Chelin v Rock Logistics Pty Ltd
[2023] NSWPIC 241
•25 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Chelin v Rock Logistics Pty Ltd [2023] NSWPIC 241 |
| APPLICANT: | Noel Chelin |
| RESPONDENT: | Rock Logistics Pty Ltd |
| Member: | Karen Garner |
| DATE OF DECISION: | 25 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; dispute as to whether psychological injury caused by respondent’s actions in relation to requirement for vaccination for COVID-19; further issue of whether respondent established defence under section 11A; claim for weekly benefits compensation and medical expenses; whether applicant has current work capacity; Held – the applicant sustained psychological injury arising out of or in the course of employment; the applicant’s employment was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease; the respondent has not established a defence under section 11A; the applicant has no current work capacity from 28 August 2021; the applicant had current work capacity from 13 December 2021 ongoing; the respondent is to pay the applicant weekly compensation pursuant to sections 33, 36 and 37; the respondent is to pay the applicant’s medical and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to section 60. |
| determinations made: | |
The Commission determines:
The applicant sustained psychological injury arising out of or in the course of his employment with the respondent on 28 August 2021.
The applicant’s employment with the respondent was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease.
The respondent has not established a defence pursuant to s 11A of the Workers Compensation Act 1987.
The psychiatric and psychological treatment provided to the applicant is reasonably necessary as a result of psychological injury sustained on 28 August 2021.
The applicant had no current work capacity as a result of the psychological injury from
28 August 2021 to 12 December 2021 and had current work capacity from 13 December 2021 ongoing.
The Commission orders:
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the Workers Compensation Act 1987 as follows:
(a) $1,481.08 per week from 28 August 2021 to 13 November 2021;
(b) $691.28 per week from 14 November 2021 to 20 November 2021, and
(c) $1,181.28 per week from 21 November 2021 to 27 November 2021.
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the Workers Compensation Act 1987 as follows:
(a) $540.00 per week from 28 November 2021 to 4 December 2021;
(b) $1,247.39 per week from 5 December 2021 to 11 December 2021;
(c) $787.39 per week from 12 December 2021 to 18 December 2021;
(d) $797.39 per week from 19 December 2021 to 25 December 2021;
(e) $1,247.39 per week from 26 December 2021 to 1 January 2022;
(f) $0 per week from 2 January 2022 to 8 January 2022;
(g) $847.39 per week from 9 January 2022 to 15 January 2022;
(h) $687.39 per week from 16 January 2022 to 22 January 2022;
(i) $1,247.39 per week from 23 January 2022 to 29 January 2022;
(j) $512.39 per week from 30 January 2022 to 5 February 2022;
(k) $887.39 per week from 6 February 2022 to 12 February 2022;
(l) $947.39 per week from 13 February 2022 to 19 February 2022;
(m) $1,147.39 per week from 20 February 2022 to 26 February 2022;
(n) $0 per week from 27 February 2022 to 5 March 2022;
(o) $0 per week from 6 March 2022 to 12 March 2022;
(p) $2,494.78 per week from 13 March 2022 to 26 March 2022;
(q) $797.39 per week from 27 March 2022 to 2 April 2022;
(r) $912.39 per week from 3 April 2022 to 9 April 2022;
(s) $872.39 per week from 10 April 2022 to 16 April 2022;
(t) $2,494.78 per week from 17 April 2022 to 30 April 2022;
(u) $1,012.39 per week from 1 May 2022 to 7 May 2022;
(v) $1,247.39 per week from 8 May 2022 to 14 May 2022;
(w) $722.39 per week from 15 May 2022 to 21 May 2022;
(x) $1,012.39 per week from 22 May 2022 to 28 May 2022;
(y) $1,002.39 per week from 29 May 2022 to 4 June 2022;
(z) $1,107.39 per week from 5 June 2022 to 11 June 2022;
(aa) $1,247.39 per week from 12 June 2022 to 18 June 2022;
(bb) $1,107.39 per week from 19 June 2022 to 25 June 2022;
(cc) $947.39 per week from 26 June 2022 to 2 July 2022;
(dd) $1,197.39 per week from 3 July 2022 to 9 July 2022;
(ee) $2,494.78 per week from 10 July 2022 to 23 July 2022;
(ff) $986.39 per week from 24 July 2022 to 30 July 2022;
(gg) $922.39 per week from 31 July 2022 to 6 August 2022;
(hh) $1,071.89 per week from 7 August 2022 to 13 August 2022;
(ii) $447.39 per week from 14 August 2022 to 20 August 2022;
(jj) $965.39 per week from 21 August 2022 to 27 August 2022;
(kk) $1,034.89 per week from 28 August 2022 to 3 September 2022;
(ll) $817.39 per week from 4 September 2022 to 10 September 2022;
(mm) $2,494.78 per week from 11 September 2022 to 24 September 2022;
(nn) $1,047.39 per week from 25 September 2022 to 1 October 2022;
(oo) $1,085.53 per week from 2 October 2022 to 8 October 2022;
(pp) $1,247.39 per week from 9 October 2022 to 15 October 2022;
(qq) $737.39 per week from 16 October 2022 to 22 October 2022;
(rr) $977.39 per week from 23 October 2022 to 29 October 2022;
(ss) $947.39 per week from 30 October 2022 to 5 November 2022;
(tt) $882.39 per week from 6 November 2022 to 12 November 2022;
(uu) $1,142.39 per week from 13 November 2022 to 19 November 2022;
(vv) $357.26 per week from 20 November 2022 to 26 November 2022;
(ww) $851.79 per week from 27 November 2022 to 3 December 2022;
(xx) $152.39 per week from 4 December 2022 to 10 December 2022;
(yy) $1,227.39 per week from 11 December 2022 to 17 December 2022;
(zz) $1,127.39 per week from 18 December 2022 to 24 December 2022;
(aaa) $1,247.39 per week from 25 December 2022 to 31 December 2022;
(bbb) $967.39 per week from 1 January 2023 to 7 January 2023;
(ccc) $1,122.25 per week from 8 January 2023 to 14 January 2023;
(ddd) $1,217.39 per week from 15 January 2023 to 21 January 2023;
(eee) $1,222.39 per week from 22 January 2023 to 28 January 2023;
(fff) $1,247.39 per week from 29 January 2023 to 4 February 2023;
(ggg) $1,002.39 per week from 5 February 2023 to 11 February 2023;
(hhh) $1,042.42 per week from 12 February 2023 to 18 February 2023;
(iii) $922.39 per week from 19 February 2023 to 25 February 2023;
(jjj) $1,151.89 per week from 26 February 2023 to 4 March 2023;
(kkk) $349.39 per week from 5 March 2023 to 11 March 2023;
(lll) $1,052.39 per week from 12 March 2023 to 18 March 2023, and ongoing.
The respondent to pay the applicant medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.
Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts
STATEMENT OF REASONS
BACKGROUND
Noel Chelin (the applicant) is a 44-year-old man who was employed by Rock Logistics Pty Ltd (the respondent) in the position of Shunt Driver.
The applicant alleges that he sustained psychological injury and/or aggravation, acceleration, exacerbation, or deterioration of a pre-existing psychological condition in the course of his work with the respondent on 28 August 2021.
The applicant initiated a claim for workers compensation in respect of weekly benefits pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) and expenses of medical or related treatment pursuant to s 33 of the 1987 Act.
By notices dated 1 November 2021 and 1 July 2022, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for weekly compensation and medical and related expenses on the grounds that:
(a) it disputed that the injury arose out of or was received in the course of employment as required by s 4 of the 1987 Act;
(b) it disputed that the applicant’s employment was the main contributing factor to the contraction, aggravation, acceleration, exacerbation of deterioration of disease as required by s 4(b) of the 1987 Act;
(c) it disputed that the applicant’s employment was a substantial contributing factor to the injury as required by s 9A of the 1987 Act;
(d) it disputed that the applicant received a psychological injury as required by
s 11A(3) of the 1987 Act;(e) the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, dismissal, transfer or employer benefits under s 11A of the 1987 Act;
(f) it disputed that the applicant has total or partial incapacity for work resulting from an injury as required by s 33 of the 1987 Act, and
(g) it disputed that the medical or related treatment is reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 10 February 2023, which states that the applicant seeks:
(a) weekly compensation:
(i)pursuant to ss 33 and 36 of the 1987 Act, from
28 August 2021 to 27 November 2021, calculated on the basis of pre-injury average weekly earnings (PIAWE) of $1,559.24, and(ii)pursuant to ss 33 and 37 of the 1987 Act, from
28 November 2021, ongoing, calculated on the basis of PIAWE of $1,559.24, and(b) medical and related expenses pursuant to s 60 of the 1987 Act in the amount of $16,045.20 for psychiatric and psychological treatment.
On 7 March 2023, the respondent lodged in the Commission a Reply to the ARD (Reply).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a conciliation/arbitration hearing, conducted by MS Teams on 3 May 2023, Ms Lyn Goodman, counsel, appeared on behalf of the applicant, instructed by Mr James Watts of Kells the Lawyers, together with the applicant. Mr John Gaitanis, counsel, appeared on behalf of the respondent, instructed by Mr Malcolm Griffin of Bartier Perry Lawyers, together with Ms Melinda Hatfield of the insurer, EML.
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.
ISSUES FOR DETERMINATION
The following issues remain in dispute:
(a) whether the applicant sustained injury, arising out of or in the course of his employment and his employment was a substantial contributing factor to the injury, pursuant to ss 4(a) and 9A of the 1987 Act;
(b) whether the applicant contracted a disease or sustained aggravation, acceleration, exacerbation or deterioration of disease, arising out of or in the course of employment and his employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of disease, pursuant to ss 4(b)(i) and/or (b)(ii) of the 1987 Act;
(c) whether 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 with respect to discipline and/or employment benefits, pursuant to
s 11A of the 1987 Act;(d) the extent and quantification of the applicant’s entitlement to weekly compensation, pursuant to ss 33, 36 (first 13 weeks) and 37 (weeks 14 to 130) of the 1987 Act, and
(e) whether the applicant is entitled to the payment of medical and/or related treatment expenses, pursuant to s 60 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) by worker, dated 19 April 2023, admitted into evidence by consent, and
(d) AALD by insurer, dated 24 April 2023, admitted into evidence by consent.
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant
The applicant gave evidence by way of a statement dated 6 July 2022 and a supplementary statement dated 18 April 2023.
The applicant stated that he was employed by the respondent as a Shunt Driver on a yard site which was operated by a third party, Ausreo, which manufactured steel mesh and reinforcement products. The applicant’s duties included moving trucks and trailers in and out of sheds and loading bays so that deliveries could be prepared and trailers loaded with Ausreo’s products for transport by truck drivers to construction sites. The applicant had only “passing” contact with truck drivers when they were in the yard.
On or about 23 August 2021, Ausreo issued a memorandum (Ausreo Memorandum) to its employees which outlined NSW Health Orders related to COVID-19 and stated that employees who lived outside of Local Government Areas (LGAs) of concern could attend work regardless of their COVID-19 vaccination (vaccination) status.
On Friday 27 August 2021, the respondent’s regional manager, John Smith, informally approached the applicant and asked if he had any intentions of being vaccinated. The applicant responded “no”. Mr Smith said that truck drivers were getting vaccinated to enable them to enter construction sites. Mr Smith did not indicate that there was a problem with the applicant’s vaccination status and he did not request that the applicant be vaccinated. Having regard to the Ausreo Memorandum, the applicant asked Mr Smith “what would happen” when he returned to work on Monday 30 August 2021. After enquiring with the Ausreo manager, Mr Smith indicated to the applicant that, because the applicant did not live in a LGA of concern, he could continue to work provided he complied with COVID-19 testing requirements. Later that day, Mr Smith told the applicant that he should expect a call from the respondent’s General Manager, Jason Sams, to discuss vaccinations.
On Saturday, 28 August 2020, the applicant received a call Mr Sams. Mr Sams asked the applicant about his position on receiving COVID-19 vaccination. The applicant stated that Health Orders did not require him to be vaccinated and that Ausreo had not had an issue with him being unvaccinated. Mr Sams stated that it may be okay for the applicant to remain unvaccinated for a few days, it would be a problem if the applicant remained unvaccinated. The applicant became frustrated and asked Mr Sams to “cut the bullshit”. Mr Sams then stated that “unless [the applicant] was vaccinated it may be difficult to keep [him] on as an employee”. Mr Sams implied that the applicant would lose his job if he was not vaccinated.
Mr Sams’ statement caused the applicant to feel extremely anxious. The applicant ended the call. He experienced involuntary shaking throughout his body and he mentally “shut down”. He felt his heart racing, he was sweating and he felt disorientated. The applicant went to his garage for several hours and did not speak to anyone, including his wife.
The applicant calmed down after a while but he remained angry and resentful. All weekend, the applicant could not stop replaying through his head “the conflicting information told to me by [Mr Smith] and [Mr Sams]. I was trying to figure out if I was out of a job and if I would be able to financially support my family”.
On Monday 30 August 2020, the applicant did not attend work because he was still feeling mentally unwell following the conversation with Mr Sams.
At approximately 3pm on 30 August 2020, Mr Smith contacted the applicant by text message. The applicant informed Mr Smith of his conversation with Mr Sams and “I told [Mr Smith] that I was told I do not have a job on account of my vaccination status (being unvaccinated)”. Mr Smith instructed the applicant to “leave it with him and he would see what was going on”. The applicant asked Mr Smith to “forward me the vaccination policies and any policies that would exclude me from attending the worksite”. The applicant told Mr Smith that, because of his stress and emotional state, he would not be working before
3 September 2021.On 3 September 2021, the applicant woke up very stressed and agitated because he had not heard any response from Mr Smith or the respondent and the applicant had still not been provided the respondent’s COVID-19 policy. The applicant telephoned Mr Smith and enquired what was happening. Mr Smith said that the respondent and Ausreo were “looking at implementing mandatory vaccinations as of 6 September 2021”. This meant that the applicant could only return to work if he was vaccinated or had a medical exemption. The applicant again asked Mr Smith to provide him with relevant vaccination policies. The applicant again reminded Mr Smith that Health Orders did not require him to be vaccinated.
