Birse v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Birse v State of New South Wales (NSW Police Force) [2021] NSWPIC 381
APPLICANT:	Murray Birse
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Paul Sweeney
DATE OF DECISION:	28 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation for psychological injury and exacerbation of insomnia caused by roster changes and interpersonal conflict during and after those changes; claim denied on basis of no recognisable psychological condition and, alternatively, that the psychological condition predominantly caused by transfer or the provision of employment benefits within section 11A(1) of the Workers Compensation Act 1987 (the 1987 Act); Reedy v IBM Australia Ltd and Manly Pacific International Hotel v Doyle considered; Held - the entirety of the roster changes could not be characterised as either transfer or the provision of employment benefits; award for the worker for partial incapacity pursuant to the former section 40 of the 1987 Act.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury arising out of and in the course of his employment on and prior to 27 September 2019 namely the exacerbation of a pre-existing condition of insomnia and an associated anxiety state. 2. The notional date of injury for the purpose of section 16 of the Workers Compensation Act 1987 (the 1987 Act) is 28 September 2019. 3. The respondent has not proven that the applicant’s injury was wholly or predominantly caused by reasonable action taken by it with respect to transfer or the provision of employment benefits as those terms are used in section 11A (1) of the 1987 Act. 4. The applicant was partially incapacitated for work by a combination of an anxiety state and insomnia from 28 September 2019. 5. Direct the parties to lodge short minutes of order setting out the applicant’s entitlement to compensation in accordance with these findings and orders within 14 days. 6. Respondent to have credit for compensation paid to date. 7. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 of the 1987 Act. 8. Respondent to pay the applicant’s costs as agreed assessed. 9. Certify the matter as complex and order that there be an uplift of 10% on the cost of each party.

STATEMENT OF REASONS

INTRODUCTION

Senior Constable Murray Birse (the applicant) is attached to Digital Technology & Innovation, Digital Policing and Operational Systems, COPS Data Management. The unit now operates from police headquarters at Parramatta.
In March 2019, new managers were appointed by the NSW Police Force( the respondent)to the COPS Data Management team. Inspector Blacklock and Inspector Ormes were tasked with the role of reviewing the shift patterns of police working in the unit.
Following this review, widespread changes were made to the work practices of the unit. They included the removal of a 7-day shift work roster with six weeks annual leave and the introduction of a 5-day shift work roster with four weeks annual leave. Important aspects of the changes were the abolition of 12 hour shifts generally worked by members of the police force, the cessation of weekend work, on-call work, and the capacity to work from home.
Before the implementation of these changes, the applicant worked a 38 hour week. He worked 12 hour shifts and worked from home performing on call work every second weekend. One notable aspect of the changes from the applicant’s perspective is that the new regime required him to work four days each week rather than three days.
The applicant alleges that the introduction of the new work regime and conflict with Inspectors Blacklock and Ormes during and after its implementation caused or materially aggravated a psychological condition and caused an exacerbation of his pre-existing insomnia. He alleges that these conditions have caused an incapacity for work in that they have prevented him from working a full 38 hour week and from working in specific locations.
The respondent disputes the applicant’s entitlement to workers compensation. By a s78 Notice dated 5 June 2020, it denied that the applicant suffered a recognisable psychiatric illness and asserted that he was fit for work without restriction. In the alternative, it alleges that the applicant’s psychological injury was the result of the implementation of the new roster. It was, therefore, caused by reasonable action taken by it in respect of transfer or the provision of employment benefits as those terms are used in s11A(1) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from 24 March 2020 to date and continuing. He also claims an indemnity in respect of expenses incurred for medical treatment pursuant to s60 of the 1987 Act.
When the matter came on for conciliation and arbitration on 30 August 2021, Mr Stockley, of counsel, appeared for the applicant and Ms Goodman, of counsel, appeared for the respondent. The arbitration and conciliation was conducted audio-visually.
I was informed by counsel that they were unable to reach a resolution of the threshold question of whether the applicant suffered a compensable injury. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to consider settlement but were unable to reach a mutually satisfactory agreement.
During the conciliation conference, Mr Stockley provided a schedule of earnings which clarified the nature of the claim for weekly payments. One aspect of that schedule is that the first date on which compensation is claimed is 29 September 2019, several months before the date on which the claim commences in the Application to Resolve a Dispute (the Application).
There was extensive discussion as to the nature of the pleadings. Ms Goodman initially stated that, as the Application pleaded a personal injury, she was not in a position to meet a disease case. After considering the respondent’s s78 Notice, however, she withdrew this submission and conceded that it was appropriate to determine the matter on the evidence before the Commission.

