BTV v CKV

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BTV v CKV [2024] NSWPIC 358
APPLICANT:	BTV
RESPONDENT:	CKV
MEMBER:	John Turner
DATE OF DECISION:	19 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 11A(1) and (3), 36, 37, 38 and 60; psychological injury; injury disputed; section 11A(1) defence that injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline; Kooragang Cement Pty Ltd v Bates, Attorney General’s Department v K, AV v AW, Ariton Mitic v Rail Corporation of NSW, Jackson v Work Directions Australia Pty Ltd, Ponnan v George Weston Foods Ltd, and Manly Pacific International Hotel Pty Ltd v Doyle considered and applied; Held – applicant sustained a psychological injury arising out of or in the course of her employment; applicant’s employment was the main contributing factor to the psychological injury; applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline; applicant has had no current work capacity to date.
DETERMINATIONS MADE:	The Commission determines: 1. By consent the name of the respondent is amended by inserting “Pty Limited” after “Services”. 2. The applicant sustained a psychological injury arising out of or in the course of her employment on the deemed date of 17 March 2021. 3. The applicant’s employment was the main contributing factor to the psychological injury. 4. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline. 5. The applicant has had no current work capacity from 17 March 2021 to date and has no current work capacity. 6. The respondent is ordered to pay the applicant the following: (a) $943.22 per week ($992.86 x .95) from 17 March 2021 to 31 March 2021 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); (b) $969 per week ($1,020 x .95) from 1 April 2021 to 15 June 2021 pursuant to s 36 of the 1987 Act; (c) $816 per week ($1,020 x .80) from 16 June 2021 to 30 September 2021 pursuant to s 37 of the 1987 Act; (d) $824 per week ($1,030 x .80) from 1 October 2021 to 31 March 2022 pursuant to s 37 of the 1987 Act; (e) $840 per week ($1,050 x .80) from 1 April 2022 to 30 September 2022 pursuant to s 37 of the 1987 Act; (f) $872 per week ($1,090 x .80) from 1 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act; (g) $912 per week ($1,140 x .80) from 1 April 2023 to 12 September 2023 pursuant to s 37 of the 1987 Act; (h) $912 per week ($1,040 x .80) from 13 September 2023 to 30 September 2023 pursuant to s 38 of the 1987 Act; (i) $936 per week ($1,170 x .80) from 1 October 2023 to 31 March 2024 pursuant to s 37 of the 1987 Act, and (j) $952 per week ($1,190 x .80) from 1 April 2024 continuing pursuant to s 38 of the 1987 Act. 7. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses in respect to the psychological injury pursuant to s 60 of the 1987 Act. 8. The parties have liberty to apply for seven days from the date of this decision in respect to any issue in respect to the mathematical calculation of the indexed pre-injury average weekly earnings of the applicant and the mathematical calculation of the amount of the weekly benefits.

