 24 April 2023 (applicant’s AALD) and attached documents.

Oral evidence

There was no oral evidence given by any witness at the arbitration hearing.

Statement and other factual evidence

The second respondent has provided a signed statement dated 7 December 2021 (found at page 26 of the Application).
She says that she commenced her employment with the applicant when she relocated to Canberra in 2018. She was employed by it as a senior program leader, and her role involved “managing the logistics of the various courses, assisting students with their enquiries and enrolment and providing administrative support”. She enjoyed her work and intended to pursue a career with the applicant.
She took maternity leave in 2019 and relocated to Tamworth during her maternity leave to be close to family that reside there. When she returned from maternity leave:
“I later spoke with Robyn Forester, the CEO, and enquired as to whether I may continue my work from Tamworth, as my role is possible to complete remotely. Ms Forester agreed with this and approved my request. Therefore, though the AILC head office was located in Canberra, my employment with AILC continued from Tamworth.”
She describes interpersonal conflict between herself and Thacker from around February 2020, following Thacker being appointed to manage the applicant’s education team (of which she was a senior member). She explains:
(a)    Thacker began to micromanage her;
(b)    Thacker did not consult her (despite her senior position and background knowledge) when Thacker undertook the rewriting of position descriptions for the applicant’s program leaders - this made her feel “disregarded and unimportant”;
(c)    she was no longer invited to management meetings (which she had previously found to be vital to her role as she worked remotely) – this “reinforced my feelings of unimportance”;
(d)    she was blamed for staff lacking training, in circumstances where it had been impossible to train them in relation to new processes, because Thacker had not provided details of those new processes - this was “irritating, difficult and upsetting”;
(e)    Thacker lacked cultural awareness, making demands as to how she was to interact with indigenous students that were unreasonable, inappropriate or unhelpful;
(f)    Thacker regularly acted rudely towards her - not greeting her and speaking over her at meetings - this was upsetting and “make me feel worthless”;
(g)    Thacker took credit for her initiative of sending weekly emails during the
COVID-19 lockdown from April 2020 - this made her feel “targeted and unappreciated”;
(h)    Thacker required her to assess tests (which she had not previously done) - Thacker should have known that she had not previously performed this assessing but Thacker still assumed that she would have learned the assessing process – she believed that Thacker was attempting “to make me appear incompetent”;
(i)    Thacker blamed her for not organising a staff meeting on 16 June 2020, when the organisation of the meeting was in fact Thacker’s responsibility, and
(j)    she was muted during a Zoom call with Thacker on 17 June 2020, not allowing her to explain herself - she found this experience to be “belittling”.
She reported Thacker’s ongoing conduct to the applicant’s CEO, Forester, on 30 June 2020, but no action was taken by Forester. She became worried about how Thacker would react to that report and she was absent from work on 6 July 2020 “due to suffering from a panic attack due to my anticipation of Ms Thacker’s retaliation”. She saw her general practitioner on that day and obtained a medical certificate which she forwarded to Forester by email. However, she received no response from Forester to either the email or other text messages which she sent, and this “increased my anxiety immensely”.
On 7 July 2020, she received an email from Thacker accusing her of being poorly trained as she had not sent Thacker a particular report, which she had been unable to do as she had been off work the previous day. She says that she “felt as though Ms Thacker was targeting me with unreasonable requests in order to make me appear incompetent”. Later the same day, she received an email from Forester instructing her to send the report.
The second respondent’s cousin passed away on 8 July 2020 and Forester approved her taking compassionate leave on that date and on 9 July 2020. However, after she failed to attend a meeting on 13 July 2020 (that she had not been requested to attend), she was contacted by Thacker who revoked approval for her compassionate leave on 8 July 2020 and 9 July 2020 and also refused her compassionate leave for the upcoming date of her cousin’s funeral. She “became so anxious and emotional in response that I felt physically sick and vomited several times”.
She obtained a certificate of capacity on 22 July 2020 and sent it to Forester by email. She was told by Forester that the email was “disappointing”. Forester informed her that she would be sent the relevant insurance forms to complete, but the forms were not sent for over a week. She describes Forester’s response as “unsympathetic and unsupportive”.
She began to be treated by a general practitioner (Dr Hussan) for her mental health from
30 June 2021. He referred her to a psychologist, Ian Cohen, who began treating her from
28 July 2020. She later changed her treating psychologist to Jane Bettington from
17 June 2021. She was prescribed Effexor on a daily basis.
She then describes some of the effects of her psychological condition, which include:
(a)    reduced motivation - especially with regard to household chores and preparing meals;
(b)    neglecting to eat;
(c)    personal hygiene neglect;
(d)    moodiness and irritability;
(e)    social withdrawal;
(f)    impatience and disinterest;
(g)    tension with her partner - resulting in a period of separation;
(h)    reduced sexual activity;
(i)    focus and concentration issues;
(j)    significant loss of confidence;
(k)    sleep disturbance – leading to daytime drowsiness, and
(l)    “due to these restrictions and my negative experiences, I feel that I would no longer be capable of working with my previous employer and managers”.
The second respondent has also provided a further signed statement dated 10 March 2023 (found at page 1 of the second Reply).
She confirms that she took maternity leave from the applicant in June 2019, and returned to her employment in November 2019. There had been a number of resignations from the applicant and Forester had contacted her. She advises:
“Robyn had also asked when I would be returning to work, I didn’t have any childcare arrangements for my baby so I asked Robyn if I returned to work, could I relocate to Tamworth where my parents lived who could assist with looking after my baby. Robyn agreed and she was supportive of it as she wanted to move the courses to more online learning anyway, so I didn’t need to be in Canberra. From my discussions with Robyn, my relocation to Tamworth was not temporary and I planned to be in Tamworth indefinitely.”
As a result, the second respondent set up a home office in Tamworth. She says that she was encouraged by the applicant to continue to work from Tamworth and to develop business opportunities there. She says:
“After the first Covid-19 lockdown, Robyn had now experienced working from home and suggested I start making connections in the Tamworth community. I had a discussion with Robyn whether she wanted me to remain in Tamworth or not. My partner’s sister lived in Brisbane and she had offered to assist with our family if I moved to Brisbane to work from the Brisbane office. Robyn said that wasn’t necessary she was happy for me to remain in Tamworth and for AILC to have a NSW presence. Robyn was already liaising with community colleges in Tamworth for work in the Tamworth region which I was expected to facilitate while living in Tamworth. I was also in talks with a company, Invest Blue a program in Bourke for potential work for AILC. I think Paulette was a bit upset as I was doing this type of work and I feel she wanted to be doing it. Robyn had also wanted me to reach out to the NSW Land Council for governance work and for a potential office space in Tamworth, my aunty is part of the Council so I was happy to do that. Robyn and I met with the NSW Land Council in early 2020 and I was in regular contact with them.”
She then deals with some further aspects of her employment with the applicant, including as follows:
(a)    Thacker’s reluctance to organise training for her and other staff in relation to the Accelerate online portal;
(b)    the initial lack of communication advising that Thacker had taken on a management role from February 2020;
(c)    lack of communication to staff about management meeting decisions;
(d)    Thacker announcing that she had been diagnosed with cancer during a Zoom meeting in May 2020 (set up in support of ‘Australia’s Biggest Morning Tea’) – leading to participants in the meeting becoming upset and uncomfortable;
(e)    Thacker (in relation to a different meeting) advising over Zoom in front of a number of staff members that “if Emma had of organised this meeting this wouldn’t have happened”;
(f)    Thacker demanding that she organise a training course on a certain date when the relevant trainer was not available;
(g)    Thacker requiring her to advertise for a new role at the applicant’s Brisbane office and conduct interviews for the role, when there was no funding for the role;
(h)    Thacker sending a “barrage of emails” to her on the morning of 30 June 2020;
(i)    Thacker demanding that she reprimand a staff member named Mel for connecting to a meeting from her car - in circumstances where she was aware that Mel was going through a lot in her personal life, and as a result, a discussion rather than a reprimand was appropriate;
(j)    her lengthy discussion with Forester on 30 June 2020 regarding Thacker’s lack of communication, micro-management, abruptness, and lack of cultural awareness – she was told by Forester that she would return to management meetings, but this did not occur, and
(k)    her belittling in front of other staff by Thacker on 15 July 2020.
She finally updates her current treatment and employment situation - she attends her general practitioner monthly, she remains with no capacity for work, and her current medication includes Effexor and Zopiclone.
The second respondent also relies upon a claim form which she signed on
8 September 2020 (at page 34 of the Application). In the form, she explains how her psychological condition occurred as follows:
“Normal course of working day, including attempt to attend managers meeting, attempt to be included in relation to KPI’s in relation to staff that I manage…I was excluded on purpose by management from specific roles required of my position. Paulette Thacker, RTO manager was the main perpetrator. I reported the bullying to the CEO, Robyn Forester but did not obtain any support or assistance. I found Paulette Thacker to be culturally unaware and therefore difficult to deal with.”
There are two statements from Thacker in evidence. The first statement was signed on
11 August 2020 and is found at page 151 of the Application.