EVIDENCE

The documents before the Commission are as follows:
(a)    The Application and the documents attached;
(b)    Reply and the documents attached;
(c)    Applications to Admit Late Documents dated 21 July 2021 and 23 August 2021 and the documents attached;
(d)    Wage’s schedule lodged on 21 July 2021; and
(e)     a schedule handed up during the hearing of the matter on 30 August 2021.
There was no objection to the material outlined above at the arbitration hearing and there was no application to adduce further written or oral evidence.

SUBMISSIONS

The submissions of the parties are recorded and, in the case of the applicant, contained in a brief note of 31 August 2021. Accordingly, I will not reiterate each of the arguments of counsel in these short reasons. I will, however, address the general thrust of counsel’s submissions in attempting to resolve the issues in dispute.
In submitting that the applicant’s condition was caused by reasonable action by the respondent in respect of the provision of employment benefits and transfer, Ms Goodman referred to the decision of Arbitrator Beilby in Reedy v IBM Australia Ltd [2014] NSWWCC 303 and to Manly Pacific International Hotel v Doyle [1999] NSWCA 465 (16 December 1999) (Doyle). The first of those decisions concerns the phrase “employment benefits” and the second the concept of “transfer” in s11A(1) of the 1987 Act.
Rather than set out the evidence of the applicant and the respondent in summary form, I propose to directly address each of the arguments raised by the parties. I appreciate that this is unconventional, but it seems to me the most practical and economical way of determining the matter. Before embarking on resolving the dispute and making findings, however, it is appropriate to make some preliminary observations.
First, this is a case where there is not always a clear boundary between the workers compensation issue, which I have to determine, and a broader industrial relations issue arising from the changes made to the work conditions of the COPS data management team. My findings, however, solely relate to the issues that arise under the 1987 Act namely whether the worker has suffered injury, whether the employer is relieved of liability to pay compensation in respect of that injury by reason of the operation of s11A(1) of the 1987 Act, and whether incapacity results from the injury.
Obviously, the determination of these issues does not imply moral culpability on either party. Considerations of blame worthiness simply do not arise.
Thirdly, as the case was argued at the arbitration hearing, there was no direct attack on the reliability of the applicant. It follows that I must give due weight to his evidence. This involves, of course, a consideration of his evidence in the context of all of the evidence in the matter.
Finally, an important aspect of the applicant’s alleged psychological injury is insomnia. The applicant says that he has suffered from insomnia for many years and that it has been exacerbated by the incidents at work which broadly relate to the introduction of the new rosters. In his statement and medical histories, the applicant attributes the genesis of his insomnia to the conditions of his employment more than a decade previously while he was performing general duties in Wollongong.
There is, however, no contemporaneous medical evidence which would support this allegation as to the onset of insomnia. Accordingly, I propose to deal with the present claim on the basis of an exacerbation of a pre-existing condition without making any findings as to the primary cause of insomnia. At the commencement of the arbitration hearing, I raised the concerns that I had with the absence of any contemporaneous evidence dealing with the onset of the applicant’s insomnia. I apprehend that Mr Stockley accepted that the approach I intend to adopt was appropriate.

DISCUSSION AND FINDINGS

Does the applicant suffer from a recognisable psychiatric condition?