STATEMENT OF REASONS

BACKGROUND

BTV, the applicant, commenced employment with CKV, the respondent, in April 1996 and was employed as a childcare educator.
The applicant alleges that during the course of her employment with the respondent she was subjected to bullying and harassment by her colleagues sustaining psychological injury on the deemed date of 2 March 2022.
The applicant claims weekly compensation from 17 March 2021 to date and continuing pursuant to ss 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) as well as medical and related treatment expenses pursuant to ss 59 and 60 of the 1987 Act.
The applicant has not worked since 17 March 2021.
The applicant in the course of her employment with the respondent was supervised by and reported to Sally Walsh, Director, and her Area Manager was Lyn Connors.
In September 2017 the applicant was diagnosed with Leukemia and went off work. The applicant returned to part-time work with the respondent in or about August 2018 before upgrading to full-time duties from on or about 1 December 2018.
On 16 February 2021 the applicant was called into the office of Ms Walsh where Ms Connors handed her a telephone to talk to Ms Debbie Dickson, Manager Child Safety and Wellbeing. The applicant was also given a letter of complaint against her to be investigated re disciplinary action.
The applicant was advised that a complaint had been made that on 9 February 2021 she had inappropriately gifted a book to a child. The complaint was to be the subject of an investigation. The book was a Sonic Hedgehog artbook. There was a further allegation that the applicant had encouraged the same child to seek her out for a hug if the child felt they needed or wanted a hug (allegations of misconduct).
On 17 February 2021 the applicant, feeling highly stressed due to the work allegations made against her, attended on her general practitioner (GP) and was provided with a sick leave certificate as well as being prescribed anti-depressant medication.
On 19 February 2021 the applicant was interviewed by Ms Dickson. Also present at the interview were Ms Connors, Steph Murray (support person for the applicant) and David Westrip from the United Workers Union attended by telephone. The purpose of the interview was to look into the allegations made against the applicant.
On 1 March 2021 the applicant attended the office of Ms Connors with Ms Dickson on speaker phone. The applicant was handed a letter in respect to the outcome of the workplace investigation into the allegations made against her. The applicant was advised at that meeting that the outcome of the investigation did not result in a formal warning however there would be a work performance process.
It is the applicant’s evidence that she returned to work on 2 March 2021 and felt anxious, watched and unsupported and working without guidance. She felt like she was being set up, bullied and harassed.
On 8 March 2021 the applicant sent an email to Ms Connors stating her grievances in respect to a co-worker Ms Deborah Henderson. Ms Connors requested that the applicant supply more information. It is the applicant’s evidence that it took time for her to compose a statement of grievance and that the process caused her to relive the process again which caused the applicant to become anxious and upset again.
On 9 March 2021 the applicant attended a meeting with Ms Connors, Ms Walsh, the respondents Human Resources (HR) Manager, Scott Price, attended by way of a conference call. The meeting arose out of the outcome of the investigation conducted by Ms Dickson and the allegations of misconduct.
On 17 March 2021 a first formal warning letter was delivered to the applicant.
On 18 March 2021 the applicant attended on her GP.
On 19 March 2021 the applicant submitted a Workcover certificate to the respondent.
The applicant has been off work since 17 March 2021. The applicant’s employment with the respondent was terminated in October 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the respondent disputes that the alleged injury has arisen out of or in the course of employment as required by s 4 of the 1987 Act;
(b)    the respondent disputes that employment was the main contributing factor to the contraction of a disease, or to the aggravation, acceleration, exacerbation or deterioration of a disease injury as required by s 4(b) of the 1987 Act;
(c)    the respondent alleges that pursuant to s 11A(1) of the 1987 Act the applicant is not entitled to compensation because the alleged psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline. Transfer had previously also been relied upon but withdrawn (in my view correctly) by the respondent as an issue at the time of the arbitration hearing;
(d)    the respondent disputes that the applicant has been totally or partially incapacitated for work as a result of an injury and therefore pursuant to s 33 of the 1987 Act is not entitled to weekly compensation;
(e) entitlement to weekly compensation pursuant to s 38 of the 1987 Act, and
(f)    the respondent pursuant to ss 59 and 60 of the 1987 Act disputes that the applicant is entitled to medical or related treatment because the medical or related treatment is not reasonably necessary as a result of an injury.
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $992.86. The parties are also in agreement that any payments of weekly compensation from 13 September 2023 would be governed by s 38 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 21 May 2024. Mr Bill Carney, counsel, instructed by Mr Jixian Zhang, solicitor, appeared for the applicant, who was present. Ms Nicole Compton, counsel, appeared for the respondent, instructed by Mr Shiraz Biscevic. The proceedings were conducted on MS TEAMS. 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 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve (ARD) a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to applications to admit late documents filed on behalf of the applicant dated 6 May 2024 and 16 May 2024.
The respondent objected to the medical report of Dr Rastogi dated 8 April 2024 being admitted into evidence. I admitted the report into evidence after hearing submissions.
The respondent submitted that there had been a decrease in the applicant’s level of functioning, that the report contains additional information in respect to the applicant’s current treatment and disabilities. That the respondent is prejudiced as it has not had an opportunity to meet this new evidence.
I do not accept the respondent’s submission for the following reasons. The report of Dr Rastogi dated 8 April 2024 is a supplementary report. For the purposes of the report the doctor reviewed a schedule of out of pocket expenses, the clinical notes of the applicant’s treating psychologist, Ms Kathleen Marriott, and the forensic report of Dr McDonald dated 9 December 2022. These documents all appear to be in evidence before me. Significantly Dr Rastogi does not appear to have re-examined the applicant for the purposes of the report.
In respect to the treatment which the applicant has received Dr Rastogi simply records what treatment the applicant has received. The treatment being virtually the same as that which Dr McDonald recorded in his report of 9 December 2022.
In respect to the applicant’s work capacity the doctor expressed the opinion that the applicant is still significantly impacted by psychological impairments given unresolved grievances. That she is incapacitated totally. That she cannot work in high stimulus client facing environment and displays cognitive deficits with erratic pace. She remains unfit to work till date with poor response to treatment. Her age is also a barrier to seek future vocational opportunities placing her at significant disadvantage. This is virtually identical to the comments contained at point 8.i.[1] of the doctor’s report of 3 December 2021.
[1] ARD p 120.
Dr Rastogi’s in her report of 8 April 2024 did express the opinion that the applicant has no future capacity to work having regard to her pre-injury occupation. However, Dr McDonald in his report of 9 December 2022 addressed this issue concluding at point 10(f)[2] that in his opinion it was unlikely that the applicant would be able to engage in paid employment in the future and at point 11 that in his opinion any rehabilitative program that aimed at returning the applicant to work with a different employer is “likely to be futile.” In fact, Dr McDonald was of the opinion at point 12 that the applicant would “[n]ever” be able to participate in a
[2] Reply p 73.
return-to-work program.
The disabilities which Dr Rastogi records at point 1b) of his report of 8 April 2024 are identical to those recorded under the heading “Diagnosis and Opinion” in the doctor’s earlier report of 3 December 2021.
The respondent submitted that Dr Rastogi in his report of 8 April 2024 provides an opinion in respect to causation. The opinion that appears at point 2a) of that report has literally been cut and pasted from page 6 of the doctor’s earlier report of 3 December 2021. In the report of 8 April 2024 Dr Rastogi does provide the opinion that employment was the “main contributing factor” to the injury. In the report of 3 December 2021 Dr Rastogi had referred to employment as “a main substantial contributor” and when specifically asked at point 7 whether employment was a main contributing factor the doctor without using the specific term in my opinion answers the question in the affirmative identifying no other contributors stating:
“Your client’s current psychological injury is attributable to incidents as mentioned in detail during her employment. She had previous episode of adjustment disorder that was in remission and there is no psychological vulnerabilities contributing to her current presentation.”
The mere use by Dr Rastogi of wording used in the legislation does not in my view change the substance of the doctor’s opinion. In any event Dr McDonald in his report of 4 June 2021 considered the issue of “main contributing factor” and provided his opinion to the respondent.
The respondent submitted that Dr Rastogi commented on and criticised the report of Dr McDonald and the respondent is prejudiced as it has not had the opportunity for Dr McDonald to review and comment on that criticism. I do not accept the respondent’s submission for the following reasons. All Dr Rastogi says is that she does not agree with the opinion of Dr McDonald that the psychological injury is wholly or predominantly due to breach of the code of conduct. The reasons that Dr Rastogi gives for that opinion are a virtual cut and pasted from page 3 of his earlier report.
For the above reasons I do not believe that the respondent is prejudiced by the admission of the report into evidence nor that the respondent is denied procedural fairness by the admission of the report into evidence.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

Injury

Section 4 of the 1987 Act relevantly defines “injury” as follows:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) ….”
Section 11A(3) of the 1987 Act defines “psychological injury” as follows:
“A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
The applicant bears the onus of proof in respect to injury.
Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Mr Carney submitted on behalf of the applicant that as a result of interpersonal conflict, incidents and issues in the workplace the applicant had sustained a psychological injury by the end of 2020.
Ms Compton submitted on behalf of the respondent that the psychological injury was not sustained until on or after 16 February 2021 when the applicant was advised of the allegations of misconduct which had been made against her and an investigation into those allegations commenced.
In the respondent’s submission prior to 16 February 2021 the applicant had no diagnosable psychological condition, had suffered no exacerbation or aggravation of any underlying psychological condition and remained at work. The respondent also denies that the applicant was bullied and harassed.
For the following reasons I accept the submission made on behalf of the applicant that she had sustained psychological injury by the end of 2020 and prior to the applicant being advised of the allegations of misconduct which had been made against her and the commencement of the investigation into those allegations.
In Attorney General’s Department v K [2010] NSWWCCPD 76 Roche DP considered and summarised the law in respect to psychological injury stating at [52]:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40];
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
In my view the evidence supports that prior to 16 February 2021 there were real events in the course of the applicant’s employment which the applicant perceived as creating a hostile environment. The applicant is not required to prove that she was in fact bullied and/or harassed.
As part of her statement made on 28 May 2021 the applicant adopted documents including two documents titled "Grievance re: Sally Walsh, Director KU Kooinda CCC” and “Grievance re: Deborah Henderson, Childcare Educator KU Kooinda”. It is my understanding that both these documents were prepared by the applicant. Whilst these two documents are unsigned the applicant has adopted them as part of her statement evidence, and I treat them as such.
It is the applicant’s evidence that she returned to part-time work with the respondent in August 2018 following treatment for Leukemia and that she returned to full-time duties on 1 December 2018.

