Cheers v MidCoast Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cheers v MidCoast Council [2021] NSWPIC 447
APPLICANT:	Paul Cheers
RESPONDENT:	MidCoast Council
MEMBER:	Jacqueline Snell
DATE OF DECISION:	9 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical treatment expenses resulting from primary psychological injury sustained in the course of employment with the respondent; defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline, transfer and/or performance appraisal; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, transfer and/or performance appraisal; the applicant has an entitlement to weekly compensation payable under section 36 and section 37 of the 1987 Act and the applicant has an entitlement to medical expenses payable under section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. By consent the Application to Resolve a Dispute is amended to claim medical or related treatment on a general order basis. 2. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer, performance appraisal and/or discipline. 3. The applicant has had no current capacity for work since 1 December 2020 due to psychological injury. 4. The respondent is to pay weekly benefits to the applicant from 1 December 2020 to 2 March 2021 under s 36 of the Workers Compensation Act 1987 at the rate of $1,113.80. 5. The respondent is to pay weekly benefits to the applicant from 3 March 2021 to date and continuing under s 37 of the Workers Compensation Act 1987 at the rate of $937.94 (as adjusted). 6. The applicant requires medical or related treatment as result of the psychological injury he has sustained. The respondent is to pay the applicant’s medical or related treatment in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Paul Cheers (Mr Cheers) is currently 52 years of age. He was employed by the respondent, MidCoast Council (MidCoast) for 15 years, initially working in Roads and Construction, and subsequently working in Parks and Garden. Mr Cheers last worked with MidCoast in late November 2020 and his employment with MidCoast has since been terminated.
It is not disputed Mr Cheers sustained primary psychological injury in the course of his employment with MidCoast, with a deemed date of injury of 1 December 2020.
In these proceedings, Mr Cheers claims weekly benefits payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 1 December 2020 to date and continuing and medical or related treatment payable under s 60 of the 1987 Act on a general order basis.
Mr Cheers’ claim for compensation is declined and he was issued notice dated 15 February 2021[1] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. In disputing Mr Cheers’ claim, defence was raised under s 11A(1) of the 1987 Act relevant to transfer, performance appraisal and/or discipline, capacity is placed in issue and his need for treatment is placed in issue.
[1] Application to Resolve a Dispute (ARD) at page 22.
Following a request to review the decision to decline Mr Cheers’ claim, MidCoast issued a notice dated 25 May 2021[2] with MidCoast maintaining decision to dispute liability as outlined above.
[2] ARD at page 41.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:

(a) whether Mr Cheers has an entitlement to compensation payable under the 1987 Act as MidCoast has raised defence under s 11A(1) of the 1987 Act relevant to discipline, transfer and/or performance appraisal, and
(b) if so, whether Mr Cheer has capacity for work during the period of his claim for weekly compensation and whether he requires medical or related treatment.

The parties agree that the following issues are not disputed:

(a) Mr Cheers sustained primary psychological injury in the course of his employment with MidCoast with a deemed date of injury of 1 December 2020, and
(b) Mr Cheers’ pre-injury average weekly earnings (PIAWE) are $1,172.42.

PROCEDURE BEFORE THE COMMISSION

Mr Cheers’ claim for compensation initially came before me for teleconference on 7 July 2021. Mr Dougall, solicitor, appeared for Mr Cheers and Mr van der Hout, solicitor, appeared for MidCoast. Mr Cheers was present.
Mr Cheers’ claim for compensation came before me for teleconference again on 5 August 2021. Mr Dougall appeared for Mr Cheers and Mr van der Hout appeared for StateCover. Mr Underwood from StateCover Mutual Limited (StateCover) was present. Mr Cheers was present.
With Mr Cheers’ claim unresolved, his claim then came before me for conciliation/arbitration hearing on 23 August 2021 for a full day on an audio/visual platform. Mr Adhikary of counsel appeared for Mr Cheers, instructed by Mr Dougall. Ms Pearce from Mr Dougall’s office was also present. Mr Stanton of counsel appeared for MidCoast, instructed by Mr van der Hout. Mr Payne and Mr Underwood from StateCover were present. Mr Webster and Mr Pyke from MidCoast were present. Mr Cheers was present.

Following lengthy discussions with counsel 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.
When it became evident the arbitration hearing would not conclude during the day of 23 August 2021, with Mr Stanton having made oral submissions on behalf of MidCoast I issued directions for the lodgement and service of written submissions on behalf of Mr Cheers and the lodgement and service of written submissions in Reply on behalf of MidCoast. This has now occurred.

EVIDENCE

Documentary Evidence

Letter prepared by Jamie Condie

Mr Adikhary called on the letters prepared by Mr Codie to Mr Cheers produced in or about March 2019, which were referred to at paragraphs 5 and 6 of Mr Cheers’ supplementary statement dated 17 April 2021 and which to date had not been produced by MidCoast despite request.
Mr van der Hout confirmed the relevant enquiries had been made of MidCoast and no copy of such a letter had been located. Mr van der Hout said of this letter on which Mr Adikhary called:
“It still remains the belief of the respondent that such material that’s referred to by the worker could, in fact, be confused as the 12 points that were listed in the performance management, improvement and those notes in the conference that he had with a number of employees but certainly there is no letter that refers to 12 points.”[3]
[3] Transcript (T) at page 3: 24-32

I note a document entitled Meeting Record with the date 29 March 2019[4] lists 12 expectations of MidCoast and is signed by Mr Cheers, Mr Condie and Brad Newman
[4] Reply at page 119.
(Mr Newman) and assume this to be the document to which Mr van der Hout referred.

Admissibility of documents

Mr Stanton objected to the admissibility of the unsigned statement of Mr Cheers at page 3 of the ARD on the basis that it was unsigned. Mr Adikhary pressed for the admission of this statement and essentially pointed out that this unsigned statement was essentially the same as that statement of Mr Cheers dated 22 January 2021 at page 1 of the Reply save for the removal of persons’ names with either initials provided for their roles within MidCoast or reference to them as colleagues. With no material difference in the unsigned statement of Mr Cheers to that of his signed statement of the same date, and no expressed prejudice to MidCoast, I considered it was in the interest of justice to allow the document to be admitted into evidence.

Mr Stanton objected to the admissibility of the statements of Mr Mesner and Mr Connell, which were the subject of the Application to Admit Late Documents dated 16 August 2021 lodged on behalf of Mr Cheers (A AALD), and also a supplementary statement of Mr Cheers which was the subject of the same application on the basis of late service. Mr Adikhary pressed for the admission of these statements and as the lodgement with the Commission and service of these statements had been foreshadowed at the teleconference on 9 July 2021 and the statements had been served on 9 August 2021, I considered it was in the interest of justice to allow the statements to be admitted into evidence.

Mr Stanton also objected to the admissibility of the very heavily redacted investigation report prepared by HR Peel which had been sent by Sparke Helmore Solicitors directly to
Mr Cheers’ solicitors in response to the Direction for Production issued and served on HR Peel relevant to the external investigation report conducted at the request of MidCoast regarding the Public Interest Disclosure (PID) submitted by Mr Cheers. Mr Stanton’s objection was grounded in the late service of the document. Mr Adikhary pressed for the admission of the investigation report as it had only been received by Mr Cheers’ solicitors on 19 August 2021. Mr Adikhary pointed out that MidCoast had been aware of the report having been sought as early as the first teleconference on 9 July 2021 and while “palpably” MidCoast would have had an unredacted copy of the report, the report could only be obtained from HR Peel through their solicitors. With the document being that created by a third party and pertinent to issues in dispute in these proceedings I considered it was in the interest of justice to allow the report to be admitted into evidence.
Accordingly, 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 dated 13 August 2021 lodged on behalf of MidCoast, and attached documents (R AALD);
(d)    A AALD and attached documents;
(e)    report of Investigations concerning a complaint prepared by Peel HR, and
(f)    copy Ms Wynyard’s clinical notes relevant to Mr Cheers, which are not redacted.

Oral Evidence

Mr Stanton sought leave to cross examine Mr Cheers, which was to be restricted to a past history of psychological injury which was denied by Mr Cheers in his statement and which he had failed to fully disclose to Dr Bisht and Dr Davis, in their capacity as independent medical examiners. On instruction Mr Stanton’s application was opposed on the basis that the now foreshadowed cross examination of Mr Cheers had not been ventilated previously and
Mr Cheers had not been afforded the opportunity to prepare for this particular line of cross examination.
There is no legal right to cross examination in Commission proceedings and the decision to allow or not allow the cross examination of Mr Cheers is at my discretion[5]. In the circumstances where Mr Cheers has denied a past history of psychological injury and failed to disclose a past history of psychological injury which is evident from his clinical records,
I formed the view cross examination of Mr Cheers is necessary to enable me to properly determine his claim, and accordingly leave was granted to Mr Stanton to cross examine
Mr Cheers.

FINDINGS AND REASONS

[5] Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34.

Review of the evidence

A brief summary of the evidence follows.