She advises that the second respondent “works remotely from Tamworth”.
She became the applicant’s compliance manager in February 2020, and she says that initially the second respondent “was really accepting”, and engaging with her. The second respondent was “brilliant” in working with her on her initial main task to get the applicant’s “main qualifications back on their scope of registration”.
She then however began to ask the second respondent “a lot of questions” about why the applicant’s youth programs had not progressed. She concedes that the second respondent “somewhat struggled” with progressing the programs, and she says:
“I suppose there was a little bit of friction off and on but she was starting to move with it, starting to move with the team with it. I was having to push and guide her and say what else do you have questions about. I had to keep leading that side of it. She was coming around and it wasn’t a problem.”
She then deals with the second respondent’s request for compassionate leave (see paragraph 22 above) and advises that the second respondent was in fact granted compassionate leave for 8 July 2020 and 9 July 2020, and was allowed to take two further days off work, which would need to be taken as either sick leave or annual leave, as the second respondent’s employment contract only allowed two days of compassionate leave.
She then refers to some training that she had to cancel with the second respondent (date not provided). She says that she cancelled the training as the second respondent had been absent for a few days beforehand, and she was therefore not sure whether the second respondent would be working on the particular day set up for the training.
In relation to the assessing task complained about by the second respondent (see paragraph 19(h) above), she says that she had sent out an email to “everybody” about the relevant tests, and:
“I said to them to send them to Timmy, myself or Emma. We are the three that have our TAE's. Emma sent back saying how was she expected to know how to do this, you haven't trained me on it. Then you have sent this email out to everybody. I thought she has her TAE. I am a TAE trainer so I know exactly what is in those courses. So I started to wonder what she has been doing all this time. I said to her that I was starting to really have concerns about what she was doing because she didn't have these Youth programs sorted out, she didn't sort the dates out even for the accredited courses and the Program Leaders even since she has been off have been opening up to me saying they haven't had the training and they don't know what to do, what are the next steps. I was saying that they should have had all of this.”
She then mentions the second respondent’s reluctance to prepare her weekly reports.
She also denies that there was any friction (see paragraph 29(d) above) following the Zoom meeting in May 2020 (set up in support of ‘Australia’s Biggest Morning Tea’) as she only received positive messages after the meeting, thanking her for organising it.
Finally, in relation to the reprimanding of Mel (see paragraph 29(i) above), she says that she offered “pretty early on” to sit in on any meetings with Mel and the second respondent, if the second respondent “felt concerns about it”.
In her statement, Thacker does not really address the other concerns raised in the second respondent’s statement evidence about the interpersonal conflict between her and the second respondent.
There are a number of email and other messages attached to Thacker’s statement, many of which have been highlighted or annotated. There are also extracts from the second respondent’s employment contract, as well as extracts from a Fair Work Ombudsman publication regarding compassionate leave, attached to the statement. I have considered these attachments and will refer to them further if directed to them during the parties’ submissions. It seems to me that the attachments are relied upon largely to attempt to demonstrate the regular need for Thacker to chase the second respondent regarding tasks to be completed by her. The attachments also support the applicant’s compassionate leave stance, as described by Thacker (see paragraph 36 above).
Thacker’s second statement was signed on 24 January 2023 and is found at page 15 of the respondent’s AALD.
In relation to the second respondent, she says:
“We were not working in the same office; I was working in Brisbane and also the Gold Coast until March when COVID hit and I was working from home at the Gold Coast. Emma was working in NSW or ACT and again with the onset of COVID she worked from her home in Tamworth.”
In the statement, Thacker also:
(a)    denies any awareness of the second respondent’s “problems” until just prior to the second respondent going off work;
(b)    concedes that she had a conversation with the second respondent in which she commended the second respondent about the ideas which the second respondent was submitting but then asked as to what was being done to implement the ideas – “she didn’t seem to be terribly happy about that but it was part of the process”;
(c)    advises that she had informed the second respondent that “if you have a problem get on the phone and talk to me” - but the second respondent did not do so and she therefore “couldn’t do anything when I didn’t know that there was something wrong”;
(d)    remembers speaking to Forester about the second respondent not liking “the way she was being spoken to and the things she was being asked to do” - she asked Forester if there was “any other way that I should be doing my role and Robyn said no”;
(e)    advises that she never asked the second respondent “to do more than do her job” - she denies bullying the second respondent, giving as an example: “when I asked for the action plan her response was ‘what do you think we’re not doing anything’ I told her that was not what I thought but I had to report to Robyn in our executive meeting what we were doing”;
(f)    denies that she muted the second respondent during a Zoom meeting;
(g)    concedes that the second respondent did not take part in management meetings, as she had previously prior to February 2020;
(h)    denies apportioning blame to the second respondent when issues arose due to lack of training;
(i)    concedes in relation to the second respondent’s management of Mel that “I know Emma was not really happy about having to do some of that stuff, but we had to make sure Mel was okay”, and
(j)    denies speaking over the top of the second respondent or cutting her off during meetings.
There are three statements from Forester in evidence. The first statement was signed on
11 August 2020 and is found at page 143 of the Application. Forester is the applicant’s CEO.
Forester concedes:
“Myself sitting in as the CEO, have always said to all of the staff that if they had any issues or concerns to contact me, not to wait for things to fester because I am not out with them at the hands on stage, I don't always know what's going on, I only know what gets reported to me.”
She mentions that the second respondent raised with her the fact that she was not part of the management team after February 2020, and she advises that she does not know why that decision was made, and that she “wouldn’t entertain the fact that she didn’t deserve a position on the team as she was not on the right level to be in that team so I never had those kind of conversations with her I just kept my line that this is the management team and these are the decisions that we make”.
She says that “things were going okay” until the second respondent’s request for compassionate leave (see paragraph 22 above). The second respondent had two days off work on compassionate leave, and then asked her whether she could have a further day off work for her relative’s funeral. She told the second respondent that she did not have a problem with that, but that the second respondent needed to let Thacker know. She says that she was then not involved in any discussions between the second respondent and Thacker. She then says:
“Then a little while later she had conversation with me around Paulette and the bereavement leave. She said that she didn't like the way that Paulette spoke to her and my response was I will have a conversation with Paulette about that. I said that everyone was pretty stressed and trying to get a whole lot of things done and that we don’t have a lot of staff do we are relying on people to get in go above and beyond. So, I had a conversation with Paulette and I let Emma know. Then of course when Emma followed me up a few weeks later she wanted me to give her the ins and outs of the conversation. I said that I had a conversation with Paulette and that I had spoken with her about tone and discussions about being clear and that was it. I don’t think that Emma as happy with my response as she wanted me to tell her exactly what I had said and what Paulette had said and as far as I am concerned I don’t have to tell her exactly what has been said, she just needs to know that I had the conversation.”
The second respondent then emailed her about feeling “culturally unsafe” having not been denied compassionate leave before. She responded that compassionate leave had not been denied, only paid compassionate leave.
She also says:
(a)    the second respondent possessed a “Cert IV TAE” - which meant that she should have been able to perform the assessing tasks mentioned at paragraph 19(h) above;
