BDT v Aware Super Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BDT v Aware Super Services Pty Ltd [2023] NSWPIC 199
Claimant:	BDT
insurer:	Aware Super Services Pty Ltd
Member:	Brett Batchelor
DATE OF DECISION:	3 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses as a result of psychological injury due to stress, overwork and lack of support over a two year period in the course of employment with the respondent employer up until the time she was made redundant; the respondent alleged that the applicant’s employment was not the main cause of the contraction of the psychological injury, or the aggravation, acceleration, exacerbation or deterioration of injury, and that if injury was found, the action of the respondent in respect of redundancy and the provision of employments was reasonable under section 11A; detailed examination of treating medical evidence over the period claimed by the applicant that she claimed she was overworked and unsupported, and lay evidence form the applicant and respondent; consideration of subsequent treating medical evidence and independent medical examination evidence; Held – the opinions of the applicant’s treating practitioners in the period after she ceased work for the respondent, and the opinion of the independent medical examiner, were based on incomplete, inadequate of incorrect evidence and should be given limited weight; Hancock v East Coast Timber Products Pty Ltd applied; finding that the applicant’s employment with the respondent over the period claimed by the applicant was not the main cause of the applicant contracting psychological injury, or of the aggravation, acceleration, exacerbation or deterioration of psychological injury; determination of section 11A defence not required; award for the respondent.
determinations made:	1. The applicant’s employment with the respondent was not the main contributing factor to the applicant contracting psychological injury suffered by her. 2. The applicant’s employment with the respondent was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the psychological injury suffered by her. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

BDT (the applicant) seeks weekly benefits and compensation for expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of psychological injury arising out of or in the course of her employment with Aware Super Services Pty Ltd (the respondent), deemed to have occurred on 3 June 2022.
BDT commenced employment with the respondent on 22 October 2018 as an executive assistant to the Group Executive, Legal and Company Secretariat. She worked in that position for the entire period of her employment with the respondent, during which time Ian Pendleton fulfilled the role of Group Executive, and was the applicant’s supervisor. The applicant was made redundant by the respondent on 15 July 2022.
BDT’s duties included looking after the affairs of Mr Pendleton as well as administering the meetings of the board of directors and its committees. She says that she looked after everything that had to do with the Company Secretariat and corporate governance. When not working from home, BDT’s usual place of work was at the respondent’s premises in George Street, Sydney.
BDT claims that when she commenced with the respondent she was in good health with no pre-existing injuries or medical conditions, and that during the period of her employment she had never been counselled for any work performance issues or breaches in company policy and procedures.
BDT claims that she started feeling work stress when the COVID-19 pandemic hit, and that work was getting busier and busier. She raised this with Mr Pendleton when they had their daily quick catch ups. She says that his response was that there was more work coming in and that things were going to get busier. A request for more assistance was met with a negative response.
BDT says that she admitted to Mr Pendleton that she was falling a bit behind in her work and working late hours to get her work done. She found the extra work overwhelming. In mid-April 2022 BDT spoke to Mr Pendleton about cutting down her work hours and was directed to the respondent’s Flexible Working Policy (FWP). She lodged an application through the Human Resources Team to work four days a week, which was not responded to within the 21 day period provided for in the FWP.
On 26 May 2022 the applicant met with Mr Pendleton and Angela Cracknell, then head of “People Advisory & Enablement” (described by BDT as “Human Resources”) at the respondent, via Microsoft Teams. A restructure of the legal team was discussed, together with a new role which would have the effect of making the applicant’s role redundant. No date for redundancy was given. The applicant says that she was in shock at this unexpected revelation.
Mr Pendleton and Ms Cracknell said to the applicant that if she wanted to take up her request for reduced days, she could start then. The applicant thought this meaningless at that point.
The applicant continued working following the meeting on 26 May 2022, from 27 May 2022 until her last day at work on 3 June 2022.
On 7 June 2022 the applicant attended on her general practitioner, Dr Cassandra Ng at Balmain Village Health, and was issued with a medical certificate until 21 June 2022. At a further consultation with Dr Ng on 21 June 2022, issues of unfair dismissal/redundancy, depression, miscarriages and fertility were discussed. The applicant continued to consult doctors at Balmain Village Health, mainly Dr Ng, until 6 September 2022.
On 3 August 2022 the applicant consulted Dr Eric Lim, general practitioner at Workers Doctors, in respect of psychological injuries sustained on 3 June 2022. Dr Lim diagnosed “Adjustment disorder”, with a history of “…psychological injury from workplace.” That the applicant sustained a “…psychological injury from workplace” was also the doctor’s conclusion in a report dated 3 August 2022, which included the comment “Work was the main contributing factor to the injury.” The applicant continued to consult Dr Lim.
Dr Lim referred the applicant to Carl Nielsen, psychologist, for psychological therapy. Mr Nielsen first saw BDT on 8 August 2022. He diagnosed “Adjustment Disorder with Depressed and Anxious Mood”.
On 8 August 2022 the applicant signed a “Worker’s injury claim form”, in which she claimed that she suffered injury in the form of “Adjustment Disorder” on 3 June 2022 because she “…was overworked with limited resources and had to work 10 hour days to manage my workload over a 2 year period. I felt unsupported by my manager.”
On 29 August 2022 the respondent’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz) as agent for icare, issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in which it denied liability for the applicant’s claim. Allianz asserted that:
(a)    the applicant’s injury was not received in the course of employment as required by s 4 of the 1987 Act;
(b)    employment was not the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the applicant’s disease injury as required by s 4(b) of the 1987 Act, and that
(c)    the applicant failed to comply with ss 254 and 261 of the 1998 Act in failing to give notice of her claimed injury and make a claim within the time prescribed by those sections, defences that were later abandoned by Allianz on 11 November 2022.
On 11 November 2022, Allianz issued to the applicant a review notice in which it:
(a) confirmed the defences to the applicant’s claim referred to in [14(a) and (b)] above, and
(b) asserted that the applicant was not entitled to compensation because her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by her employer with respect to retrenchment and provision of employment benefits in accordance with s 11A of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Was the applicant’s employment with the respondent the main contributing factor to contracting a disease injury in accordance with s 4(b)(i) of the 1987 Act, or to the aggravation, acceleration, exacerbation or deterioration of such injury in accordance with s 4(b)(ii) of such Act?
(b)    Was the applicant’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by her employer with respect to retrenchment and provision of employment benefits in accordance with s 11A of the 1987 Act?
(c)    Has the applicant suffered total or partial incapacity for work resulting from an injury as required by s 33 of the 1987 Act?
(d)    Is the applicant entitled to compensation for medical or related treatment reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act?

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 matter was the subject of a conciliation conference/arbitration hearing on 22 March 2023. Ms Warren of counsel appeared for the applicant briefed by Ms Dawson. The applicant attended via Microsoft Teams. Mr Stiles of counsel appeared for the respondent briefed by Mr Lee,
The matter did not resolve at conciliation, and proceeded to an arbitration hearing which was not completed on 22 March 2023. Pursuant to Amended Direction and Reasons issued by the Personal Injury Commission (the Commission) on 27 March 2023 the parties were directed as follows:
(a)      the respondent was to lodge and serve written submissions to complete oral submissions made 22 March 2023, and to include submissions on whether the applicant suffered a disease injury meaning:
(i)a disease contracted by her in the course of her employment with the respondent and if that employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of her employment with the respondent of any disease, and if that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
(b)     the applicant was to lodge and serve written submissions in response, and
(c)      the applicant was granted leave to amend the Application to Resolve a Dispute (ARD) to rely on injury as defined in s 4(b)(ii) of the 1987 Act as well as that defined in s 4(b)(ii) of that Act, by including in the description of injury the words “Further, and in the alternative, aggravation/acceleration of a disease injury.”
The parties submissions have been received and are summarised hereunder.