Mr Cheers’ statements

Mr Cheers provided a number of statements. His initial signed statement is dated 22 January 2021[6] and while one of his subsequent signed statements is undated[7], the others are dated 17 April 2021[8] and 9 August 2021[9]. There is also an unsigned statement dated 21 December 2020[10], which is essentially the same as that which is signed and dated 22 January 2021 save for the identification of certain persons.
[6] Reply at page 1.
[7] ARD at page 19.
[8] ARD at page 15.
[9] A AALD at page 14.
[10] ARD at page 3.

Mr Cheers was employed by MidCoast for over 15 years, initially working with the Roads and Construction team where he had been in the role of team leader for approximately five years. While working in the Construction team Mr Cheers reported directly to the Manager of Operations South (MOS) and the Roads Supervisor (RS). It is understood from the unsigned copy of Mr Cheers’ statement that Mr Condie is the MOS and James Newell (Mr Newell) is the RS.
While Mr Cheers was reportedly performing well in his role as team leader, with the promotion of Mr Newell to the role of RS Mr Cheers said he began to be treated unfairly.
Mr Cheers explained that in or about March 2019 he came across some information, which was sensitive in nature, relevant to Mr Newell being involved in corruption and inappropriate business ventures, which Mr Cheers reported in confidence to Mr Condie.

Mr Cheers said he received a document from Mr Condie which provided him with a list of 12 points for improvement. Mr Cheers said of these lists of points:
“Point 12 on the list stated that if I ever spoke about someone in management in a derogatory manner, without proof, my employment with Council would be terminated immediately. This point related to the issues that I reported to the MOS and the RS.”
Mr Cheers said he was required to attend a meeting on 2 April 2020 [sic] at which the Human Resources Manager, Kelly McMurtrie (Ms McMurtrie) was present. Mr Cheers said that during the meeting a number of issues were raised. Mr Cheers relevantly said of these issues that while they were trivial in nature, he was told:

“… if I ever made comments or allegations about the RS that I could not substantiate or prove, my employment with Council would be terminated immediately.”

Mr Cheers said:
“I felt terrified of losing my job at the time. I felt that I was being hunted down and targeted by Council.”
Mr Cheers said that when he attended a second meeting all the points raised in the document referred remained, except for point 12. When he enquired of the MOS as to why it had been removed, he responded “we had discussed that item previously and that it did not require any further discussion at that stage”. Mr Cheers said that at about that time his work duties changed and he was removed from his team leader role and allocated traffic control duties for a number of weeks during which he was required to report to his nephew.
Mr Cheers took advantage of some long service leave, but continued to worry about possible loss of employment and said he was “generally feeling anxious and hopeless about the situation”. Mr Cheers believed that during his absence, the RS had looked through his emails and his diary “looking for information against me”.

Mr Cheers had a meeting with Ms McMurtrie on 6 June 2019 at which Julie Roose
(Ms Roose) was also present. At that meeting Mr Cheers reportedly discussed in part 12 point document that had been provided to him. Mr Cheers’ had a performance review shortly after this meeting, which was not favourable, and when he subsequently raised this with
Ms McMurtrie, she indicated to him that the actions taken by Mr Condie relevant to the review were appropriate. With Mr Cheers continuing to feel unsupported at work and his mental health deteriorating, Mr Cheers requested a meeting on 23 September 2019 with
Mr Condie, Ms McMurtrie and a union representative, Mr Newman. Although a significant area of concern for Mr Cheers was his treatment by Mr Newell, Mr Newell was also in attendance at the scheduled meeting, which made Mr Cheers very uncomfortable as he felt he could not speak freely or opening about his concerns.
In or about November 2019 Mr Cheers attended a meeting conducted by the Governance Team, following which Mr Cheers spoke with the Governance Team and reported his concerns regarding Mr Newell. He said:
“I signed a confidentiality agreement stating that I would not discuss these matters although the Governance Team have now advised that I can discuss these matters except anything which relates to the investigation which followed. I note that in any event I was not privy to anything relating to this investigation.”
Mr Cheers was subsequently moved to the Parks and Gardens team, where he was no longer in the role of team leader and where he said he was not provided with adequate assistance. On enquiry of Ms McMurtrie as to what he should say to his work colleagues about the reasoning behind his transfer, he was told “to simply state that I was moved as I submitted a complaint about a manager”. Mr Cheers said that he felt very uncomfortable in his role with the Parks and Gardens team, where he remained for about a year, and while he requested assistance from Ms McMurtrie by email, this was not forthcoming.

Mr Cheers admitted he spoke to a close friend and work colleague of his, Barry Loring, about the investigation, which followed his PID. He said Mr Loring was a cancer patient in hospital and that in response to a text query from him about the investigation, he had responded by texting something along the lines of “It is going to be okay. I think they will get him”.
Mr Cheers said that he was aware that most PID investigations “generally take about three to five weeks” whereas this particular investigation had been ongoing for “over twelve months now”. Mr Cheers said that he received a formal letter on 12 October 2020 relevant to this text communication with Mr Loring to which he provided a written response. Mr Cheers said:
“In that letter, I expressed my disappointment with the lack of support I received during the twelve month period that I worked in the Parks and Gardens team. I also expressed that I could not believe that my employment was being threatened after I come forward with information to assist Council.
I also felt that blaming me for potentially jeopardizing the investigation into the Public Interest Disclosure was unfair. About twenty people at the depot were contacted by the investigator to provide statements and so a number of people in the depo knew about the investigation. All I said to Barry, in a private text message was ‘I think they will get him’ with reference to the RS.”
Mr Cheers attended a meeting with Robert Scott (Mr Scott) during which he was told that as “he had nearly jeopardized the entire investigation by speaking about it” he was to be issued with a final warning letter.
Mr Cheers was provided with a “further disciplinary letter” about one week later, which canvassed allegations Mr Cheers was purported to have made about a number of persons in the Parks and Gardens team. Mr Cheers said of this letter that he had “no idea what these allegations relate to. I was shocked to receive this letter”. Despite enquiry of a supervisor, Mr Haffner and Ms McMurtrie, Mr Cheers was provided with minimal details relevant to the allegations and was reportedly told by Ms McMurtrie “this would only be disclosed in the upcoming meeting as the allegations were serious in nature”. Mr Cheers said he went home that day. He said:
“I suffered a breakdown at home that day. I did not sleep for a number of days after that breakdown. I have felt anxious since.”

Mr Cheers has denied having had any previous psychological injury and at the arbitration hearing Mr Cheers was cross examined by Mr Stanton on behalf of MidCoast[11].
[11] T at pages 19 – 40.
In cross-examination Mr Cheers accepted he had in the past consulted with his general medial practitioner, Dr Avadillo, relevant to mental health problems although he could not recall specific dates. He accepted he had consulted with him about anger issues and he also accepted that in the five year period between 2003 and 2008 he may have been taking medication for mental health problems, probably antidepressant medication.

Mr Cheers agreed he had come under the care of Ms Keegan for mental health problems and spoke with her about anger issues. He agreed too that he attended weekly sessions with someone in Taree relevant to anger management. He could not recall exactly for how long he attended these sessions, suggesting “probably a couple of months”.
Mr Cheers agreed he also spoke to Dr Avadillo about substance abuse, including alcohol and amphetamines. Relevant to his use of amphetamines, Mr Cheers said he had not been taking them for a long period of time.
While Mr Cheers could vaguely recall meeting with a Robyn Kelly and a Greg Wilcox for counselling sessions, he could not really recall consulting with his then general practitioners Dr Shen or Dr Gurathan regarding mental health problems. Mr Cheers accepted he would have been truthful regarding the histories he provided to those doctors from time to time.
Mr Cheers knew his attendance at the independent medical examinations was for the purpose of assessment of his psychological health. He understood questioning about any past mental health issues was for the purpose of assessment of his present mental health issues. He accepted he may not have told Dr Smith about the sexual abuse he had experienced as a child. He accepted he had not told Dr Smith about his treatment for mental health issues between 2003 and 2008. He accepted he had not told Dr Smith about the anger issues he experienced in 2008 and 2015. He also accepted he had not told Dr Smith about his previous regular amphetamine use some years ago. However, Mr Cheers strongly denied withholding that information in an endeavour to improve the evidence supporting his claim for compensation. As regards his assessment with Dr Bisht, Mr Cheers said he “was not in a very good place” at the time of assessment. He accepted he told Dr Bisht in response to questioning about his past mental health issues that he had suffered mental health issues with the death of his father and with his divorce. He accepted he had told
Dr Bisht he had been taking antidepressant medication “for a couple of months”. While
Mr Cheers also accepted he had not told Dr Bisht about his treatment for mental health issues between 2003 and 2008, he denied withholding that information in an endeavour to improve the evidence supporting his claim for compensation. Mr Cheers said he could not recall if he had been asked by Dr Bisht if he had experienced any trauma during his childhood and teenage years but accepted that if he had told Dr Bisht that he hadn’t, that would be incorrect as he had experienced sexual abuse as a child. He denied withholding a history about his life experiences in an endeavour to improve the evidence supporting his claim for compensation.
Mr Cheers was re-examined[12]. In re-examination Mr Cheers said if he had used amphetamines for a long period of time he would have recalled that time in his life, but he could not recall that time in his life. Mr Cheers denied the use of amphetamines at the time he was assessed by Dr Smith and Dr Bisht. Mr Cheers said that at the time he was assessed by Dr Smith any issue he had relevant to his childhood sexual abuse was not bothering him. He considered his childhood sexual abuse to be an “historical event” he had addressed many years ago and as a consequence “it’s no longer part of my memory or thought pattern”. In expanding on his mental state at the time of his assessment with
Dr Bisht, Mr Cheers said:
“I was in a very low state of which family and friends were very concerned about me. I was suffering from tremors and memory loss and was unable to drive a car at the time or do anything practical. I was in a very low state.”
[12] T at pages 42 – 45.