(b)    since the second respondent had ceased work, it had become clear that she had not adequately trained her staff;
(c)    she did not know what additional training the second respondent believed that she should have received from Thacker but did not;
(d)    she did not believe that Thacker was micromanaging the second respondent - only that Thacker was making her accountable;
(e)    she considered that she had been very supportive of the second respondent;
(f)    she could see a lot of potential in the second respondent but:
“in the last few months something hasn’t been right, and I don’t know what else is behind all of this. She is young and if it was me at her age and I had been a part of a management team and all of a sudden, I am not, I would probably be a bit dirty on that but we have all been there”, and
(g)    she was the one (not Thacker) who requested weekly reports - and she told the second respondent as such, and explained why - she never received any such weekly report from the second respondent.
In relation to the second respondent’s working arrangements, Forester advises as follows:
“When she told me that she wanted to move home to Tamworth so that she could get support for her bub being close to her mum and dad I suggested that she could work from Tamworth and suggested that we give this a go. She was happy about doing that. It meant that she was going to be employed. I set her up with a laptop, phone, big screen, all the IT that she required”.
Forester’s second statement was signed on 27 January 2023 and is found at page 1 of the respondent’s AALD.
Forester advises that the second respondent told her in December 2019 that she would need to resign as she had no support for her child in Canberra. Forester then suggested “that we could trial her working from home in Tamworth”. However, the second respondent would “still be connected to our Canberra office”. Forester further advises that in early 2020, she had a conversation with the second respondent about considering a posting in the applicant’s Brisbane office, but that the posting did not occur due to the onset of COVID-19.
The remainder of the second statement largely covers matters referred to in Forester’s first statement. However:
(a)    she expands in relation to the second respondent’s complaint to her about Thacker as also involving Thacker having an insufficient understanding of cultural issues, Thacker making inappropriate demands upon the second respondent, and the manner in which Thacker spoke to and directed the second respondent;
(b)    she confirms that the second respondent “felt a bit put out” by not being involved further in management meetings;
(c)    she confirms that the second respondent’s complaints about Thacker were only brought to her attention “very late in the piece”, and therefore, she “couldn’t act on something about which I didn’t know” - the second respondent otherwise had opportunities to raise those complaints with her earlier as she called the second respondent on a regular basis;
(d)    she refers to medical evidence suggesting that the second respondent’s psychological injury was as a result of her losing her job - she then confirms that the second respondent did not lose her job;
(e)    she advises that she has no knowledge of the second respondent being blamed for issues arising due to lack of training, or of the second respondent being subject to culturally inappropriate and unreasonable management expectations, or of the second respondent being micromanaged, and
(f)    she accuses the second respondent of “playing the black card”.
Forester’s third statement was signed on 30 March 2023 and is found at page 1 of the applicant’s AALD.
The statement largely covers matters referred to in Forester’s first and second statements, although it relevantly advises that:
“Whilst she was in Tamworth, I did suggest that I could speak with the Tamworth Community College for a space for her to work so that she could be away from home and the distraction that working from home brings. However I was not successful in moving these options forward.”
In relation to her main issues with the second respondent’s compensation claim against the applicant, the statement advises:
“The main concern with the current process if whether or not iCare should have taken on this case and the connection of Ms Cutmores employment to the ACT…I would also like it placed on the record that the medical certificates have always indicated that the reason for her Anxiety and Depression has been because “Lost the Job”. However, there was no loss of job she went on leave and never returned. We continued to pay her until December 2001 with iCare then taking over payments until they provided her with a payout in 2022. I have mentioned this on several occasions requesting additional information to support loss of job to no avail.”
Forester has also provided a letter that she has written to the Commission dated
5 December 2022 (at page 1 of the Application).
In that letter she explains:
(a)    the applicant is a not-for-profit registered charity, and a registered training organisation, in operation since 2001;
(b)    the second respondent commenced her employment with the applicant in February 2018 – she took maternity leave between May 2019 and December 2019 - after a discussion, “we agreed to trial working from home in Tamworth”, and the second respondent commenced working for the applicant in Tamworth in January 2020;
(c)    at the time of the second respondent’s employment with the applicant, the applicant held workers compensation insurance policies covering its staff in the Australian Capital Territory, Queensland, and Northern Territory – over the years, it had employed staff living in New South Wales, but their positions were always connected with the Australian Capital Territory – she claims the second respondent’s “position was in the Canberra in the ACT Office”;
(d)    in June 2020, the second respondent approached her saying that “she didn’t like taking direction from Paulette Thacker” - she then spoke to Thacker and let the second respondent know that she had spoken to her;
(e)    she offered mediation to the second respondent;
(f)    she believed “the major trigger for this event” was the second respondent’s failure to be granted paid compassionate leave in July 2020;
(g)    the second respondent’s compensation claim against the applicant was investigated by CGU Insurance, which denied the claim - the second respondent did not appeal that decision, but instead made a compensation claim upon the first respondent – she then complains in relation to the first respondent’s lack of investigation and lack of communication in relation to the claim, and
(h)    the second respondent’s contract of employment expired on 31 October 2020 – her position with the applicant “no longer existed”.
The other relevant factual evidence relied upon by the parties includes:
(a) the second respondent’s employment contract with the applicant (at page 133 of the Application) - the contract is for a fixed period between 11 October 2018 and 30 October 2020, and the second respondent’s position is as a senior program leader – the governing law of the contract is the law of the Australian Capital Territory, and the place of employment is described as 245 Lady Denman Drive, Canberra, Australian Capital Territory “unless otherwise reasonably requested by the Employer” - the second respondent’s entitlement to compassionate leave is to be “in accordance with the Employer’s policy and/or the Fair Work Act, whichever is more generous” - the second respondent’s annual salary is to be $85,000 plus relevant superannuation;
(b) a notice from CGU Insurance to the second respondent dated 26 August 2020 (at page 199 of the Application) denying liability for the second respondent’s compensation claim against the applicant as, pursuant to s 36B of the Australian Capital Territory’s Workers Compensation Act 1951, her employment was not connected to the Australian Capital Territory because she usually worked in her employment from Tamworth, New South Wales;
(c) letters from the first respondent to the second respondent dated
18 September 2020 (at page 87 of the first Reply) and 10 December 2020 (at page 95 of the first Reply) - the letters advise the second respondent that the first respondent has accepted her claim against the applicant for her psychological injury deemed to have occurred on 21 July 2020, and then provide the second respondent with information as to her compensation entitlements and statutory obligations under the 1987 Act and the 1998 Act - the letters also advise that the first respondent has calculated the applicant’s pre-injury average weekly earnings (PIAWE) at $1397.63 in accordance with the 1987 Act, and
(d) the reimbursement notice (at page 9 of the Application) - addressed to the applicant, and containing a certificate pursuant to s 145(5) of the 1987 Act, as well as a list of the payments (totalling $133,298.17) made by the first respondent in relation to the second respondent’s compensation claim against the applicant for her psychological injury - according to the list of payments, the first respondent has paid various medical and treatment expenses of the second respondent’s pursuant to s 60 of the 1987 Act, a lump sum of $66,310 pursuant to s 66 of the 1987 Act, as well as weekly benefits compensation (on the basis of the second respondent having no current work capacity) from 7 December 2021 to 21 November 2022 .