EVIDENCE

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)    respondent’s written submissions dated 5 April 2023, and
(d)    applicant’s written submissions in reply dated 13 March 2023 [sic], received 24 April 2024.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

Applicant

The applicant relies on her evidence in the Worker’s injury claim form signed by her on 8 August 2022 (claim form)[1] which describes:
(a)      the overwork, with limited resources and 10 hour working days, to which she was subjected of a two year period in the course of her employment with the respondent, and the lack of support from her manager;
(b)     the date of injury, 3 June 2022, which was the last day that she worked for the respondent, and
(c)      the injury she claims she suffered, adjustment disorder.
The applicant notes the description of her employment, the stresses suffered by her in the course of that employment, events leading up to her redundancy, and the subsequent treatment for that injury received from Dr Ng, Dr Lim, and Carl Nielsen as set out in her statement dated 22 November 2022.[2]
The applicant relies in particular on the opinion of Carl Nielsen in his reports dated 8 August 2022[3] and 11 October 2022[4] that she sustained an adjustment disorder with depressed and anxious mood as a result of her work related injury where her employment was the main contributing factor to her sustaining that condition.
The applicant concedes, as is evident from the consultation notes of Dr Ng, that she had issues in respect of a miscarriage that she suffered in October 2020 and the postponement of her wedding, but submits that these setbacks did not cause her to take any time off work as a result of the psychological impact of the miscarriage. These earlier issues were reported to Dr Lim and Carl Nielsen, who she later consulted. The applicant notes that she suffered a later miscarriage in about February 2022, discussed with her doctor, but there is no reference in the clinical notes recorded at the time of psychological symptoms or of a psychological diagnosis that would prevent her from working.
The applicant submits that, notwithstanding these non-work issues, she was being affected by the workload in her employment, albeit that it was not at the front of her mind when she was seeing doctors in relation to miscarriages, and discussing attempts to fall pregnant.
The applicant submits that, in accordance with what she reported to Dr Ng, Dr Lim, Carl Nielsen and also to Dr Saboor who was an independent medical examiner to whom she was referred by her solicitor, it is evident that she was suffering from increased work pressures from about the time COVID started. These pressures led to the request to work part-time, or for flexible working hours, that was made in April 2022. Instead of a sympathetic response to the flexible working hours request, the respondent made her redundant, which disappointed and hurt her.
The applicant relies on the opinion of Dr Assad Saboor, psychiatrist, who examined her on 14 October 2022 and reported to her solicitor the same day.[5] The applicant submits that Dr Saboor recorded a history from her that was consistent with her statement evidence in relation to excessive workload, request for flexible working hours and the response thereto, and the subsequent advice that she was being made redundant. She indicated to Dr Saboor that the request for flexible working hours was due to a combination of work-related matters and also some personal matters. BDT also reported to Dr Saboor that her symptoms started before COVID, from which time they progressed, that she had inadequate support and that her workload became excessive. Dr Saboor was also made aware of the miscarriage the applicant suffered in February 2022, which was reported to her manager and from whom she did not receive support which caused a further exacerbation in her condition.
The applicant submits that Dr Saboor gives a diagnosis of adjustment disorder with depressed and anxious mood, which is consistent with that of the treating doctors and psychologist. Although Dr Saboor describes the applicant’s work as being the substantial contributing factor to the development of the applicant’s psychological injury, it does highlight that work was the main contributing factor to injury.
The applicant notes that Dr Saboor concludes that she is currently unfit to work in any gainful employment, and that the doctor finds that her condition was a combination of all factors, namely, excessive workload, feeling unsupported, delay in response to the request for flexible working hours and redundancy.
In respect of the respondent’s defence to her claim under s 11A of the 1987 Act, the applicant submits that the respondent’s action with respect to redundancy, and the response to her application for flexible working practices, was not reasonable. Further, there is no evidence from the respondent to support that such action was the predominant cause of her injury. It was all of her interactions with the employer which were the cause of her psychological injury.

Respondent

In opening submissions, the respondent relied upon what Deputy President Snell said at [70]-[71] in AV v AW[6] in respect of what s 4(b)(i) of the 1987 Act says about main contributing factor to injury. That is, the determination of such issue is not purely a medical question, but involves a broad evaluative consideration of potential competing causative factors that should be decided on the evidence overall. Snell DP referred to the earlier decision of Roche DP in State Transit Authority of New South Wales v El-Achi[7] in which he said that in determining the issue of injury, and whether employment is the main contributing factor to the injury, a decision maker must have regard to the whole of the evidence.
The respondent submits that when the whole of the evidence in this case is looked at, that main contributing factor to the applicant’s injury is not employment related, but is in fact matters which are well outside the course of that employment and are related to primarily her pregnancy and miscarriages, and then the consequences of these, and the impact on her life and that of her husband.
The respondent submits that an examination of the reports and records of Dr Saboor, Dr Lim and Mr Nielsen reveals that these practitioners were given a history of employment factors only, and not a history, or complete history, of the other factors. The respondent submits that it is logical for these persons to give an opinion that the main contributing factor to the applicant’s injury is her employment when they have only been given a history of employment factors.
In this regard the respondent relies on what was decided in Makita (Aust) Pty Ltd v Sprowles[8], Paric v John Holland Constructions Pty Ltd[9] and more recent Court of Appeal authority of Hancock v East Coast Timber Products Pty Ltd[10] when dealing with the role of the Workers Compensation Commission (WCC). The Commission is not a jurisdiction that is bound by the rules of evidence, so that when dealing with the opinions of experts, it is a question of what weight is given to their opinions in circumstances where they have not been given a full and accurate history or foundation to form their opinion.
The respondent then examines the relevant evidence in the proceedings, commencing with the claim form. The respondent notes that it is dated 8 August 2022, well after the applicant ceased working for the respondent. This claim form contains a description of the applicant being overworked with limited resources and working 10 hour days to manage her workload over a two year period, and being unsupported by her manager. The injury is described as adjustment disorder, and relevantly, according to the respondent, contains the entry of “No prior mental health problem.”
The respondent then examines the applicant’s statement dated 22 November 2022, in particular [28]-[34] describing her work and that she was falling behind, with some extra projects, and that the work became overwhelming. The respondent submits that there is very little specific information in the statement, no dates or specific details, and no documentary evidence such as emails raising issues about being overworked and needing assistance. Thereafter in the statement, the applicant deals with events of April 2022 when she spoke to Ian Pendleton and pursued an application to reduce her work hours.
The respondent notes that the applicant says that her general health history is good, and that she had not had any previous mental health problems or depression. The respondent submits that the clinical notes of Balmain Village Health[11] reveal otherwise. The respondent then refers to relevant entries in those notes covering the period from 1 September 2020 to 28 June 2022 during which time BDT had consultations in respect of:
(a)      becoming newly pregnant in September 2020;
(b)     suffering a miscarriage in that month;
(c)      feeling very down about that miscarriage, and being diagnosed with adjustment disorder with depressed mood;
(d)      being put on a Mental Health Care Plan;
(e)      seeing Jessica Gray, psychologist in November 2020 which she found very helpful;
(f)       wanting to start conceiving after a wedding in November (2021), and feeling tired and low, finding work draining, and suffering from fatigue because of suboptimal sleep;
(g)      being upset in February 2022 over an incomplete miscarriage in the context of a history of two pregnancies/abortions 15 years previously then the October 2020 failed pregnancy;
(h)     her complaint on 7 June 2022 of stress from recurrent miscarriages, and of being given a redundancy instead of being offered part-time work;
(i)       her complaint on 21 June 2022 of unfair dismissal/redundancy, and
(j)       complaints recorded on 28 June 2022 of a number of non-work family matters causing stress and tension.