That afternoon, the applicant attended his general practitioner. He told the general practitioner about his declining mental health due to the stress and anxiety of his work situation. The doctor refused to give the applicant a vaccination exemption. This made the applicant extremely distraught. He argued with the doctor and left in a rage.
The applicant then telephoned his wife and sent a text message to Mr Smith which implied that he intended to suicide. Shortly afterwards, the applicant was arrested and involuntarily admitted as a mental health inpatient at Campbelltown Hospital. He subsequently received mental health treatment on a voluntary basis, which included inpatient admission at Northside Private Hospital.
Prior to the above incidents, the applicant had a pre-existing history of depression, which was effectively medicated and stabilised. The applicant had prior isolated incidents of self-harm, however he had not self-harmed since 2019 and, prior to that, around 2002. During the period of more than 2.5 years between his last psychiatric decompensation in 2019 and the above incidents, the applicant’s mental health had been well managed by medication and successfully stabilised and the applicant had led a normal and productive personal and working life unimpeded by any psychological symptoms.
Since the above incidents, the applicant continues to experience ongoing psychiatric symptoms and associated restrictions despite ongoing treatment. He struggles on a daily basis. Due to his psychological disability and restrictions, the applicant has been and remains unable to work, apart from the small-scale production and sale of artworks since
13 December 2021 (under an ABN registered in his name) which derives a modest income for their family. The applicant adapts his art work to accommodate his psychological symptoms at any given time. He works from home which is a safe place for him, with limited interactions. He takes breaks or elects not to work at all for one or more days if he is restricted. His wife handles most public interactions.
Procare investigation report
At the request of the insurer, Procare conducted an investigation and prepared a report which included statements given by the respondent’s Logistics Manager, John Smith, and Business Manager, Jason Sams.
John Smith, Logistics Manager
In a statement dated 27 September 2021, Mr Smith stated that the respondent is contracted to provide logistical services to Ausreo (in addition to other companies), which supplies steel products to the construction industry. The applicant is based at Ausreo’s Wetherill Park site in Western Sydney, located within the Fairfield Local Government Area, which was a declared COVID-19 Sydney LGA of concern. Mr Smith stated that “a few weeks ago”, Ausreo’s General Manager advised “via email, in accordance with the government mandated covid vaccination regulations for the construction industry if people weren’t at least single vaccinated by a certain date they could not go to work until they were vaccinated at least once”.
Mr Smith stated that the respondent was required to record staff vaccination status and twice weekly COVID-19 testing results. He stated that the applicant complied with COVID-19 testing when specifically requested, albeit reluctantly. He stated that requests to other employees had been largely compliant, with a 95% COVID-19 vaccination rate. He described the applicant as resistant to vaccination.
Mr Smith stated that the respondent had an informal toolbox meeting in relation to mandatory COVID-19 testing. He did not recall the need to have any conversation with respect to mandatory vaccinations during toolbox meetings because the applicant was the only employee who was resistant to vaccination.
Mr Smith denied himself having a conversation with the applicant in relation to the respondent’s requirement for COVID-19 vaccination, however he said that Mr Sams had a conversation with the applicant in that regard. Mr Smith said that he was not present during the discussion, however Mr Sams informed him that he told the applicant that “it would be difficult to find him work if he did not receive a covid vaccination. The [applicant] wasn’t told he wouldn’t have a job”.
Mr Smith stated that it “would be difficult to find other work for [the applicant] to do should he elect not to obtain covid vaccination as all our clients are in the building and construction industry, and covid vaccinations within those industries have been government mandated”.
Mr Smith stated that although the applicant was a “night time yard shunter” and did not come into direct customer contact, he did come into direct contact with truck drivers who had direct customer contact, which constitutes a COVID-19 transmission risk.
Mr Smith was aware that the applicant had experienced mental health disorders in the past although he was unaware of any treatment regime. Mr Smith said that he received a message from the applicant that he intended to self-harm.
Jason Sams, Business Manager
In a statement dated 5 October 2021, Mr Sams stated that the respondent already had a robust COVID-19 testing regime in place for its employees. Mr Sams stated that the respondent also introduced the requirement for proof of a single COVID-19 vaccination or proof of appointment for vaccination, based on NSW government health advice, when such a requirement was imposed by Ausreo and a lot of the respondent’s customers.
Mr Sams said that he personally contacted the six of the respondent’s drivers who initially had no plans for COVID-19 vaccination. Mr Sams stated that he contacted them “to discuss their thoughts in and around scheduling a vaccination and the added need for daily rapid antigen testing in the absence of covid vaccinations”. Mr Sams said that daily COVID-19 testing was not viable and would not be introduced due to the high cost, estimated at $30 per person per day. Mr Sams said that all of the six drivers scheduled a vaccination, with the exception of the applicant.
Mr Sams stated that although the applicant did not reside in a LGA of concern, Ausreo’s Wetherill Park depot is located within the Fairfield LGA, which was a LGA of concern. He noted that the movement of the COVID-19 virus, and the LGAs of concern, was still very fluid.
Mr Sams stated that, on the evening of Friday 27 August 2021, he was advised by Mr Smith that the applicant would not comply with the requirement to provide proof of COVID-19 vaccination or appointment.
Mr Sams stated that, on Saturday 28 August 2021 at 11.30am, he telephoned the applicant. Mr Sams told that applicant about the notifications the respondent had received from Ausreo and NSW health, that the respondent would not introduce rapid antigen testing to the workplace and he asked the applicant what his thoughts were around becoming vaccinated. The applicant replied that it was none of Mr Sams’s business and he did not want to talk about it. Mr Sams asked the applicant if there was a medical reason for it or if there was some other way we could work around it. Once again, the applicant replied that it was none of his business. Mr Sams told the applicant “that there is a preference for all drivers to be fully vaccinated”. Mr Sams also said that “we as a business may find it difficult to supply him with ongoing work if he was not vaccinated”. The applicant terminated the call. The following Monday, Mr Sams sent the applicant a text message which confirmed the contents of the telephone call.
Mr Sams denies that he stated that the applicant would be sacked or stood down.
Mr Sams said that he was unable to explore alternative options to vaccination, such as the applicant funding daily rapid antigen testing or providing medical exemption, because the applicant terminated the call.
Mr Sams said that, after the applicant requested Mr Smith to provide the respondent’s policy in relation to COVID-19 vaccination the following week, Mr Sams instructed Mr Smith to advise the applicant that “there is no specific Rock Policy and that we are working to the current NSW health advise/instructions and to get the claimant to contact me”. The applicant did not contact him.
