Browne v Anixter Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Browne v Anixter Australia Pty Ltd [2021] NSWPIC 110
APPLICANT:	Renee Leigh Browne
RESPONDENT:	Anixter Australia Pty Ltd
PRINCIPAL MEMBER:	Ms Josephine Bamber
DATE OF DECISION:	10 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Agreed work related psychological injury; claim for weekly compensation and medical expenses; respondent disputed liability to pay compensation pursuant to section 11A of the 1987 Act, capacity for employment and treatment expenses also disputed; Held- respondent has not discharged its onus of proof to establish the employer’s conduct in relation to dismissal was reasonable, notwithstanding applicant was dismissed in probation period; award for applicant made for weekly compensation during period in which it was found she had no current work capacity, thereafter award for the respondent; award for applicant pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The respondent has not established a defence under section 11A of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge. 3. The respondent is to pay Ms Browne weekly compensation from 31 March 2020 to 20 July 2020 pursuant to sections 36 and 37 of the Workers Compensation Act 1987 on the basis that the applicant had no current capacity for employment in this period. 4. Award for the respondent in relation to the claim for weekly compensation from 21 July 2020 to date and continuing. 5. The parties have liberty to apply in relation to calculation of the weekly compensation award or they can file consent orders if they agree as to the mathematical calculation of the award.

STATEMENT OF REASONS

BACKGROUND

Renee Browne, the applicant, was employed by the respondent, Anixter Australia Pty Ltd as an internal sales account manager from late 2019. She alleges she sustained a psychological injury because of bullying, harassment, overwork, unfair management and isolation tactics at work. In these proceedings she seeks weekly compensation from 30 March 2020 to date and continuing pursuant to sections 36 and 37 of the Workers Compensation Act1987 (the 1987 Act) and incurred treatment expenses in the amount of $6,024.64.
On 6 April 2020 the insurer issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that Ms Browne had received a psychological injury, relying on sections 4 and 11A(3) of the 1987 Act[1]. It also disputed liability under sections 9A and 4(b) of the 1987 Act. The respondent also relied upon a defence under section 11A because it said the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline and dismissal. It also disputed that Ms Browne had a total or partial incapacity for work and asserted that the medical or related treatment expenses were not reasonably necessary as result of an injury.
[1] Application to Resolve a Dispute (ARD) p 10 and Reply p 1.
On 27 July 2020 Mr Browne’s solicitors wrote to the insurer and sought a review of this decision forwarding to them a report of Dr Abdal Khan dated 21 July 2020[2].
[2] ARD p 3.
On 7 August 2020 the insurer advised Ms Browne that it amended its decision of 6 April 2020 and stated it was now satisfied that she did sustain a psychological injury as a result of her employment and the section 78 notice was amended to remove reliance upon sections 4, 9A and 11A(3) of the 1987 Act[3]. However, the insurer stated it maintained the decision to decline liability relying on section 11A(1) of the 1987 Act. In addition to the aspects of section 11A(1) referred to previously, the insurer added reliance on “provision of employment benefits”.
[3] ARD p 7.

PROCEDURE BEFORE THE COMMISSION

This matter was listed for conciliation conference/arbitration hearing on 28 January 2021. Mr Craig Tanner, counsel, instructed by Mr Luke Power, solicitor, appeared for Ms Browne, who was present. Ms Lyn Goodman, counsel, appeared for the respondent instructed by Mr Malcolm Griffin, solicitor, and Ms Rosemary Sagvand, from the insurer.
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 did not proceed to arbitration hearing that day because the applicant sought to rely upon additional evidence and the respondent sought to serve documents in response. Accordingly, directions were issued by me relating to the filing of the additional material and for the parties to file written submissions. The parties agreed to me determining the matter ‘on the papers’ without a formal arbitration hearing being held.

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) Application to Admit Late Documents (AALD) filed by the applicant dated 8 January 2021;

(d) Application to Admit Late Documents (AALD) filed by the respondent dated 15 January 2021;

(e) Application to Admit Late Documents (AALD) filed by the applicant dated 1 February 2021;

(f) Application to Admit Late Documents (AALD) filed by the respondent dated 17 February 2021;

(g) Written submissions filed by the respondent dated 8 March 2021;

(h) Written submissions filed by the applicant dated 24 March 2021, and

(i) Written submissions filed by the respondent in reply dated 29 March 2021.

Oral evidence

There was no oral evidence.

FINDINGS AND REASONS

It is helpful to briefly summarise the lay evidence before considering the medical evidence.

Ms Browne’s statements

Ms Browne, in her statement dated 23 October 2020, says she had a pre-existing history of anxiety and she has required psychiatric and psychological treatment since she was 18. But she says she was always able to work and conduct a social life. She was 25 years old when she commenced employment with the respondent in late 2019 as an internal sales account manager.
She says in her interview for the job she expressed her intention to work 7am to 3.30pm Monday to Friday. She says when she commenced the job she was expected to work 8.30pm to 5pm Monday to Friday. She says her manager told her she needed to “earn her spot” in order to obtain the working hours she wanted. She says she undertook the required hours as she wanted to please and wanted to maintain her employment. She says she received a bonus in February 2020 and always worked hard.
She states after some meetings with her manager she was granted the working hours she wished on a one-month trial basis. She says she was unable to take lunch breaks and constantly felt pressured to work and she felt completely overworked and unsupported. She states she was constantly given tasks to do and unrealistic deadlines to meet. She says she was constantly made to feel guilty by her colleagues as she did not stay back after her contracted hours to work.
Ms Browne states that during the trial period she was admitted to hospital with a kidney infection and she was required to stay home for two weeks due to her reduced immunity, especially in the context of Covid-19.
She said she asked her manager to work from home, but he denied this request as she was informed employees were not working from home at that stage. She says she learned this was not so and the majority of the office was working from home. She says she asked again to work from home and made it known to her employer she was becoming anxious as she needed to work and earn an income. She says she was told she should take unpaid leave. She said she asked if her employment was in jeopardy and she was told it was not.
In paragraph 13, she says she started to experience a gradual deterioration mentally and started to constantly feel depressed and incredibly anxious about her role in the firm.
Without giving any timeframes she says she later reached out to her manager and informed her that she was ready to return to work and she says she was told she needed to communicate this to HR. She said when she did this HR told her there were performance issues. She says this came as a complete surprise as this was never mentioned to her before this. She says the next day her manager rang her advising her to prepare for her termination of employment. She says she was not provided with any explanation.
She says she emailed her manager saying she was not in a position to respond to the allegations regarding her work performance as she was seeking legal advice. She says she was terminated on 31 March 2020.
Ms Browne says since this time she has been treated at the practice Workers Doctors and consulting Dr Kumagaya, psychiatrist from there. She says she has been unfit to work and she is constantly stressed out, feels sick mentally and she experiences constant panic attacks.
In a supplementary statement dated 15 January 2021 Ms Browne says she commenced employment with the respondent on 29 October 2019, with a six-month probationary period[4]. She states in the first four months there were no significant issues and she received a performance bonus in early February. She says after she requested to change her hours to accommodate her second job as a gymnastics coach issues arose. However, she says at the meeting on 19 February 2020 her employer did agree to a trial of the changed hours. She relates that shortly thereafter she suffered a kidney infection and had time off work from late February to early March 2020. She says on 18 March 2020 she had an informal meeting with her employer to discuss her health concerns and stress about working during Covid-19.
[4] AALD dated 1 February 2021.
She says she was told she could not work from home and no inside sales staff were working remotely. She says she was told to go home and there were no pressing performance issues however she would be required to attend the office when she could return to discuss a few issues.
She says she was very upset after this meeting and she found it very surprising that her request to work from home would not be accommodated.
She does not relate in this statement that she suffered any psychological symptoms from the time of the commencement of her employment. Apart from saying she was upset after this meeting she does not mention any other symptoms until after she was terminated. She says on the Saturday before receiving the email on 30 March 2020 she rang Mr Khan and was informed that everyone had been working from home during the past week. She said Mr Khan encouraged her to contact Ms Baddock to get a laptop set up so she could work from home. This conversation would have taken place on Saturday 28 March 2020. She says that she was caught off-guard receiving the email on 30 March 2020.
Later in her statement she says her mental health had been deteriorating since February 2020. She says she continues to suffer psychologically due to the actions of the employer throughout her employment. She accuses them in broad terms of being unsupportive of her and “unprofessional in the management of her kidney infection”. This seems to be an extraordinary statement given she was given time off work and paid even though she did not have available leave entitlements.