Medical evidence

The second respondent has been assessed twice by Dr Allan (as arranged by her solicitors) as well as by Dr Whetton (as arranged by the first respondent).
Dr Allan’s first report dated 8 December 2021 is found at page 43 of the Application.
The doctor obtains a history of the second respondent’s interpersonal conflict with Thacker and Forester, that is entirely consistent with (and indeed seems to quote from) the second respondent’s 7 December 2021 statement. He summarises:
“She confirmed the details of Ms Thacker being a micromanager who would disregard Ms Cutmore, she would act in a culturally insensitive fashion, would alter processes without any consultation, was rude and disrespectful to Ms Cutmore, had silenced her microphone during Zoom meetings so that Ms Cutmore could not have a voice, had created an issue in regard to Ms Cutmore's "wrap-up emails" that she had begun sending in 2020 which had then become an issue due to Ms Thacker seemingly "hijacking" this and making it some formal direction of hers rather than the voluntary act that Ms Cutmore had instigated.”
He also notes that there were later issues regarding the second respondent’s entitlement to compassionate leave.

He is advised by the second respondent that “by around April/May 2020, she was having prominent issues with anxiety, distress, ruminative worry, feelings of being overwhelmed alongside initial and middle insomnia”. Then, at the date of his assessment, she still had insomnia, permanent fatigue, poor energy, anxiety and worry, ruminations about how she was treated while employed by the applicant, diminished concentration, forgetfulness, social withdrawal, poor appetite, tearfulness, as well as thoughts of helplessness and hopelessness. On mental state examination, she showed a level of distress, appeared anxious and low in mood, and her affect was flat.
He diagnoses the second respondent with a major depressive disorder, and opines that her employment with the applicant was the main contributing factor to the development of that condition. He did not find any personal factors to be relevant in the development of the condition. He explains:
“Various difficulties are described by Ms Cutmore that she experienced in the workplace which led to her feeling unimportant, excluded, worthless and irrelevant. She was targeted, Dismissed and overall treated in a fashion that was conducive to her
developing the mental health condition initially diagnosed as an adjustment disorder with depressed and anxious mood which has progressed into the current condition of a major depressive disorder. I note the lack of support she experienced, the change in processes had been done without consultation and the increasing challenges and difficulty of her work, all of which are contributing factors.”
The doctor advises that the second respondent needs ongoing care and that her prognosis is unclear. He assesses her psychiatric whole person impairment at 22%.
The doctor consults with the second respondent again on 11 November 2022, and his report dated 11 November 2022 is found at page 11 of the second Reply.
He obtains an updated history from the second respondent of her difficulties caring for herself and her daughter, and the assistance that she receives from family members and her ex-partner in this regard. She neglects her personal care and does minimal cooking, cleaning, and washing clothes. She has not worked since she last worked for the applicant. She takes daily medication, sees her general practitioner monthly, and generally sees her psychologist fortnightly. She is “grossly amotivated”, depressed, withdrawn, and isolated. She has poor concentration, lack of focus, and avoids leaving home on her own. She describes themes of worthlessness and hopelessness in her thinking.
The doctor continues to diagnose the second respondent with a chronic major depressive disorder, and he continues “to be of the opinion that her difficulties entirely relate to those described in my initial report”.
The doctor describes the second respondent’s prognosis as poor, and he opines that she has no capacity for work and “I think it is unlikely to anticipate that she will return to any work in the next one to two years at least”.
Dr Whetton initially consulted with the second respondent on 25 November 2020. He has prepared three reports.
His first report is dated 1 December 2020 and found at page 24 of the first Reply.
The doctor takes a history of the second respondent being excluded from managers’ meetings; the second respondent considering that Thacker did not have the ability to manage people; Thacker taking the kudos for the second respondent’s initiatives; communication problems between the second respondent and Thacker; as well as the second respondent complaining to Forester about Thacker but receiving a dismissive response. The doctor records:
“It was in this setting that she describes the development of an increasing level of upset, feeling overwhelmed, anxious and panicky and attending her general practitioner who mounted a mental health plan. She describes the further evolution of symptoms with significant depression and leading to a state of marked impairment in her ability to function.”
On mental examination, the second respondent became tearful and broke down. She presented in a depressed and emotional manner. She warranted a diagnosis of an adjustment disorder with depression and anxiety. She was totally unfit for any work, and ongoing psychological appointments and medication were recommended.
The doctor’s second report is dated 10 December 2020 and found at page 31 of the first Reply. In the report, the doctor addresses questions posed to him by the first respondent and answers:
“It is my opinion that employment was the main contributing factor to the development of the injury…The history given by Ms Cutmore was that her symptoms developed in the setting described with Ms Thacker and later the CEO…It is noted in the factual report the comments of Ms Robyn Forrester, “I do not believe Paulette Thacker is micro-managing Emma. I believe Paulette is making Emma accountable”…I cannot take a position as to whose version of events is to be preferred however, it was the perception of Ms Cutmore which was expressed reasonably at the time of my examination, that her injury was not wholly or predominantly related to the employer’s actions with respect to performance appraisal/discipline, but rather the described adverse interactions with Ms Thacker and the subsequent described lack of action on the part of the CEO Ms Forrester.”
The doctor’s third report is dated 22 July 2022 and found at page 33 of the first Reply. In the report, the doctor assesses the second respondent’s psychiatric whole person impairment at 24%.
There are in the evidence before me a substantial number of certificates of capacity issued by the second respondent’s treating general practitioner, Dr Hassan. The certificates cover the period between 6 July 2020 and 5 March 2023. They are to be found between pages 78-131 of the Application, between pages 1-23 of the first Reply, and between pages 18-23 of the second Reply. The certificates are consistent in certifying:
(a)    the second respondent’s diagnosis as “Anxiety/Depression”;
(b)    “It happened at work due to other team member interference” as being the answer as to how the injury related to work;
(c)    the need for the second respondent to continue to consult with a psychologist, and
(d)    the second respondent as having “no current capacity for work”.
The remaining medical evidence before me consists of clinical notes in relation to the second respondent from Calm Consultants (between pages 55-66 of the Application) and Tamworth General Practice (between pages 67-74 of the Application). I have considered these clinical notes and will refer to them in more detail if directed to them during the parties’ submissions. The following entries however from the Tamworth General Practice clinical notes warrant attention:
(a)    30 June 2020 – “work related stress…a manager based in Brisbane…humiliating staff…interfering to others job”;
(b)    6 July 2020 – “anxious today…did not go to work…has been suffering anxiety…worsened with current job issues…restless takes a while get to sleep”, and
(c)    22 July 2020 – “teary anxious…ongoing trouble at work…manager and CEO do not acting appropriately…mood anxiety getting worse…not safe work environment”.