Dr Bisht, a psychiatrist, saw the applicant at the request of the respondent and provided a report of 20 May 2020. He took a history of the applicant’s medical condition that is consistent with the evidence. He expressed this opinion as to causation:
“The two main factors contributing to Murray’s condition include the changes in the work schedule over the last 12 months, as well as a sense of injustice following his claim last year, which led to the complaint about misconduct from his inspector.”
Dr Bisht stated that the symptoms experienced by the applicant had only “limited impact on his functioning”. Accordingly, he expressed the opinion that he was “suffering from a normal emotional response, rather than a psychiatric condition diagnosable under DSM-V”.
Although he doubted that the applicant suffered from a recognisable psychiatric condition, he accepted that he did suffer from a psychological condition and that it had the potential to worsen if the applicant “was to continue having frequent contact with the inspectors that he felt harassed by”. He thought that the applicant may require several further appointments with a psychologist in the future. He stated that he was unable to comment on the treatment for chronic insomnia. He expressed the opinion that the applicant was fit for his pre-injury duties.
I am unable to accept Dr Bisht’s opinion that the applicant does not suffer from a recognisable psychiatric illness. No other medical practitioner or psychologist whose evidence has been tendered in this case expresses that opinion. Importantly, Dr Mark Ryan, the applicant’s treating psychiatrist, and Dr Samuel Lim, a consultant psychiatrist who saw the applicant on 13 April 2021 at the request of the respondent, expressed contrary opinions.
Dr Lim expressed the opinion that the applicant suffered from both an insomnia disorder and an adjustment disorder with anxious distress. The former was of long standing but had been exacerbated by his work conditions in 2019. The adjustment disorder developed “over the course of 2019”. He expressed the opinion that by reason of these conditions the applicant was not fit to perform full duties in the COPS data management team. He expressed the following opinion:
“At the time of this assessment, from a psychiatric perspective, I am of the opinion that Snr Cst Birse has capacity to work 3 days a week on non-consecutive days, in his usual duties but would not be able to tolerate working under the chain of command of Inspectors 1 and 2.”
Inspectors 1 and 2 are Inspectors Blacklock and Ormes.
Dr Mark Ryan saw the applicant at the request of Dr Jesse Hall on 15 April 2020. He continued to see the applicant throughout the course of the year. He also obtained a history that was reasonably consistent with the evidence in the matter. That is that applicant developed increased insomnia and psychological symptoms as a reaction to roster changes and interpersonal conflict in the workplace. Dr Ryan expressed the following opinion:
“Clearly, Murray is experiencing an adjustment disorder but the main issue to be adequately and necessarily addressed is the sleep disorder. Improving sleep will address his vulnerability as well as enhance his wellbeing and capacity to more effectively cope with the current predicament.”
He also expressed the opinion that the applicant’s “current psycho physiological state” is readily understandable as being work-related.
Dr Ryan has further investigated and treated the applicant’s insomnia with some improvement of the course of the last 18 months.
Mr Mark Benad, a psychologist saw the applicant on referral from Dr Hall, his general practitioner, on 6 April 2020. He took a consistent history of the applicant’s employment difficulties. He also recorded his inability to sleep. In respect of other psychological symptoms, he recorded the following:
“He described a lot of over thinking. He reported periods of high muscle tension. He reported stomach complaints most notable the night prior to work.”
On the basis of the history, he expressed the opinion that the applicant suffered from a work-related psychological disturbance which appeared to be consistent with the diagnosis of adjustment disorder with anxiety (DSM-V: 309.24). He thought he would benefit from cognitive behaviour therapy.
Dr Clark, a psychiatrist saw the applicant at the request of his solicitors. He expressed the opinion that the applicant suffered from a recognisable psychiatric disorder namely obsessive compulsive disorder with anxiety and depression. He expressed the opinion that the applicant’s anxiety disorder “has become disabling over the last year”. He noted that there was a considerable overlap between the symptomatology caused by obsessive compulsive disorder with other forms of emotional disorder.
It is evident from the review of the evidence in the case that each of the three specialist psychiatrists, other than Dr Bisht, who have examined the applicant concluded that he suffers from a recognisable psychiatric disorder. It is true that there is some difference of opinion as to the nature of that disorder. Dr Clark postulates an obsessive compulsive disorder, whereas the other two psychiatrists and the applicant’s treating psychologist opine that he suffers from an adjustment disorder with anxiety and depressed mood.
Dr Ryan, the applicant’s treating psychiatrist has, of course, had the benefit of consulting with him on a number of occasions as has Mr Benad, the applicant’s treating psychologist. Dr Lim, who saw the applicant relatively recently at the request of the respondent has written a long and careful opinion that coincides with the diagnosis of Dr Ryan and Mr Benad. These factors combine to compel a conclusion that, contrary to the opinion of Dr Bisht, the applicant does suffer from a recognisable psychiatric illness.
I also note that on clinical examination these medical practitioners have elicited a history of physical symptoms that would suggest a physiological injury and not a mere emotional impulse: see Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR at 575 per Meagher JA and Bhatia v State Rail Authority (NSW) (1997) 14 NSWCCR at 568 (2 June 1997), where Judge Burke reviewed and considered the authorities in respect of the requirement that there be a physiological injury if the definition in s4 of the 1987 Act is to be met. Of course, it can also be met by proof of the aggravation etc of a disease: Austin v Director General of Education (1994) 10 NSWCCR 373. The latter appears to be the most likely cause of action in this case given the applicant’s long-standing insomnia.
On the basis of the evidence outlined above I propose to find that the applicant suffered an exacerbation of his insomnia and a psychological condition, probably an adjustment disorder with anxious mood, as a result of the changes made to the roster of the COPS data management team in 2019 and interpersonal conflict with Inspector Blacklock and Inspector Orme following those changes.
Given this finding, I also intend to reject the opinion of Dr Bisht in respect of incapacity. His view that the applicant has no incapacity for work is founded on his hypothesis that the applicant does not suffer a recognisable psychiatric condition. Further, it also is inconsistent with all of the other evidence in the case including the opinion of Dr Lim who saw the applicant at the request of the respondent.