The respondent notes the Mental Health Care Plan dated 22 October 2020[12] confirming recent miscarriages and that the applicant was feeling very down about the whole thing.
The respondent refers to the report from the treating psychologist, Jessica Gray, dated 29 October 2020[13] dealing with the applicant’s miscarriage in October 2020.
The respondent notes a gap in the medical evidence from late 2020 through to early 2022 for which there is no explanation, and that there is no evidence of complaints by the applicant of being overworked or lack of support.
The respondent then notes occurrences from February 2022, including the incomplete miscarriage, absence from work between 21 and 28 February 2022 on sick leave, and thereafter on annual leave from 1 to 18 March 2022 for a wedding/honeymoon.
The respondent then deals with the report and consultation with Dr Ting, obstetrician, dated 22 March 2022.[14]
The respondent submits that when the clinical notes of Balmain Village Health are looked at, almost every entry relevant to psychological symptoms and factors relates to pregnancy and related issues up until after the applicant ceased working for the respondent. There are no complaints of being overworked or of lack of support at work.
The respondent submits that the objective evidence in the form of the clinical notes confirms that employment was not the main contributing factor to the disease suffered by the applicant. These clinical notes reveal that the applicant was complaining of stress and depression resulting from numerous factors, including pregnancy/miscarriage and related matters, her husband’s restaurant business being impacted by COVID-19, her husband’s seven year old son, and her mother’s expectations for grandchildren.
The respondent then deals with the consultations with Dr Lim and treating psychologist, Carl Nielsen, from 3 August 2022, and their findings and opinions. Relevant parts of that evidence will be referred to hereunder.
The respondent submits that the medical evidence relied upon by the applicant from Carl Nielsen and Dr Lim ought to be given no weight as those persons rely on incomplete, inadequate and incorrect histories in providing their opinions.
The respondent makes submissions on the report of the independent medical examiner, Dr Saboor dated 14 October 2020, asserting that the opinion of the doctor should be given no weight because he was not provided with any of the clinical notes of the treating general practitioner or other relevant history of the applicant’s condition. The respondent submits that the history provided to Dr Saboor concentrates on matters of excessive workload and inadequate support, with no details of other personal matters referred to by the applicant and recorded by Dr Saboor. The history he recorded is not consistent with the clinical notes.
The respondent then examines the evidence on which it relies, including the statement of Ian Pendleton dated 9 December 2022[15], and discusses the evidence of the applicant in her statement in respect of the application in April 2022 for a four day working week due to “health/medical reasons”.
The respondent focusses on a letter from the applicant to the respondent dated 6 June 2022[16] in which BDT sets out a chronology of events from February 2022 onwards, and asserts that she is being discriminated against and is not genuinely being made redundant.
The respondent refers to the applicant’s request contained in the Flexible Work Arrangement Form, undated,[17] in which BDT focusses on a health condition. In addition, the applicant’s letter to the respondent dated 6 June 2022 regarding redundancy also confirms stress and trauma relating to the miscarriage and refers to factors such as weddings and her husband’s restaurant business issues.
The respondent notes that the applicant had been previously diagnosed with adjustment disorder in 2020 relating to her pregnancy and miscarriage, and that is the same diagnosis the doctors reached in 2022. The proximity of the further miscarriage in February 2022 to the diagnosis of an adjustment disorder in 2022 is, according to the respondent, consistent with the submission that employment was not the main contributing factor to the applicant’s psychological condition.
In respect of the applicant’s reliance on the definition of injury referred to in s 4(b)(ii) of the 1987 Act as an alternative to that referred to in s 4(b)(i), the respondent submits that the applicant’s own evidence does not support an aggravation/acceleration of a disease. The applicant says at [20] in her statement that she commenced with the respondent “in good health and had no pre-existing injuries or medical conditions.”
The respondent notes that the applicant also says in her statement that she did not have any previous mental health problems, and that stress in life was because of the work situation. This is also confirmed in the claim form.
The respondent notes that in his report Dr Saboor recorded a “Past Psychiatric History” that the applicant denied any past psychiatric history prior to the current episode. The respondent submits that the fact that the applicant had previously been diagnosed with an adjustment disorder and had been placed on a mental health care plan following the miscarriage in late 2020 was not disclosed to any of the applicant’s treating doctors or specialists, or to Dr Saboor. As a consequence, the respondent submits that none of the applicant’s medical evidence properly deals with the possibility of an aggravation, acceleration, exacerbation, or deterioration of any disease condition. Nor does the applicant’s evidence suggest that employment was the main contributing factor to any aggravation, acceleration, exacerbation, or deterioration of any disease condition.
The respondent notes that Dr Saboor does state in his report that the applicant had a miscarriage in February 2022 and the applicant’s allegation that her manager failed to support her which exacerbated her condition. The respondent notes that Mr Pendleton denies he failed to support the applicant. The respondent submits that it is difficult to see how Dr Saboor could accept that there was an exacerbation in circumstances where he was unaware of the applicant’s prior psychological history.
The respondent submits that the applicant has not presented any acceptable evidence of an aggravation, acceleration, exacerbation or deterioration of any disease condition, or that employment was the main contributing factor to such condition, and has therefore failed to discharge the onus of proof on her to show that suffered such an injury.
The respondent submits that if, contrary to its primary submission, the Commission accepts that the applicant has suffered a psychological injury to which employment was the main contributing factor, its defence under s 11A of the 1987 Act would apply.
The respondent notes that the clinical notes do make reference to work related matters from June 2022 onwards, and entries primarily relate to the decision to make the applicant redundant.
In her statement the applicant says that she was “in shock” as a result of the meeting on 26 May 2022 when she was informed that she was to be made redundant. The respondent notes that the applicant’s last day at work was on 3 June 2022 and that she visited her general practitioner on 7 June 2022, reported work issues and received a medical certificate, and went on stress leave.
The respondent relies on the evidence of Mr Pendleton in his statement dated 19 September 2022 and on the evidence of Angela Cracknell in her statement dated 6 December 2012[18] in support of its submission that Mr Pendleton planned the restructure of his team from February 2022, before the applicant requested a reduction in her hours. Details of the meeting on 26 May 2022 are referred to at [70] in Mr Pendleton’s statement, when the restructure and redundancy were confirmed. The respondent submits that Mr Pendleton and Angela Cracknell followed “the script” and allowed the applicant time to consider her position.
The respondent submits that if there was a work related contributing factor to the applicant’s injury, the whole or predominant cause was the action taken by the respondent in relation to retrenchment and/or redundancy.
The respondent refers to a “Response to questions from Allianz 8/12/10”,[19] which it submits is a response by one of the treating doctors to a request for information made by Allianz, although it is not clear whose it is. The document confirms the applicant was suffering from adjustment disorder with depressed mood which was said to be work related after being offered a redundancy when asked to work part time. It was recorded that the applicant had suffered miscarriages which had created stress, but only became depressed when given a redundancy as she believed this was unfair dismissal.
The respondent submits that the action it took relating to retrenchment and/or redundancy was reasonable. This is clear from the statement of Mr Pendleton, which includes the assertion that he did not require an executive assistant, and that resources could be better applied within the business by the creation of another role.
The respondent acknowledges it does not have an opinion from a psychiatrist stating that the whole or predominant cause of the applicant’s psychological injury was the action taken in relation to retrenchment/redundancy. However, the respondent submits such evidence is not required as, on any objective view of the evidence as a whole, such a conclusion is open.
The respondent relies on the following evidence in particular in support of its case that the whole or predominant cause of the applicant’s psychological injury was the action taken in relation to retrenchment and/or redundancy:
(a)      the clinical notes of Balmain Village Health which do not reveal any work complaints prior to the issue of the redundancy being raised by the respondent;
(b)     the statements of Mr Pendleton and Ms Cracknell which confirm no prior complaints about workload or support;
(c)      the applicant’s evidence that she was “in shock” after the possibility was raised;
(d)     the note at p 166 of the ARD which contains a statement that the applicant only became depressed when made redundant, and
(e)      the fact that the claim for compensation was not made until after that redundancy issue were raised and the applicant ceased working for the respondent.
The respondent therefore submits that its defence under s 11A of the 1987 Act has been established and thus operates to exclude any entitlement to compensation.
The respondent submits that there should be an award in its favour.