Initially there appears to have been minimal issues following the applicant’s return to work and return to full-time duties. The applicant appears to have been functioning and performing well in her employment with the respondent as evidenced by a performance appraisal which was completed on 26 November 2019. By the time of the performance appraisal the applicant had been back at work full-time for almost a year. Ms Walsh recorded on the performance appraisal the following manager’s comment:
“Sandi is a reliable and committed member of the Kooinda team. She has great relationships with the children and families, and is a supportive colleague for Karen. Sandi shows an interest in professional development and in furthering her skills to benefit Kooinda and the children.”[3]
[3] Reply p 81.
It is the evidence of Ms Walsh that when she began at the centre in 2019, the applicant had good working relationships with her colleagues and had developed a good working relationship with the centre's pre-school teacher, Ms Karen Pugsley.
Following the performance appraisal the situation deteriorated significantly.
In the applicant’s opinion the respondent’s COVID-19 hygiene standards were “very poor”. It is the applicant’s evidence that she felt very vulnerable due to low immunity following her previous illness and that in June 2020 she reported to Ms Walsh her concerns in respect to the respondent’s COVID response. It is the applicant’s evidence that nothing was done, that she was seen as just complaining and that she felt that she was not being taken seriously.
Whilst the contemporaneous clinical records do not explicitly refer to the applicant’s concerns in respect to COVID-19 and the measures taken by the respondent to mitigate the risk to staff and children. The contemporaneous clinical records do in my view indicate that the applicant was fearful of contracting COVID-19 in the workplace. Furthermore, the applicant did voice her concerns in respect to COVID-19 and the hygiene at work at a care and concern meeting held on 9 October 2020.
On 15 April 2020 the applicant attended on her GP in respect to chronic disease management and a mental health care plan. The clinical record of the attendance records that the applicant was “[f]earful” of her health working in the pre-school. It was noted that the applicant had a scratchy throat and sniffles for a few days. Significantly a mental health care plan completed the same day records a provisional diagnosis of anxiety/depression.
The applicant again attended on her GP on 20 April 2020 at which time it was noted that she was negative for COVID. Whilst the applicant was feeling “well in self” the recorded reason for the visit was adjustment disorder with mixed anxiety and depressed mood.
It is the evidence of Ms Walsh that with the on-set of COVID-19 in early 2020 the applicant, as well as other staff, were on edge as to the future.
It is the evidence of Ms Connors that from approximately July 2020 she began to receive reports of workplace issues involving the applicant. It is Ms Connors evidence that these issues developed on the back of the COVID-19 situation that the respondent was experiencing although Ms Connors could not say for sure what the trigger was.
It is the evidence of Ms Walsh that from about June 2020, she noticed that the applicant was displaying signs of depression. Her emotions fluctuated throughout the day. She began to be emotional and was crying daily. It is the evidence of Ms Walsh that at about the same time the applicant was involved in a few run-ins with new casual employees.
The applicant reported to her psychologist, Ms Marriott, on 13 July 2020 that there had been an incident where she felt pressured to do the cooking at work and had a meltdown.
On 27 July 2020 the applicant attended on Ms Marriott at which time the applicant reported that she had a meeting with her boss to explain that her mental health had deteriorated. The applicant appears to have debriefed her boss over the impact of cancer treatment, the stress of a couple of years and that she had started back in sessions. Ms Marriott also recorded that the applicant felt supported at work.
It is the applicant’s evidence that from March to December 2020 she experienced an increase in confrontation with Ms Deborah Henderson. That Ms Henderson criticized her work practices, the setup of her room and her ongoing project with the children. That Ms Henderson insulted and threatened her in front of other staff and the children.
It is the applicant’s evidence that this conduct of Ms Henderson made her feel harassed and bullied and that her 25 years of knowledge was being ignored. That she felt unsupported by the respondent with Ms Walsh appearing to back Ms Henderson and that her health began to decline as a result.
It is the applicant’s evidence that she reported many of these incidents with Ms Henderson to Ms Walsh, but no action was taken, and the applicant was blamed for the incidents. She felt intimidated and fearful that she was being spied upon and became confused and anxious.
As part of her work duties the applicant was responsible for a children’s gardening project. It was a project which the applicant enjoyed. It is the applicant’s evidence that Ms Henderson would constantly change, move and alter the project, behaviour which the applicant found harassing. It is the applicant’s evidence that the project was moved, and some items put in a shed without her knowledge. It is also the applicant’s evidence that she had several conversations with Ms Henderson about the project but was ignored with Ms Walsh supporting Ms Henderson.
It is Ms Walsh’s evidence that the applicant’s emotional state continued into August 2020 and that she raised concerns with the Area Manager, Ms Connors. They monitored the situation becoming concerned in late August and into September 2020 about the applicant’s mental health and the impact that it was having on the children and the applicant’s colleagues.
It is Ms Walsh’s evidence that during this time she had informal discussions with the applicant during which the applicant disclosed that she had been accessing the respondent’s employee assistance program (EAP) and advised that she had been addressing some “survivors’ guilt”. As I understand it the applicant obtained counselling with Ms Marriott through EAP. The notes from those counselling indicate that they predominantly focused on work issues.
On 2 September 2020 the applicant attended on Ms Marriott. The clinical record of the attendance records that there was a situation at work whilst the applicant was off for two weeks. A manager had talked to the applicant about issues raised which the applicant was not aware of. The clinical record records that the applicant took the review personally and was distressed at the talk. The applicant felt personally attacked however realised later that wasn’t the case.
On 21 September 2020 the applicant attended on Ms Marriott. The clinical record of the attendance records that a staff member had played a practical joke which the applicant had not found funny. The applicant had slammed a door at work and an interaction with another employee was distressing. The situation ended up in the director’s office the following day.
It is the applicant’s evidence that in September 2020 she was verbally attacked by Ms Henderson when she raised an issue in respect to Ms Henderson giving the wrong food to a child. The director intervened and admonished the applicant in front of the children and staff. It is the applicant’s evidence that the incident made her feel upset, unsupported and physically sick. That she felt targeted and at this point her mental and physical health was at an all-time low.
It is the evidence of Ms Walsh that the applicant’s behaviour escalated and some of the staff members approached the applicant about her communication which at times resulted in an outburst from the applicant or her slamming a door or crying.
It is the evidence of Ms Walsh that she witnessed a distinct change in the applicant, with the applicant going from an easy-going person to a depressed and anxious person. She saw a further small change in her when she commenced medication. She cried less and was less emotional, but that fluctuated and was up and down.
It is the evidence of Ms Connors that she was contacted by Ms Henderson in October 2020 who reported to her that the applicant had been crying in front of children, not completing some work tasks and was having conflict with staff members. Ms Connors then took steps to arrange a welfare meeting with the applicant to address the concerns.
On 9 October 2020 the respondent held a care and concern meeting. The meeting was attended by the applicant, Ms Walsh and Ms Connors. A file note of the meeting prepared by the respondent records that the meeting was called as Ms Walsh had indicated that work colleagues were concerned about the emotional state of the applicant who had been regularly crying at work each week for over four months. Ms Walsh had previously talked to the applicant about the reasons for this. There had been recent conflict between the applicant and other staff.
The issues raised at the meeting included the applicant being emotionally unavailable to children due to her distressed and emotional state (crying during the day), the breakdown of the applicant’s relationship with a co-worker, Maddie Hansen, which had led to outbursts such as the slamming of doors and issues with some casual educators over the previous few months.
The file note of the meeting records that the applicant identified two issues in her life which had contributed to her mental state. Firstly, survivor guilt with the loss of a close personal work colleague who died suddenly in 2013, the loss of a child at the centre and the death of a parent had contributed to those feelings. There was also the applicant’s illness with 2017 being the worst year of her life. The applicant felt that she wasn’t good enough to survive. Significantly the applicant spoke of how COVID escalated these feelings with issues around hygiene in the centre. In my view this needs to be considered against the background of the applicant having performed well at work with minimal issues for over a year after returning to work following treatment for leukemia.