Was the applicant’s injury caused by reasonable action by the employer with respect to transfer and the provision of employment benefits?

As foreshadowed, Ms Goodman argued that the respondent’s requirement that the COPS data team perform all of its work from the office was an action with respect to both “transfer” and the provision of “employment benefits”. Mr Stockley submitted that working from the office, as opposed to home, could not fall within the definition of “transfer”. He accepted that it might fall within the definition of “employment benefits” where it represented extending or removing of a privilege. He argued that this was not the case here, as historically the applicant worked from home one day every second weekend. This was an operational matter and not for his particular convenience.
It is plausible that the requirement that the applicant work from police headquarters rather than from his home constituted a “transfer” as that term is used in s11A(1) of the 1987 Act. Certainly, Doyle’s case emphasised the width of the phrase “action with respect to transfer”. Generally, I see no reason why a direction to perform the same work at another location cannot be caught by the phrase “action with respect to transfer”.
There is dicta in Doyle, however, which suggests the contrary. At [31] Davies a JA said the following:
“The word is used in the employment context. As such, it encompasses a move from one position to another whether or not there is any change in location. In determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than a change in the place where the work is carried out.”
The above reasoning probably addresses the specific factual circumstances of the case. It is reasonably clear, in my opinion, that the transfer of a policeman to another police station, a teacher to another school, or a nurse to another hospital falls within the phrase “an action with respect to transfer”.
It must be borne in mind, however, that, before the roster changes were introduced in 2019, the applicant worked from home performing on-call work one day each fortnight. The changes not only abolished working from home. They abolished weekend work and, except in special circumstances, callout work. It is, therefore, artificial to characterise the loss of the ability to work from home one day a week each fortnight as a transfer. The work that the applicant performed from home simply ceased to exist.

It is probably unnecessary to determine whether the loss of the ability to work from home one day each week also falls within the phrase “action with respect to employment benefits.” In ordinary parlance, and in legislation dealing with the provision of remuneration in the public service, the term “employment benefits” is used in the sense of the provision of a benefit beyond the basic contractual terms specifying a worker’s remuneration and hours of work. Some of these may be imposed by legislation. The phrase includes all instances of services or programs put in place for the assistance of employees. Plainly, they can include some flexible working arrangements. I accept, however, as Mr Stockley argues that it is unlikely that the phrase extends to situations where working from home is an operational matter and not for the particular convenience of the employee.