Noel Martin’s statement

In his undated statement[13] Mr Martin said he was assisting Mr Cheers in his capacity as industrial officer with the union, with respect to an unfair dismissal application and as such he had “a general familiarity with respect to the circumstances of his termination and some of the events preceding the termination”. Mr Martin relevantly said it was his understanding that shortly after Mr Cheers made a disclosure to Mr Condie in or about March 2019 with respect to what was perceived by him to be illegal or corrupt activities there were changes made to his role without prior consultation with Mr Cheers, which Mr Martin said was in breach of the Local Government (State) Award 2020 (and earlier versions of the award).
[13] A AALD at page 3.

Dave Connell’s statement

In his statement dated 30 July 2021[14] Mr Connell said he has been employed by MidCoast for approximately 11 years. He said he had known Mr Cheers for the entirety of the time he had worked with MidCoast and described his relationship with him as “friendly”. Mr Connell was unaware of any problems between Mr Cheers, Mr Newell and Mr Condie until after
[14] A AALD at page 7.
Mr Cheers had disclosed his concerns about Mr Newell to Mr Condie. Mr Connell said not long after this disclosure “there was a fairly dramatic change to the way Paul was being treated within Council and specifically by Jamie Newell”.
Mr Connell made reference to Mr Cheers’ work duties changing, with Mr Cheers raising his concerns regarding this with him and sharing the fact that he “started to sense he was being targeted by James Newell”. Mr Connell said he observed that Mr Newell rarely talked with Mr Cheers and “would only speak to him if he had to and usually to make some unfavourable comment or criticism towards Paul”. Mr Connell said this pattern of behaviour “seemed to escalate over time”. He said from his discussions with Mr Cheers “it seemed very clear his mood was deteriorating”. He described Mr Cheers as becoming “somewhat darker and more depressed”. He described him as “clearly struggling from a mental health perspective”.
Mr Connell touched on the meeting called by the Governance team. He noted that not long after the meeting Mr Cheers was transferred to Parks and Gardens in what Mr Connell described as “a lower role”. He described Mr Cheers’ move as being “greeted with great suspicion” as there was no explanation or “cover story” to accompany the transfer.
Mr Connell said that he was aware that people within the Parks and Gardens team were not talking with Mr Cheers and “he was effectively being isolated and left by himself”. Of his discussions with Mr Cheers, Mr Connell said “[H]is mood seemed very poor and for a period I was very worried about his mental health generally”.

Mr Connell said he was aware of the incident in or about November 2020 when Mr Cheers “was given some sort of disciplinary action because of a conversation with some other people” and said he found it unusual that only one out of the three people who were allegedly talking together had been given a warning. Of this incident, he said he had “formed the view that this is just consistent with the targeting of Paul Cheers since approximately March 2019”.

Brett Menser’s statement

In his statement dated 2 August 2021[15] Mr Menser said he is a long term employee with MidCoast and is employed as an electrician. He is also a union delegate. Mr Menser said he has worked with Mr Cheers for 15 years.
[15] A AALD at page 13.
Mr Menser said he was approached by Mr Cheers in late March 2019 with respect “to some issues” Mr Cheers was having with Mr Newell. Mr Menser said Mr Cheers told him he thought he was being bullied and targeted by Mr Newell. Mr Menser said he was aware
Mr Cheers was a well-regarded employee with positive performance reviews and was “slightly surprised” to learn there were now performance issues concerning Mr Cheers.
Mr Menser said that in his capacity as union delegate he has been involved in a number of incidents relating to Mr Cheers and made specific reference to the meeting with Mr Scott relevant to the text message and the overheard inappropriate discussion, both incidents leading to disciplinary action against Mr Cheers. Mr Menser volunteered:
“My sense is that management are not sure what to do with Paul and see him in the ‘too hard basket’.”

Ms McMurtrie’s statements

Ms McMurtrie provided a number of statements, dated 27 January 2021[16], 11 June 2021[17] and 6 July 2021[18]. She has also provided an unsigned statement dated 31 May 2021[19].
[16] Reply at page 23 and R AALD at page 111.
[17] R AALD at page 125.
[18] R AALD at page 129.
[19] Reply at page 68.
Ms McMurtrie said she has worked with MidCoast since April 2019, initially in the role of Industrial Relations Advisor and subsequently in the role of Senior Employment Relations Advisor.
While Ms McMurtrie variously said her first interaction with Mr Cheers occurred on 4 and
[20] Reply at 130.
6 June 2019 when Mr Cheers instigated a meeting. It is evident from meeting notes[20] that the meeting occurred on 6 June 2019. It is evident from the meeting notes that in the meeting Mr Cheers explained he felt he was being targeted at work by Mr Newell following his successful application for the role of RS. Mr Cheers also raised that he had attended a few meetings with Mr Newell and Mr Condie concerning his work performance and “he didn’t think this was fair”. At this meeting Ms McMurtrie reminded Mr Cheers about the availability of EAP and assured him she would look into his concerns, which she did. Relevant to EAP, Mr Cheers reportedly “advised he has been utilising this service and they have been great”. Following her discussions with Mr Condie and her manager, Paul Martin, Ms McMurtrie said she contacted Mr Cheers and explained to him it was reasonable for Mr Newell to address work performance concerns with him as required.
Ms McMurtrie said she was contacted by Mr Cheers again in August 2019 because he wasn’t happy with the outcome of his annual review as he had received a score of “not meeting expectations” and was now subject to a performance improvement plan (PIP).
Ms McMurtrie spoke with Mr Condie about Mr Cheers’ concerns and based on this discussion, Ms McMurtrie formed the view the PIP was warranted and reasonable.
Mr McMurtrie said that while a meeting had been arranged in late August 2019 to formalise the PIP to which Mr Cheers came with his union representative, Mr Cheers declined to attend the meeting in the presence of Mr Newell and the meeting was rescheduled so as to enable Mr Cheers to prepare with awareness Mr Newell would be present at the meeting. In declining to attend that initial meeting Mr Cheers told Ms McMurtrie he believed Mr Newell bullied him, but was unable to provide specific incident or examples other than those he had previously canvassed going to performance.
After the PIP had been signed off by Mr Cheers, Mr Newell, Mr Condie and Ms McMurtrie and had commenced, Mr Cheers took sick leave, with his reason being “workplace stress”.
In a meeting in or about October 2019, Mr Cheers told Ms McMurtrie he had submitted a PID in relation to allegations against James Newell. In that same meeting Ms McMurtrie was advised by Mr Martin in a telephone call that Mr Cheers had been granted a transfer to the Parks and Gardens team, which she said Mr Cheers was very happy about.
In May 2020 Ms McMurtrie was told by Mr Martin that the investigation resulting from the PID had found Mr Cheers had breached confidentiality during the investigation process. Before being issued with a final warning in September 2020 relevant to this, Ms McMurtrie and
Mr Scott met with Mr Cheers on 2 September 2020 about the issue.
In mid-November Ms McMurtrie received a complaint from Daniel Spicer (Mr Spicer) against Mr Cheers relevant to inappropriate comments he had overheard Mr Cheers make about other workers. After speaking with Mr Spicer and Mr Martin, Ms McMurtrie drafted a letter that was issued to Mr Cheers regarding this complaint, after which she received a number of telephone calls from Mr Cheers. Mr Cheers explained to Ms McMurtrie that “he felt the letter was unfair and that he felt targeted and victimised” . Mr Cheers explained to Ms McMurtrie that “he felt bullied and that this was a result of him submitting a Public Interest Disclosure”. Ms McMurtrie said the meeting scheduled to discuss this particular issue did not occur as
Mr Cheers ceased working just prior to the meeting and submitted a claim for workers compensation.