Mr Sams said that the applicant was the only one of the respondent’s 150 employees who refused to be vaccinated.
Mr Sams is unsure whether there would have been any scope to give the applicant alternative duties due to uncertainty in the community and amongst employers generally in relation to COVID-19 vaccinations.
Other evidence
Employment file
The applicant’s employment file with the respondent included various documents related to the applicant’s employment.
Certificates of capacity and medical certificates
Various Certificates of Capacity and medical certificates certifies that the applicant was unfit for work between 24 September 2021 and 26 January 2022.
Public Health Orders
The evidence included Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 as amended on 20 August 2021, 21 August 2021, 25 August 2021 and
27 August 2021 (Public Health Orders).
Financial and tax records
The applicant provided relevant pay slips, wage records, financial and tax records and an updated schedule of lost earnings.
Medical expenses
The applicant provided Medicare Notice of Charge (and accompanying correspondence), receipts and a schedule of out-of-pocket medical and related expenses.
Ausreo Memorandum
The Ausreo Memorandum issued by Ausreo in or about August 2021 titled “COVID-19 NSW Health Orders Effective” stated specific LGA’s of concern as at 26 August 2021. The Ausreo Memorandum then stated:
“What are the New Rules?
The following rules have been implemented and may impact whether you are authorised to attend work:
- From Monday, 23 August, authorised workers will no longer have to have been tested for COVID-19 in the previous 72 hours to work outside their LGA.
- Effective 28 August 2021, authorised workers from the LGAs of concern are required to carry a permit from Service NSW declaring that they are an authorised worker and cannot work from home; and
- Effective 28 August 2021, anyone entering an LGA of concern for the purposes of work must carry a worker permit issued by Service NSW
- Authorised workers who work outside their LGA of concern are only permitted to work in rapid antigen testing is implemented at their worksite or they have had their first vaccination dose by 30 August 2021
Can I Still Come to Work?
At this stage, Ausreo does not have Rapid Antigen Testing implemented across its sites which means that if you are living in one of the listed LGAs or Penrith suburbs, you cannot attend work outside your LGA if you have not received your first COVID vaccination dose by 30 August.
Those employees living outside the above LGAs can attend work, regardless of your vaccination status...”
Treating medical evidence
At Full Potential Psychology
Clinical records of At Full Psychology recorded that the applicant attended a number of psychological treatment sessions with psychologist, Sofie Schreuders between November 2021 and January 2022. In a report dated 19 November 2021, Ms Schrueders recorded a history that the applicant had been treated for depression for more than two years.
Ms Schreuders recorded that the applicant described the presenting problem as follows:“Being stood down for not being vaccinated. ‘It wasn’t done in the correct way, anyway’. ‘I work for a company in a third party location’. The third party had asked to be vaccinated and therefore was stood. Never received paperwork to inform him otherwise. Does not want to get vaccinated ‘I don’t need to get vaccinated’ – boss had asked him. His area boss then gave him a call (Jason) re: the vaccine. Rang him on a Saturday, ‘my day off’. Jason had asked why N doesn’t want the vaccine? ‘It’s none of your business really’ N had answered. ‘It’s not a policy, NSW Health doesn’t require it’. Waw then advised they will be implement it ‘across the board’. Jason had said ‘It’s very hard to give you employment’ if N would not get vaccinated. Drivers had been asked to get the vaccine. ‘I was the only one out of 80 employees in NSW to flatly refuse’. Had asked for official paperwork to confirm he requires the vaccine. Did not receive any. It ‘bugs’ him he wasn’t informed of any of the processes.
On Monday, at the end of August, received a text from his boss John – ‘no one has heard from you, are you coming to work?’. N then texted he was under the impression he doesn’t have a job after speaking to Jason. John then replied he would look into it. N then asked for the week off. At the end of the work week, he was informed he needed to be vaccinated or have plans to be vaccinated or get an exemption in order to come back to work on Monday. Went to see his dr to obtain exemption. Did not feel heard by GP who stated he couldn’t get exemption. Got upset with the dr. Wanted to obtain exemption due to mental health issues. ‘I am not a crazy anti-vaxxer of anything like that stuff’. ‘I am fine with everything else, but it’s just a bit too soon for me”. “It’s also got to do with the government’s inconsistency’. ‘It’s like a car salesman pushing out a shit car because they don’t want it’. Rang John after seeing the GP – had said to John “shut the fuck up”. Then hung up...”
Campbelltown Hospital
Clinical records of the Campbelltown Hospital recorded that the applicant had psychiatric inpatient admissions with depressive symptoms:
(a) on 3 September 2021;
(b) in May 2019, and
(c) in January 2000.
Northside Macarthur Clinic Clinical Records
Clinical records of the Northside Macarthur Clinic recorded:
(a) the applicant received psychological treatment during May 2019, with a possible diagnosis of schizoaffective disorder;
(b) on 25 May 2019, the applicant consulted Ms Arnold, clinical psychologist, who recorded that the applicant had major depressive symptoms, paranoid and delusional thinking. Ms Arnold noted that the applicant reported that he had experienced such symptoms for many years. She recommended that the applicant be assessed by a psychiatrist;
(c) the applicant had psychiatric inpatient admissions in May and June 2019, with a principal diagnosis of moderate depressive episode, in the context of a history of depression with one previous admission 20 years ago, and
(d) on or about 7 September 2021, the applicant was admitted as a psychiatric inpatient and was referred to Dr Hassan “for significant mental instability... in the context of work related issues”. He was diagnosed with major depression. A nursing admission form recorded that the applicant was “not getting work as he is refusing to get vaccinated”. During the admission, the applicant reported that his employer had required him to be vaccinated and that he was upset about the “work situation”.
Picton Central Medical Centre Clinical Records
Clinical records of the Picton Central Medical Centre recorded a history, taken on
15 October 2021, that:“works as driver
28th Aug – informed by his area-senior manager – that cant work unless he gets his covid vaccine or gets medical exemption
contacted his immediate manager on 30th Aug – felt very stressed – took time off on 3rd Sept – consulted GP in Campbelltown to request exemption – not given – got upset – drove away – with thoughts of killing himself...”
Campbelltown Medical & Dental Centre Clinical Records
Clinical records of the Campbelltown Medical & Dental Centre recorded:
(a) the applicant received psychological treatment for depression and anxiety in 2006 and 2007;
(b) on 14 August 2019, Dr El-Roubaei prepared a Mental Health Care Plan for the respondent with a diagnosis of major depression and borderline personality disorder. Dr El-Roubaei prescribed medication for treatment of depression;
(c) the applicant received psychological treatment for depression and anxiety in about August and September 2019;
(d) on 23 June 2020, Dr Hassan prescribed the applicant medication for the treatment of depression;
(e) on 6 January 2021, the applicant consulted Dr Hassan regarding depression.