Applicant’s submissions in reply

The applicant submits that the Commission ought to be satisfied that her employment with the respondent was the main contributing factor to her psychological injury.
The applicant notes that the respondent makes much of the clinical records, and lack of complaints about being overworked or stresses due to her work. The applicant submits that a lack of reporting in clinical records does not disprove her evidence.
The applicant submits that her evidence as to being overworked, stressed, and feeling unsupported by her workplace, is evidence as to those issues, and ought to be accepted. The applicant notes that there have been no credit issues properly raised, and there is no reason to doubt her credibility. The respondent did not seek leave to cross examine the applicant.
The applicant submits that despite the lack of contemporaneous evidence relating to workplace factors, on the evidence as a whole she has discharged the onus on her to make out her case.
The applicant submits that care should be taken not to place too much weight on the clinical notes of the treating doctors, given their primary concern and focus is on the treatment or the impact of the significant injury, in this case, the psychological injury, and also earlier gynaecological problems.
The applicant submits that the absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence.
The applicant refers to the well-known authorities which discuss clinical notes and contemporaneous evidence,[20] and that the absence of contemporaneous evidence is not determinative of the issue of causation.[21]
The applicant submits that she sustained an adjustment disorder with depressed and anxious mood in the course of her employment, or in the alternative, an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition in the course of her employment.
The applicant submits that Dr Saboor reveals in his report dated 14 October 2022 that he was aware of her miscarriages, and that this formed part of the history of which he was aware. This provided a fair climate upon which the doctor based his opinion, and his opinion ought to be accepted.
The applicant refers to the consultation with Dr Clare Stewart of 22 October 2020[22] which lists the reason for the visit as “Adjustment disorder with depressed mood”, and “Mental health care plan.” The applicant submits that the diagnosis of adjustment disorder with depressed mood is not a diagnosis made by a psychologist/psychiatrist, but rather a comment made by Dr Stewart without any further explanation. It is not a diagnosis.
The applicant refers to the Mental Health Care Plan dated 22 October 2020, noting that it contains an entry that she was still working from home and trying to separate feelings from home and work. This referral to a psychologist by her general practitioner was, it is submitted, to assist with working through feelings around the miscarriage and to improve her mood.
The applicant submits that in respect of the report of Dr Jessica Gray dated 29 October 2020, the psychologist recorded that she had been emotional since her miscarriage, and that it was understandable that she reacted with considerable grief and upset. While Dr Gray recorded that a score on the Depression Anxiety Stress Scale (DASS) indicated symptoms of depression, anxiety and stress, the doctor did not formally diagnose the applicant to be suffering from a psychiatric disorder.
The applicant submits that a mere reference by a general practitioner to an adjustment disorder without a diagnosis by a psychologist/psychiatrist does not mean that she fulfils the requirements of that psychiatric disorder at time. The applicant submits that she may have been suffering from a “grief response” rather than a psychiatric disorder, and that the referral to Dr Gray by Dr Stewart was because of the possibility that she may have been suffering from an adjustment disorder.
The applicant submits that this would explain why she may have not made specific reference to the symptomology she experienced after her miscarriage in October 2020.
The applicant submits that the clinical records in respect of attendances at the general practitioner on 3 and 12 November 2020 do not contain an entry of a psychological or psychiatric diagnosis being made.
The applicant refers to the report of Dr Ting, obstetrician and gynaecologist, dated 22 March 2020, noting the comment that she was “disappointed with previous pregnancies”, which does not equate to psychological or psychiatric condition.
The applicant refers to the clinical notes[23] and the report dated 3 August 2020[24] of Dr Eric Lim, treating general practitioner, and report of Carl Nielsen, psychologist, dated 8 August 2022[25] who both consult from the same medical centre. The applicant submits that Dr Lim was aware of her prior miscarriage, and that the clinical notes would have been available to Carl Nielsen. He therefore would have been aware of the history recorded in those notes.
The applicant submits that comments recorded in the statement of Ian Pendleton dated 9 December 2022 demonstrate an attitude and lack of support by him to her.
The applicant submits that the application for flexible working hours did not refer to work stress, but that the form refers to a “health condition”, and does not mention alleviating stress. The applicant submits that, given that she wanted to continue in her employment, it is understandable that she may not want to mention work stress, feeling unsupported and being overworked as part of the application for flexible work arrangements.
The applicant refers to her letter dated 6 June 2022 in which she refers to feeling a lack of communication, and action and support around her request for flexible working practices, as well as feeling that she was treated unfairly and wrongly. This letter demonstrates the lack of support from the respondent, especially during early 2022.
The applicant submits that, a review of the evidence as a whole, supports her case that employment with the respondent was the main contributing factor to injury suffered in the course of her employment.
In respect of the respondent’s defence relying on s 11A of the 1987 Act, the onus of proof of which is on the respondent, it ought to fail as the respondent has produced no medical evidence to show that the alleged reasonable action by it was the whole or predominant cause of her psychological injury.[26]
The applicant alleges that when determining what is reasonable action that falls within s 11A, the Commission must look at the entire process to see if it was reasonable action, including the surrounding circumstances both before and after the action.[27] It is not a matter of whether the employer has complied with its own protocols, but the protocols themselves must be objectively reasonable.[28]
The applicant submits that, when reviewing the meeting of 26 May 2022, which the respondent submits was reasonable action that was the whole or predominant cause of her psychological injury, it should not be view in isolation. At that time the request for flexible work practices was still outstanding, and there were no details as to the contents or what would be discussed at the meeting in the invitation to attend the meeting. The applicant assumed, given the surrounding circumstances, that her application for flexible work practices would be discussed. She was not informed of a likely redundancy.
The applicant notes the respondent’s assertion that it followed “the script”. However, that does not mean that the process was reasonable.
The applicant submits that there is no evidence, apart from the assertion by Mr Pendleton, that she had performed poorly, nor any performance review documents in evidence. The applicant submits that she had been employed by the respondent since 2018, and that there were only assertions about poor performance once she was being made redundant.
The applicant also submits in respect of the allegation of poor performance:
(a) the respondent delayed in responding to her application for flexible work practices, and
(b) the issue taken by the respondent that she was saving personal documents on her work computer is not supported by any detail as to when such documents were created, edited or amended, nor is there any evidence that such activities were carried out during working hours. There was only a reference that such claimed activities were being investigated. In that circumstance an inference may be drawn that the investigation and/or information would not support the respondent’s position.
The applicant submits that the respondent ought not to be satisfied that a defence under s 11A of the 1987 Act has been made out.
The applicant submits that she has been incapacitated for work since 3 June 2022 to date and continuing. The applicant’s pre-injury average weekly earnings (PIAWE) are not disputed, and she is entitled to an award in her favour for weekly benefits and medical expenses pursuant to s 60 of the 1987 Act.