Meeting 19 February 2020

Meeting Notes confirm at a meeting on 19 February 2020 in attendance were Matthew Parker, Location Manager, Raj Singh, Regional VP, Chelsea Baddock, HR, and Ms Browne. It is stated that the purpose of the meeting was to respond to Ms Browne’s written request dated 17 February 2020 for flexibility of working hours, miscommunication regarding recruitment, the need to facilitate her lifestyle, mental health and second job as a gymnastics coach.
The following is recorded in the Meeting Notes:
“Advised Renee that we do not believe there was miscommunication on our end during the recruitment process

-She is remunerated appropriately
-Cian (Recruiter) advised the hours could potentially be reviewed, however never made a commitment to this as Renee claims
-Contract was signed for hours 8:30am - 5:00pm as these are Anixter's ordinary hours
-The hours requested (7:30am - 3:00pm) with our hour lunch break, do not make up a full-time work week. Lunch break must be taken and cannot be skipped to shorten the spread of hours, as it is important the break is taken for your own health.
Advised Renee that we had tried to be flexible already by offering an early finish on one day per week.
Acknowledged Renee has responded this 'wouldn't work'.
Proposed that we implement a one-month trial with the hours of 7:30am - 4:00pm. Trial is for both parties to review the arrangement and provide feedback. Raj confirmed the reason for this is for us to gauge the responsiveness of our accounts/customers during this time, as most often are busiest after 4pm when they return to the office from site.
Chelsea advised we would also appreciate Renee's feedback and encouraged communication with Naz/Matt during this period.
Renee Response:
Agreed to this arrangement, very appreciative of this and that it would help immensely
Raj re Performance
Raj confirmed while Renee was doing well in some aspects of the role, there was still a lot of work to do and a long way to go to meet the required standard. Raj acknowledged there was still errors occurring.
Also gave example of projects that had not been handled by Renee, even though her accounts (Naz had handled instead).

Renee Response:
Understood
Chelsea re Commitment
We still expect you are on time, ready to work and set up before your start time. If required, you may need to stay back past 4pm on some days to ensure your tasks are finished and complete to meet customer expectations
Renee Response:
Confirmed she would. Asked start date of this arrangement, proposed Monday.
[5] ARD pp16/17.
Agreed together to start 24/02[5].”

Meeting 18 March 2020

At the meeting on 18 March 2020 Mr Parker and Mr Naz Khan, Inside Sales Manager were present with Ms Browne. The meeting notes state:
“Meeting purpose: respond to Renee's concerns raised to Naz 18/03 regarding her current health (following a recent UTl/ lnfection) and stress about being in the office due to COV!D19 and a low immune system. Renee had raised she did not want to be in the office and wanted to work from home as per recent recommendations.
Matt advised Renee cannot work from home as her desktop is not currently set up to work from home, and at present no Inside Sales staff across Australia are working remotely as they are required in the office. Matt explained we have appropriate safety measures in place for these staff. Recommended Renee go home if she
is unwell and doesn't want to be in the office, this is okay.
Renee advised she had no leave to use so wouldn't be paid. Matt advised this week would be paid if she wanted to leave (to review after).
Renee asked if she would lose her job if she decided to go home because of COVID19 or if we needed to get rid of anyone due to COVID19. Matt confirmed no, you will not lose your job due to COVID19, the only reason this would be discussed would be because of your performance. Renee asked what performance, and Matt said
there were a few issues we can discuss when you are back/better.
Chelsea follow-up Call
Renee called Chelsea on her drive home from the office around 2pm. Renee expressed that this was 'f*cking b*llsht' and not fair because she is sick and she wants to work from home, has been sick and her Doctor has advised her not to go into the office.
Chelsea advised she was aware of the conversation Renee just had with Matt and reiterated why Renee could not be working from home (desktops could not be set up, all IS staff were still required in the office)
Chelsea advised Renee if she was sick, she should rest and feel better then we could talk again and assess.
Chelsea confirmed we never expect employees to work when they are sick.
Renee said Matt had mentioned performance issues as she left and they 'were b*llshit'. Chelsea advised we would touch base and discuss these in detail. Chelsea proposed to call Matt and get more information.
Renee advised she is 'so bored' and gets all her work done most of the time but can't go home.
Renee made mention to having no leave and now she's being punished. Chelsea advised we would be paying her in full for this week (in good faith).
Renee asked if her leaving today would detriment her if Inside Sales staff were then allowed to work from home. Chelsea advised no, we would review this as circumstances change. Renee asked if leaving today because of COVID19 would threaten her job. Chelsea confirmed no, no one will lose their job for being sick.
Planned to talk again at the end of the week on Friday 20/03 and review this then. Renee was thankful and said her outburst wasn't at me but the situation[6].”
[6] ARD pp18/19.