Financial evidence

As noted at paragraph 62(c) above, the first respondent calculated the second respondent’s PIAWE at $1,397.63. It does not however provide any calculations in this regard in its
18 September 2020 or 10 December 2020 letters.
The evidence before me provides me with the following assistance regarding the second respondent’s PIAWE:
(a)    the second respondent’s employment contract with the applicant (see paragraph 62(a) above) - advising that her annual salary was $85,000 ($1,634.62 per week) plus relevant superannuation;
(b)    a payroll employee summary in relation to the second respondent (at page 86 of the first Reply) - advising that she was paid $82,945.27 between 30 May 2019 and 14 September 2020 ($1,237.99 per week) – however, according to Forester (see paragraph 61(b) above), she took maternity leave between May 2019 and December 2019, and
(c)    the second respondent’s fortnightly pay records (between pages 40-46 of the first Reply) with the applicant from when she returned from maternity leave (which would appear to be at the beginning of the pay cycle ending 1 January 2020) until the pay cycle ending 29 July 2020 - in this period of 32 weeks, she earned $42,592.55 ($1,331.02 per week).

Applicant’s issues outline

At the arbitration hearing, the applicant initially outlined the issues it wished to raise regarding the reimbursement notice. This outline was recorded and forms part of the Commission’s record. I will therefore not review the outline in detail here.
The applicant outlined its first issue as being its position that the second respondent’s employment with it was still connected to its Canberra office even though she was physically working from Tamworth from the beginning of 2020. The agreement that she could work from Tamworth was not in writing, but it was a verbal agreement between Forester and her for a three-month trial. Then, the COVID-19 pandemic arrived, and none of the applicant’s staff were able to work from its Canberra office. The point is made that at that point in time, the applicant did not have a physical office.
The applicant then outlined its second issue as being that it had often questioned and asked for clarification regarding the second respondent’s psychological injury. It claimed that the second respondent’s medical certificates stated that her anxiety and depression were due to the loss of her job and the resulting financial stress. However, her contract of employment was not due to expire until 30 October 2020, and she had therefore not lost her job when she last worked for the applicant on 20 July 2020.

First respondent’s submissions

The first respondent’s oral submissions at the arbitration hearing were recorded and form part of the Commission’s record. I will therefore not review the submissions in detail here.
In relation to the second respondent’s employment being connected with New South Wales, the first respondent submitted that New South Wales was the state in which the second respondent usually worked between the pay cycle ending 1 January 2020 and 20 July 2020 (so that s 9AA(3)(a) of the 1987 Act applied), but in any case, New South Wales was the state in which the second respondent was usually based for the purposes of her employment (so that s 9AA(3)(b) of the 1987 Act would otherwise apply). Further, s 9AA(6) of the 1987 Act would not apply as the second respondent worked for the applicant in Tamworth for a period of longer than six months.
The first respondent also submitted that there was “no evidence to the contrary” regarding the connection between the second respondent’s employment with the applicant and her psychological injury. Likewise, the medical evidence as to the applicant’s incapacity since
20 July 2020 was “all the one way”.
The first respondent specifically mentioned that as the applicant had never raised any reliance upon s 11A(1) of the 1987 Act in relation to the second respondent’s psychological injury, it would not be addressing that issue.

Second respondent’s submissions

The second respondent’s oral submissions at the arbitration hearing were recorded and form part of the Commission’s record. I will therefore not review the submissions in detail here.
In relation to s 9AA of the 1987 Act, the second respondent also raises sub-section (6) as supporting a finding that her employment with the applicant was connected with New South Wales.
In relation to the applicant’s assertion that the second respondent’s medical certificates stated that her anxiety and depression were due to the loss of her job, the second respondent submits that there is no reference to job loss in the certificates of capacity in evidence (see paragraph 79 above) - instead, the reference in those certificates is to “team member” issues as being responsible for the anxiety and depression.
Further, Dr Allan has taken a detailed description from the second respondent of her work stressors (which did not include job loss) and is clear in his opinion that her employment was the main contributing factor to the development of her psychological injury.
Finally, the second respondent also mentions that as the applicant has never raised any reliance by it upon s 11A(1) of the 1987 Act, it would not be addressing that issue.