Mr Condie’s statement

Mr Condie has provided two statements, one dated 11 February 2021[21] and the other dated 3 June 2021[22]. Mr Condie said he had been working with MidCoast for about eight years and had been in the role of MOS for the past three and a half years.
[21] Reply at page 13.
[22] Reply at page 64.
Mr Condie said that following Mr Cheers’ unsuccessful application for the role of RS he met with Mr Cheers to let him know that his application had not been successful. He said that during their conversation Mr Cheers made comment to the effect “I know things about James. These things make him unsuitable for the position” but when pressed for information, Mr Cheers declined to elaborate. Mr Condie said he had a good working relationship with
Mr Newell. He said he had no idea what Mr Cheers was talking about with the respect to the information he said he knew about Mr Newell.
Mr Condie referred to a meeting with Mr Cheers in or about March 2019 relevant to a number of performance issues, and said that at the time of the meeting he had “a document with a list of twelve items that needed improvement with respect to Paul’s work performance”. While in this meeting Mr Condie again attempted to canvass any concerns Mr Cheers may have had with Mr Newell, Mr Cheers only made comment to the effect “I know things about James Newell”. Mr Condie said that when he asked Mr Cheers if he was certain he didn’t want to expand on his concerns about Mr Newell, Mr Cheers replied to the effect “I want to take the path of least resistance and withdraw everything I have said”.
Mr Condie denied assertion Mr Cheers was punished or targeted or subject to disciplinary action for speaking up against Mr Newell. He said he never told Mr Newell about Mr Cheers’ comment about him. Mr Condie said the meeting in March 2019 was scheduled to discuss a number of performance related issues that he said “had been ongoing for some time and
I was becoming more aware of those issues in the period leading up to March 2019”. He said the purpose of the meeting was to outline his expectations of Mr Cheers.
Mr Condie confirmed he met with Mr Cheers again on 14 May 2020 at the request of
Mr Cheers after he had reportedly received an email from Mr Newell in which he had outlined five issues he wanted Mr Cheers to address. Mr Newell was present at the meeting, and
Mr Condie described it as being “positive” and purely focused on the items Mr Newell had requested Mr Cheers address relevant to his work performance. Mr Condie said that as
Mr Cheers’ performance did not improve in the following months, he became subject to a PIP.
Mr Condie explained the reasoning for Mr Cheers’ being assigned traffic control duties. He said the change in work duties was rolled on to all of Mr Cheers’ team. Mr Condie knew of
Mr Cheers taking a period of leave at about this time but believed the break was because
Mr Cheers was struggling with “a lot going on in his personal life”.
Mr Condie said Mr Cheers’ interim performance review on 29 May 2019 was completed by Mr Newell and the Works Engineer. He said that on review of the report he agreed with the score of “not meeting expectations” as it was consistent with his own observations of how
Mr Cheers had responded to expectations.

Mr Condie said he attended a further meeting with Mr Cheers on 2 October 2019 with the points in his PID narrowed to only a few points so as to enable Mr Cheers to focus on them. He said that point 12 on the list was removed “as we discussed this matter in the first meeting and Paul stated that he wanted to withdraw everything he said about James Newell”.
Mr Condie explained he was not involved in the decision by MidCoast to transfer Mr Cheers to the Parks and Gardens team, and was made aware of the decision in around October/November 2019. He said that at that time he was told not to contact Mr Cheers.

Bryce Haffner’s statement

In his statement dated 12 February 2021[23] Mr Haffner said he had worked with MidCoast for the past six years and had worked in the role of Works Supervisor since October 2019. He confirmed that he had not worked with Mr Cheers until Mr Cheers was transferred to the Parks and Gardens team.
[23] Reply at page 43.
Mr Haffner described receiving a text message from Mr Spicer on 18 November 2020 requesting Mr Haffner speak with him with their subsequent conversation centred on an upsetting discussion Mr Spicer had overheard between Mr Cheers and others about himself, Mr Haffner and Christie Tritten. Mr Haffner said Mr Spicer was visibly upset at the time he spoke with him and he was concerned for him. He told Mr Spicer to report the issue that had arisen to Michael Cross.
Mr Haffner said that in the days following the incident he was given a letter by Ms McMurtrie to give to Mr Cheers, which he did on 26 November 2020. Mr Cheers showed the letter to Mr Haffner and following discussion with Ms McMurtrie, Mr Haffner told Mr Cheers a meeting had been scheduled, which he said was “the appropriate forum for those discussions”. On 27 November 2020, Mr Haffner received a text from Mr Cheers in which he said:
“… he was stressed and unwell and would not be coming into work that day. The text also stated that his mental health had declined since receiving the letter on the previous Thursday.”

Mr Spicer’s statement

In his statement dated 12 February 2021[24] Mr Spicer said he has worked with MidCoast since 12 February 2018, working as an apprentice in the Parks and Gardens team. He said that he worked with Mr Cheers from “time to time”.
[24] Reply at page 54.
Mr Spicer explained that on 18 November 2020 he was working in a shed at the depot when he overhead a conversation between Mr Cheers and some others, which distressed him. He said he sent a text to Mr Haffner who in subsequent conversation, advised him to report it to Mr Cross, which he did. Mr Spicer said he was then contacted by Ms McMurtrie to discuss the issue that had arisen.

Michael Cross’ statement

In his statement dated 12 February 2021[25] Mr Cross said he has worked with MidCoast in the role of Acting Coordinator of Open Spaces since January 2019. He explained the Parks and Gardens team is within the Open Spaces Department.
[25] Reply at page 62.
Mr Cross said he received a telephone call from Mr Spicer on 18 November 20 in which he reported he had overheard Mr Cheers make a number of inappropriate comments about team members, including himself. Mr Cross said Mr Spicer “sounded very upset” during the telephone conversation. Mr Cross requested Mr Spicer forward to him an email outlining the incident, which he did, and Mr Cross contacted both the Governance Team and Human Resources for advice as to how best manage the complaint made by Mr Spicer. The issue was handled by Human Resources thereon in.

Robert Scott’s statement

Mr Scott has provided two statements, one dated 27 January 2021[26] and the other dated 7 July 2021[27]. Mr Scott said he has worked with MidCoast for more than three years and has been in the role of Director of Infrastructure and Engineering Services for the past two years. He confirmed his direct dealings with Mr Cheers have been limited to meeting with him to discuss the governance investigation and to discuss breaches of confidence relevant to that investigation.
[26] Reply at page 37.
[27] R AALD at page 135.
Mr Scott explained Mr Cheers was transferred from the Roads and Construction team to the Parks and Gardens team while the investigation was undertaken into the concerns he had raised about Mr Newell, following which Mr Newell’s employment with Council was terminated. Mr Scott canvassed the text messaging between Mr Cheers and Mr Loring during the investigation period and the subsequent finding of breach of confidentiality.

Mr Scott said he met with Mr Cheers on 7 September 2020 and 20 October 2020 relevant to the issue of breach of confidentiality but accepted the breach of confidentiality on the part of Mr Cheers did not ultimately impact the findings against Mr Newell as Mr Newell had made certain admissions. Mr Scott provided Mr Cheers with a formal written warning at the meeting on 20 October 2020 relevant to his breaching the confidentiality agreement, which he said Mr Cheers understood and was accepting of. Mr Scott said despite invite, Mr Cheers did not attend the meeting with a support person and when reminded of the availability of EAP, Mr Cheers indicated to Mr Scott that he had previously used EAP. This said, Mr Scott went on to say:
“Paul did not report any psychological conditions or symptoms to me. There was nothing that indicated or suggested to me that Paul was suffering from a psychological condition at this time.”

Confidential file note prepared by Mr Scott

In this undated document, which is referred to in Mr Scott’s statement[28], Mr Scott described the document as being a file note that recorded observations from a Council mobile phone previously used by Barry Loring in relation to a breach of confidentiality that had been provided to him by Mr Newell. The file note relevantly recorded:
“On 1 May – Paul messaged Barry to tell him a lady was going to ring him to [sic] about an investigation. Paul encouraged Barry to talk to her. This message could have followed an earlier telephone conversation.
The messages proceeded to indicate that Barry shouldn’t talk to anyone about the investigation, citing that they need to wait until ‘he is snared’.
On 4 May – Paul messaged again this time indicating that someone was ‘being hauled in this afternoon’
The messages obviously referred to the investigation of James Newell”.

[28] R AALD at page 145.

Peel HR Investigation Report

An investigation report prepared by Peel HR which is dated June 2020[29] is also referred to in Mr Scott’s statement. This short report noted that during the investigation a concern regarding a breach of confidentiality raised by Mr Newell with Mr Scott. It was reported
Mr Cheers confirmed he had spoken “with other members of the Southern Operations Team during this investigation process” and “he has openly expressed his desired outcome from the complaint process, that being, ‘they get James Newell’”. The report indicated this identified “breach of confidentiality” by Mr Cheers was indicative that a foundation level of trust “seemingly does not exist” and concluded:
[29] R AALD at 147.
“Consideration should be given to appropriate measures to reinforce the necessity of fulfilling confidentiality obligations in employment as well as possible corrective measures to rebuild trust within the Southern Operations Team.”

However, the report indicated there was no concern collusion between Mr Cheers and
Mr Loring could have impacted the findings of the investigation as the evidence of Mr Loring was not relied upon as corroborative of any of the findings in the report.
Peel HR Report of Investigations

A very heavily redacted document was provided in response to the Direction of Production issued on HR Consulting & Mediation for the external investigation report conducted at the request of MidCoast relevant to a PID submitted by Mr Cheers. It is evident from this document that a number of witnesses were interviewed and a number of documents were reviewed during the course of the investigation. It is also evident that ultimately a number of recommendations were made.