Wholly or predominantly

Ultimately, the determination of whether working from the office rather than home constitutes an action with respect to transfer or the provision of employment benefits is of little importance in the context of the evidence. Other aspects of the changes to the applicant’s work practices were also important, and probably more important, to the onset of his psychological illness. The applicant’s evidence and the medical histories implicate the introduction of the four day week as the critical factor. This is evident from the notes of Dr Hall, the applicant’s general practitioner.
The note of Dr Hall of 16 July 2019 suggests the applicant’s injury was already in its incipient stages prior to the introduction of the new roster. The note states:
“Sleep disturbance
Stress
work stressors have continued pending shift changes soon to come into effect describes increased anxiety affecting most days and on nights before work become more severe often prevent sleep at all has had to call in sick a few times, as unable to sleep at all the night prior other nights only getting 2-3 hours lack of sleep affecting mood and function during the day
has found management unsupportive desire to change shifts to "corporate" style without any clear rationale very worried that 4 days/weeks with the current impact on sleep will leave him unable to function”. (my italics)
By 25 July 2019, Dr Hall had diagnosed a psychological condition and suggested an appointment with a psychologist if the applicant’s insomnia was not improved by medication. By 1 August 2019, Dr Hall recorded that the applicant suffered from both insomnia and “depression/anxiety”. He had made an appointment with Ms Arnold, the psychologist.
I emphasise that the applicant’s primary concern was that a four day week would leave him “unable to function”. It is also important to recognise that the entirety of the evidence suggests that applicant’s psychological injury largely occurred in 2019 and not 2020. Ms Goodman submitted that the applicant’s reluctance to work from the office during the Covid lockdown in 2020 was relevant to s 11A(1) issue. However that cannot be the case. The applicant’s injury had occurred well prior to this event.
Plainly, the evidence does not establish that the applicant’s injury was wholly or predominantly caused by actions of the respondent with respect to transfer. It was largely caused by the significant changes made to conditions of service of the COPS data team which I have set out above. These changes to the hours of work cannot be construed as either actions with respect to transfer or employment benefits. The alleged “transfer” or “provision of employment benefits” only affected work performed by the applicant one day each fortnight. The entirety of the changes made to the roster of the COPS data entry team cannot be characterised as either.
These changes relate to the basic conditions of the applicant’s employment and not to “employment benefits”. The case is therefore quite different to the circumstances considered by Member Bielby in Reedy.
Mr Stockley submitted that a cause of the applicant’s psychological illness was his perception that Inspector Orme’s had lied to an enquiry established at the applicant’s instigation into the language used by Inspector Blacklock in an interview with him to outline the proposed roster changes. My impression is that this argument is also correct. However, it is unnecessary to pursue it further given my finding that the respondent has not proven that that the applicant’s injury was predominantly caused by actions in relation to transfer or employment benefits. I will briefly address the issue of reasonableness below.