FINDINGS AND REASONS

Injury

Applicant’s medical evidence

The respondent’s principal submission is that the applicant has failed to discharge the onus on her to prove that her employment with the respondent was the main contributing factor to either contracting the psychological injury she suffered in 2022 (s 4(b)(i) of the 1987 Act), or alternatively, the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease (s 4(b)(ii) of such Act).

At [66]-[77] in AV v AW, Deputy President Snell examined the meaning of ‘main contributing factor’ inserted into the definition of ‘injury’ by the amendments to the 1987 Act by the Workers Compensation Legislation Amendment Act 2012. At [72], the Deputy President agreed with what Roche DP said in El-Achi when considering the test of what is the main contributing factor in the application of s 4(b)(ii). Roche DP said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence[2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
At [77]-[78] Snell DP said:
“77. 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.
78. 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.”
The applicant suffered a miscarriage in October 2020 and consulted her doctor at Balmain Village Health. The clinical notes of that practice are in evidence.[29] BDT consulted Dr Stewart on 24 September 2020 about a potential miscarriage, and again on and 28 September 2020 with her partner Michael, with the reason for visit listed as “Miscarriage”. Another blood test was suggested by the doctor to confirm the situation. The applicant was quite upset. On 22 October 2020 the applicant saw Dr Stewart again when it was noted that she was “Feeling very down about a recent miscarriage.” The doctor recorded:
“Some thoughts about hurting herself initially
-These have all settled and not feeling like this anymore
-Feels she would be able to talk to Michael if these thoughts came back
-Never acted on them at all
Still able to work
-thinks she is quite good at separating home and work life.”
Under the reason for visit Dr Stewart noted “Miscarriage”, “Adjustment disorder with depressed mood”, and “Mental health care plan”, and referred the applicant to see Dr Jessica Gray, psychologist.
The Mental Health Care Plan in evidence dated 22 October 2020 apparently prepared by Dr Stewart lists “Adjustment disorder with depressed mood” under “Problem/Diagnosis”, and refers to the recent miscarriage, with the applicant feeling very down about the whole thing, very teary, and trying to separate feelings from home and work.
Dr Gray reported to Dr Stewart on 29 October 2020, noting that BDT had been emotional since the miscarriage and reported having a difficult year given other health issues and ongoing tension in relations with her partner, difficulty with her partner’s 5-year-old son, and his ex-partner. Dr Gray reported on scores on the DASS indicated symptoms of depression in the extremely severe range, anxiety in the normal range and stress in the severe range.
The applicant submits that it should not be accepted that she suffered a psychological or psychiatric disorder in 2020 following the miscarriage she suffered then, as neither Dr Stewart nor Dr Gray made such a diagnosis. Whilst I accept the applicant’s submission that courts recommend caution when dealing with clinical records because the treating practitioner is focussed on treating the patient, I do not accept that a general practitioner is disqualified from making a diagnosis of a psychological condition and accept that, when the reports of Dr Stewart and Dr Gray are considered, the applicant was suffering from such a condition in 2020 following the miscarriage.
It appears that the applicant kept working in 2020 and 2021 through the Covid-19 pandemic. She spoke to Dr Stewart by phone on 12 November 2020[30] about a colposcopy, the clinical note of which includes:
“Otherwise BDT is OK
Feeling well at the moment
Has been seeing Jessica”
(who I infer was Dr Jessica Gray).
Thereafter the next clinical note is dated 25 June 2021 recording the applicant seeing Dr Cassandra Ng. There is reference to the applicant getting married in November, postponed from the previous year, and the desire to start trying to conceive after the wedding. The clinical note includes:
“Feeling tired and low
Work is draining
Feeling flat and not energetic
Sleep - 5 yrs of suboptimal sleep - 11pm-12am in bed, usually initiates sleep well, but up to 30-60 mins, occasional
nocturia, waking 7:30-8:30am - not feeling refreshed
Partner has tinnitus - he needs background noise
Nil recent illness / virus
Not sleeping in the day”
The reason for visit is given as “Pregnancy counselling Fatigue”, and that “Fatigue likely lifestyle”.
The following consultations with Dr Ng are dated 30 July 2020 and 25 January 2021. On 30 July 2021 matters including BUPA health cover, midwifery care, “Wants a nice hospital room”, marriage plan in November, and immunisation are recorded as being discussed. On 25 January 2021 matters including in respect of pregnancy, any increased risks to pregnancy/miscarriage by a “Booster for Pfizer”, and exercise in pregnancy are discussed.
The next consultation recorded is with Dr Priyanka Anand on 21 February 2022, with the applicant crying and upset over the phone, a reference to ultra sound scans (USS) findings being consistent with an incomplete miscarriage but no symptoms of miscarriage, and a history of pregnancies, including the third pregnancy in October 2020. Previous abortions 15 years earlier are also referred to. The reason for visit is listed as “Miscarriage, incomplete”.
On 25 February 2022 there is a request to Dr Anand for a medical certificate for a week, and on 1 March 2020 Dr Ng records a request for referral to recurrent miscarriage clinic. On 3 May 2022 Dr Ng records a list of symptoms and gives the reason for visit as recurring back pain.
There are visits by the applicant with Dr Ng recorded on 5 and 10 May 2022 when issues with back pain are discussed.
The next recorded consultation with Dr Ng is on 7 June 2022 where the following is recorded:
“Stress from recent miscarriages
Asked to work parttime
Got a redundancy instead
Hurt and disappointed about this
Thinks it is discrimination
Husband also a cause of stress as he is a director of hospitality company and has ADHD – stressful to be around
Trying to get pregnant
Not eating well
Only 1 meal a day
Not hungry
Trying to sleep well
Thinks she will leave her job”
The reason for the visit on 7 June 2022 is “Stress”, and actions are:
“Medical certificate given from 07/06/2022 until 21/06.2022.
Medical Certificate given from 06.06.2022 until 21/06/2022.”
The next recorded consultation with Dr Ng is on 21 June 2022 where the following issues are listed:
“Unfair dismissal /redundancy
Not accepting her claim it is unfair
Miscarriage – stress – told boss about this – asked for reduced hours – restructure – redundancy
Pay out is not fair – too low
Lost trust in the company
Superannuation company – not keeping their values
Cousin has been acting as her go between support person
Wants additional sick leave
I think she has reactive depression
May want to pursue workers compensation”
The reason for visit is listed as: “Adjustment disorder with depressed mood Focussed psychological strategies”.
On 28 June 2022 Dr Ng recorded the following relevant history:
“2 miscarriages
Actively trying since November 7 months
…
Husband under stress
BDT wants to straight to IVF
…
Work - responded to their first offer
Cousin (Nicole) is still mediating for her
Redundancy is very low
Counter offered
…
Threatened legal action
Employment ceases 30 June
Looking for work at the moment
May take an short break
Husband Michael has son Luca 7 yrs from previous relationship
causes her stress and tension having him around 50% of the time
…
Fall out with brother because she doesn't like his girlfriend, whole family doesn't like her because she is not respectful Mum wants her to have a baby - no grandchildren yet, Doesn't really understand miscarriage or depression
BDT is not getting much support from husband or mum”
The respondent submits that there is a gap in the medical evidence from late 2020 through to early 2022. As is evident from the above summary of the clinical notes of Balmain Village Health, this is not the case. Nevertheless, there is no recording in the notes of any complaint of being overworked by her employer, or of lack of support from it. BDT reported feeling well in November 2020 after seeing Dr Gray. On 25 June 2021 she reported feeling tired and low, that work was draining, and feeling flat ant lethargic. That is the only reference to work in the clinical notes of that period. There is no complaint of dissatisfaction with work in the consultations in early 2022, although BDT, having regard to her medical history, was understandably upset at having experienced another miscarriage.
The applicant was on wellbeing leave, leave without pay, sick leave and annual leave, and leave without pay for her wedding and honeymoon between 10 January 2022 and 18 March 2022.[31] These dates appear to correlate with the evidence of Ian Pendleton at [22]-[34] of his statement sates 9 December 2022.[32] The applicant does not mention the miscarriage she suffered in February 2022 in her statement dated 22 November 2022, nor the earlier miscarriage in October 2020.
The applicant first consulted Dr Eric Lim on 3 August 2022 who produced a report of that date. Dr Lim does record the miscarriage of February 2022 (“Miscarriage (02/2022)”), but says nothing more about it. He notes pre-existing issues as “Nil reported”. Dr Lim records the applicant’s complaints of being overworked with limited resources, working 10 hour days over a period of one to two years and of being unsupported by her manager. Dr Lim diagnoses the applicant as suffering from adjustment disorder, with work being the main contributing factor to the injury.
The applicant lodged a Worker’s injury claim form dated 8 August 2022 containing the same description of injury and diagnosis. When asked in the form if she had previously “…had another injury/condition or personal injury claim that relates to this injury/condition?” BDT replied “Prior workers compensation claim from a MVA journeying to work but I cannot recall the dates. No prior mental health.”[33]
The applicant saw Carl Nielsen, psychologist, apparently at the request of Dr Lim. The applicant points out that it appears from the presence of a report from Mr Nielsen dated 8 August 2022 in the clinical notes of Workers Doctors, which is the practice from which Dr Lim practises,[34] that Mr Nielsen is also part of that practice. That appears to be the case. Mr Nielsen records the complaints of the applicant as to excessive work load, 10 hour days, and of complaints to her manager which she says were not addressed. He also records the request for shortened working hours which was not responded to within the required 21 days.
Mr Nielsen does not record a history of the applicant’s miscarriage in February 2022. The applicant submits that he would have known of this because the February 2022 miscarriage was recorded in the clinical note of the consultation with Dr Lim on 3 August 2022, and also on the clinical note of a consultation the applicant had with Dr Ben Dickson dated 31 August 2022.[35] I do not accept this submission. In my view it is a matter that Mr Nielsen would have recorded in his report if he was aware of it, either from other clinical notes or from the applicant. The only basis on which I am asked to infer that Mr Nielsen knew of the February 2022 miscarriage is the fact that he operated from the same practice as Dr Lim and Dr Dickson. That is not an inference that I think that I can draw.
Mr Nielsen finds that the applicant sustained an adjustment disorder with depressed and anxious mood due to her work related injury where her employment was the main contributing factor to her sustaining the adjustment disorder condition. As the respondent submits, Mr Nielsen was only supplied with the applicant’s complaints about her working conditions over the previous two years, including the long working hours, volume of work, and perceived lack of support from her manager. This claimed lack of support from Mr Pendleton will be discussed hereunder, but I accept the respondent’s submission that it is not surprising that Mr Nielsen, and also Dr Lim and also Dr Saboor whose opinion will be discussed hereunder, would conclude that the applicant’s work was the main contributing factor to her psychological injury in the absence of the full historical picture of what led up to BDT ceasing work. This includes in the case of the opinion of Mr Nielsen, the lack of history of the 2022 miscarriage.
Mr Nielsen makes the same diagnosis of injury and causation thereof in his later report dated 11 October 2022.[36] It appears from the introduction to that report that he may have only seen the applicant on one occasion only, 8 August 2022.
Dr Saboor independently medically examined the applicant at the request of her solicitor on 14 October 2022 and produced a report of that date.[37] He reviewed the following documentation in preparation of his report:
(a)      letter of instruction by Kevin Sawers dated 5 October 2022;
(b) s 78 notice dated 29 August 2022;
(c)      statement of BDT dated 6 June 2022;
(d)      letter of termination dated 15 July 2022;
(e)      Certificate of Capacity/Certificate of Fitness;
(f)       consultation report referral from Dr Lim;
(g)      Worker’s injury claim form;
(h)     psychological report by Dr Nielsen;
(i)       Certificate of Capacity/Certificate of Fitness by Dr Carl Nielsen;
(j)       insurers correspondence, and
(k)      draft statement.
The letter of instruction by Kevin Sawyers dated 5 October 2022 and Statement of BDT dated 6 June 2022 are not in evidence. Neither is the draft statement, although it may be a draft of the applicant’s statement dated 22 November 2022. I do not draw that inference.
Dr Saboor records a history of the applicant’s complaints similar to that recorded by Dr Lim and Mr Nielsen. Dr Saboor notes that BDT had been stressed due to a combination of work related matters and also some personal matters. He notes that the applicant reported that her symptoms started before Covid and she spoke with her manager requesting flexible working hours that was requested. In respect of the February 2022 miscarriage, Dr Saboor records:
“She reported that she had a miscarriage in February 2022. She stated that it also affected her stress which she disclosed to her manager. She reported that her manager did not support her and this lead to further exacerbation of her condition due to lack of support from the manager.”
Dr Saboor records the applicant’s denial of any past psychiatric history of mental illness prior to the current episode. In summary, the doctor said:
“… BDT was a 38 year old. She stated she has psychological injury and stress whilst at work due to excessive workload and lack of support.
She reported that her symptoms had commenced during COVID lockdown and gradually worsened. After lockdown, she saw her GP at the end of last year.
She reported that she requested flexible working hours and instead the manager told her that she was going to be made redundant and there were some legal issues regarding her job. She reported that she had a miscarriage in February which also affected her condition. She reported this to her manager in which she was not supported.”