Timeline

A MidCoast document entitled “Paul Cheers timeline”[30] relevantly noted a number of events occurring relevant to Mr Cheers since he was “unsuccessful in gaining Works Supervisor Role” on 31 January 2019.
[30] Reply at page 100.

Incident report form

The incident report form dated 3 December 2020[31] indicated Mr Cheers reported to Bill Townes he had suffered “Mental Health Issues secondary to bullying at work” and made specific reference to “Unfavourable treatment subject to making disclosure”.

[31] Reply at page 72.

Claim form

In his workers compensation claim form dated 10 December 2020[32] Mr Cheers indicated he had sustained “psychological injury over time” and nominated an approximate date of injury of November 2019. As to whether he had previously suffered any similar injury or condition Mr Cheers wrote “unsure”.

Treating medical evidence

[32] Reply at page 74.

Fay Keegan

In her report dated 23 May 2008[33] Ms Keegan, who is described as an Accredited Mental Health Social Worker, reported after her initial session with Mr Cheers that while Mr Cheers and his then wife Jenny had attended relationship counselling at Centacare, their counselling had been “put on hold” pending Mr Cheers attending separate counselling and treatment for abusive behaviour in their relationship.

Min Felber
[33] ARD at page 68.

Ms Felber was Mr Cheers’ treating psychologist and her clinical notes[34] demonstrated
[34] ARD at page 113.
Mr Cheers spoke with her in early 2019 about a relationship issue and his concern about “his mother and her hip replacement”.
However, when Mr Cheers spoke with her on 5 June 2019 Ms Felber recorded:
“Experiencing anxiety due to feeling bullied and harassed at work from his superiors. Has had 3 improvement orders issues in past few months. Several colleagues had been made redundant – work crew unsettled. Would like to change positions.”
When Mr Cheers “[R]eturned through EAP referral” to speak with Ms Felber just under one year later, on 19 May 2020, Ms Felber relevantly recorded:

“Apprehensive due to a corruption investigation coming to an end. Moved from Roads to Parks and Gardens due to making a report to the Governance department for being bullied. Uncomfortable as he has had to lie to his colleagues at Roads to keep things confidential while waiting for an outcome of the investigation.”

On 30 November 2020 Ms Felber relevantly:
“Paul disclosed experiencing serve [sic] anxiety and he maybe terminated from his job due to a colleague alleging he had spoken in a demeaning manner about Midcoast Council and some colleagues who work in Parks and Gardens. Paul has involved the Union to support him for his meeting on Wednesday. Remains in limbo relating to the outcome of his whistle blowing regarding Roads department. …
Suggested contacting Fairwork Australia to explore his rights and possible seek some protection against the bullying. …”
When Mr Cheers spoke with Ms Felber on 15 December 2020 Mr Felber recorded
Mr Cheers’ “anxiety regarding his future has escalated” and had “expressed fears surrounding possible repercussion for his whistle blowing about corruption within Midcoast Council”. It is evident that on the next three occasions when Mr Cheers spoke with
Ms Felber, the last occasion being on 16 February 2021, he remained anxious and distressed.
In her letter dated 26 July 2021[35] Ms Felber concluded with reference to her consultations with Mr Cheers:
“On the balance of probability, I feel Mr Cheers’ psychological injury is attributed to the manner in which he has been treated by his employer since March 2019.”

General practitioners
[35] A AALD at page 181.

As noted, Dr Avadillo was Mr Cheers’ treating general practitioner and clinical notes of
Dr Chan[36], who was also Mr Cheers’ treating general practitioner, relevantly note the following history on 29 April 2008:
“Patient has been treated for mental illness and treated for 5 years.
Sexually abused as a young child
[36] A AALD at page 106.
no treatment with psychiatrist.”

As also noted, Mr Cheers was referred to Ms Keegan and it is evident Mr Cheers continued to discuss his relationship and anger issues with various of his treating general practitioners from time to time up until about mid 2015. It was noted by Dr Avadillo on 8 December 2008 Mr Cheers had been using amphetamines about once a week but “had decided to do something about it”.
Dr Wa was also Mr Cheers’ treating general practitioner and the clinical notes of Dr Wa relevant to Mr Cheers[37] confirm he presented on 28 November 2020 with complaint of stress and anxiety:

“ - worsening stress and anxiety for last few months
- works for mid north coast council and new company has recently taken over
- few of his colleagues have been dismissed
- feeling very stressed and worried as a single dad…”
[37] ARD at page 99.

Mr Cheers presented again on 1 December 2020 and on this occasion Dr Wa noted under a heading ‘Workcover’:
“- onset of bullying at work 18 months ago
- was applying for a supervisor role when job was given to another employee
- was aware of that employee being involved in illegal practice and brought it up with operations manager
- got a letter few days later stating that he is not to talk about this issue to anyone
- he does report having spoken to 1 of his mate with cancer regarding this but no one else
- then got into contact with governance and HR, who are currently investigating the issue
- he was moved to another department in Nov 2019 with no support since
- he is unsure of his role at work and whether he will continue to remain employed
- has been seeing Mini Felber (psychologist) [sic] throughout this issue
- Last spoke to her this am - - advised to speak to Safework
- spoke to Safework who suggested going on Workcover
- has meeting with work tomorrow afternoon.”
While it is evident from Dr Wa’s records Mr Cheers continued to present in a distressed state and was speaking regularly with Ms Felber, on 5 January 2021 Mr Cheers told Dr Wa he wanted to seek psychological review with Ms Wynyard who had been recommended to him by a friend.
In her response to a specific questionnaire on 10 December 2020[38], Dr Chan confirmed diagnosis of a generalised anxiety disorder and provided opinion in the following terms:
“Paul reports being asked to stay quiet regarding illegal practices of another colleague. As a result, he reports being transferred to another department without any support or information regarding his new work position. He reports worsening anxiety + stress as a result of this uncertainty + lack of support.”
[38] ARD at page 77.
Dr Chan confirmed Mr Cheers had been referred for psychological review for depression and stress in 2008 and noted he was now seeing a different psychologist relevant to the workplace issues that had arisen. Dr Chan considered Mr Cheers to be totally unfit for work.

Elise Wynyard

Mr Cheers came under the psychological care of Ms Wynyard following recommendation from a friend. On review on 11 January 2021 Ms Wynyard relevantly noted in her clinical records[39]:
“Midcoast Council – worked with Michael Smythe for 15 years. Prior to amalgamation – no black marks against my name. May/June 2019 applied for supervisor role + lost to a corrupt applicant. I complained about wrong things other guy had done. Then I was targeted. I was threatened with dismissal.
Nov. 2019. Governance Council gave a talk about whistleblowing. This led to an investigation (14 months ongoing) which resulted in the other applicant leaving. My claims were supported.
I was moved from roads + construction to parks + gardens (12 months no calls from HR in support) (demotion but not financially) I wasn’t allowed to tell them why I was changed work role. HR said to say I made a complaint against a manager.
I emaile [sic] governance council to ask what was happening. Meeting to discuss final outcome (Rob Scott). I was accused of exposing information that put investigation at risk + gave me a warning letter re non disclosure.
That was nearly the breaking point.
Then asked to attend a disciplinary meeting for making defamatory alleged comments about my supervisor. At that point I broke down. Union put me on to a barrister. Walked out 10/12/20.”
[39] Uploaded to the audio/visual platform at arbitration hearing.
Mr Cheers continued to meet with Ms Wynyard, with the most recent entry recorded on 11 August 2021 making reference to Mr Cheers feeling “like I was when all this began” and feeling “fearful + angry”.
In her report dated 23 July 2021[40] Ms Wynyard confirmed Mr Cheers had been referred to her by Dr Wa on 5 January 2021 “for review of worsening low mood and anxiety recently which has been precipitated by problems at work”. She recorded a consistent history of
Mr Cheers’ complaints relevant to his experience with MidCoast since his unsuccessful application for the role of RS and said in response to Dr Smith’s independent medical examiner’s opinion:
“I do agree with Dr Glen Smith’s provisional diagnosis that Paul Cheers suffers a Major Depressive Disorder with Anxious Distress …. In my opinion, this has likely developed over the past 18-24 months with the main contributor to his condition being unreasonable behaviour directed towards him at his workplace.
I do agree with Dr Smith’s opinion that Paul Cheers is currently unfit for work due to the current level of anxiety, depression and associated symptoms. However, it is my opinion that once these symptoms are somewhat relieved and issues resolved around Paul’s financial stability, he could gradually transition back into the workforce, but I would recommend that he does not return to his former employer, Mid Coast Council.”

Independent medical evidence
Dr Bisht
[40] A AALD at page 178.

Mr Cheers was psychiatrically assessed by Dr Bisht on 29 January 2021 in his capacity as independent medical examiner and he has provided a report dated 10 February 2021[41]. It is evident from his report that Dr Bisht had substantial material available to him at the time of his reporting.
[41] Reply at page 213.