Applicant’s written submissions

The applicant lodged its written submissions, as directed at the end of the arbitration hearing on 3 July 2023, by way of a document entitled a supplementary statement, signed by the applicant’s CEO, Robyn Forester, on 11 August 2023. The document forms part of the Commission’s record, and I will therefore not review it in detail here.
Unfortunately, the written submissions do not really add any substance to the applicant’s oral outline of its issues, which it presented at the arbitration hearing. The applicant continues to rely upon the two issues then outlined, again submitting:
“I maintain that the AILC at no point was avoiding coverage for Workers Compensation
Insurance in NSW. It was always our intention that Ms Cutmore's arrangement for working from home in Tamworth was a temporary arrangement to be reviewed however, with the onset of COVID in March 2020 and being advised by the ACT
Government that we had to vacate the office space we occupied until further notice, it
meant that all staff had to work from home.”
And:
“Despite her medical certificates stating that she was suffering ‘Anxiety and Depression
due to lost Job’ we disputed that she never lost her Job that she was continued to be
paid so there was no financial Impact to her.”
The applicant also mentions the second respondent’s failure to engage in mediation offered to her.
The applicant further mentions that its “recollection of events due to the passage of time may change as it is now more than three years since Ms Cutmore undertook any duties for the AILC”.
Finally, the applicant advises that (due to it being a small not-for-profit charity based community organisation) it is not in a position to pay any debt it may owe to the first respondent, although it is willing to “discuss options” in this regard.

First respondent’s written submissions in reply

The first respondent’s written submissions in reply are dated 22 August 2023 and form part of the Commission’s record. I will therefore not review those submissions in detail here.
The submissions solely deal with the first respondent’s position in relation to the effect of
s 9AA of the 1987 Act. It is clear that the second respondent worked remotely for the applicant from Tamworth from either 20 December 2019 or 7 January 2020, to 21 July 2020. This is a period of over six months, and consequently, even if the second respondent’s employment in Tamworth could be considered to be a ‘temporary arrangement’, that fact would not be relevant to a determination as to where the second respondent usually worked, in accordance with s 9AA(6) of the 1987 Act.
The first respondent also refers the Commission to the authorities of Martin v R J Hibbens Pty Limited [2010] NSWWCCPD 83 (Martin), Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1, and Avon Products Pty Limited v Falls [2010] ACTCA 21 (Falls CA).

FINDINGS AND REASONS

The circumstances of the second respondent’s injury

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) 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) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In Attorney General’s Department v K [2010] NSWWCCPD 76 (A G Department), Roche DP discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(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 Chemler 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 an ‘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.”
Applying these conclusions, I find that real events occurred between January 2020 and
21 July 2020 involving interpersonal conflict between the second respondent, Forester and Thacker, which resulted in the second respondent’s psyche being affected.
The second respondent outlines in some detail in her statement evidence the interpersonal conflict that she experienced with Thacker, and how she variously felt disregarded, unimportant, irritated, upset, worthless, targeted, unappreciated, and belittled, in this regard. On 30 June 2020, she reported Thacker’s ongoing conduct to Forester, who she believed took “no action”. There was then conflict regarding the compassionate leave that she wished to take when her cousin passed away on 8 July 2020. There was then the disappointing attitude that she received from Forester when she provided medical certificates to her on
6 July 2020 and 22 July 2020.
Neither Thacker nor Forester directly address most of the examples of interpersonal conflict provided by the second respondent. Their position seems to be that they were not aware of any issues that the second respondent was having until she reported those issues to Forester on 30 June 2020, and that the second respondent should have raised her issues with them earlier. Further, their position also seems to be that the conflict only arose because the second respondent was being asked to “do her job” and was being made accountable (see paragraphs 46(e) and 52(d) above).
Thacker does however concede:
(a)    she asked the second respondent a lot of questions about the applicant’s youth programs and there was friction during those discussions - see paragraph 35 above;
(b)    she cancelled a training session with the second respondent - see paragraph 37 above;
(c)    there were discussions between her and the second respondent in relation to the assessing tasks that she wanted the second respondent to complete, but which the second respondent denied having the training to complete – during those discussions, she expressed “concerns” in relation to the second respondent’s work performance - see paragraph 38 above;
(d)    there were issues regarding the second respondent’s management of Mel - see paragraph 41 above;
(e)    she had a discussion with the second respondent that the second respondent was not happy about, in relation to implementing certain ideas - see paragraph 46(b) above;
(f)    the second respondent accused her of implying that “we’re not doing anything” - see paragraph 46(e) above, and
(g)    the second respondent did not take part in management meetings - see paragraph 46(g) above.