Evidence of Ian Pendleton

Ian Pendleton was the Group Executive Legal and Company Secretariat of the respondent, commencing in that position on 30 April 2012. In his statement dated 9 December 2022 refutes the applicant’s claim that her workload was excessive, noting that this has been shown to be false since the applicant’s termination when he and another lawyer have fulfilled BDT’s role as well as performing their own work.
Mr Pendleton says that the only conversation he has with the applicant about her workload was when she complained in the early stages of the Covid-19 lockdown, around mid-year 2020, when her partner’s restaurant business was suffering, and she was working during the day for the respondent and doing food deliveries at night. This was exhausting her. BDT complained to him that it was the cold weather and that she was out at all hours making deliveries for his restaurant.
Mr Pendleton makes some criticism in respect of the applicant’s absences from work in 2021, and her application to her work duties. He notes that a first legal wedding between herself and her partner, for photographic purposes only, took place in October or November 2021 for which a week’s annual leave was taken. A second wedding was planned for early March 2022 with a reception for family and friends. About three weeks before that, BDT informed Mr Pendleton that she was pregnant, and he congratulated her. BDT informed the entire team the following day.
About a week later Mr Pendleton says BDT apparently lost the pregnancy “…and went immediately into a rapid mental decline. Again, BDT dropped everything and she was in a medical crisis again.” The information received by Mr Pendleton was nonspecific. The situation dragged on for a week or two, and BDT was asked if she could check into work so that she could do a handover with someone, but she was never able to do that. There were text message exchanges and the suggestion of surgery by the applicant. Further messages from Mr Pendleton were not responded to.
When the applicant returned from her overseas honeymoon in the Maldives, Mr Pendleton asked her why she did not respond to the text messages, to which he received a reply that she was in hospital and not well enough to respond.
There was subsequent discussion about the applicant having to cut back her work hours, and the suggestion put forward by Mr Pendleton that she should look at the Flexible Work Policy. This was met with a subsequent response that she did not want to work anymore for health issues, but no detail of these was provided.
Mr Pendleton then goes on to discuss the applicant’s performance with reference to the 2021 Annual Performance Reviews. He then discusses matters leading up to the Microsoft Teams meeting between the applicant, Angela Cracknell and himself on 26 May 2022. That meeting is relevant to the defence relied upon by the respondent under s 11A of the 1987 Act.
The applicant submits that that the statement of Mr Pendleton demonstrates and supports the applicant’s evidence that he showed lack of support to her. His descriptions, including the word “apparently” at [25] of his statement (referring to the loss of pregnancy by BDT), and indicating that the applicant’s condition “dragged on” in [36] of the statement demonstrate an attitude that he had toward her. Further, according to the applicant, his statement in [35] that he did not believe the applicant when she had told him, as related in the previous paragraph, that she was in hospital and not well enough to respond to his text messages show a lack of support for her. The applicant submits that what Mr Pendleton says in [37] of his statement, that he “…did not recall BDT ever not thinking of herself first” demonstrates Mr Pendleton’s attitude, and lack of support towards herself.