Relevant to Mr Cheers’ past history, while Dr Bisht noted Mr Cheers had taken antidepressant medication “for a couple of months” in the context of a divorce, he reported in response to specific questioning as to whether there were any “other issues or problems in his life… which could have caused, or contributed to, his mental state, or could have contributed to his current psychiatric state”:
“He denied any other issues or problems in his life over the last few years such as family, relationship, financial, grief, alcohol abuse, substance abuse, gambling or other issues which could have caused, or contributed to, his mental state, or could have contributed to his current psychiatric state.
He said that he divorced many years back.”
Dr Bisht provided a history of injury sustained by Mr Cheers. He reported:
“his symptoms have been caused by the harassment he experienced from his supervisor and operations, the transfer to a related department and not being able to talk about the reason he had been transferred, along with the inappropriate actions during 2020.”
Mr Cheers reportedly explained to Dr Bisht that he had been “very, very stressed at work, for about 18 months”. Mr Cheers told Dr Bisht about his unsuccessful application for the role of RS and described the successful applicant as “a dishonest man, running side businesses and doing illegal activities”. Mr Cheers told Dr Bisht about telling his manager this and within weeks he was being “treated poorly” and provided with 12 points for improvement, with one of the points indicating that if he made false allegations about a colleague he would be dismissed. Mr Cheers explained he subsequently discovered the successful applicant and his manager were friends. Mr Cheers told Dr Bisht about being placed in minor roles, like traffic control, and also being disciplined over “just the smallest of things”. He said this continued for some time. Mr Cheers told Dr Bisht that after he attended a meeting in November 2019 he made a PID, after which he was moved to another department without explanation. Mr Cheers said he was not permitted to talk to anyone regarding the PID and the consequential investigation took some 12 months. Mr Cheers further explained:
“Towards the end of 2020 approximately end of November/early December, it got really, really bad and I walked out of work.
I had been really worried for about 18 months about losing my job.
At the end of November 2020, an incident triggered me.
At the end of November, I was accused of being part of a conversation overheard supposedly from 15 meters away, where I was talking poorly about a manager. I contacted HR and asked them could someone at least tell me what I had done. They dragged me into a disciplinary meeting; there were 3 other people in that conversation, and they were not called into the meeting, I am not being paranoid, this has been going on for two years.”
Mr Cheers told Dr Bisht his psychological symptoms had commenced in 2019 and reported “I have had a counsellor, Mini, for 12 months, through EAP” and was taking antidepressant medication.
Following review of the information made available to him and mental state examination
Dr Bisht provided diagnosis in terms of adjustment disorder with mixed and anxious and depressed mood, and in the context of no history of pre-existing condition, no non-work related psychological stressors and no significant contribution from medical conditions or medications or substances of abuse, Dr Bisht provided opinion Mr Cheers’ employment with MidCoast had been the main contributing factor to injury. In response to specific questioning, Dr Bisht said:
“Based on the description provided by the worker and the timeline of worsening of his symptoms/stopping work, I am of the opinion that his current psychological injury was predominantly caused by actions taken, or proposed to be taken, by the employer in 2019 and 2020 with respect to ‘discipline’, ‘performance appraisal’ and ‘transfer’.”

Dr Bisht provided opinion Mr Cheers require treatment for his injury and while he also provided opinion Mr Cheers would not be able to return to his pre-injury duties and hours as a team leader with MidCoast, he considered Mr Cheers could work four hours for four days each week with an alternate employer “in a job that did not require the worker to interact with unfamiliar people or make complex decisions/sustain intense concentration for long periods”.

Dr Smith

Mr Cheers was psychiatrically assessed by Dr Smith on 22 April 2021 in his capacity as independent medical examiner and he has provided a report dated 30 April 2021[42]. It is evident from his report Dr Smith had substantial material available to him at the time of reporting.
[42] ARD at page 47.
Relevant to Mr Cheers’ past history of psychological fragility, Dr Smith noted that in or about 2009 Mr Cheers had briefly come under the care of a psychologist and been prescribed antidepressant medication in the context of feeling anxious and depressed following the breakdown in his marriage. Mr Cheers reported these anxiety and depressive symptoms resolved with increased exercise. Dr Smith also reported:
“… around five to six years ago he saw a counsellor from the Employee Assistance Program (EAP) for two sessions for counselling for work-related stress and the symptoms resolved.”
Relevant to Mr Cheers’ drug and alcohol history, Dr Smith noted in recent times Mr Cheers’ alcohol consumption had increased. He reported Ms Cheers occasionally took diazepam but denied abuse. He reported too Mr Cheers had tried amphetamine and cocaine on a small number of occasions “during his teenage years” but denied illicit substance use.
Dr Smith provided a history of injury sustained by Mr Cheers. Dr Smith relevantly reported Mr Cheers as being unsuccessful in his application for the role of RS with Mr Newell subsequently becoming his supervisor. Mr Cheers said he harboured concerns about
Mr Newell, which he reported to Mr Condie, unaware at the time that Mr Newell and
Mr Condie were friends. Mr Cheers said this subsequently created workplace difficulties for him in that he was put on traffic control, ridiculed in front of his co-workers and spoken about in a derogatory manner by Mr Newell. Mr Cheers said minor issues were raised with him “as complaints” and “they threatened that if I spoke about an employee I would be sacked”.
Mr Cheers reportedly became “anxious and distressed” and he commenced psychological therapy through EAP, which he found helpful. With reportedly adverse treatment of
Mr Cheers continuing from Mr Newell, Mr Cheers said he took leave. After he attended a Governance team meeting in November 2019, Mr Cheers made a PID and was subsequently transferred to a different work team, without explanation. Mr Cheers said his transfer “…raised fear with people I was working with, they thought I was a spy” and he described his work environment over the following year while the PID investigation was ongoing as “very uncomfortable, I was mistreated by my colleagues, no one from HR contacted me to discuss it”. He explained he had been “forbidden” to talk about issues relevant to the PID and the investigation relevant to the PID took about 12 months. While he remained in contact with EAP, Mr Cheers said he remained anxious and depressed. Mr Cheers explained that when he received the letter in November 2020 relevant to the alleged inappropriate comments he had made and had been unable to glean detailed information about these allegations, he “had a breakdown, I was crying, I went home and went to bed”.

Mr Cheers subsequently sought medical treatment, commenced anti-depressant medication and came under the psychological care of Ms Wynyard in January 2021. Mr Cheers reported that despite treatment, his psychological condition deteriorated and in the context of his psychological symptomology his alcohol consumption has escalated. Dr Smith noted that at the time of assessment Mr Cheers had told him that he had “recently been informed that his employer had plans to terminate his employment next Friday and he is very distressed by that situation”.
Following mental state examination and review of the information made available to him,
Dr Smith provided diagnosis in terms of Major Depressive Disorder with Anxious Distress and provided opinion Mr Cheers’ employment with MidCoast was the main contributing factor to injury. In response to specific questioning Dr Smith said Mr Cheers’ current psychological condition could be considered as an aggravation of his pre-existing condition. Dr Smith accepted Mr Cheers’ provided a consistent account of feeling distressed and overwhelmed by events in the workplace over an extended period of time, with such feelings not just related to the report of alleged inappropriate comments made in or about November 2020. Dr Smith considered Mr Cheers was currently unfit for work in any capacity and considered Mr Cheers had needed, and continued to need, treatment for his injury.
Relevant to his supplementary report dated 6 August 2021[43] Dr Smith was in part provided with the opportunity to review and comment on the report prepared by Dr Bisht. In response to specific questioning as to whether he agreed with Dr Bisht’s opinion that Mr Cheers’ injury “was ‘wholly or predominantly caused by’ the actions taken, or proposed to be taken by MidCoast Council in 2019 and 2020 with respect to ‘discipline’ and/or ‘performance appraisal’ and/or ‘transfer’” Dr Smith said:
“I disagree with Dr Bisht’s conclusion. Based on the history that Dr Bisht documented in his own report, the contents of which appeared generally consistent with the history Mr Cheers provided to me on assessment, Mr Cheers suffered from significant distress before the reported disciplinary matters in 2020. Mr Cheers described a history of feeling ridiculed and spoken about in a derogatory manner. He had felt harassed and suffered anxiety and depressive symptoms in that context. In my opinion, the fact that he had sought psychological therapy from early 2019 is evidence of significant distress prior to the later disciplinary issues.”
[43] A AALD at page 183.
In response to specific questioning as to whether Dr Smith considered Mr Cheers’ injury “is attributable to the interpersonal conflict and adverse treatment our client endured during the course of his employment with MidCoast Council, Dr Smith said:
“In my opinion, Mr Cheers described a clear history of the development of anxiety and depressive symptoms requiring psychological treatment from early 2019 in the context of feeling ridiculed, spoken about in a derogatory manner and harassed in the workplace during the course of his employment with MidCoast Council.”