While Thacker explains in her statement evidence why she performed these actions, the reasonableness or otherwise of her conduct in this regard is not a matter for me to consider in accordance with AG Department. Real events had clearly occurred, and the second respondent’s perception of those events led to her feeling anxiety, and subsequently seeking medical attention.
Thacker denies muting the second respondent during a Zoom meeting, apportioning blame to the second respondent when issues arose due to lack of training, and speaking over the top of the second respondent at meetings. However, I find the second respondent’s evidence in this regard to be more reliable as she is likely to have a better recollection of these events occurring in circumstances where she was developing anxiety symptoms due to these and other work events, and where Thacker did not believe there was any interpersonal conflict occurring until after 30 June 2020.
In Forester’s statement evidence, she concedes:
(a)    she had a discussion with the second respondent in which the second respondent asked why she was no longer part of management meetings – she advises that the second respondent “felt a bit put out” in this regard – see paragraphs 49 and 56(b) above;
(b)    she had a discussion with the second respondent in which the second respondent complained about the way that Thacker spoke to her – subsequently, she had another discussion with the second respondent in which she advised the second respondent that she had spoken to Thacker about her tone - she advises that the second respondent was not “happy with my response” - see paragraph 50 above, and
(c)    the second respondent complained to her about Thacker having an insufficient understanding of cultural issues - see paragraph 56(a) above.
Again, these conceded discussions demonstrate the occurrence of real employment events, and the second respondent’s negative perception regarding those events.
The issues raised in relation to the second respondent’s application for compassionate leave following the death of her cousin also demonstrate her perception of real events. She believed (see paragraph 22 above) that she was being completely denied compassionate leave, whereas Thacker and Forester maintained (see paragraphs 36 and 50 above) that she was still granted two days of paid compassionate leave and another two days of leave which would not be paid compassionate leave, and that this was in accordance with the second respondent’s employment contract. While the evidence is not clear as to exactly what leave was granted to the second respondent in this regard, what is clear is that the discussions regarding the compassionate leave were real events, which were perceived in such a way by the second respondent that it led to her becoming so anxious and emotional that she vomited. Forester also notes (see paragraph 51 above) the second respondent’s perception that she was being denied compassionate leave, and as a result felt culturally unsafe.
In all the circumstances, I am comfortably satisfied that real events occurred during the course of the second respondent’s employment with the applicant between January 2020 and 21 July 2020, which involved interpersonal conflict between her and Thacker and Forester. As a result of those events, she gradually developed a psychological condition in relation to which she first sought medical attention on 30 June 2020.
I now need to consider whether, pursuant to s 4(b)(i) of the 1987 Act, employment was the main contributing factor to the applicant’s psychological condition.
The definition of ‘main contributing factor’ (in relation to the aggravation of a disease) is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
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.”
There is in fact no evidence before me as to non-work related factors being in any way relevant in the contraction of the second respondent’s psychological condition. Dr Allan also specifically notes this (see paragraph 67 above). Both he and Dr Whetton (who have provided the only expert evidence from psychiatrists that is before me) are clear in their opinions that the second respondent’s employment with the applicant is the main contributing factor in the development of her psychological condition, which Dr Allan diagnoses as a major depressive order, and which Dr Whetton diagnoses as an adjustment disorder with depression and anxiety.
Her complaints about her interpersonal conflict during the course of her employment with the applicant to both doctors are consistent with her statement evidence, as well as the contemporaneous records in her clinical notes from Tamworth General Practice (see paragraph 80 above) and her certificates of capacity between 6 July 2020 and 5 March 2023 (see paragraph 79 above). The clinical notes specifically refer to interpersonal conflict with her manager and CEO during consultations on 30 June 2020 and 22 July 2020, and the certificates of capacity consistently refer to “other team member interference” (which in the circumstances I am willing to accept refers to the second respondent’s interpersonal conflict with Thacker).
The applicant alleges in its submissions as well as through Forester’s statement evidence, that the second respondent’s medical certificates referred to her psychological condition being due to her losing her job. I do not accept this submission as there are no medical certificates in evidence before me stating as such, and as the applicant has conceded (see paragraph 98 above) that it may have recollection issues. In any case, the substantial number of certificates of capacity that are in evidence before me (see paragraph 79 above) are all consistent in their description as to how the second respondent’s injury occurred as being due to “other team member interference”.
I therefore find that the second respondent’s employment with the applicant between
January 2020 and 21 July 2020 was the main contributing factor in the development of her psychological injury. The injury will be deemed to have occurred on 21 July 2020 in accordance with s 15 of the 1987 Act, that being the last date when the second respondent physically worked for the applicant before submitting her first certificate of capacity (stating that she had no current work capacity) on 22 July 2020.
In this regard, s 15(1) of the 1987 Act reads as follows:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
The second respondent is therefore entitled to compensation payments under the 1987 Act, and has received those payments from the first respondent. The applicant rightly makes no submissions regarding the payments being excessive or unjustified having regard to the medical evidence. I consider that, having regard to that medical evidence which is before me, the payments made were entirely appropriate as:
(a)    according to the list of payments (see paragraph 62(d) above), weekly benefits compensation were paid on the basis of the second respondent having no current work capacity between 7 December 2021 and 21 November 2022 – in this regard, there are certificates of capacity from Dr Hassan stating as such during the entire period (see paragraph 79 above), Dr Whetton considered the second respondent to be totally unfit for any work in his 1 December 2020 report (see paragraph 76 above), and Dr Allan opined that she had no capacity for work in his 11 November 2022 report (see paragraph 72 above);
(b)    according to the list of payments, the weekly benefits compensation were paid at an initial rate of $2,288 per week in accordance with s 37 of the 1987 Act - as the second respondent had no current work capacity, she was entitled to 80% of her PIAWE, and although the first respondent calculated her PIAWE to be $1,397.63 as at 21 July 2020, it is consistent that that rate would have risen with appropriate indexation by 7 December 2021, when the first weekly benefit payment referred to in the list of payments was made - I do not have enough financial information in the evidence before me to calculate the second respondent’s PIAWE with precision, but considering the three weekly amounts that I did calculate (see paragraph 82 above), I am content with the first respondent’s calculation of $1,397.63;
(c)    according to the list of payments (and my calculations), the first respondent paid a total of $8,742.46 to or on behalf of the second respondent for her medical treatment in accordance with s 60 of the 1987 Act - these expenses all seem to be legitimately related to the second respondent’s treatment for her psychological injuries, in the forms of visits to her general practitioner, psychologist’s appointments, rehabilitation appointments, and medication - these are all forms of reasonably necessary treatment referred to in the applicant’s statement evidence and the medical evidence before me – the amount paid by the first respondent in this regard seems to be anything but excessive, and
(d)    according to the list of payments, the first respondent made a payment to the second respondent pursuant to s 66 of the 1987 Act in the amount of $66,310 – considering the second respondent’s deemed date of injury of 21 July 2020, this payment represented an agreement that she had 23% whole person impairment as a result of her psychological injury – this is an entirely reasonable agreement between the first respondent and the second respondent having regard to the assessments of Dr Allan (22% whole person impairment – see paragraph 68 above) and Dr Whetton (24% whole person impairment – see paragraph 78 above).