Dr Hassan noted “Depression under control – working FT”. The applicant was prescribed medication for treatment of depression;(f) on 16 July 2021, Dr Hassan prescribed the applicant medication for treatment of depression;
(g) on 16 August 2021, the applicant consulted Dr Hassan regarding depression.
Dr Hassan noted “Feeling low mood in last few months – gradually worsening Denied any thoughts of SH or suicide Low-energy/appetite/motivation Poor slerep [sic] Requesting for MH plan”. Dr Hassan prepared a Mental Health Plan for the applicant and a referral to a psychologist, Mr Peter Khnana. Dr Hassan prepared a mental health treatment plan for the applicant which stated a diagnosis of major depression and a referral to Mr Khnana “for worsening depression in current context of COVID 19”;(h) on 3 September 2021, the applicant consulted Dr Bashir Raji. Dr Raji recorded that the applicant stated that “his work was not alow [sic] to work was advice must do vaccine” [sic] and the applicant requested a vaccination exemption but there was no contraindication. It noted that the applicant got very angry and left the room and “not believe in vaccine”, and
(i) on 7 September 2021, Dr Hassan referred the applicant to Northside Macarthur Clinic for assessment and management in respect of “significant mental instability with self concern for [self] harm in the context of work related issues”. The referral noted a history of major depression in August 2019.
Independent medical evidence
Dr Robert Gertler, consultant psychiatrist emeritus
Dr Gertler provided an independent medical opinion at the request of the insurer.
In a report dated 2 May 2022, Dr Gertler stated a diagnosis of adjustment disorder with depressed mood. Dr Gertler opined that the adjustment disorder developed on the basis of behaviour which the applicant experienced in the workplace when expressing hesitation at being vaccinated against COVID-19. Dr Gertler opined that the applicant’s employment was a substantial contributing factor.
Dr Gertler did not believe that there was an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition. Dr Gertler noted that the applicant did have a pre-existing history of depression in 2019, in the context of a difficult relationship issue, which required in-patient treatment and psychotropic medication. However, Dr Gertler stated that the applicant’s emotional state had then normalised and the applicant had not suffered from ongoing psychiatric symptomatology for more than two years prior to the events of August 2021.
Dr Gertler opined that the applicant would benefit with psychological therapy sessions, at least fortnightly over a period of six months, which would cost in the order of $200 each. In addition, the applicant would need medication for up to 12 months, which would cost around $35 per month.
Dr Gertler stated that the symptoms of the adjustment disorder has adversely affected the applicant’s ability to engage in future employment in the open labour market because of his loss of trust in a future employer, his social withdrawal and his general lack of motivation.
Dr Gertler noted that the applicant had been undertaking woodwork at home for sale, however his ability to continue to do so successfully remains uncertain.
Dr Russel Davies, psychiatrist
Dr Davies provided an independent medical opinion at the request of the insurer.
In a report dated 5 August 2022, Dr Davies stated a diagnosis of major depressive disorder with agitated distress. Dr Davies opined that the applicant’s employment was a substantial and the main contributing factor in the aggravation, acceleration, exacerbation or deterioration of the applicant’s pre-existing psychological condition and the evolution of the applicant’s current psychological episode. Dr Davis opined that the whole or predominant cause of the applicant’s psychological dysfunction, distress and disorder relates to his non-adherence to the respondent’s policy and protocols around COVID-19 vaccination including that the applicant was not offered adequate redress to continue working on the basis of a daily rapid antigen testing protocol.
Dr Davies opined that the applicant would benefit from psychological treatment sessions on a weekly or fortnightly basis for at least six months, which would cost about $200 to $250 per session.
Dr Davies opined that the applicant also had co-existing characterological vulnerabilities, characterised by mistrust, impulsivity and emotional dysregulation. He noted that the applicant describes an erosion of trust with the respondent and extrapolates this to other employers or positions of authority and situations in which he perceives a lack of control.
Dr Davies noted that the applicant had been able to do some part-time work from home, albeit at a level considerably below his previous responsibility and remuneration. Dr Davies opined that the applicant’s vaccination status would represent a potential obstacle for other avenues of re-employment or alternate employment.
Submissions
Counsel’s submissions were recorded and have been considered in full.
Applicant’s submissions
Ms Goodman’s submissions on behalf of the applicant may be summarised as follows:
(a) the medical evidence supports a finding that the applicant sustained psychological injury in the course of his employment and that his employment was the main and substantial contributing factor to the psychological injury;
(b) the applicant accepts that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed by the respondent;
(c) the evidence does not support a finding that the respondent’s action or proposed action was with respect to discipline;
(d) the evidence does not support a finding that the respondent’s action or proposed action was with respect to employment benefits;
(e) having regard to the evidence, the Commission cannot find that the actions of the respondent towards the applicant in relation to the COVID-19 vaccination were reasonable, because: the applicant presented a low risk of COVID-19 transmission because his work with the respondent was at night and involved no public contact; the issue of mandatory vaccination had not been discussed at any toolbox meeting; there is no evidence that mandatory vaccination had been put to the applicant prior to 27 August 2020; Mr Smith “informally” approached the applicant on Friday 27 August 2021 and enquired as to the applicant’s intention to get vaccinated, but did not issue any request or direction to get vaccinated; the Ausreo Memorandum stated that employees who lived outside of LGAs of concern could attend work regardless of their vaccination status; the Ausreo Memorandum was issued to Ausreo’s staff, not to the respondent’s employees; on 27 August 2021, Mr Smith indicated to the applicant that, because the applicant did not live in a LGA of concern, he could continue to work provided he complied with COVID-19 testing requirements; Mr Sams telephoned the applicant on Saturday 28 August 2020 which was outside of business hours and on the applicant’s day off work; the applicant was not required by Public Health Orders to be vaccinated; the applicant informed Mr Sams that Mr Smith had indicated that he could continue to work provided he complied with COVID-19 testing requirements; Mr Sams said to the applicant, at least, that it would be difficult to find work for the applicant to do if he was not vaccinated; the applicant was given no warning, prior to his telephone conversation with Mr Sams on 28 August 2020, that he may not be able to continue working with the respondent; the applicant was given no warning or opportunity to prepare for the telephone conversation with Mr Sams on 28 August 2020 because, although he was told to expect a call from Mr Sams to discuss vaccinations, he was not warned of the potential consequences for his continuing work with the respondent; the applicant was not offered the opportunity to have a support person attend his telephone conversation with Mr Sams on 28 August 2020; the respondent did not, prior to or during the telephone conversation with Mr Sams on 28 August 2020, offer the applicant any other support or assistance, such as the services of an Employee Assistance Program (EAP); notwithstanding that the respondent was made aware, on 30 August 2020, (by the applicant’s report to Mr Smith) that Mr Sams had told the applicant that he did not have a job on account of his vaccination status, the respondent did nothing to correct the applicant’s perception in that regard; notwithstanding the applicant’s perception that he no longer had a job, the respondent did not subsequently offer the applicant any support or assistance, such as an EAP; the respondent did not follow up or initiate any further contact with the applicant after Mr Sam’s conversation with the applicant on 30 August 2020; the respondent did not provide the applicant with its COVID-19 policy despite the applicant’s requests for same; there is no evidence that the applicant was informed that the respondent had no formal COVID-19 policy at the time; when the applicant contacted Mr Smith on 2 September 2020, the respondent maintained its position that vaccination would be required in the absence of a medical exemption; by that stage, the applicant was the only employee of the respondent who was unvaccinated and resistant to vaccination;
(f) the Commission should not accept the respondent’s argument that the applicant’s reaction to the conversation with Mr Sams on 28 August 2020 and his subsequent psychological decompensation prevented it from taking further reasonable steps because there were options that were available to the respondent that it did not take, such as sending the applicant a text message;
(g) having regard to the evidence as a whole, the Commission should find that the applicant perceived Mr Sams’ statement on 28 August 2020 that the applicant would have no work from the following Monday to be said in a hostile manner and consistent with case law, that is sufficient to establish that the applicant sustained psychological injury;
(h) having regard to the evidence as a whole, the Commission should accept that the applicant experienced psychological distress and psychologically decompensated because of Mr Sam’s statements to him in the telephone call on 28 August 2020 because the applicant ended the telephone call in frustration, had to spend time alone and then was unable to attend work due to psychological distress and dysfunction, and
(i) having regard to the evidence, and the provisions of s 32A of the 1987 Act, the Commission should find that the applicant has no, or very little, current capacity to work, notwithstanding that he generates a modest income from the sale of artwork that he creates at home.