Secondly the applicant spoke about her relationship with her mother and brother. Her mother’s health issues and her reliance on the applicant as well as her brother declining to share the load which caused the applicant to feel worthless, rejected, and isolated and she had decided not to speak to him again.
The applicant’s issues with her family had been long-term going back at least to 2010.
The applicant described her work colleagues as caring and respectful. She believed they were aware of her anxiety. However, the applicant had noticed that her relationship had changed with Ms Hansen, and she was not able to talk to her like she had previously. The applicant felt that Ms Hansen was misinterpreting her body language which was not intentional. The applicant wanted to apologise but was fearful it would not be enough and was not sure why the relationship had changed. The applicant spoke of how Ms Hansen had asked the applicant why she was so angry. The applicant believed that she was being professional but admitted she could be sarcastic.
The applicant said that she respected her colleagues and wrote down incidents as they occurred as a form of documentation. The applicant spoke of how she believed that she was “perceived as angry" but didn’t think that she was.
The applicant however also spoke about a number of incidents of interpersonal conflict in the workplace. The applicant spoke of how she felt agitated with Ms Hansen when she kept asking her why she was so angry. The applicant spoke of when the staff had played a practical joke in the bathroom, which she had not found amusing, and how she felt her feelings were not validated when she disagreed with the joke. She slammed the door.
The applicant also spoke of an incident on the previous Tuesday when she forgot to sweep under a table. Ms Hansen subsequently approached the applicant and offered to clean up which the applicant accepted. Ms Walsh then asked the applicant to sweep up which she did and apologised to Ms Hansen not realising it was an issue. According to the applicant Ms Hansen’s response indicated that the applicant had only done the sweeping because Ms Walsh had asked her to do so, and that the applicant would not have done the same for her.
The file note of the meeting records that there had also been an incident of conflict the previous Thursday between “Deb”, whom I presume to be Ms Deborah Henderson, the applicant and Ms Hansen in respect to sweeping up.
At the meeting the applicant agreed to take some annual leave to relax and regroup. There were also recommendations made as to how the applicant could rebuild her fractured relationship with Ms Hansen and other staff members.
It is the evidence of Ms Connors that she met with Ms Hansen who confirmed that there had been an incident with the applicant after the staff had played a practical joke which the applicant had reacted negatively to, and that there had been another incident involving sweeping in which Ms Walsh became involved.
It is the evidence of Ms Connors that following the care and concern meeting the applicant took two weeks off and when the applicant returned to work on 28 October 2020 (the statement refers to 28 October 2021 which is clearly incorrect) “she really was fine”, she got back to work however by 30 November 2020 “things began to go downhill again.”
The applicant attended on Ms Marriott on 13 October 2020. The consultation notes record that the applicant was off work for the week, the week prior had not been a good week. The applicant reported to Ms Marriott the incident with Ms Hansen and Ms Walsh in respect to cleaning up. The applicant reported that this escalated to another incident with another staff member over sweeping. The Director intervened between the three staff members. The Applicant had not wanted to go to work the following day, but went. The applicant felt isolated and wary of being alone with the children.
The applicant attended on her GP on 15 October 2020. The clinical record of the attendance records that the applicant was finding things difficult at work. The applicant felt that a staff member was being overly solicitous in an attempt to rattle her. There were complaints on both sides to management. On examination the applicant was observed to be quite distressed with flat affect. Significantly the applicant was put on the anti-depressant, Fluoxetine (also known as Lovan).
It is the applicant’s evidence that on 26 November 2020 in front of children and other staff Ms Henderson demanded in a threatening manner that the applicant turn to face her when Ms Henderson was talking to her. It is the applicant’s evidence that she felt surprised, shocked, threatened, bullied, anxious, upset and distressed by the incident.
It is the applicant’s evidence that on 1 December 2020 she was, without any communication or discussion, replaced by Ms Henderson as the primary staff member in the Amigo’s room, where she had been for 10 years, and assigned to the position of “floater” commencing in 2021. It is the applicant’s evidence that she only became aware of having been reassigned when a staff member suggested that she check the noticeboard.
Ms Walsh confirms that the applicant was reassigned. It is Ms Walsh’s evidence that such changes were not uncommon, whilst acknowledging that the applicant had been in the same role for many years. It was Ms Walsh’s understanding that Ms Connors had spoken to the applicant about the intended change. It is Ms Walsh’s evidence that the applicant told her that she saw the reassignment as a demotion.
Ms Walsh confirms that the applicant clashed with Ms Henderson and that the conflict had been ongoing for some time. As a result of the conflict some of the staff had voiced their concerns to Ms Connors in writing whilst other staff expressed their concerns verbally.
It is the evidence of Ms Connors that the applicant’s relationship with Ms Henderson really began to unravel after 1 December 2020.
It is the applicant’s evidence that the reassignment to “floater” removed the flexibility which she had previously to attend ongoing medical appointments, that she approached Ms Walsh who informed the applicant that she had to take a full day of sick leave even though the medical appointments only totalled around two hours. It is the applicant’s belief that Ms Walsh’s instruction was contrary to the respondent’s sick leave policy which permitted the applicant to take two hours of sick leave rather than an entire day. It is the applicant’s evidence that she had witnessed other staff leave and return to work and that the actions of Ms Walsh made her feel unsupported.
On 1 December 2020 the applicant attended on Ms Marriott. The consultation notes record that a co-worker wanted the applicant’s plant project removed from a bench. The applicant’s emotions had escalated. She felt personally affronted that her work was not being valued. Ms Walsh asked if the project could go elsewhere. The applicant felt unheard.
The consultations notes record that the applicant reported that on the day prior to the consultation the “big boss” called the applicant in and told the applicant that she was unreasonable and not aware of other people. The applicant told the “big boss” that she had been spoken to disrespectfully in front of her peers and children again.
It is the evidence of Ms Connors that there was an incident involving the applicant and Ms Henderson in respect to the moving of some pot plants. Ms Connors instructed the applicant to move the plants as the applicant had been instructed by her manager.
It is the evidence of Ms Connors that she visited the centre on 11 December 2020 and spoke to Ms Walsh about issues that had been raised and Ms Walsh advised Ms Connors that the situation with the applicant had gone downhill again, and that Ms Walsh believed that the applicant was not well.
On 14 December 2020 the applicant attended on Ms Marriott. The consultation notes record that the applicant reported that seeds had been removed to the shed, that the applicant had become distressed and decided to bring the project home not feeling valued. The applicant also reported that she had been accused of asking rudely for vegemite to make sandwiches. The applicant thought that it was a simple request. The applicant reported that she was also accused of being negative and that a staff member had complained to the director that the applicant talked to long to another staff member, about the vegemite request and about taking time off. The director did not support the applicant. The applicant felt that she could not do this anymore.
In my view the evidence supports that many of the incidents complained of by the applicant did in fact occur and that there was a high level of interpersonal conflict between the applicant and her work colleagues within the workplace in 2020 with the level of conflict increasing in the second half of 2020. In addition to the conflict in the workplace the applicant had also been concerned about workplace exposure to COVID-19, which was a particular concern for the applicant given her recent serious illness.
It is not necessary to determine if the applicant was bullied and/or harassed as it is the applicant’s perception of these events which is of relevance. The applicant’s evidence, the contemporaneous clinical records of the applicant’s treating psychologist, Ms Marriott, the contemporaneous clinical notes of the applicant’s GP, as well as the evidence of Ms Connors and Ms Walsh all in my view evidence that the applicant perceived the workplace to be hostile in 2020. There is no statement evidence from Ms Henderson.