On 26 March 2020 Mr Khan sent an email to Mr Parker, Mr Singh and Ms Baddock relating to errors which had been made by Ms Browne[7].
[7] ARD p 20.
On 30 March 2020 Mr Khan sent an email to Ms Browne referring to performance issues. The email explained that the meeting to discuss the same was delayed by Ms Browne’s absence from the office on personal leave and now with Covid-19 guidelines a face to face meeting cannot be held. The email set out the issues under the headings “Attention to Detail & Errors”, “Accountability/ Ownership” and “Data Security & Confidentiality”. Ms Browne was asked if she was available to have a meeting by telephone that afternoon to discuss these points[8].
[8] ARD p 21.
On 31 March 2020 Ms Browne emailed advising that she was not in a position to respond as she was seeking legal advice.
Later on 31 March 2020 Ms Baddock emailed Ms Browne to advise that a decision had been made to terminate her employment based on her performance. She was also advised that the employer had paid her in excess of her legal entitlement up to and including 31 March 2020. This email attached a letter setting out the details of the termination of employment[9].
[9] ARD p 24.

Rajvinder Singh’s statement

Mr Singh has provided a statement signed on 5 January 2021[10]. He is the Regional Vice President for Sales for the respondent and is based in Melbourne. He was present at her second job interview together with Mr Parker and Mr Khan, Internal Sales Manager and Mr Parker, Sydney Sales Manager. He says in the interview it was clarified with Ms Browne her work hours would be 8.30am to 5pm Monday to Friday. He says she asked at that interview if she could work 7am to 3.30pm as she was involved in calisthenics coaching. Mr Singh says they told her those hours were not possible as they need her to work the hours their customers work. He says that they did agree to sometime in the future to give consideration for her to work those hours for one or two days per week. He says Ms Browne said not finishing at 3.30pm each day would not be a problem as she would take a coaching job on a Saturday.
[10] AALD 15 January 2021 p 5.
Mr Singh confirms that Ms Browne was paid a bonus in February 2020. He says:
“That is an end of year bonus paid to the whole sales team, based on sales for the month of December 2019. Because she had only been with us a few months, she hadn't really earned commission however the company made a decision to give her a discretionary bonus, that was a goodwill gesture as although her record didn't show sales, it was apparent that as part of learning the system, she had assisted other sales representatives by entering customer orders.”

In relation to Ms Browne’s request to work from home, Mr Singh says the internal sales role is better worked from the office as the majority of the customer calls come through the main office line. He says she was also still a relatively new employee and still required a lot of supervision and guidance because her performance needed attention. He says during Covid-19 the majority of the inside sales staff worked from the office as they used computers that are not portable, and that only the external sales staff and back office staff were able to work from home.
He states that it was only from about April 2020 that the internal sales staff were offered the option of working from home when significant upgrades had been made and the purchase of micro laptops with WIFI internet facility.
Mr Singh refers to the meeting on 19 February 2020 and says already by this time Ms Browne was working the different hours one day per week. He said in the meeting a one- month trial of her working 7.30am to 4pm Monday to Friday was agreed. He also says that they told her that they saw a lot of potential with her, she had a long way to go with her performance as she was still making mistakes. He said they raised some examples and she acknowledged these. He said he did not attend the meeting in March 2020 due to Covid-19 restrictions. Mr Singh says the reason why he attended the February 2020 meeting was because Ms Browne in her letter to HR when she requested the different hours had disclosed details about her mental health that she did not want disclosed to Mr Parker and Mr Khan.

Nazia Khan’s statement

Ms Khan’s statement was signed on 14 January 2021. She says she was one of the people who interviewed Ms Browne for her job. She said they were clear in the interview the hours of work were 8.30am to 5pm. She said they told her that later they could discuss her preferred hours but initially she would need to complete training and become competent in her role. She says Ms Browne reported directly to her. She says she had concerns about Ms Browne’s employment as she was making errors, such as incorrect pricing and deliveries to the wrong customers, and some errors were made repeatedly on the same customer account.
At [16] Ms Khan says she had several conversations with Ms Browne to address these issues as they occurred. She said she found Ms Browne dismissive in her response and she seemed to often have a reason or excuse for them. Ms Khan observed that Ms Browne rushed through her work and Ms Khan thought this was causing the errors.
Ms Khan denies she told Ms Browne that she would need “to earn her spot” as they are not the words she uses with any employees. She said she had observed Ms Browne staying back sometimes but only to 5.30pm. At [22] she says they had been flexible with her as she had asked for time away from work for various reasons that she mentions.
She says Ms Browne received the discretionary payment in February 2020. Ms Khan says that she and Mr Parker met with Ms Browne and advised her she would receive the payment, but it was a discretionary good faith payment as it was not based on above and beyond work.
She says they had commenced discussions with Ms Browne in December about the revised working hours and they agreed to one day a week finish at 4pm and she was not happy with that as she wanted flexibility around choosing her own hours. Ms Khan says they were not able to offer that as her role was as an internal sales member. She says in the February 2020 meeting a trial of working 7.30am to 4pm was agreed.
She notes that Ms Browne in her statement says she felt pressured to work and was unable to take lunch breaks. Ms Khan says at [37] that team members take lunch breaks between 12pm to 2pm for one hour at the time to suit them as long as another internal sales person is available to take calls. She says Ms Browne never approached her about issues about her workload or not being able to take lunch breaks. She said Ms Browne often would say she had finished her work and ask to leave early.
She said there were no individual KPIs as they had group targets.
In relation to her accusation that she was made to feel guilty by not working back, Ms Khan says Ms Browne was not given any projects or larger accounts that could have required working back because she was still in her training period. Ms Khan said she sat next to Ms Browne to provide 1-1 training and coaching as part of their onboarding process. She says Ms Browne was not approached by any internal sales people about her changed working hours.
Ms Khan also states that when Ms Browne was told she could not work from home that was consistent with the other internal sales staff working from the office. However, she confirms that because of her concerns about her health being in the office they said she could take leave. She disputes that she told Ms Browne to take unpaid leave, but she says Ms Browne knew she had no sick leave left. At [76] she says that Mr Parker told Ms Browne in the March 2020 meeting that she could take the rest of the week off and they would pay her.
Ms Khan says when Ms Browne had been home for about a week, she and Mr Parker tried to contact her to advise that they now had the systems set up for the internal workforce to work from home. However, she says she did not return their voicemails.
Ms Khan refers to her discovering that Ms Browne had breached the company’s security policy by sending emails to her home email address regarding the company’s business.
Ms Khan denies that she at any time rang her to tell her to prepare for her termination.