Respondent’s submissions
Mr Gaitanis’ submissions on behalf of the respondent may be summarised as follows:
(a) the medical evidence demonstrates that the applicant had a lengthy psychological history;
(b) the applicant’s credit is in issue as the applicant’s evidence is that he was unimpeded by any psychological symptoms prior to the alleged causative incidents, however the medical evidence demonstrates that in August 2021 the applicant reported a deterioration of his mental health and was referred for psychological treatment;
(c) it is clear on the evidence that at no time was the applicant told that he would lose his job and there was no threat to his employment: the applicant was simply informed that if he remained unvaccinated then it would be difficult for him to get work;
(d) the evidence supports a finding that the applicant’s psychological condition was caused by the applicant’s resistance to having a COVID-19 vaccination;
(e) the independent medical experts did not have the benefits of considering all of the clinical records in respect of the applicant’s pre-existing psychological condition and, particularly, the recent deterioration of the applicant’s psychological condition in August 2021;
(f) the respondent’s actions or proposed actions do not need to be perfect to be reasonable: in this regard, the respondent relies on Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 at [140], [179] – [183];
(g) the issue of whether the respondent’s actions were reasonable needs to be considered objectively in the context of the impact and implications of the COVID-19 pandemic on the employees, businesses and the community and rapidly evolving significant restrictions that were in place in the community and workplaces at that time;
(h) in the particular circumstances, a flexible approach, such as telephoning the applicant on a Saturday being his day off work, was reasonable;
(i) the orderly and reasonable procession of the respondent’s actions and proposed actions was interrupted by the applicant’s reaction to the respondent’s actions and behaviour, such as by getting angry and terminating the telephone call with Mr Sams on 28 August 2020;
(j) the respondent’s actions and proposed actions were entirely reasonable in the circumstances;
(k) the applicant did not fulfill the criteria and he was not granted a medical exemption from COVID-19 vaccination;
(l) the applicant simply refused to accept the respondent’s reasonable request that he be vaccinated;
(m) the Commission should find, having regard to all the evidence and the circumstances, that the respondent’s actions and proposed actions were reasonable;
(n) the application should be dismissed;
(o) in relation to work capacity, the applicant has undertaken art work for sale. Further, it is the applicant’s vaccination status that was the impediment to his work capacity, and
(p) in relation to the calculation of weekly benefit entitlements, the applicant was in receipt of COVID-19 government benefits for a period of time, and it would be appropriate to hear further from the parties in that regard if appropriate.
Mr Gaitanis submitted that the respondent relies on the following decisions:
(a) Ford v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1014;
(b) Welch v Commissioner of Police [2023] NSWIRComm 1002, and
(c) Lamarre-Condon v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1021.
Applicant’s submissions in reply
In reply, Ms Goodman submitted that the applicant relies on the following decisions:
(a) Dawking v Secretary (Department of Education) [2022] NSWPIC 611;
(b) Davis v Secretary, Department of Education [2022] NSWPIC 715, and
(c) Uzunovska v Secretary, Department of Education [2023] NSWPIC 64.
FINDINGS AND REASONS
Injury
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is relevantly defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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) ...”
The applicant has the onus of proof in establishing that there is an injury within the terms of
s 4 of the 1987 Act.A psychological injury can be viewed as coming under s 4(a) or s 4(b) of the 1987 Act. If the injury is to be viewed under s 4(a), then s 9A of the 1987 Act requires that the employment was a “substantial contributing factor” to the injury. If the injury is to be viewed under s 4(b), then that provision requires that the employment was the “main contributing factor” to the injury.
The applicant did not specify in the ARD what part of s 4 was being relied upon. The insurer’s dispute notices referred to ss 4, 4(b) and 9A of the 1987 Act. At the preliminary conference it was noted that ss 4(b)(i) and 4(b)(ii) were in dispute.
In this case, the distinction does not matter as I am satisfied, for the reasons given below, that the applicant does suffer psychological injury arising out of and in the course of his employment with the respondent and, further, that the applicant’s employment was both a substantial contributing factor to his injury and also the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of a pre-existing psychological condition.
In AV v AW,[1] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“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.”
[1] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[2] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[3]
[2] [1964] HCA 34; 110 CLR 626.
[3] Semlitch, at 640.
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[4]
[4] Semlitch, at 635.
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[5] Roche DP (as he then was), summarised the principles to be applied:[6]
[5] [2020] NSWCCPD 76.
[6] [2020] NSWCCPD 76, 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 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 a ‘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. (at [52])”.
And said:[7]
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”
[7] [2020] NSWCCPD 76, at [54].
To discharge of the onus of proof in relation to the alleged injury, I “must feel an actual persuasion of the existence of that fact”.[8]
[8] Department of Education & Training v Ireland [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The applicant’s credit
I note the respondent’s submissions in relation to the applicant’s credit, on the basis that the applicant indicated that his psychological condition had been stable over the recent 2.5 years and he did not disclose in his evidence the reported deterioration of his mental health to his general practitioner on or about 16 August 2021.
I do not find that the applicant’s evidence as a whole lacks credibility. It is largely consistent with the evidence of other witnesses or otherwise unchallenged. To the extent that I have accepted the applicant’s evidence, I have considered it in the context of the evidence as a whole.