Whilst the applicant would at times refer to her colleagues in a positive manner when questioned the weight of the evidence supports that there was a high level of conflict and that the level conflict increased over the second half of 2020. The weight of the evidence also supports that the applicant found the interpersonal conflict distressing as evidence by the applicant’s evidence as well as the clinical records of the GP and Ms Marriott.
On 16 February 2021 the applicant was called into the office of Ms Walsh where Ms Connors handed her a telephone to talk to Ms Debbie Dickson, Manager Child Safety and Wellbeing. The applicant was also given a letter of complaint against her to be investigated re disciplinary action.
The applicant was advised that a complaint had been made that on 9 February 2021 she had inappropriately gifted a book to a child. The complaint was to be the subject of an investigation. The book was a Sonic Hedgehog artbook. There was a further allegation that the applicant had encouraged the same child to seek her out for a hug if the child felt they needed or wanted one. It is the applicant’s evidence that she felt shocked, surprised, distressed and physically sick due to the allegations.
On 17 February 2021 the applicant, feeling highly stressed due to the allegations of misconduct, attended on her GP and was provided with a sick leave certificate as well as being prescribed anti-depressant medication.
The clinical record of the applicant’s attendance on the GP on 17 February 2021 records that an allegation had been made against her and that she felt sick about it and wanted to have some time to process.
On 19 February 2021 the applicant was interviewed by Ms Dickson. Also present at the interview were Ms Connors, Steph Murray (support person for the applicant) and David Westrip from the United Workers Union attended by telephone. The purpose of the interview was to look into the allegations of misconduct made against the applicant.
It is the applicant’s evidence that she returned to work on 20 February 2021, that she received no support or guidance from the respondent. That she felt anxious, that she was being monitored and watched constantly by the director as well as the person who had made the allegations of misconduct against her.
On 26 February 2021 Ms Marriott reported to the GP, Dr Manhood, that in the initial assessment the applicant had described a history of an adjustment disorder with features of anxiety and depression including lowered mood.
On 1 March 2021 the applicant attended the office of Ms Connors with Ms Dickson on speaker phone. The applicant was handed a letter in respect to the outcome of the workplace investigation into the allegations made against her. The applicant was advised at that meeting by Ms Dickson that the outcome of the investigation did not result in a formal warning however there would be a work performance process and that it would be helpful if Ms Connors could provide the applicant with further support and guidance.
It is the applicant’s evidence that she did not feel that they had listened to her account of the events and that they were attacking her.
It is the applicant’s evidence that she returned to work on 2 March 2021 and felt anxious, watched and unsupported and working without guidance. She felt like she was being set up, bullied and harassed.
On 8 March 2021 the applicant sent an email to Ms Connors stating her grievances in respect to Ms Henderson. Ms Connors requested that the applicant supply more information. It is the applicant’s evidence that it took time for her to compose a statement of grievance and that the process caused her to relive the events which caused her to become anxious and upset.
On 9 March 2021 the applicant attended a meeting with Ms Connors, Ms Walsh, the respondents HR Manager, Scott Price, attended by way of a conference call. The meeting arose out of the outcome of the investigation conducted by Ms Dickson and the allegations of misconduct.
On 17 March 2021 a first formal warning letter was delivered to the applicant.
On 18 March 2021 the applicant attended on her GP and 19 March 2021 the applicant submitted a Workcover certificate to the respondent.
The applicant has been off work since 17 March 2021. The applicant’s employment with the respondent was terminated in October 2021.
The evidence supports that the applicant was horrified, sickened and disgusted by the allegations made against her. That she felt that her reputation had been tarnished, that she was being monitored in the workplace. She felt unsafe, distraught and ostracised.
Setting to one side when any psychological injury was sustained the next question to be considered is did the applicant sustain a psychological injury in the course of her employment.
I am of the view that the evidence supports that the applicant did sustain a psychological injury in the course of her employment.
The applicant has a complex psychological history there having been many stressors in her life. The clinical records of the applicant’s GP record that the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood in 2010. The diagnosis was made in the context of family issues as well as issues in respect to having been adopted. The applicant also appears to have commenced counselling with Ms Marriott in 2010. From 2010 the applicant intermittently reported psychological issues to her GP mostly related to family matters and also intermittently participated in counselling with Ms Marriott. The GP notes do refer to work issues on 5 April 2017 and 8 May 2017 however the issue appears to have been isolated and not of any significance in respect to the present matter.
The applicant’s struggle with leukemia also appears to have had an impact on the applicant’s mental health including suffering from some “survivors’ guilt” in respect to which the applicant sought counselling through the psycho-oncology service at the Calvary Mater Newcastle.
Whilst the applicant has a long and complex mental health history, she had also been a very long term employee of the respondent and had performed duties with minimal issues prior to 2020. As previously noted, the applicant had also been back at work and performing well for in excess of a year before issues began to develop in 2020.
On 23 June 2021 Ms Marriott reported to Dr Kathy O’Grady that the applicant presented with an adjustment disorder and features of an anxiety disorder. In the opinion of Ms Marriott, the condition pertained to issues at work.
Dr Richa Rastogi, psychiatrist, who provided a forensic report to the applicant dated 3 December 2021 diagnosed the applicant with a major depressive disorder with anxiety after taking a history of both the interpersonal workplace conflict as well as the allegations made against the applicant in February 2021 which the doctor incorrectly record as having been made in February 2020.
In Dr Rastogi’s opinion the applicant’s psychological injury is attributable to incidents during her employment. In the opinion of Dr Rastogi employment was the “main substantial contributor” to her psychological condition. Dr Rastogi in a supplementary report framed his opinion within the terminology of s 4(b) of the 1987 Act stating that employment was the “main contributing factor” to the psychological injury.
Dr Geoff McDonald, psychiatrist, provided a forensic report to the respondent dated 4 June 2021. Dr McDonald diagnosed an adjustment disorder with depressed and anxious mood. In the opinion of Dr McDonald, the applicant’s psychological condition is a disease of gradual process with her psychological symptoms being present since about 2013 and which have fluctuated overtime but increased significantly in 2020 and again in 2021.
Dr McDonald in his further report to the respondent dated 9 December 2022 concluded that the major cause/principal cause of the applicant’s adjustment disorder was the determination of the breach of the code of conduct. Dr McDonald went onto assess 17% whole person impairment due work related psychological injury after only deducting 1.9% for pre-existing conditions.
Ms Marriott, Dr Rastogi and Dr McDonald all agree that the applicant has suffered a psychological injury. Ms Marriott having been the applicant’s treating psychologist since 2010 is particularly well place to provide such an opinion.
I also accept the opinion of Dr McDonald that the psychological condition is a disease of gradual process with the applicant having suffered from psychological symptoms, which as Dr McDonald observed have fluctuated, from at least 2010.
Turning to the questions of when was the injury sustained and was work the main contributing factor to the injury.
In considering when injury was sustained, we are not considering when the injury is deemed to have happened for the purposes of the workers compensation legislation but rather when the applicant actually suffered/developed the work related psychological condition. In this respect no submissions were made by either party in respect to the application of ss 15 and 16 of the 1987 Act.
For the following reasons I am of the view that the psychological injury was sustained prior to 16 February 2021 and that work was the main contributing factor.
The respondent submitted that the applicant did not sustain any psychological injury prior to 16 February 2021 as evidenced by the applicant continuing to work and there being no diagnosis prior to that point.
It was submitted on behalf of the applicant that the opinion of Dr Rastogi should be accepted.
Dr Rastogi took a history in respect to the interpersonal workplace conflict which occurred in 2020. Dr Rastogi also took a history of the allegations made against the applicant in February 2021 but incorrectly records that those allegations were made in February 2020.
In my view Dr Rastogi has not considered and provided an opinion as to whether the applicant had suffered a psychological injury as a result of work related issues prior to the misconduct allegations being made against her on 16 February 2021.