Matthew Parker’s statement

Mr Parker’s statement is generally consistent with that of Ms Khan and the meeting notes and so to avoid repetition I have not summarised the same[11].
[11] AALD 15 Janaury 2021 p 30.

Chelsea Baddock’s statement

Ms Baddock’s statement was signed on 14 January 2021[12]. She says on 17 February 2020 she received an email from Ms Browne with an attached letter wherein she spoke about flexibility of work hours, her work/life balance with her other work commitments as a gymnastics coach and the medication she was taking for anxiety. She requested the information about her mental health and medication be kept confidential. This letter is not in evidence before the Commission. Ms Browne does not refer to it in her statements.
[12] AALD 15 January 2021 p 41.
Ms Baddock says she spoke to Ms Browne on 17 February 2020 and said she would have to escalate the matter to Mr Singh, and they organised a sit-down meeting to discuss the matters Ms Browne raised. She says in conversations with her Ms Browne said it did not suit her lifestyle to get home at 6pm in the evenings.
Ms Baddock refers to the meeting held on 19 February 2020 and says Ms Browne proposed working 7.30pm to 3pm however she was told these hours would not meet her contract of working 37.5 hours per week. She says Ms Browne suggested working through her lunch hour to make up the time, but Ms Baddock says she informed Ms Browne that the lunch break must be taken for her own wellbeing.
Ms Baddock notes that even before this meeting the company had agreed for Ms Browne to finish early one day per week and that they were trying to be accommodating. However, in the letter of 17 February 2020 Ms Browne said this would not work because it would not change her lifestyle or assist her in any matter. So, in the meeting the company agreed for her to work 7.30am to 4pm on a trial basis and Mr Singh would monitor the effect on the business. Ms Baddock said Mr Singh also spoke to Ms Browne that there was a way to go before she was meeting the required work standard. She says Ms Browne acknowledged this. She says Ms Browne was informed that some days she might have to stay back after 4pm.
Ms Baddock says she is aware that Ms Browne had emailed Mr Khan to request to work from home and a meeting was held with her on 18 March 2020. Ms Baddock says she did not attend but Mr Parker rang her after the meeting to say that Ms Browne might ring her because she did not seem happy when they told her in the meeting she could not work from home.
She says on the afternoon of 18 March 2020 Ms Browne rang her and said it was “fucking bullshit” and not fair, that she was sick and wanted to work from home and her doctor had advised her not to go into the office. Ms Baddock said she told Ms Browne that she could not work from home because desktops could not be set up so internal sales staff were required to work in the office. She says she told Ms Browne that if she was still sick, she should rest, and they could talk again by which time the company would have Covid-safe plans in place. She states that Ms Browne said Mr Parker had spoken to her about performance issues and they were “bullshit”. She says she told Ms Browne that she would ring Mr Parker and get more information about these issues and they could discuss those later. Ms Baddock relates that Ms Browne told her she is so bored as she gets all her work done but she cannot go home early. Ms Browne also told her that she has no sick leave left and feels she is now being punished. Ms Baddock said she told Ms Browne that the company was paying her even though she had no sick leave left. She says Ms Browne was talking rapidly and seemed agitated.
Ms Baddock says she arranged with Ms Browne to talk again on 20 March 2020. Ms Baddock says on 20 March 2020 Ms Browne sent her a text asking if she was being paid for 17, 18 and 19 March 2020 and she replied that she was on full pay but if she wanted to stay home the next week it would have to come out of her leave balance or be unpaid leave. Ms Baddock asked Ms Browne to let her know if she wanted her to check her leave balances. Ms Browne said she had to see the doctor on 21 March 2020 and would update Ms Baddock after that.
Ms Baddock states on Sunday 22 March 2020 Ms Browne sent her a text saying she had been to the doctors that day and had an infection, cough and fevers and the doctor recommended she work from home. She included a medical certificate to that effect.
Ms Baddock said on Monday she responded that Ms Browne should stay home until she was well, and they did not expect her to work when she was sick.
Ms Baddock says on 26 March 2020 she spoke to Ms Browne who informed her she had broken her finger, but she was feeling better. Ms Browne asked could she have a laptop so she could work from home. Ms Baddock said she could not as internal sales staff and warehouse staff were still working from the office and that Ms Browne was still on probation and needed supervision. Ms Baddock says that Ms Browne said to her “yeah, I get that”. Ms Baddock states that Ms Browne then accused them of being unfair as she was sick, and she was not being paid. Ms Baddock says she told Ms Browne that she had run out of sick leave and could use her annual leave, but Ms Browne chose not to. Ms Browne said she would go back to the doctor and see if she could return to work.
On Sunday 29 March 2020 Ms Baddock received a text from Ms Browne who said the doctor said if her results came back clear she could return to work in the office. On 30 March 2020 Ms Browne sent Ms Baddock another text to say she would be in contact to confirm her return date.
Ms Baddock says on 30 March 2020 Ms Khan, after consultation with her, sent Ms Browne an email about her work performance and Ms Browne sent an email saying she was seeking legal advice.
Ms Baddock says a decision was made on 30 March 202 to terminate Ms Browne’s employment in her probation period and she prepared and signed the termination letter.