Earning Capacity Assessment

An Earning Capacity Assessment report dated 31 July 2021[44] confirmed Mr Cheers underwent a Vocational/Psychological Assessment on 15 July 2021. The author of the report, Andrea Costa, wrote:
“Mr Cheers advised he suffered a psychological injury in the course of his work, as a result of bullying and harassment at the workplace following his disclosure of inappropriate actions by a council employee. He informed that this employee has since been terminated by Council.
Mr Cheers had been employed as a Team Leader in Signs and Line Marking at the Council. Mr Cheers had missed out on a promotion to a supervisor role in January 2019. What ensued were numerous performance reviews addressing Mr Cheers poor work performance. On 25/519 at an annual performance review Mr Cheers was informed that he was not meeting expectations and his work needed to improve. Mr Cheers took couple of days off on sick leave in June and reported to the council that he was feeling stressed and victimised, which he attributed to making the disclosure. Mr Cheers consulted EAP which continued throughout his work with the council, and up until his last day at work on 27/11/20.
[44] R AALD at page 1.
Mr Cheers’ request for a change in manager was supported on 2/10/19 and he was subsequently transferred to the Parks and Garden team in November 2019. A further complaint was made from this area alleging inappropriate comments made by the worker about other employees. Mr Cheers received a disciplinary notice as a result of these allegations.”
Ms Costa concluded following assessment and review of the various documents forwarded to her, which included the report prepared by Dr Bisht (but not that prepared by Dr Smith) and a vocational questionnaire forwarded to Dr Chan (but not responded to by Dr Chan) that “[I]n the open labour market there are numerous jobs which Mr Cheers could complete with his transferrable skills” with the roles of mobile plant operator, store person, and general gardener specifically selected. Based on those specifically selected roles, Ms Cost suggested Mr Cheers had a residual capacity to earn approximately $500 gross each week, working a 16 hour week.

Submissions

Mr Stanton made oral submissions during the arbitration hearing on 23 August 2021 and when it became evident the arbitration hearing would not conclude by day’s end I issued directions for lodgement and service of written submissions on behalf of Mr Cheers and for lodgement and service of submissions in Reply on behalf MidCoast. A transcript of
Mr Stanton’s initial submissions has been made available to the parties. The parties also have copies of Mr Adhikary’s submissions and those made in reply by Mr van der Hout.
I have carefully considered counsels’ submissions and am grateful for the assistance provided to me in this matter, which is not without complexity.

Determination
Defence raised under s 11A(1) of the 1987 Act

It is not disputed Mr Cheers sustained psychological injury arising in the course of his employment with MidCoast. MidCoast has however raised defence under s 11A(1) of the 1987 Act relevant to transfer, performance appraisal and/or discipline. MidCoast has the onus of establishing such defence (see Pirie v Franklins Ltd[45] and Department of Education and Training v Sinclair[46] ) and there are two aspects to such defence.
[45] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[46] [2005] NWCA 465 (Sinclair).
Firstly, the injury must be “wholly or predominantly caused” taken or proposed to be taken on behalf of MidCoast’s actions regarding one of the categories referred to in s 11A(1) and in
[47] [2017] NSWWCCPD 6.
[48] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[49] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[50] [2007] NSWWCCPD 92.
[51] [2008 NSWWCCPD 96.
Mr Cheers’ case MidCoast relies on transfer, performance appraisal and/or discipline. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[47] with comment medical evidence is required to determine this causation issue. It is accepted “wholly” and “predominately” are different concepts[48] and it is accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation to be applied being that described in Kooragang Cement Ltd v Bates[49]; Ponnan v George Weston Foods Ltd[50]; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[51]. Secondly, if it is established Mr Cheers’ psychological injury was “wholly or predominantly caused by MidCoast’s actions regarding transfer performance appraisal and/or discipline, then MidCoast is required to establish MidCoast’s actions were “reasonable”.

Looking first at whether the psychological injury sustained by Mr Cheers was wholly or predominantly caused by actions taken on behalf of MidCoast with respect to discipline, transfer and/or performance appraisal, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[52] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[52] [2013] NSWWCCPD 64.

It is important to note too the relevance of perception in matters such as this. In State Transit Authority of NSW v Fritzi Chemler[53] it was determined a perception of real events, which are not external events, can satisfy the test of injury and in Attorney General’s Department v K[54] Deputy President Roche provided at [52] a useful summary of the relevant authorities:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which I the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chelmer 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 Chelmer 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 Chelmer 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.”
[53] [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler)
[54] [2010] NSWWCCPD 76.

Mr Cheers said prior to the promotion of Mr Newell to the role of RS and his comment to
Mr Condie about Mr Newell’s unsuitability for the role, he was performing well as a team leader. Although Mr Condie said the meeting he had with Mr Cheers in March 2019 was scheduled to discuss performance related issues that “had been ongoing for some time and I was becoming aware of those issues in the period leading up to March 2019”, it remains the case that it was only after Mr Cheers made comment to Mr Condie regarding Mr Newell’s unsuitability for the role of RS that Mr Condie discussed with Mr Cheers a number of areas in which he was required to improve and Mr Cheers underwent an unfavourable performance review and was placed on a PIP.
While Mr Condie denied assertion Mr Cheers has been punished or targeted or subjected to disciplinary action for speaking up against Mr Newell, Mr Cheers consistently reported that within a very short time of his discussion with Mr Condie about Mr Newell he began to be treated poorly and consequently suffered a deterioration in his mental health.
Mr Connell, who has known Mr Cheers as a work colleague for some 11 years, also said that not long after Mr Cheers spoke to Mr Condie about Mr Newell “there was a fairly dramatic change to the way Paul was being treated within Council and specifically by Jamie Newell”. He said such behaviour “seemed to escalate over time”. He said from his discussions with Mr Cheers “it seemed very clear his mood was deteriorating” and he described Mr Cheers as “clearly struggling from mental health perspective”.

Mr Menser, who has known Mr Cheers as a work colleague for 15 years, also said that in late March 2019 Mr Cheers told him he thought he was being bullied and targeted by
Mr Newell. Mr Menser, who is a union delegate, also expressed some surprise to learn at that time that there were performance issues concerning Mr Cheers as in so far as he was aware, Mr Cheers was a well-regarded employee with positive performance reviews.
It is evident that at the meeting which occurred between Mr Cheers, Ms McMurtrie and
Ms Roose on 6 June 2019, Mr Cheers expressed particular concern about the behaviour of Mr Newell and it is significant that the day before this particular meeting Mr Cheers’ then treating psychologist, Ms Felber recorded in part that Mr Cheers was experiencing anxiety due to feeling bullied and harassed at work from his superiors and had had three improvement orders issued to him in the previous few months.
While it is not apparent from the information available that Mr Cheers was in fact issued with three improvement notices in the “few months” leading up to when he consulted with
Mr Felber on 5 June 2019, it is evident from the timeline created by MidCoast that since his unsuccessful application for the role of RS, Mr Cheers attended a performance discussion with Mr Condie on 29 March 2019, attended a performance discussion with Mr Condie and Mr Newell on 14 May 2019 and underwent an annual performance review meeting on 29 May 2019 with Mr Condie and Mr Newell during which he was given a rating of “Not Meeting Expectations”.
It is evident too from the notes of the meeting between Mr Cheers, Ms McMurtrie and
Ms Roose on 6 June 2019 that Mr Cheers “felt pressured” by Mr Newell and was nervous, anxious and scared about going to work under his supervision and was actively seeking to move away from his supervision.

I am of the view Mr Cheers has provided a consistent history to his treaters and MidCoast of a deterioration in his mental health after coming under the supervision of Mr Newell in early 2019. As early as 5 June 2019 Mr Cheers tells Ms Felber he is feeling bullied and harassed at work by his superiors. On 6 June 2019 Mr Cheers tells Ms McMurtrie and Ms Roose he is scared about going to work under the supervision of Mr Newell. Although on 28 November 2020 Mr Cheers presented to Dr Wa with complaint of stress and anxiety and Dr Wa in part noted a history of “worsening stress anxiety for last few months”, when Mr Cheers
re-presented just a few days later on 1 December 2020, Dr Wa noted a rather more detailed history of “onset of bullying at work 18 months ago – was applying for a supervisor role when job was given to another employee – was aware of that employee being involved in illegal practice and brought it up with operations manager”. When Mr Cheers comes under the care of Mr Wynyard on 11 January 2021, Ms Wynyard relevantly noted a history of Mr Cheers being “targeted” at work after he complained about Mr Newell.
I am of the view Mr Cheers has also provided a consistent history of injury to the independent medical examiners and while both Dr Bisht and Dr Davis have provided a diagnosis of psychological injury sustained in the course of Mr Cheers’ employment with MidCoast, Dr Bisht has provided opinion Mr Cheers’ injury was predominantly caused by actions taken or proposed be taken on behalf of MidCoast with respect to transfer, performance appraisal and/or discipline whereas Dr Davis has provided opinion Mr Cheers’ injury had manifested in early 2019 in a context of “feeling ridiculed, spoken about in a derogatory manner and harassed in the workplace”. I prefer the opinion of Dr Smith to that of Dr Bisht as Dr Smith was afforded the opportunity to carefully consider the report provided by Dr Bisht and provide reasoned comment on Dr Bisht’s opinion in his supplementary report, whereas Dr Bisht has not provided any comment on the opinion provided by Dr Smith.
Following review of the evidence as a whole and consideration of counsels’ submissions I do not accept the psychological injury sustained by Mr Cheers was either “wholly” or “predominantly” caused by actions taken by or proposed to be taken by or on behalf of MidCoast with respect to transfer, performance appraisal and/or rather discipline, but rather it was sustained by MidCoast’s management behaviour towards him after Mr Newell achieved the role of RS and Mr Cheers’ discussion with Mr Condie about Mr Newell’s suitability for the role.