Dr Rastogi at point 5 of her report of 3 December 2021 was requested to provide an opinion as to whether there is a connection between the applicant’s psychological “condition and bullying and harassing conduct ending 1 December 2020.” In the doctor’s opinion there is a direct connection, however, I accept the respondent’s submission that in giving that opinion Dr Rastogi has clearly conflated the issues and events of 2020 with the allegations made in February 2021 and the events that followed.
Not only did Dr Rastogi record that the allegations which led to the investigation were made in February 2020 and not February 2021. Dr Rastogi in providing her opinion at point 5 refers to those factors contributing to the applicant’s employment being the “main substantial contributing factor”. Included among those factors was “tarnishment of her reputation with allegations”. Earlier in her report Dr Rastogi had stated that the allegations relating to the gifting of the book and the offering of hugs had caused the applicant to feel “ostracised with tarnishment of reputation, and she felt unsafe.”[4] Dr Rastogi went on to record that the applicant reported that she “feels her reputation has been tarnished by being called as ‘borderline groomer’”.[5]
[4] ARD p 116.
[5] ARD p 117.
Dr Rastogi provided a supplementary forensic report to the applicant dated 8 April 2024 after reviewing further documentary evidence. The supplementary report essentially repeats the doctor’s previous opinion on causation.
I find the reports of Dr Rastogi to be of little assistance in determining whether the applicant sustained psychological injury prior to being advised on 16 February 2021 of the allegations of misconduct.
The respondent submits that the opinion of Dr McDonald should be accepted. Dr McDonald in his report of 4 June 2021 records a history of the applicant’s concerns in respect to COVID-19, a history of the allegations of misconduct made against the applicant in February 2021 which were investigated, but only a very brief history as to the interpersonal workplace conflict. In fact, the history taken by the doctor in respect to the interpersonal workplace conflict was so brief that the applicant became anxious and distressed during the doctor’s examination stating that they had “not even touched on her allegations of bullying and harassment” at which time the doctor recorded some additional information but still extremely brief.
In the opinion of Dr McDonald, the applicant’s psychological symptoms have been present since about 2013, have fluctuated over the time, but increased significantly in 2020 and again in 2021.
Dr McDonald was of the opinion that the major contributing factor to the development of the adjustment disorder was the adverse breach of the Code of Conduct finding in March 2021. In the doctor’s opinion up until that time, she was anxious; but probably by March 2021 she met criteria for an adjustment disorder.
Dr McDonald does not provide any reasoning for his opinion that prior to March 2021 the applicant was only anxious, and it was not until the adverse breach of Code of Conduct finding in March 2021 that she probably met the criteria for an adjustment disorder.
On page two of his report Dr McDonald lists the documents which he had the opportunity to review. Significantly the clinical records of the applicant’s GP and treating psychologist do not appear to be among those documents.
Dr McDonald as part of his history taking did record in respect to particular incidents or issues that the applicant reported for example that she was “emotional”, “anxious”, “tearful”, “felt upset”, “experiencing panic attacks”. However, the history of symptoms recorded by Dr McDonald prior to 16 February 2021 is minimal. The report contains no significant analysis of the applicant’s symptoms prior to 16 February 2021 to determine if the applicant had suffered psychological injury prior to March 2021.
Dr McDonald in his report of 9 December 2022 again lists the documents that he has had the opportunity to review. Whilst the doctor had been provided with some clinical notes, they appear to have only related to two days in mid-2020 and the latest of the three GP reports was dated 15 October 2020. Dr McDonald does not appear to have had the opportunity to review the entirety of the clinical records of the applicant’s GP or treating psychologist.
Whilst Dr McDonald expressed the opinion that the principal cause of the adjustment disorder is the breach of Code of Conduct finding the doctor did not revisit the issue as to whether the applicant had sustained a psychological injury prior to this point in his report of 9 December 2022.
I note that the opinion of Dr McDonald as to the time of the onset of the adjustment disorder is also inconsistent with the opinion of Ms Marriott who reported to Dr Manhood on 26 February 2021 that the applicant described a history of an adjustment disorder with features of anxiety, depression, including lowered mood. Whilst this opinion was provided after the allegations were made against the applicant it was before the applicant was advised of the outcome of the Code of Conduct finding.
I find the reports of Dr McDonald of little assistance in determining when the applicant sustained injury except for the doctor’s opinion that the applicant’s psychological symptoms had been present since about 2013, but had fluctuated over time, increasing significantly in 2020 and again in 2021.
Turning to the contemporaneous evidence. It is the evidence of both Ms Walsh and Ms Connors that the applicant’s mental health deteriorated particularly in the second half of 2020. It is the evidence of Ms Connors that the issues appeared to commence off the back of COVID-19 issues at work.
On 15 April 2020 the applicant attended on her GP in respect to chronic disease management and a mental health care plan. The applicant reported that she was fearful of her health working at the preschool which related to concerns in respect to COVID-19. Significantly the mental health care plan that was completed records a provisional diagnosis of anxiety/depression. Following the completion of the mental health care plan the applicant attended on her GP on 20 April 2020 at which time the GP recorded as a reason for the visit adjustment disorder with mixed anxiety and depressed mood which had been a long-standing diagnosis in respect to the applicant.
It is the evidence of Ms Walsh that from about June 2020, she began to notice that the applicant was displaying signs of depression. Her emotions fluctuated throughout the day and she was crying on a daily basis.
It is the evidence of Ms Walsh that she witnessed a distinct change in the applicant, with the applicant going from an easy-going person to a depressed and anxious person. She saw a further small change in her when she commenced medication. She cried less and was less emotional, but that fluctuated.
By late August Ms Walsh was concerned about the impact that the applicant’s mental health was having on the children and other staff members. By this stage the applicant had also accessed the respondent’s Employee Assistance Program (EAP) to obtain counselling.
By October 2020 Ms Connors was so concerned about the applicant’s mental health a care and concern meeting was held on 9 October 2020. The file note of the meeting prepared by the respondent records that the meeting was called as Ms Walsh had indicated that work colleagues were concerned about the emotional state of the applicant who had been regularly crying at work each week for over four months.
Following the care and concern meeting the applicant took two weeks off. It is the evidence of Ms Connors that when the applicant returned to work on 28 October 2020 “she really was fine”, she got back to work however by 30 November 2020 “things began to go downhill again.”
The applicant attended on her GP on 15 October 2020. The clinical record of the attendance records that the applicant was finding things difficult at work. On examination the applicant was observed to be quite distressed with flat affect. The applicant was put on the anti-depressant, Fluoxetine. The GP recorded the reason for the visit as adjustment disorder with mixed anxiety and depressed mood.
It is the evidence of Ms Connors that on 11 December 2020 Ms Walsh advised her that the situation with the applicant had gone downhill again and that Ms Walsh believed that the applicant was not well.
On 14 December 2020 the applicant attended on Ms Marriott reporting issues at work with the applicant reporting to Ms Marriott that she felt that she could not do this anymore.
The respondent submitted that the applicant did not sustain any psychological injury prior to 16 February 2021 as evidenced by the applicant continuing to work and there being no diagnosis prior to that point.
Whilst it is true that the applicant did not go off on workers compensation prior to 16 February 2021. The applicant did take time off work, two weeks, following the care and concern meeting which had been called due to serious concerns in respect to the applicant’s mental health. That removal from the stressors involved with her employment appears to have had a significant impact with Ms Connors observing that when the applicant returned on 28 October 2020 the applicant was fine however things subsequently deteriorated again.
This improvement in the applicant’s mental health was also observed and recorded by Dr Marriott who on 3 November 2020 noted that the applicant had two weeks off, and had been put on an antidepressant two weeks prior which had started to work. It made a difference to her outlook. The break from work gave time for pleasure, separated her from issues at work. On returning to work the applicant was able to step back from the issues. On 18 November 2020 Ms Marriott noted that the applicant was enjoying work again, that she was starting to muck around with the other staff again. It felt to the applicant like a new chapter had started. The applicant reported that she did not know who that person was that popped into her head. She no longer felt that she was on her own, didn’t feel like anyone/everyone was against her. Her confidence had gone up. She was more relaxed at work.