Stanhope Medical Centre

Ms Browne was a patient at the Stanhope Medical Centre before and during her employment with the respondent. She does not explain why immediately after she was terminated, she consulted doctors at the Workers Medical Centre.
In the Stanhope Medical Centre clinical notes, it is recorded that on 31 January 2019 she attended as a new patient complaining of anxiety alleging that a colleague at work had been verbally abusing her for the last year. She reported feeling very anxious. She made a complaint to HR but was told it was not bullying but a communication issue. This is before her employment with the respondent. Dr Maung advised her to consult her regular doctor in Wentworthville and she was given a certificate for being off work.
She attended the Stanhope Medical Centre on 30 May 2019 advising she has been taking Zoloft for four years but had not taken it for a few days as she had run out and she felt on edge. The doctor gave her a prescription for Zoloft.
On 20 August 2019 she attended with gynaecological issues and on 22 November 2019 it was noted she was pregnant however in a visit on 26 November 2019 it was queried if she had an ectopic pregnancy. On 16 December 2019 it is recorded that the ectopic pregnancy had been managed at Blacktown Hospital.
On 16 January 2020 Dr Dinakar records a history of “recurrence of severe anxiety, anger etc on Zoloft 50mg for 3 years”. The doctor increased the dosage to 100 mg daily and said she needed a Mental Health Care Plan. The Plan was completed, and a referral was written to Ms Bulbul Chopra, a psychologist[13]. The referral says Ms Browne was experiencing anxiety and possible symptoms of PTSD stemming from a previously emotionally abusive relationship that is affecting her current relationship[14].
[13] AALD 8 January 2021 p 8.
[14] AALD 8 January 2021 p 48.
The Mental Health Plan has a diagnosis of “Anxiety- previous abusive relationship that is affecting current relationship”. Under “Mood” it is noted “Mood can change in blocks where she feels fine for a few days and then can feel down or angry in the next block of days”. Under “thinking” it is recorded “Will be feeling fine and then something small can set her off on a thought process of anger where at the end she knows there wasn’t anything to be angry about but in the moment couldn’t control”. Under “sleep” it is noted “stages of good sleep and then stages of consecutively bad sleep”. Her perception, cognition, attention/concentration, memory and affect were normal. She had loss of appetite with 4.5 kg weight loss in three weeks. She had low energy due to irregular sleep patterns[15].
[15] AALD 8 January 2021 p 45
On 16 March 2020 it is recorded that she is an arrogant patient with a history of two ectopic pregnancies and past history of “PID”. It was noted she had been discharged from Blacktown Hospital on oral antibiotics but had developed a fever. The doctor thought she should return to the Hospital, but Ms Browne did not wish to do that. On 22 March 2020 she was treated for a urinary tract infection. On 25 March 2020 she attended having crushed her right-hand little finger in a sliding door. She was seen again on 29 March 2020 noting x-rays had revealed a fracture of the finger and sought a medical certificate, which was given from 30 to 31 March 2020.
On 31 March 2020 she returned to get results from a urine check for infection and the doctor advised she was fit to return to work tomorrow. He adds “I believe she had been given marchin (sic) orders from present job. Is going through lawyers for unfair dismissal”.
She attended the Medical Centre again mostly via telehealth on 11 April, 1 May, 4 May, 5 May, 21 May, 26 May, 30 June, 1 July, 2 July, 4 July and 8 July 2020 for gynaecological and respiratory issues. On 11 April 2020 a referral was given to a fertility clinic and the record noted Ms Browne had been trying to become pregnant.
There is no mention in the Stanhope Medical Centre records of Ms Browne having psychological symptoms due to her work with the respondent.

Workers Doctors

A Certificate of Capacity by Dr Lim dated 2 April 2020 refers to a diagnosis of adjustment disorder with anxiety. It is noted “Psychological injury from workplace. She had to leave work at the finishing time, due to other commitments, and work on occasion. Her job was in jeopardy if she was not able to stay back and do extended hours.” It is noted she had pre-existing anxiety in 2016. Ms Browne was certified as having no current capacity for work from 1 to 15 April 2020. Further Certificates issued by doctors from the practice dated 15 April 2020[16], 24 April 2020[17], 8 May 2020[18], 26 May 2020[19], 5 June 2020[20] certify that Ms Browne had no capacity for employment to 26 June 2020. The psychologist at the Workers Doctors submitted Allied Health Requests including dated 30 June 2020 in which it was noted Ms Browne was unfit for work[21].
[16] ARD p 100 and AALD 1 February 2021 pp 5-10.
[17] ARD p 112.
[18] ARD p 118.
[19] ARD p 115.
[20] ARD p 121.
[21] ARD p 81.
Dr Lim wrote a report on 1 April 2020 on the day he first saw Ms Browne. However, he has a history that she suffered a psychological injury on 18 March 2020 when she had to leave work at the finishing time due to other commitments. He adds that her job was in jeopardy if she was not able to stay back and do extended hours. I find this is not an accurate history because in fact on 18 March 2020 she had a meeting with her employer, and they agreed to her going home after the meeting as she was unwell. It is apparent from the records from her usual doctors at the Stanhope Medical Centre she was recovering after an admission to hospital. The employer also agreed in this meeting to pay her for the week even though she had no more sick leave entitlement. I find she was not required to stay back to her finishing time. So, Dr Lim’s history is wrong.
Dr Lim also states in this report that “From my understanding of the injured worker's role as a Internal account manager, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks.” This is poorly expressed and for reasons I give later in these reasons I find the cause of Ms Browne’s psychological injury was her dismissal from the respondent’s employ.
It is of some concern that Dr Lim did not appear to have Ms Browne’s medical records from the Stanhope Medical Centre before him when he wrote this report and so he may not have had an understanding of her health in 2020.
However, I accept his examination findings of her on 1 April 2020 revealed that she had a flat mood, was anxious, had poor concentration and was aggressive. He diagnosed she had an adjustment disorder with anxiety and was unable to work. The only pre-existing issues he noted was anxiety in 2016.
Dr Kumagaya is a psychiatrist at the Workers Doctors practice, and he has provided a report dated 6 April 2020. He has a history of Ms Browne’s prior mental health condition, being diagnosed at age 17 as suffering from a depressive and anxious syndrome diagnosed by a psychiatrist.
However, neither Dr Lim or Dr Kumagaya refer to Ms Browne seeing Dr Dinakar on 16 January 2020 with “recurrence of severe anxiety, anger etc on Zoloft 50mg for 3 years” and that Dr Dinakar’s referral to a psychologist noted that she was experiencing anxiety and possible symptoms of PTSD stemming from a previously emotionally abusive relationship that is affecting her current relationship[22]. I find it is relevant that the Mental Health Plan recorded symptoms such as anger, sleep problems and weight loss. I find it is concerning that those treating Ms Browne after her dismissal on 31 March 2020 did not know about these other issues only a few months earlier.
[22] AALD 8 January 2021 p 48.
I note that Dr Kumagaya also has a history “[w]hen she stated that she was unable to stay beyond her designated employment hours, she was told that she was not working hard enough, and this ultimately led to her dismissal for ‘performance issues’.” I find for the reasons set out below that this is not an accurate history of what factually occurred at the workplace. The letter to Ms Browne raising the performance issues related to errors she had made and was not in relation to her working hours.
Dr Kumagaya does record that Ms Browne’s Sertraline had been increased earlier during the year to 100 mg by her general practitioner but he does not seem to know that Dr Dinakar did this due to her prior relationship issues and there is no mention of work being the cause of the increased medication at that time. This increased in dosage occurred on 16 January 2020 according to Dr Dinakar’s clinical note. Dr Kumagaya says she was yet to experience a significant shift in her mental state despite this increase in the dosage of the Sertraline.