I do not accept this submission. Mr Pendleton was tasked with carrying out the duties and functions of the Group Executive Legal and Company Secretariat of the respondent, and also with running the rest of the executive assistant team. For whatever reason, he was faced with absences by the applicant in 2021 and early 2022 from her role as his executive assistant. The veracity of his evidence was not put in issue by the applicant, only the so called attitude such evidence is said to have displayed towards her. Mr Pendleton was in the circumstances entitled to investigate the applicant’s activities in so far as they impacted on her role as his executive assistant. He did this and reports on the outcome of his enquiries in his statement. Rather than demonstrating that the evidence demonstrates an attitude of non-support towards the applicant, it seems to me that it demonstrates the opposite. He enquired after her welfare after she announced in early 2022 that she was pregnant, he congratulated her and said he would not say anything until she was ready to tell everybody else. This she did the following day. When BDT said that she wanted to cut back her hours, he suggested that she look at the Flexible Work Policy, which she did.
In the Flexible Work Arrangement Form completed by the applicant she expresses the desire to work four days a week over the succeeding four months due to health/medical reasons. She says that she was going through a health condition which required regular medical appointments and procedures, which could only be during the week, and some of which were quite invasive. BDT says that by not working on Fridays, she would be able to recover physically and mentally over the weekend, and that working a four day week over the short term would significantly alleviate the stress of working a five day week involving medical procedures, and lessen the level of stress which impacted on her health. The request for flexible working arrangement was asked to commence on 9 May 2022 and be reviews on 9 September 2022.
The respondent, through Mr Pendleton, told the applicant at the meeting on 26 May 2022, that she could commence the flexible working arrangement immediately, although that concession must be looked in the context of the applicant being informed on 26 May 2022 that she was being made redundant. BDT thought that that was a pointless offer to her in the circumstances. She was upset by the offer of redundancy.
I do not find that Mr Pendleton demonstrated by his actions to the applicant in early 2022 a lack of support for the applicant. Until that time, apart from the conversation that the applicant had with Mr Pendleton at the start of the Covid 19 pandemic that work was a bit stressful, there is no other evidence that BDT complained to the respondent about having too much work, and of not being able to keep up with it.

Evidence of Angela Cracknell

In her statement dated Angela Cracknell notes that she started in her position as Head of People Advisory & Enablement at the respondent on 24 January 2022. BDT was an executive assistant in the Executive Group. She was approached by Ian Pendleton on 25
March 2022 who said that he was looking to do a small restructure in his legal team and replace BDT in the executive assistant role, which was occupied by BDT, with a Company Secretariat administrative position. Ms Cracknell and Mr Pendleton thereafter did not “regroup” on the matter until April 2022. They discussed roles, in the context of Mr Pendleton not needing a full time executive assistant, and BDT being asked to:
(a) take on the position at a lower rate of pay, and
(b) from a cost perspective, not being able to ask BDT to do the role at her current pay rate.
Ms Cracknell notes BDT lodged a Flexible Work request on 29 April 2022, which Mr Pendleton raised with her. In the Flexible Work request, BDT made a request to work a four day week for four months for health reasons.
There was further discussion between Ms Cracknell and Mr Pendleton, leading to a request on 25 May 2022 for a meeting with BDT. Consideration was given to the length of time notice of the meeting should be as, from a well-being perspective it was considered a hard balance of how much information such a meeting should be supplied in order to lessen or alleviate unnecessary stress on the person concerned. Ms Cracknell confirmed that there was no requirement to offer a support person as it was not a disciplinary meeting, and BDT’s performance was not being discussed. Further, discussion about a person’s role in the presence of a support person could cause embarrassment and put the support person in an awkward position.
Ms Cracknell became aware subsequent to the meeting that BDT thought that the meeting was to discuss her Flexible Work request.
Ms Cracknell then gives evidence as to what occurred at the meeting on 26 May 2022, discussing the impact of the restructuring by following a prepared script.
Following the meeting BDT contacted Ms Cracknell and requested an extension of the consultation period discussed at the meeting. This was granted.
On Friday 3 June 2022 Ms Cracknell received a letter from BDT stating that she was not being offered a genuine redundancy, and that Mr Pendleton had decided to terminate her employment unlawfully.
Subsequent discussions between the parties did not lead to agreement between the parties on a redundancy payment. The applicant was informed on 13 July 2022 that her redundancy was proceeding, with the date of termination through redundancy being fixed for 15 July 2022.
Ms Cracknell says that the applicant had not made any complaints to Human Resources that her workload was too heavy, something the respondent takes very seriously. An investigation was commenced into the work hours of the applicant. Ms Cracknell says that through an IT investigation it was discovered that the applicant was working for her husband’s business during work hours. In the two years from 30 June 2020 to 30 June 2022, there were 112 personal files and documents prepared on the work computer.
Ms Cracknell refutes the notion that Mr Pendleton had approached Human Resources as a way of terminating the applicant’s employment following the application for a Flexible Working arrangement. She says that Mr Pendleton and herself were in discussion about restructuring the Legal Team at least two months before the applicant put in an application for flexible hours.

Letter - 6 June 2022

The letter that the applicant forwarded to Ian Pendleton dated 6 June 2022[38] is also put forward by the applicant to demonstrate lack of support by the respondent to her situation, especially during early 2022. The events of that time in so far as the applicant was concerned are described, the lack of response to the flexible working arrangement lodged on 29 April 2022, and the lack of communication or response thereto within the 21 day period following the submission, and what occurred at the meeting on 26 May 2022. The applicant says that on 2 June 2022 she received a letter approving her flexible working arrangement request, stating that it would commence on 1 June 2022 and be effective until 31 July 2022.
Of relevance in that letter is the chronology of events related by the applicant. These included:
(a)      the miscarriage in February 2022;
(b)     the delay in and postponement of her wedding on two occasions over two years due to Covid;
(c)      other health complications resulting in hospitalization and time off work to recover;
(d)     the mental stress of Covid, and in particular to the restaurant business;
(e)      wedding and honeymoon postponements, and
(f)       what occurred on her return from leave in approximately mid-April 2022.
The applicant states that as at the date of the letter she was on sick leave, attributing her illness directly to her employment. She requests an ex-gratia payment equivalent to 12 months’ worth of salary on top of her seven weeks’ severance pay.