The applicants condition however subsequently deteriorated.
In my view it is clear from the evidence that the applicant was suffering significant mental health issues in 2020 and had sustained a psychological injury in the course of her employment. The evidence supports that the applicant’s mental health issues improved with time off work and antidepressant medication however that improvement was not maintained once the applicant returned to work.
Whilst Ms Marriott did not provide a diagnosis prior to 16 February 2021 the GP’s records record adjustment disorder with mixed anxiety and depressed mood as a reason for the visit on 20 April 2020 following the completion of the mental health care plan on 15 April 2020 when the doctor had made a provisional diagnosis of anxiety/depression; and 15 October 2020 when the applicant was put on the anti-depressant Fluoxetine.

I am also of the view that the applicant’s employment with the respondent is the main contributing factor to the aggravation or exacerbation of the disease for the following reasons.
In AV v AW [2020] NSWWCCPD 9 Snell DP said at [77]-[78]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
Arbitrator Harris considered the question of “main contributing factor” s 4(b)(ii) of the 1987 Act in Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic) stating:
“…s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”
Whilst there does appear to have been a number of factors impacting upon the applicant’s mental health once she returned to work with the respondent in addition to the workplace issues such as “survivor guilt” following leukemia as well as family related issues and adoption issues. Many of these issues had been long standing and as previously noted the applicant for at least the first year after she returned to work and full-time duties following treatment for leukemia was performing well at work with minimal issues. It is also notable that both on the evidence of Ms Connors as well as based on the clinical records of Ms Marriott the applicant’s psychological state appears to have improved dramatically during the two weeks off work following the care and concern meeting on 9 October 2020 which would indicate that the applicant’s condition was being aggravated by the issues at work.
Ms Marriott attributes the applicant’s condition to work issues. Dr Rastogi also attributes the applicant’s psychological condition to work issues. Whilst Dr Rastogi in his initial report refers to employment being the “main substantial contributor” the doctor does in his subsequent report use the correct legal term describing employment as the “main contributing factor”.
The opinion of Dr McDonald is somewhat confused on the issue of main contributing factor however the doctor does ultimately conclude that that the major cause/principal cause of the applicant’s adjustment disorder was the determination of the breach of the code of conduct. Whilst I have found that injury was sustained prior to the said determination of the breach of the code of conduct, significantly Dr McDonald also concluded in his initial report that the applicant’s psychological symptoms have fluctuated overtime but increased significantly in 2020 and again in 2021. The periods during which the issues were occurring in the course of the applicant’s employment. In accordance with Mitic employment only has to be the main contributing factor to the aggravation and/or exacerbation. The opinion of Dr McDonald support in my view that the applicant suffered such a work related aggravation and exacerbation in 2020.