Dr Kumagaya discussed a further increase in Ms Browne’s medication to 150 mg and he diagnosed she suffered from a major depressive disorder[23]. Dr Kumagaya saw Ms Browne again on 23 April 2020 at which time she was taking Sertraline 150 mg. He notes that Melatonin was commenced by the general practitioner on 15 April 2020 for initial insomnia. He does not state the identity of that general practitioner. Dr Kumagaya says they discussed the commencement of Quetiapine for insomnia and the cessation of Melatonin as it was not proving to be effective[24].
[23] ARD p 40.
[24] ARD p 44.
Dr Kumagaya saw Ms Browne again on 7 May 2020 he noted she had increased the Quetiapine from 25 mg to 50 mg as she had found it helped her sleep. He noted her mood had improved but she continued to report prominent depressive conditions. The doctor saw her again on 27 May 2020 when she complained of low mood, decreased interest in activities, decreased energy levels, concentration difficulties and sleep disturbance[25].
[25] ARD p 47.
On 17 June 2020 Dr Kumagaya reported that he had reviewed Ms Browne via telehealth. Ms Browne apparently had switched to Escitalopram 10 mg on 10 June 2020 after she had run out of Sertraline and she preferred Escitalopram. Her mood and energy levels had improved[26].
[26] ARD p 49.
On 8 July 2020 Dr Kumagaya saw her again via telehealth and recorded that there was ongoing improvement in her mental state, but major depressive disorder symptoms persisted such as diminished energy, decreased interest in activities, sleep disturbance, concentration difficulties and anxiety[27]. However, it is of concern that Dr Kumagaya does not record that the day before on 7 July 2020 Blacktown Hospital issued a Discharge Summary noting Ms Browne had been an inpatient from 6 July 2020 because she was pregnant and had bleeding and abdominal pain[28]. It is noted on the discharge summary under the heading gynaecological history “has been trying to conceive since last year”. It was noted she had a history of two ectopic pregnancies and testing was done at the Hospital in this admission for such complications.
[27] ARD p 51.
[28] AALD 8 January 2021 pp 50/51.
On 10 August 2020 a similar report was issued by Dr Kumagaya, but noting an increase in Quetiapine to 75 mg to help with sleep[29]. On 9 September 2020 the doctor reported she had worsening mental state[30].
[29] ARD p 53.
[30] ARD p 55.
Dr Tso at the Workers Doctors recorded on 17 April 2020 she was not actively trying to become pregnant yet the Stanhope Medical records on 11 April 2020 record that she and her partner have been attending the Fertility Centre Liverpool and a referral was issued to them[31]. In all of these reports Dr Kumagaya makes no reference to these matters and to the fact that Ms Browne was being seen on numerous occasions by the doctors at the Stanhope Medical Practice and had respiratory and gynaecological issues.
[31] AALD 8 January 2021 p 11.
It seems extraordinary that a treating psychiatrist would not have mentioned such significant other health issues had he been informed of the same by Ms Browne. The records from the Stanhope Medical Practice are in her Application to Admit Late Documents. However, the statements filed by Ms Browne are very brief and do not mention such matters.
There are no medical certificates before the Commission post-dating 30 June 2020. It is apparent from Ms Browne’s bank statement that she was in receipt of Job Seeker payments, which confirms the history she gave to Dr Smith for the respondent. Dr Kumagaya does not refer to her getting Job Seeker payments nor does he comment on her work capacity and there is no updated report from Dr Lim, nor any report from Dr Dinakar or the psychologist he referred Ms Browne to early in 2020. The last entry in the clinical notes from the psychologist, Robbie Malek, at the Workers Doctors is on 1 October 2020 and he records that Ms Browne broke her hand and it would be four weeks to full recovery. He notes she “plays soccer has team mates”. He does not comment on work capacity although Ms Browne was still receiving mindfulness meditation and “CBT”.

Dr Abdal Khan

Dr Khan, psychiatrist, provided a medico-legal report for Ms Browne’s solicitors dated 21 July 2020. He takes the history that as a result of work stressors Ms Browne experienced a gradual deterioration in her mental state characterised by symptoms of depression and anxiety and he lists many symptoms. However, I do not accept this is an accurate history and I explain later in these reasons that I find that the psychological injury suffered by Ms Browne was caused by her dismissal from employment. I do not accept Dr Khan’s characterisation of a gradual deterioration in her mental state as this is not borne out by the contemporaneous medical records. Also, as explained below, I do not accept the factual basis of the doctor’s opinion that Ms Browne was unable to take lunch breaks and was made to feel guilty by not staying back at work.
Dr Khan expresses the opinion that Ms Browne has not had any capacity for employment since the date of her injury. He says she requires further mental health treatment yet he notes she is motivated to return to employment within her education, training and experience but she is struggling to reconcile the fact that her reputation in her industry might have been damaged by the actions of her employer.
I find it difficult to give the opinion of Dr Khan weight because he says her mental state had started to deteriorate soon after she commenced employment. I do not accept this is the fact and I explain the reasons for this finding later in these reasons.
I again find it extraordinary that Ms Browne would not have informed Dr Khan that she had been an inpatient at Blacktown Hospital just three weeks beforehand. Dr Khan did not list these records as having been sent to him. He does not list this treatment under the heading “general medical treatment”. And he later states in his report “Ms Browne denied any significant recent psychosocial stressors”. In light of these matters, I find I cannot give weight to the doctor’s opinion about Ms Browne’s capacity for employment due to her work injury because he does not appear to have an accurate or complete history.

Dr Smith

Dr Clayton Smith, psychiatrist, was qualified by the insurer and provided a report dated 20 July 2020[32]. He took a history that her mother had a history of anxiety and depression and may have been diagnosed with bipolar disorder Type 2 and her grandmother has anxiety. She advised the doctor that she developed anxiety during high school and started on antidepressant medication after she graduated and during her first year at university. She began studying tourism management and a Bachelor of Psychology but did not complete those studies and travelled. She started working in sales when aged 20.
[32] Reply p 3.
Dr Smith undertook a mental state examination and concluded Ms Browne’s intelligence was in the average range. He found that the content of her thoughts reflected her belief that she had been unfairly dismissed and poorly treated by the respondent.
The doctor found that even though Ms Browne was taking medication for treatment of anxiety prior to her employment with the respondent there was no indication she had symptoms of anxiety or depression in the clinical range preceding the alleged injury.
Ms Browne told the doctor that she had started an Instagram based catering business in Janaury 2020 but has been unable to work on it as she has no motivation and she said she has been unable to take any inquiries from customers because her solicitor advised her not to work. This is of concern. She advised she was on JobSeeker allowance. Dr Smith noted her symptoms had improved over the two months before his consultation and were now in the mild range.
In Dr Smith’s report dated 15 February 2021 he considered Ms Browne’s medical records. However, he only lists he was sent those attached the Application to Admit Late Documents dated 1 February 2021. The Stanhope Medical Centre records are attached to the Application to Admit Late Documents dated 8 January 2021.
Dr Smith adhered to his view that Ms Browne developed an adjustment disorder with anxiety and depressed mood in response to being terminated. He said there is no evidence by the treating doctor that she had symptoms of anxiety or depression in the clinical range prior to her termination. Dr Smith notes Ms Browne’s statement reiterates her concern that her termination was unfair and not warranted.
Dr Smith confirmed his view that Ms Browne had a capacity to return to the same type of work with a different employer for the same hours. He noted that she told him her solicitor had advised her not to work and she was receiving JobSeeker payments. He adds that Ms Brown said the main barriers to employment were the lack of suitable employment as well as uncertainty where she stood with ongoing legal and WorkCover issues. He opines there was no significant impairment in her social or occupational function and no restriction on her capacity from a psychiatric perspective[33].
[33] AALD 17 February 2021.