I draw comfort in my conclusion Mr Cheers’ psychological injury was not wholly or predominantly caused by actions taken or proposed to be taken on behalf of MidCoast with respect to transfer, discipline and/or performance appraisal, as Ms Felber (to who Mr Cheers was speaking throughout 2019 and into early 2021) has provided opinion “[O]n the balance of probability, I feel Mr Cheers’ psychological injury is attributed to the manner in which he has been treated by his employer since March 2019”, which would include the perceived bullying behaviours of Mr Newell in his role of supervisor.

Mr Stanton expressed concern about the fact Mr Cheers failed to fully disclose a past history of mental health issues canvassed in the clinical records of his treating general practitioners to both Dr Smith and Dr Bisht. Having had the opportunity to listen to the cross-examination and re-examination of Mr Cheers during the arbitration, as Dr Smith (on whose opinion
Mr Cheers relies) has provided a diagnosis of psychological injury in the nature of an aggravation of a pre-existing psychological condition, I do not share Mr Stanton’s expressed concern about Mr Cheers’ failure to fully disclose his past history of mental health issues, which appeared to me to be grounded in quite historical troubled familial circumstances that were understandably personal to Mr Cheers.
Both Mr Stanton and Mr van der Hout have made quite lengthy submissions relevant to the defence raised under s 11A (1) of the 1987 Act by MidCoast and if for the sake of argument one was to accept Mr Cheers’ psychological injury was wholly or predominantly caused by action taken on behalf of MidCoast with respect to transfer, performance appraisal and/or discipline (which is not what I have determined) MidCoast would have the onus relevant to the reasonableness of its actions.

Looking at the second aspect to the defence raised under s 11A(1) of the1987 Act by MidCoast, it is clear that following Mr Newell’s appointment to RS in or about early February 2019 Mr Cheers was subjected to actions taken on behalf of MidCoast relevant to transfer, performance appraisal and/or discipline. When considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[55]; Melder v Ausbowl Pty Ltd[56]) and in Irwin Gerahty J said:

“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[55] [1998]NSWCC 13.
[56] [1997]NSWCCR 454.

In Northern New South Wales Local Health Network v Heggie[57] Sackville AJA usefully set out at [61] the following statements of principle regarding s 11A (1):
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[57] [2013] NSWCA 225; 12 DDCR 95.

While it may be certain steps taken on behalf of MidCoast relevant to transfer, performance appraisal and/or discipline may have been “reasonable” (by way of example, the counselling and disciplinary meeting held on 7 September 2020 relevant to the substantiated breach of confidentiality by Mr Cheers during the investigation by Peel HR and the subsequent issuing of a warning) it is evident Mr Cheers suffered psychological distress with the change in behaviour towards him by MidCoast management after he came under the supervision of
Mr Newell and had raised his concerns about Mr Newell with Mr Condie. Management’s behaviour towards Mr Cheers, particularly the behaviour of Mr Newell, was raised by
Mr Cheers with Ms Felber on 5 June 2019 and was raised in his meeting with Ms McMurtrie and Ms Roose on 6 June 2019. Mr Cheers also discussed this change in behaviour with his long-time co-workers, Mr Connell and Mr Menser, with Mr Connell observing a distinct deterioration in Mr Cheers’ mental health over time. Despite Mr Cheers telling Ms McMurtrie and Ms Roose about Mr Newell’s concerning behaviour towards him, the fact that he was “nervous to go to work – anxiety, scared” and the fact that he had been utilising the services of EAP, MidCoast management subsequently concluded Mr Cheers’ work performance required addressing through performance appraisal and/or discipline and then, following PID, a transfer to a different team. Following a review of the evidence as a whole and considerations of counsels’ submissions I am not of the view the actions taken or proposed to be taken on behalf of MidCoast relevant to transfer, performance appraisal and/or discipline, were reasonable when it is evident MidCoast knew, or ought to have known, as early as 6 June 2019 of Mr Cheer’s psychological fragility.
For the reasons discussed above I am not satisfied MidCoast has discharged the onus of proof required and as a consequence MidCoast cannot rely on defence raised under
s 11A(1) of the 1987 Act.

Capacity

It is not disputed Mr Cheers sustained psychological injury in the course of his employment with MidCoast and as I have determined MidCoast cannot rely on defence raised under
s 11A(1) of the 1987 Act, it may be Mr Cheers has an entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
The provisions of s 36 and s 37 of the 1987 Act require consideration as to whether a worker does or does not have “current work capacity”, which is defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means 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.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”.
Assessment of Mr Cheers capacity for work from 1 December 2020 involves a consideration as to whether since that time he has had no current work capacity or has had a current work capacity as defined by s 32A of the 1987 Act. This requires consideration of his capacity to undertake not only his pre-injury employment, but also his capacity to undertake suitable employment, irrespective of its availability.[58]
[58] Wollongong Nursing Home Pty Ltd v Dewar [2014] MSWWCCPD 55.
As at 10 December 2020, Dr Chan considered Mr Cheers had no current work capacity as a result of his psychological injury as did Dr Smith when he assessed Mr Cheers on 22 April 2021. As at 23 July 2021, while Ms Wynyard agreed with opinion provided by Dr Smith as regards Mr Cheers’ capacity for work, she expressed optimism about a gradual return to work with an alternate employer once “symptoms are somewhat relieved and issues resolved around Paul’s financial stability”.
Although Dr Bisht assessed Mr Cheers on 29 January 2021 and considered Mr Cheers had current work capacity for suitable employment for four hours for four days a week with an alternate employer and Ms Costa agreed with Dr Bisht opinion following her assessment of Mr Cheers on 15 July 2021, I prefer the opinions of Dr Smith, Dr Chan and Ms Wynyard, particularly so as Dr Chan and Ms Wynyard have been involved in the psychological care of Mr Cheers and Dr Smith has had the opportunity to review Dr Bisht’s opinion. Furthermore, there is no comment available from Dr Bisht relevant to Dr Davis’ opinion and Ms Costa’s opinion has been provided without the opportunity to review Dr Smith’s opinion and without input from Dr Chan as to the suitability of the roles that she had identified as suitable for Mr Cheers.
Following review of the evidence addressing Mr Cheers’ capacity for work and consideration of counsels’ submissions, I accept that since 1 December 2020 Mr Cheers has had no current work capacity resulting from psychological injury sustained in the course of his employment with MidCoast.

Quantification of entitlement to weekly compensation

Mr Cheers’ PIAWE is $1,172.42. Since 1 December 2020 Mr Cheers has had no current work capacity resulting from the psychological injury he has sustained in the course of his employment with MidCoast.

Between 1 December 2020 and 2 March 2021 Mr Cheers has an entitlement to weekly compensation payable under s 36(1)(a) of the 1987 Act:
$1,172.42 x 95% = $1,118.80.

From 3 March 2021 to date and continuing Mr Cheers has an entitlement to weekly compensation payable under s 37(1)(a) of the 1987 Act (as adjusted):
$1,172.42 x 80% = $937.94.

Treatment

It is not disputed Mr Cheers sustained psychological injury in the course of his employment with MidCoast and as I have determined that MidCoast cannot rely on defence raised under s 11A(1) of the 1987 Act, it follows Mr Cheers has an entitlement to medical or related treatment resulting from this injury, including past medical or related treatment particularised in these proceedings at $90.60.

SUMMARY

It is not disputed Mr Cheers sustained psychological injury arising out of or in the course of his employment with MidCoast, with a deemed date of injury of 1 December 2020.

Mr Cheers’ employment with MidCoast was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of MidCoast with respect to transfer, performance appraisal and/or discipline.

Mr Cheers’ PIAWE is agreed at $1,172.42. Mr Cheers has had a total incapacity for work since 1 December 2020. Mr Cheers has an entitlement to weekly benefits payable under the 1987 Act resulting from his psychological injury as follows:
(a) $1,113.80 payable under s 36 of the 1987 Act, and
(b) $937.94 payable under s 37 of the 1987 Act. Mr Cheers’ entitlement to weekly benefits payable under s 37 of the 1987 Act is to be subjected to adjustment.
Mr Cheers has an entitlement to medical or related treatment under s 60 of the 1987 Act resulting from his psychological injury.

[2021] NSWPIC 447

9 November 2021