Section 11A(1)

Section 11A(1) of the 1987 Act states:
“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 carries the onus of proving the defence under s 11A.
In the respondent’s submission the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline.
I do not accept the respondent’s submission for the following reasons.
As Walker J observed in Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70 “‘Wholly’ is self explanatory.” Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWCCPD 92 at [24] considered that “predominantly caused” meant “mainly or principally caused”. Whether the relevant actions are the whole or predominant cause is “a question of fact and degree, which involves consideration of all the factors which produced (the worker’s) condition”.[6]
[6] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [8].
I have previously found that the applicant had already sustained psychological injury prior to being advised on 16 February 2021 of the allegations of misconduct which had been made against her and of the impending investigations and therefore the injury was not “wholly or predominantly” caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline.
I do accept the opinion of Dr McDonald that the events associated with the misconduct allegations would have further exacerbated the applicant’s symptoms however in my view by that point the injury had already been sustained.
If I am wrong as to the injury having been sustained prior to 16 February 2021 I am still of the view that the psychological injury is not “wholly or predominantly” caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline for the following reasons.
Even if the applicant had not suffered psychological injury prior to 16 February 2021 the applicant was, due to the events which had occurred prior to that date, on the brink of injury and the applicant closely associated the misconduct allegations and the events of the subsequent investigation to the earlier interpersonal conflict at work.
The applicant attended on her GP on 28 June 2021. The clinical note of that attendance records a history that the applicant’s symptoms started in the last quarter of 2020 with passive bullying from other staff members with an acute injury on 16 February 2021 which was a culmination of events stemming from 'incident ' earlier that month.
It is the evidence of Ms Dickson that when the applicant received the letter in respect to the allegations of misconduct on 16 February 2021 she was angry that the matter had been raised and explained that the situation in the workplace was far more complex. It is also the evidence of Ms Dickson that during her interview the applicant complained that she had experienced long-term conflict in the workplace and that her health had been impacted by that conflict and the transcript of the interview shows that the applicant did attempt to discuss issues that the applicant had encountered in the workplace.
In my view the opinion of Dr McDonald in his report of 4 June 2021 is consistent with my view. Dr McDonald considered the applicant’s psychological/psychiatric disorder to be a disease of gradual of process. In the doctor’s opinion, psychological symptoms whilst being present for almost a decade and having fluctuated over the time, “increased significantly in 2020 and again in 2021.”
Whilst Dr McDonald believed that the major contributing work factor to the development of the adjustment disorder was the adverse breach of Code of Conduct finding in March 2021. The doctor only appears to have done so on the basis that he believed that it was not until that point that the applicant’s symptoms escalated to a point where she met the criteria for adjustment disorder. The straw that broke the camel’s back, or as Dr McDonald puts it “the action which triggered the full blown adjustment disorder, was the adverse Code of Conduct finding and the planned performance improvement plan.”
In the opinion of Dr Rastogi in her report of 3 December 2021 it is the “progressive bullying and denigration with escalation” which culminated into a major depressive disorder and inability to continue working. Not just the allegations of misconduct and the issues and events flowing from those allegations. The doctor confirmed this opinion in her supplementary report of 8 April 2024 stating the opinion “that the progressive bullying and denigration in her employment with final state of allegations culminated into a major depressive disorder and inability to continue working.”

Incapacity

The applicant claims weekly compensation from 17 March 2021 to date and continuing pursuant to ss 36, 37 and 38 of the 1987 Act.
Dr McDonald reported on 4 June 2021 that in his opinion the applicant had no work capacity. On 9 December 2022 Dr McDonald confirmed that the applicant remained unfit for work but also given the applicant’s age and the chronicity of her symptoms was of the opinion that it was unlikely that the applicant would be able to engage in paid employment in the future.
Dr Rastogi reported on 3 December 2021 that the applicant had not worked since ceasing duties with the respondent. In the doctor’s opinion the applicant was totally incapacitated for employment. Dr Rastogi, having reviewed further documents including the clinical notes of Ms Marriott confirmed his opinion that the applicant had no future work capacity.
The certificates of capacity all certify the applicant with no current work capacity with the last certificate of capacity in evidence being issued in late 2023.
I am of the view that the weight of the medical evidence supports that the applicant has had no work capacity since 17 March 2021 and continues to have no work capacity.
In the applicant’s submission I have jurisdiction to award weekly compensation pursuant to s 38 of the 1987 Act.
Ms Compton also submitted on behalf of the respondent that I have jurisdiction under s 38 of the 1987 in this matter. However, Ms Compton submitted that the applicant was not entitled to weekly compensation pursuant to s 38(2) of the 1987 Act as there is in the respondent’s submission no evidence that the applicant is “likely to continue indefinitely to have no current work capacity”. I do not accept the respondent’s submission. I am of the view that the applicant is “likely to continue indefinitely to have no current work capacity” based on the opinion of Dr Rastogi that the applicant has no future work capacity and the opinion of Dr McDonald that it was unlikely that the applicant would be able to engage in paid employment in the future.
As previously noted the parties agreed the PIAWE at $992.86. Indexing the PIAWE in accordance with s 82A of the 1987 Act and rounding in accordance with s 82D of the 1987 Act I calculate the applicable PIAWE with indexation as follows:
(a)    from 1 April 2021            $1,020;
(b)    from 1 October 2021      $1,030;
(c)    from 1 April 2022            $1,050;
(d)    from 1 October 2022      $1,090;
(e)    from 1 April 2023            $1,140;
(f)    from 1 October 2023      $1,170, and
(g)    from 1 April 2024            $1,190.
On the basis that the applicant has no current work capacity from 17 March 2021 and continues to have no current work capacity I assess the applicant’s entitlement to weekly benefits compensations as follows
(a) $943.22 per week ($992.86 x .95) from 17 March 2021 to 31 March 2021 pursuant to s 36 of the 1987 Act;
(b) $969 per week ($1,020 x .95) from 1 April 2021 to 15 June 2021 pursuant to s 36 of the 1987 Act;
(c) $816 per week ($1,020 x .80) from 16 June 2021 to 30 September 2021 pursuant to s 37 of the 1987 Act;
(d) $824 per week ($1,030 x .80) from 1 October 2021 to 31 March 2022 pursuant to s 37 of the 1987 Act;
(e) $840 per week ($1,050 x .80) from 1 April 2022 to 30 September 2022 pursuant to s 37 of the 1987 Act;
(f) $872 per week ($1,090 x .80) from 1 October 2022 to 31 March 2023 pursuant to s 37 of the 1987 Act;
(g) $912 per week ($1,140 x .80) from 1 April 2023 to 12 September 2023 pursuant to s 37 of the 1987 Act;
(h) $912 per week ($1,040 x .80) from 13 September 2023 to 30 September 2023 pursuant to s 38 of the 1987 Act;
(i) $936 per week ($1,170 x .80) from 1 October 2023 to 31 March 2024 pursuant to s 37 of the 1987 Act; and
(j) $952 per week ($1,190 x .80) from 1 April 2024 and continuing pursuant to s 38 of the 1987 Act.

Medical and treatment expenses

As I have found in favour of the applicant in respect to liability a general order pursuant to s 60 of the 1987 Act for medical and treatment expenses follows. The respondent accepted this conclusion in its submissions.

[2024] NSWPIC 358

19 July 2024