Finding on injury

The applicant’s case is that she suffered psychological injury in the course of her employment with the respondent due to being overworked, stressed and unsupported over a two year period. She submits that her evidence as to those issues ought to be accepted, as there have been no credit issues properly raised by the respondent, nor any reason to doubt her credibility. She has not been no cross-examined.
The applicant submits that despite the lack of contemporaneous evidence relating to workplace factors, consideration of the evidence as a whole is sufficient to discharge the onus of proof she bears. The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence.
The applicant cautions against placing too much reliance on clinical notes, noting that they must be treated with some care. A problem for the applicant in respect of reliance on clinical notes is that, apart from one entry in the clinical notes of Balmain Village Health where BDT was consulting doctors during the two year period she complains of overworked, stressed and unsupported, there is simply no other reference to work, and certainly no evidence of complaint about her working conditions. That one entry is on 25 June 2021 when the applicant consulted Dr Ng feeling tired and low, and mentioned that work was “draining.” The reason for visit is given in the notes as “Pregnancy counselling Fatigue”, with fatigue apparently related to lifestyle.
The fact that the applicant was not cross-examined does not mean that her evidence should not be subject to challenge where appropriate. Although BDT’s credibility was not put in issue, that has to be considered along with all of the other evidence in the case.
In Department of Education and Training v Ireland,[39] the President of the Workers Compensation Commission, Keating DCJ, cautioned against deciding a matter based on the credit of the worker alone. It was a case in respect of a disputed back injury suffered by Ms Ireland. At [91] the President said:
“In so doing, the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
In this case, the absence of evidence of complaint in the clinical notes over the two year period during which BDT claims she was overworked and unsupported is significant.
The applicant is not recorded as making complaint about her work conditions until after the meeting on 26 May 2022 when the matter of redundancy was discussed with Mr Pendleton and Ms Cracknell. The clinical notes up until that time, summarised above at [102]-[112], include references to the miscarriage the applicant experienced in October 2020 and psychological treatment received thereafter from Dr Jessica Gray, the desire fall pregnant, marriage plans, immunisation, and back pain.
The first consultation with Dr Ng after the meeting of 26 May 2022 is that of 7 June 2022. Noted at [113]-[114] above. Stress from recent miscarriages, hurt and disappointment with the redundancy offer is recorded along with stress caused by her husband and attempts to fall pregnant.
The consultation note of 21 June 2022 ([115]-[116] above]) records matters mainly in respect of the claimed unfair dismissal, and marriage stress is also noted.
The consultation note of 28 June 2022 ([117] above) contains notes about miscarriages and attempts to fall pregnant, stress being experienced by BDT’s husband and problems with his son, redundancy, and problems with other family members including lack of support from them.
Thereafter the applicant consults with Dr Lim from 3 August 2022 in respect of her psychological condition, who refers her to Carl Nielsen, psychologist, and to Dr Saboor for independent medical assessment.
Both Ms Cracknell, and more relevantly Mr Pendleton as the person for whom the applicant worked as an executive assistant over the period she complains she was overworked and unsupported, deny that was the case. I see no reason not to accept their evidence in this regard.
Considering the whole of the evidence up until the time the applicant consulted Dr Lim in August 2022, I think that there a significant body of evidence to show that the applicant’s employment over the two year period of which she complains was not the main contributing factor to either the contraction of psychological injury, or the aggravation, acceleration, exacerbation or deterioration of any psychological injury or condition from which the applicant may have been suffering following the miscarriage in October 2020.
However, the evidence of Dr Lim. Carl Nielsen and Dr Saboor must also be considered.
In my view the reports of these practitioners must be given limited weight. Dr Lim in his reports does record the February 2022 miscarriage but makes no further comment thereon. He was not supplied with details of the earlier miscarriage of October 2020, earlier clinical notes of the applicant’s treatment by doctors at Balmain Village Health, and he accepts the history of her employment over the two years thereof about which she complains provided by the applicant. This forms the basis of his opinion that the applicant’s employment was the main contributing factor to the psychological injury he diagnoses.
Similar comments apply to the two reports of Carl Nielsen, who works from the same practice as Dr Lim. A further issue in respect of his reports dated 8 August and 11 October 2022 is that he was not informed of the February 2022 miscarriage, nor on my finding was he made aware of it through any access to the clinical notes of Dr Lim.
Dr Saboor’s report dated 14 October 2022 suffers from the same problem as those of Dr Lim and Carl Nielsen, with the added issue, as it is a report of an independent medical examiner, that it is not clear as to exactly what material he was supplied with when asked to prepare his report.
He again accepts the applicant’s history of problems in the workplace over a two year period, which for the reasons outlined above, cannot be accepted without question. With each of Dr Lim, Carl Nielsen and Dr Saboor, the applicant did not mention the earlier miscarriage of October 2020. She did not report, or denied, any past psychiatric history of mental illnesses. This is a significant omission, although I do not find that it was deliberate on the part of the applicant. There is evidence that she was feeling better in late 2020 after treatment for the adjustment disorder diagnosed following the miscarriage in October 2020. In the clinical note recorded by Dr Stewart on 12 November 2020 (see [107] above), BDT is recorded as saying she was “Feeling well at the moment”. This may be the reason BDT did not mention the 2020 miscarriage, although by the time of her consultation with Dr Ng on 25 June 2021 she was feeling low and drained.
In accordance with what the Court of Appeal said in Hancock, I find that the opinions of Dr Lim. Carl Nielsen and Dr Saboor are based on at least an incomplete and inadequate, and probably incorrect history of the cause of the applicant’s psychological injury. They should be given limited weight. I do not accept their opinions that the applicant’s employment with the respondent was the main contributing factor to the psychological injury diagnosed by them, either by of causation of the injury, or aggravation, acceleration, exacerbation or deterioration of a psychological injury.
Having regard to the whole of the evidence I find that the applicant has not discharged the onus on her to prove that her employment with the respondent was the main contributing factor to psychological injury suffered by her, either by of causation of the injury, or aggravation, acceleration, exacerbation or deterioration of the psychological injury.
In this circumstance a determination of whether the applicant’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by her employer with respect to retrenchment and provision of employment benefits in accordance with s 11A of the 1987 Act is not required.

SUMMARY

The applicant’s employment with the respondent was not the main contributing factor to psychological injury suffered by her, either by of contracting of the injury, or aggravation, acceleration, exacerbation or deterioration of the psychological injury.
Award for the respondent.

[1] ARD p 12, noting that the reference to page numbers in this Statement of Reasons is to the numbers in the Commission’s electronic records.

[2] ARD p 2.

[3] ARD p 53.

[4] ARD p 50.

[5] ARD p 40.

[6] [2020] NSWWCCPD 9 (AV v AW).

[7] [2015] NSWWCCPD 71 (El-Achi).

[8] (2001) 52 NSWLR 705.

[9] (1985) 62 ALR 85.

[10] (20110 8 DDCR 399 (Hancock).

[11] ARD p 57.

[12] ARD p 129.

[13] ARD p 109.

[14] ARD p 119.

[15] Reply p 46.

[16] Reply p 140.

[17] Reply p 133.

[18] Reply p 60.

[19] ARD p 167.

NSWCA 122 and Mastronardi v State of New South Wales [2009] NSWCA 270.

[21] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52] and Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].

[22] ARD p 66.

[23] ARD p 179.

[24] ARD p 55.

[25] ARD p 53.

[26] Hamad v Q Catering Ltd [2017] NSWWCCPD 6.

[27] Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206.

[28] Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139; 7 DDCR 193.

[29] ARD p 57.

[30] ARD p 69.

[31] Reply p 17 - “Chronology of Events”.

[32] Reply p 49.

[33] ARD p 15.

[34] ARD p 178, and also at ARD p 53.

[35] ARD p 173.

[36] ARD p 50.

[37] ARD p 40.

[38] Reply p 140.

[39] [2008] NSWWCCPD 134.

[2023] NSWPIC 199

3 May 2023