The relevant factual events
Mr Smith’s evidence lacks specific detail in relation to his communications with the applicant. Mr Smith generally denied having a conversation with the applicant regarding a requirement for vaccination and stated that it was Mr Sams that had the conversation with the applicant in that regard.
Mr Smith’s evidence did not specifically address the applicant’s evidence regarding conversations between them on Friday 27 August 2021. In particular, Mr Smith did not specifically deny the applicant’s evidence that: they had a conversation on 27 August 2021 wherein Mr Smith enquired as to the applicant’s intention in relation to vaccination; after enquiring with the Ausreo manager, Mr Smith said to the applicant that, because the applicant did not live in a LGA of concern, he could continue to work provided he complied with COVID-19 testing requirements; and later that day telling the applicant that he should expect a call from Mr Sams to discuss vaccinations.
However, Mr Sams’ evidence is that on Friday 27 August 2020, he was advised by Mr Smith that the applicant would not comply with a vaccination requirement. It appears that Mr Smith and Mr Sams both subsequently proceeded on the basis that the applicant did not intend to be vaccinated.
On balance, I consider it likely, and I accept, that the conversations between the applicant and Mr Smith did occur on 27 August 2020, in the manner described by the applicant. In particular, Mr Smith informed the applicant that after enquiring with the Ausreo manager, the position was that, because the applicant did not live in a LGA of concern, he could continue to work provided he complied with COVID-19 testing requirements.
The respondent has not challenged the applicant’s evidence, and I accept, that at relevant times and particularly at 28 August 2020, the applicant was not strictly required by the Public Health Orders to be vaccinated against COVID-19.
Mr Smith corroborated the applicant’s evidence that there was no discussion about mandatory vaccination requirement at any toolbox meeting. There is no evidence that the respondent had communicated to the applicant at any time prior to 28 August 2020, that the respondent would impose a mandatory requirement for COVID-19 vaccination.
On that basis, I accept that, at all times prior to the applicant’s telephone conversation with Mr Sams on 28 August 2020, the respondent never communicated to the applicant that COVID-19 vaccination would, or may be, made mandatory for him. Further, there was no consultation with the workforce generally, or the applicant specifically, in that regard.
The applicant’s evidence is that, during a telephone conversation on Saturday
28 August 2020, Mr Sams informed the applicant that “unless [the applicant] was vaccinated it may be difficult to keep [him] on as an employee”. The applicant perceived that he would lose his job if he was not vaccinated.Mr Sams evidence is that, during the telephone conversation on 28 August 2020, he told the applicant “that there is a preference for all drivers to be fully vaccinated”. Mr Sams also said that “we as a business may find it difficult to supply him with ongoing work if he was not vaccinated”. The applicant terminated the call. Mr Sams stated that on the following Monday, he sent the applicant a text message which confirmed the contents of the telephone call.
Mr Smith’s evidence did not specifically address the applicant’s evidence regarding text messages between him and the applicant on the afternoon of 30 August 2020. Mr Smith does not specifically deny that the applicant informed him by text message that Mr Sams told the applicant that “I do not have a job on account of my vaccination status”, nor that Mr Smith instructed the applicant to “leave it with him and he would see what was going on”. Further, Mr Smith does not deny that the applicant asked Mr Smith to “forward me the vaccination policies and any policies that would exclude me from attending the worksite”. Mr Smith also does not specifically deny that the applicant told him that, because of his stress and emotional state, he would not be working before 3 September 2021.
Mr Smith did not address nor specifically deny the applicant’s assertion that, on
3 September 2021, the applicant telephoned Mr Smith, enquired what was happening, again asked Mr Smith to provide him with relevant vaccination policies and again reminded
Mr Smith that the Public Health Orders did not require him to be vaccinated. Mr Smith did not deny that he then told the applicant that the respondent and Ausreo were “looking at implementing mandatory vaccinations as of 6 September 2021”.The applicant’s evidence that he requested Mr Smith to provide him with the respondent’s COVID-19 vaccination policy, is consistent with Mr Sams’ evidence that he told Mr Smith to report to the applicant that the respondent did not have such a policy and that the respondent was working to the current NSW health advice and instructions.
No text messages have been put into evidence by either party.
The applicant’s evidence in relation to his communications with Mr Smith and Mr Sams is largely consistent with the applicant’s later behaviour and history subsequently reported by the applicant.
On balance, I consider it likely, and I accept, that a conversation did occur between the applicant and Mr Sams on 28 August 2020, in the manner described by the applicant. In particular, I accept that Mr Sams said to the applicant words at least to the effect that it may be difficult for him to continue work with the respondent if he was not vaccinated. Further, I accept that the applicant perceived such communication to the effect that he would lose his job if he was not vaccinated.
I consider it likely, and I accept, that on 30 August 2020, the applicant requested Mr Smith provide him with the respondent’s COVID-19 vaccination policy.
There is no evidence that the applicant was ever provided with the respondent’s COVID-19 vaccination policy and indeed it appears, from Mr Sams’ evidence, that such a policy did not exist at the time. On that basis, I accept that the applicant was never provided with the respondent’s COVID-19 policy.
I consider it likely, and I accept that on 30 August 2020, the applicant informed Mr Smith by text message that Mr Sams told the applicant that “I do not have a job on account of my vaccination status”, and that Mr Smith instructed the applicant to “leave it with him and he would see what was going on”. Further, the applicant informed Mr Smith that, because of his stress and emotional state, he would not be working before 3 September 2021.
However, neither Mr Smith nor any other person on behalf of the respondent initiated any further contact with the applicant regarding the issue.
Mr Smith did not address nor specifically deny the applicant’s evidence regarding a telephone conversation between them on 3 September 2021. I consider it likely, and accept that, on 3 September 2021, the applicant telephoned Mr Smith, enquired what was happening, again asked Mr Smith to provide him with relevant vaccination policies and again reminded Mr Smith that the Public Health Orders did not require him to be vaccinated. Further, Mr Smith then told the applicant that the respondent and Ausreo were “looking at implementing mandatory vaccinations as of 6 September 2021”. I accept that the applicant perceived Mr Smith’s statement to mean that the applicant could only return to work if he was vaccinated or had a medical exemption.
The applicant’s psychological condition
The applicant’s evidence is that he felt psychologically unwell following his telephone conversation with Mr Sams on 28 August 2020: he immediately felt extremely anxious; he mentally “shut down”; he experienced physiological symptoms such as involuntarily bodily shaking, racing heart, sweating and he felt disorientated; he immediately isolated himself for several hours; his mind replayed the conversation all weekend; and he was subsequently unable to attend work due to his psychological state.
The applicant’s evidence is that on 3 September 2021, he was stressed and agitated because he had not received any response from Mr Smith or the respondent and had still not been provided with the respondent’s COVID-19 policy. After a telephone conversation with Mr Smith that day, the applicant attended his general practitioner and reported his declining mental health due to the stress and anxiety of his work situation. The doctor refused the applicant a vaccination exemption on medical grounds upon which the applicant became extremely distraught and left in a rage. Shortly afterwards, the applicant threatened to self-harm and was involuntarily admitted as a psychiatric inpatient.