Reasonableness

Ms Goodman submitted that the communication of the new roster to the applicant and the provision of flexible work hours to him during 2019 fulfilled the requirement that the respondent’s actions were reasonable. Mr Stockley, however, argued that there was no primary evidence that the changes were reasonable in substance.
The concept of reasonableness in s11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Northern NSW Health Service v Heggie [2013] NSWCa 255( 9 August 2013) casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
It is evident that the roster changes discussed above had an adverse impact on some of the officers who worked for the COPS data management team. This was not confined to the applicant. Sergeant Anthony Page, who was the applicant’s direct supervisor, says in his signed statement of 10 June 2020:
“Following the changes, a number of officers had left this team and now there are only three (3) of the original officers left within the section. This includes Murray who is currently working half his usual hours, i.e. two shifts a week.”
He also says:
“With the removal of weekend service, front line officers do not have access to our expertise and experience on weekends and must wait until the next business day for assistance. For urgent matters there is an on-call facility.”
The applicant’s assessment of the detrimental effect of the roster changes is, of course, far more vociferous.
It is open to the Commission to draw an inference that the employer’s actions, in this case the roster changes, were reasonable even in the absence of direct evidence from the employer touching on the issue: State of New South Wales v Stokes [2014] NSWWCCPD 78 (26 November 2014). Mr Darren Rajendran briefly touches on the issue in his signed statement dated 10 June 2020. He did, however, say this:
“Generally, frontline Police Officers work a 12 hour shift and this was the same for some of the officers within the DPOS section prior to the arrive of Inspector Blacklock and Chief Inspector Ormes. Inspector Blacklock was directly involved with the DPOS and oversaw the police officers within that section while Chief Inspector Ormes was involved in the ‘projects’ side of the area.”
He continues:
“Following the evaluation of the DPOS unit by Inspector Blacklock, a decision was made to undertake a number of changes within the DPOS Unit. Those senior officers undertook an examination of the duties and responsibilities of the officers within the Unit and found that the work the officers were providing to the frontline officers was not viable for weekend work or for work outside working hours, Monday to Friday, 7am to 7pm.
Subsequently, following the evaluation there were a number of changes considered which were later brought to the section to better maintain the business needs of the command, including that of Senior Constable Birse.
Chief Superintendent Ormes and Inspector Blacklock determined that the weekend work which included working from home, should be changed to ensure that all staff working within this area (DPI), worked Monday to Friday on morning shifts from within the DPI office. Analysis of business identified that weekend work was not required.”
Mr Stockley’s primary submission in respect of reasonableness went to the absence of primary evidence as to why the changes were introduced and, specifically, the absence of evidence from Inspectors Blacklock and Orme addressing the issue. The evidence of Mr Rajendran is that the inspectors found that the work of the Cops Data Management unit “was not viable for weekend work or for work outside working hours, Monday to Friday, 7 AM to 7 PM.” This does not necessarily address the reasoning underlying the decision that all staff worked morning shift four days per week, rather than three 12 hour shifts generally worked by police officers. Nor does it address why some part of this roster could not be worked from home.
On balance, in the absence of such evidence, I am unable to find that the respondent has proven that the hypothetical actions of the respondent with respect to transfer or the provision of employment benefits are reasonable. I emphasise that this is not a finding that they are unreasonable.

Incapacity

I accept that the applicant has been incapacitated for the full work of a police officer working in the COPS Data Management team since the inception of his psychological injury. The schedule handed up by Mr Stockley during the course of the conciliation/arbitration claims an entitlement to compensation from 29 September 2019. That is several months before the date of compensation claimed in the Application.
The medical evidence largely supports a claim for incapacity consistent with the loss of earnings in that schedule. In particular, I note that Dr Lim, who saw the applicant at the request of the respondent, imposes restrictions on the applicant’s employment that are very similar to those imposed by his general practitioner. It was not suggested at the arbitration that there were maters which might cause the Commission to exercise its discretion when entering an award pursuant to the former s40 of the 1987 Act. , as Mr Stockley’s schedule involves a significant amendment to the date on which the claim commences, I intend to provide the respondent with the opportunity to consider the changed commencement date of the claim and the arithmetic before entering an award.
I propose to find and order that:
(a)    the applicant suffered psychological injury arising out of the and in the course of his employment on and prior to 27 September 2019 namely the exacerbation of a pre-existing condition of insomnia and an associated anxiety state;
(b)    the notional date of injury for the purpose of s6 of the 1987 Act is 28 September 2019;
(c)    respondent has not proven that the applicant’s injury was wholly or predominantly caused by reasonable action taken by it with respect to transfer or the provision of employment benefits as those terms are used in s11A (1) of the 1987 Act;
(d)    the applicant was partially incapacitated for work by a combination of an anxiety state and insomnia from September 2019;
(e)    direct the parties to lodge short minutes of order setting out the applicant’s entitlement to compensation in accordance with these findings and orders within 14 days;
(f)    respondent to have credit for compensation paid to date;
(g)    respondent to pay the applicant’s medical and hospital expenses pursuant to s60 of the 1987 Act;
(h)    respondent to pay the applicant’s costs as agreed or assessed ;and
(i)    certify the matter as complex and order that there be an uplift of 10% on the cost of each party.

[2021] NSWPIC 381

28 September 2021