Determination

The parties have agreed that Ms Browne has a psychological injury from work-related events. However, section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent has the onus of establishing a defence under section 11A.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[34] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[34] [2008] NSWCA 246, Nguyen.
Even though the parties agree Ms Browne has a psychological injury the first step is to ascertain the cause of the same. I find that her injury wholly or predominantly was caused by her dismissal. In her ARD form it is stated she was bullied and harassed and subjected to unfair management and isolation tactics which lead to her gradual psychological deterioration. I find she was not bullied and harassed. There is no evidence of that and, indeed, I accept the evidence of the various members of the respondent that they did try to accommodate her requests. I accept the evidence that Ms Browne wanted to work hours that suited her “lifestyle” and so she could continue working as a gymnastics coach. Notwithstanding that she was a new employee and still on probation, I find it is remarkable that the company did on several occasions attempt to accommodate her. Firstly, they agreed to her leaving one day a week earlier than her contracted end hour and when she complained about that, they held a meeting in February 2020 with her and agreed to a work trial for her to work 7.30am to 4pm Monday to Friday.
I accept the evidence of Ms Khan that she sat next to Ms Browne and provided training and brought to her attention errors she made. The reason why I accept Ms Khan’s account is because it is detailed and supported by the email sent to officers of the company. She cites specific examples of errors. Ms Browne has not challenged this information. Ms Browne’s statements by comparison are vague. She asserts that she was unable to take lunch breaks and she felt completely overworked. Applying Nguyen, I am not persuaded on the balance of probabilities that such were the facts. I prefer the evidence of Ms Baddock that it was Ms Browne who suggested working in her lunch hour so she could leave early, and it was Ms Baddock who advised her that it was important for her well-being that she had lunch breaks. I do not accept it was the fact that Ms Browne was overworked. I accept that Ms Baddock was telling the truth when she recounted that Ms Browne said to her that she was bored and complained that she finished her work early and was not allowed to leave early.
I accept in relation to factual matters Ms Baddock and Ms Khan are more reliable witnesses than Ms Browne. I find caution needs to be exercised accepting Ms Browne’s assertions at face value. For instance, she says she was constantly made to feel guilty by her colleagues as she did not stay back after her contracted hours to attend to work. However, she offers no names, dates or examples of this. I accept that Ms Khan, sitting next to Ms Browne, would have been in a position to hear if such comments were made to Ms Browne. I accept her evidence that no such comments were made. Furthermore, I find it is more likely than not on the balance of probabilities that had others made Ms Browne feel guilty she was the type who would have complained about this to her employer, and there is no evidence that she did so.
The respondent paid Ms Browne when she had run out of sick leave even though they were not legally obliged to do so. I find this shows that, contrary to Ms Browne’s assertions, that they were a supportive employer.
I also find that Ms Browne’s complaints about the company not immediately meeting her demands to work from home in the Covid-19 situation are not warranted. The respondent’s witnesses explained why they could not agree to her request at that time as they did not have the systems set up to enable internal sales staff to work from home. However, I accept when they had such systems in place, they tried to contact her and in the interim they allowed her to stay home.
Furthermore, her texts to Ms Baddock suggest she was still not well in this period from 18 March 2020 and even at 30 March 2020 she was waiting for her doctor’s clearance to return to work in the office. I have summarised the medical records from the Stanhope Medical Centre which shows in this period Ms Browne was not well. For instance, on 22 March 2020 she was treated for a urinary tract infection. On 25 March 2020 she attended having crushed her right-hand little finger in a sliding door. She was seen again on 29 March 2020 noting x-rays had revealed a fracture of the finger and sought a medical certificate, which was given from 30 to 31 March 2020. On 31 March 2020 she returned to get results from a urine check for infection and the doctor advised she was fit to return to work tomorrow.
However, while the respondent contractually was able to terminate Ms Browne when she was in her probation period, I find the way they dismissed her was not reasonable. Having taken the step of sending her an email and asking for her response relating to her work performance and data security breaches, I find it was unreasonable that they did not then wait for her to respond.
For the respondent to succeed it needs to prove that the employer’s conduct was reasonable action.
The test of reasonableness is an objective test as discussed in cases such as Jeffery v Lintipal Pty Ltd[35], Baldwin v Greater Building Society Ltd[36] and Irwin v Director General of Education[37].
[35] [2008] NSWCA 138, Jeffery.
[36] [2011] NSWWCCPD 18, Baldwin.
[37] Unreported 18 June 1998, No 14068 of 1997, Irwin.
In Baldwin at [96] Roche DP stated it is necessary to have regard to all the circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business and the worker’s position in that business. At [104] he also stated that mere compliance with a set procedure that the employer believes is reasonable will not necessarily mean that an employer’s conduct is in fact reasonable in all the circumstances and Roche DP cited Basten JA in Jeffery at [50].
I consider it was reasonable to bring the issues about her work performance and data security breaches to her attention but, as I have stated, having taken that course of action and asked her for a response, objectively it was then not reasonable to dismiss her without hearing from her.
At [17] of the respondent’s initial submissions counsel states the respondent relies upon performance appraisal, discipline, dismissal and the provision of employment benefits. In the submissions in reply it says it does not rely on performance appraisal. In light of this concession I have read but not summarised Ms Browne’s submissions in relation to the same.
I do not accept that Ms Khan’s one on one coaching was “discipline” as I find it was part of management and training of a new employee. Furthermore, as the respondent’s counsel acknowledged Ms Browne does not complain about these coaching sessions. I am not persuaded that the psychological injury was caused by “discipline” as I have found it was caused by her dismissal.
The respondent also submitted that the interactions between Ms Browne and her employer about her work hours fall within the provision of employment benefits. It is argued that the respondent’s actions in this regard were reasonable. I agree that the respondent dealt reasonably with Ms Browne relating to the issue about her hours of work, however the respondent has not convinced me that the psychological injury was wholly or predominantly caused by the work hours issue. I find while there may have been frustration expressed by Ms Browne in her demands not being met, I am not convinced that this was the cause of her injury. Just before her termination she was endeavouring to obtain her doctor’s clearance to return to work. This was a clearance related to her physical health issues not psychological issues.
I have found the whole or predominant cause of her psychological injury was her dismissal. I have explained why the respondent’s conduct objectively viewed was not reasonable. Accordingly, I find the respondent has not established a defence under section 11A of the 1987 Act.