The connection of the second respondent’s employment with New South Wales

For compensation to be payable to the second respondent in accordance with the 1987 Act, her employment must be connected with New South Wales in accordance with s 9AA of the 1987 Act, which provides:
“(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) A worker's employment is connected with--
(a) the State in which the worker usually works in that employment, or
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.
(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if--
(a) the worker is in this State when the injury happens, and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment.
(8) In this section--
‘ship’ means any kind of vessel used in navigation by water, however propelled or moved, and includes--
(a) a barge, lighter, or other floating vessel, and
(b) an air-cushion vehicle, or other similar craft,
used wholly or primarily in navigation by water.
‘State’ includes Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 1.”
The operation of s 9AA of the 1987 Act is discussed by Keating P in Klemke v Grenfell Commodities Pty Limited [2011] NSWWCCPD 27 (Klemke). In that case, the President approved of the principles formulated by Roche DP in Martin, with one qualification as a result of the decision of the Australian Capital Territory Court of Appeal (when dealing with a very similar section to s 9AA of the 1987 Act – being s 36B of the Australian Capital Territory’s Workers Compensation Act 1951) decision in Falls CA. The President said (at [56-61]:
“56. In Martin, Deputy President Roche considered several authorities dealing with the application of equivalent statutory provisions to s 9AA in various other States and Territories. At [60], he extracted a number of principles relevant to the application of s 9AA of the 1987 Act:
‘(a) regard should always be had to the terms of the contract of employment;
(b) ‘usually works’ means the place where the worker habitually or customarily works, or where he or she works in a regular manner (Hanns at [26]). It does not mean the place where the worker works for the majority of time (Knight at [76]) and is not simply a mathematical exercise (Falls at [43]), though the time worked in a particular location will naturally be relevant. It will also be relevant to look at where the worker is contracted to work (Falls). Regard must be had to the worker’s work history with the employer and the parties’ intentions, but ‘temporary arrangements’ for not longer than six months within a longer or indefinite period of employment are to be ignored. Whether an arrangement is a ‘temporary arrangement’ will depend on the parties’ intentions, which will be ascertained by looking at the worker’s work history and the terms of the contract. A short-term contract of less than six months that is not part of a longer or indefinite period of employment will not usually be a ‘temporary arrangement’ (Knight);
(c) ‘usually based’ can include a camp site or accommodation provided by an employer (Knight at [83]). Where a worker is usually based may coincide with the place where the worker usually works, but that need not necessarily be so. In considering where a worker is ‘usually based’, regard may be had to the following factors, though no one factor will be decisive: the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, the location from where the worker’s wages are paid, and
(d) an employer’s ‘principal place of business’ is the most important or main place where it conducts the main part or majority of its business (Knight at [66]). It will not necessarily be the same as its principal place of business registered with ASIC.’
57. With one qualification, I agree and adopt the Deputy President’s formulation of the principles. The qualification concerns the relevance of where the worker was contracted to work.
58. In Avon Products Pty Ltd v Falls [2009] ACTSC 141 (Falls), Higgins CJ determined an appeal from the decision of a special magistrate on the application of s 36B(3)(b) of the Workers Compensation Act 1951 (ACT). In that case, Ms Falls was the district sales manager for Avon and had responsibility for a large number of agents working in a specified district in the Canberra region. Although most of Ms Falls’s working time was spent in the Australian Capital Territory supervising her agents, a significant proportion of her time was spent record-keeping and on other administrative work, which she did mainly from her home in New South Wales. In construing s 36B(3)(b), which is in substantially the same terms as s 9AA of the 1987 Act, his Honour held that Ms Falls usually worked only in the Australian Capital Territory. He found that her primary and essential duties were performed in the Australian Capital Territory and that her bookwork was performed at a place solely determined by her. He determined that the Australian Capital Territory was the appropriate Territory of connection.
59. On appeal, the Supreme Court of the ACT Court of Appeal in Avon Products Pty Ltd v Falls [2010] ACTCA 21 (Falls CA), allowing the appeal, held at [29]:
‘There is no gloss placed on s 36B(3)(a) which compels a court only to consider where a worker is ‘required’ to work.’
60. The Court went on to conclude at [30]:
‘We have no doubt that Ms Falls was required to do the work that she happened to do in NSW, but that she was not required to do it in NSW. We also have no doubt that a requirement or the absence of a requirement as to where work is performed is not relevant; the test is where the work is done, rather than where it is required to be done or whether it is required to be done anywhere in particular.’
61. Thus, the extracted principle from the Supreme Court proceedings in Falls that it would be relevant to look at where the worker is contracted to do the work is no longer a relevant consideration. The test is where the work is done (Falls CA).”
It has often been said that s 9AA of the 1987 Act provides a number of cascading steps to be taken in order to determine the state to which a worker’s employment is connected. The first step is to determine where the worker ‘usually works’, pursuant to s 9AA(3)(a) of the 1987 Act. If this can be determined, there is no need to consider the other steps.
For the reasons that follow, I find that New South Wales was the state in which the second respondent ‘usually worked’ in her employment with the applicant as at 21 July 2020, and from at least early January 2020 (if not late December 2019). I therefore do not intend to or need to consider the other steps in s 9AA of the 1987 Act.
There is no issue on the evidence that during that period, the second respondent performed her employment duties for the applicant remotely, from her home in Tamworth, New South Wales. This is her evidence (see paragraphs 18 and 27 above), as well as the evidence of Thacker (see paragraphs 33 and 45 above) and Forester (see paragraphs 53 and 55 above).

During that period, her work was ‘done’ in New South Wales (in accordance with Falls CA), and New South Wales was the place where she ‘habitually or customarily’ worked (in accordance with Martin). It was in fact the only place where she worked. Applying these authorities, New South Wales was the state where she ‘usually worked’.
Although her written contract of employment (see paragraph 62(a) above) referred to her place of employment as Canberra, that is not a relevant consideration in accordance with the reasoning of Keating P in Klemke.
Section 9AA(6) of the 1987 Act requires me to consider the second respondent’s work history as well as the intentions of herself and the applicant, in determining whether she ‘usually worked’ in New South Wales. The applicant argues that it was not its intention for the second respondent to work indefinitely in Tamworth, but that the COVID-19 pandemic intervened and made it impossible for her to return to any of its physical offices. The work in Tamworth is described as a three-month trial and a temporary arrangement requiring review.
There is no evidence however as to what would have occurred in relation to the second respondent’s employment in any such review, only that the review did not take place because of the onset of the COVID-19 pandemic. There is plenty of alternate evidence however that the second respondent’s Tamworth working arrangement was more permanent than the applicant submits:
(a)    the second respondent advises that from her discussions with Forester, it was planned that she would be in Tamworth indefinitely - see paragraph 27 above;
(b)    the second respondent advises that she was encouraged to develop business opportunities in Tamworth - see paragraph 28 above;
(c)    the second respondent advises that the applicant was also liaising in relation to Tamworth business opportunities - see paragraph 28 above;
(d)    Forester confirms that the second respondent was set up in Tamworth with “all the IT that she required” - see paragraph 53 above;
(e)    Forester confirms that she was looking for a place where the applicant could work from Tamworth without home distractions - see paragraph 58 above, and
(f)    both the second respondent and Forester confirm that there were discussions about the second respondent relocating to the applicant’s Brisbane office, but these discussions did not go very far.
Having regard to this evidence, I am satisfied that the intentions of both the second respondent and the applicant were that the second respondent would work indefinitely for the applicant in Tamworth.
Section 9AA(6) of the 1987 Act also requires me not to have regard to temporary arrangements of under six months in determining where a worker ‘usually works’. In this regard, even if the second respondent’s relocation to work for the applicant in Tamworth was a temporary arrangement, I am unable to take that situation into account in determining where she ‘usually worked’. Whether she commenced working in Tamworth for the applicant in early January 2020 or in late December 2019 (it would appear to be December 2019 - see paragraph 82(c) above), she had been working there for over six months as at the deemed date of her injury on 21 July 2020.

SUMMARY

I therefore find that the second respondent sustained a disease injury in the course of her employment with the applicant, in accordance with s 4 of the 1987 Act.
I find that the disease injury will be deemed to have occurred on 21 July 2020, in accordance with s 15 of the 1987 Act.
I find that the second respondent’s employment as at 21 July 2020 was connected with New South Wales, in accordance with s 9AA of the 1987 Act, as she usually worked in Tamworth, New South Wales, at the time.
I find that the first respondent has made a payment of $133,298.17 to or in respect of the second respondent in relation to the disease injury. It has issued a valid notice dated
16 November 2022 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it.
I find that the payment made by the first respondent in this regard is entirely reasonable and legitimate, and has been paid to or on behalf of the second respondent in accordance with her entitlements pursuant to the 1987 Act.
I find that pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $133,298.17.
The applicant’s request for an order from the Commission that it is not liable to reimburse the amount of $133,298.17 (referred to in the valid reimbursement notice dated
16 November 2022) to the first respondent, is refused.

[2023] NSWPIC 514

28 September 2023