Weekly compensation

In claims for weekly compensation as a starting point one needs to consider if an applicant has “no current work capacity” or a “current work capacity”.
The definitions of “current work capacity” and “no current work capacity” were moved from section 32A to schedule 3 of the 1987 Act by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). There is no change in these definitions.
“No current work capacity” is defined to mean:
“in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
“Current work capacity” is defined as “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”.
“Suitable employment” is defined in section 32A of the 1987 Act as follows:
“in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the WorkCover Guidelines may specify, and

(b) regardless of:

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

Sections 35, 36 and 37 of Division 2 of Part 3 of the 1987 Act provide the mechanism for calculating an injured worker’s entitlements to compensation for the first 130 weeks.
In Wollongong Nursing Home Pty Ltd v Dewar[38] Roche DP explained how the determination of an injured worker’s entitlement to weekly compensation differed after the 2012 amendments and that care needed to be taken when relying on older authorities. This is because section 32A of the 1987 Act eliminates a consideration of whether work is “available” and whether it is “of a type or nature that is generally available in the employment market”.
[38] [2014] NSWWCCPD 55, Dewar.
However, as Roche DP pointed out the first question to ask is whether a worker has a “current work capacity” or “no current work capacity”. As he explained at [47],
“A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”
In Dewar Roche DP found at [58]:
“‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).”
Ms Browne has the onus of proof to establish the extent of her entitlement to weekly compensation. She has medical certificates covering the period to 26 June 2020 which certify that she has no current capacity for employment. At the conciliation conference Ms Browne was directed to file updated medical certificates however, her Application to Admit Late Documents dated 1 February 2021 only attaches copies that were already in her ARD.
The psychologist on 30 June 2020 states in his request for treatment that she was unfit for work. However, after that time the evidence about Ms Browne’s capacity for employment is scant.
Dr Smith noted on 20 July 2020 her symptoms were in the mild range and in his supplementary report he adds that his view is that Ms Browne had capacity to return to work of the same type and hours as she had been doing pre-injury. The respondent submits there is no evidence to counter this view.
Dr Khan examined Ms Browne around the same time as Dr Smith but found she had no capacity for employment. Ms Browne’s submissions just state that reliance is placed on his opinion and the certificates of capacity. I have explained why I do not accept the opinion of Dr Khan. I consider that Dr Smith has demonstrated a more considered and detailed history relating to her employment capacity and for that reason I prefer his opinion to that of Dr Khan.
Ms Browne informed Dr Smith she was receiving JobSeeker payments. This is confirmed in her bank statements. The following payments are recorded in the records which are before the Commission. On 26 April 2020 $750 was paid into Ms Browne’s account noting it was “economic support”, on 28 April 2020 $612.08 was paid as Job Seeker[39]. Other Job Seeker payments were made on 6 May 2020 $1,264.10, on 12 May 2020 $6.64, 19 May 2020 $1,254.10, 2 June 2020 $1,264.10, 16 June 2020 $1,264.10, 14 July 2020 $1264.10, 28 July 2020 $1264.10, 11 August 2020 $1,264.10, 26 August 2020 $1,264.10, 8 September 2020 $1264.10, 22 September 2020 $1264.10, 6 October 2020 $1264.10, 21 October 2020 $964.10, 19 November 2020 $964.10, and 1 December 2020 $964.10. There are no further bank statements before the Commission.
[39] AALD 15 January 2021 p 94.
In Ms Browne’s wages schedule in the ARD form she seeks weekly compensation pursuant to section 36 of the 1987 Act from 30 March 2020 and under section 37 from 1 July 2020 and continuing. She refers to her pre-injury average weekly earnings figure as $1,500. However, in conciliation her counsel advised the figure was $1,362.97. The respondent’s wages schedule has the figure of $1,307.65. The contract of employment provided for a base salary of $68,000 per annum which is $1,307.65 per week. Neither party in their submissions refers to mathematical calculations of the PIAWE or at all.
I find the evidence establishes that Ms Browne had no current capacity for any employment from the time of her termination on 31 March 2020 to the time she was examined by Dr Smith on 20 July 2020. While the last medical certificate before the Commission only covers the period to 26 June 2020 there is the note in the psychologist’s allied health request of 30 June 2020 that Ms Browne was unfit for work then. I consider while this is scant evidence loss should be allowed up to when Dr Smith examined Ms Browne, as I have accepted his evidence as to her having a current capacity for suitable employment at that time. Her age, education, skills and work experience are such that work in sales for a different employer, earning the same salary, I find would be suitable employment. Dr Smith’s expert medical opinion is that Ms Browne could work in a comparable position and for normal hours, therefore, I find that meets the requirements in section 32A of the 1987 in relation to the definition of suitable employment. Applying the formula in section 37 of the 1987 Act Ms Browne would not be entitled to an award of weekly compensation from 21 July 2020.
Ms Browne’s counsel has not referred in his submissions to relief being sought in relation to the claim for section 60 expenses made in the ARD but in conciliation he did say he was seeking a general order. The respondent has not addressed this in its submissions. However, as Ms Browne is entitled to compensation, as the respondent has not succeeded in establishing a section 11A defence, it follows that she would be entitled to be compensation for reasonably necessary treatment expenses and so a general order is appropriate.

SUMMARY

The respondent has not established a defence under section 11A of the 1987 Act.
The respondent is to pay treatment expenses pursuant to section 60 of the 1987 Act upon production of accounts, receipts and/or Medicare Notice of Charge.
The respondent is to pay Ms Browne weekly compensation from 31 March 2020 to 20 July 2020 pursuant to sections 36 and 37 of the 1987 Act on the basis that she had no current capacity for employment in this period.
Award for the respondent in relation to the claim for weekly compensation from 21 July 2020 to date and continuing.
The parties have liberty to apply in relation to calculation of the weekly award or they can file consent orders to give effect to agreement reached as to the mathematical calculation.

[2021] NSWPIC 110

10 May 2021