Psychologist, Ms Schreuders, recorded a history that the applicant had been treated for depression for more than two years. She recorded that the applicant described the presenting problem as being the respondent’s processes in relation to vaccination requirement. The applicant also described being upset at not being heard by his general practitioner and being refused a vaccination exemption on medical grounds.
Dr Gertler and Dr Davies, recorded similar histories reported by the applicant.
Dr Gertler diagnosed adjustment disorder with depressed mood and opined that the applicant’s employment was a substantial contributing factor. He considered that following the applicant’s pre-existing history of depression in 2019, the applicant’s emotional state had normalised and the applicant had not suffered from ongoing psychiatric symptomatology for more than two years prior to the events of August 2021. On that basis, he did not believe that in September 2021 the applicant suffered from an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition.
Dr Davies diagnosed major depressive disorder with agitated distress and opined that the applicant’s employment was both a substantial and the main contributing factor in the aggravation, acceleration, exacerbation or deterioration of the applicant’s pre-existing psychological condition and the evolution of the applicant’s psychological state. Dr Davies opined that the cause of the applicant’s psychological condition was his non-adherence to the respondent’s COVID-19 vaccination policy and that he was not offered adequate redress to continue working with the daily testing.
The medical evidence is largely consistent that the significant and main causal factor for the applicant’s psychological condition effectively was the respondent’s conduct or proposed conduct in relation to COVID-19 vaccination requirements.
The medical evidence does not emphasise the general practitioner’s refusal to provide a vaccination exemption as a substantial contributing factor in comparison to the actions of the respondent. Having regard to the evidence as a whole, and notwithstanding the applicant’s reaction to such refusal, I am not satisfied that the general practitioner’s refusal to provide an exemption was a significant causal factor. I note that, by that time, the applicant had already experienced psychological symptoms arising from the respondent’s actions concerning vaccination requirements. Further, after the general practitioner’s refusal to grant the exemption, the applicant contacted the respondent and communicated his intention to self-harm.
The medical evidence does vary in relation to opinion as whether the applicant suffered a new psychological injury or an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychological condition.
It is apparent from the medical evidence that the applicant had a history of pre-existing psychological condition. The clinical records indicate that the applicant was previously treated for depression in 2000, 2006, 2007 and in May and June 2019. During 2020 and 2021, the applicant received ongoing medication treatment for depression. Whilst on
6 January 2021, the applicant reported to Dr Hassan that the depression was under control and he was working full-time, by 16 August 2021, the applicant reported a worsening of his psychological symptoms and he was referred to a psychologist “for worsening depression in current context of COVID19”.However, it appears from the evidence that the applicant’s pre-existing psychological condition was largely well managed and stabilised during 2020 and 2021, with no significant reported deteriorations, apart from 16 August 2021 when the applicant reported a worsening of his symptoms in the context of COVID-19 and was then referred for psychological treatment.
I accept that the independent medical experts did not consider the clinical records that recorded the applicant’s reported deterioration of his mental stated on 16 August 2021. Those records were produced at a later time. I have taken that into account in assessing their evidence.
I note that there is no evidence of any other significant causal factor.
Having regard to the evidence as a whole, I am not satisfied that COVID-19 of itself was a significant causal factor in the applicant’s psychological injury. Rather, I consider that the evidence as a whole demonstrates that the significant causal factor was the actions and proposed actions of the respondent.
Considering the evidence as a whole, I feel an actual sense of persuasion, and I find, that the applicant does suffer psychological injury arising out of and in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act and, further, I find that the applicant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. I also find that the applicant’s employment was the main contributing factor to a disease injury contracted during the course of the applicant’s employment pursuant to s 4(b)(i) of the 1987 Act and, also, to the aggravation, acceleration, exacerbation and deterioration of a pre-existing psychological condition pursuant to s 4(b)(ii) of the 1987 Act.
Further, I find that the applicant has a psychological injury pursuant to s 11A(3) of the 1987 Act.
Defence pursuant to s 11A of the 1987 Act
Section 11A(1) of the 1987 Act provides:
“(1) 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 maintains a defence pursuant to s 11A(1) of the 1987 Act on the grounds that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and provision of employment benefits.
The respondent has the onus of establishing such defence.
Wholly or predominantly caused by discipline or employment benefits
Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1). The respondent relies on the categories of discipline and provision of employment benefits.
In relation to the term “discipline”, in Kushwaha v Queanbeyan City Council,[9] the Court said that:[10]
“... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”
[9] [2002] NSWCC 25; 23 NSWCCR 329.
[10] [2002] NSWCC 25; 23 NSWCCR 329, at [152].
In Northern NSW Local Health Network v Heggie,[11] (Heggie) the Court of Appeal said that a broad approach is to be taken to the expression “action with respect to discipline” in
s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action.[11] [2013] NSWCA 255; 12 DDCR 95.
In Hamad v Q Catering Limited,[12] the Commission suggested that medical evidence is necessary to determine the causation issue. In Smith v Roads and Traffic Authority of NSW,[13] Snell ADP accepted “wholly” and “predominantly” are different concepts.
[12] [2017] NSWWCCPD 6.
[13] [2008] NSWWCCPD 130.
The applicant accepts that the psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the respondent.
The applicant submits that the relevant causal action or proposed action was neither with respect to discipline nor with respect to employment benefits.
Having regard to the medical and other evidence, I feel a real sense of persuasion and I am satisfied that the cause of the applicant’s psychological condition was multi-factorial. I am satisfied that at least a significant cause of the applicant’s psychological injury was the actual or potential threat to the applicant’s continuing work with the respondent because of his unvaccinated status, as the respondent effectively imposed vaccination as a condition of the applicant continuing work with the respondent. However, I am satisfied that there were also other significant causal factors, primarily being imposition of the requirement for the applicant to be COVID-19 vaccinated, but also including the respondent’s failure to consult, inconsistency between the statements of Mr Smith and Mr Sams, inconsistency with the Public Health Orders and failure to provide the applicant with respondent’s COVID-19 policy in response to his requests for same.
The respondent has not produced any medical evidence to show that the relevant action was wholly or predominantly taken or proposed to be taken with respect to discipline or provision of employment benefits.
There is no evidence of any disciplinary process commenced or proposed against the applicant. Further, there is no evidence of any relevant employment benefit provided or proposed to be provided to the applicant.
In my view, the respondent has not established, on the basis of probabilities, that the applicant’s injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to discipline or provision of employment benefits.
Reasonable
In the event that I am in error in my finding on the issue of whether the applicant’s injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to discipline or provision of employment benefits, I will address the issue of reasonableness of the relevant actions of the employer.
Having regard to the evidence, I am satisfied and accept that:
(a) the applicant’s work with the respondent was at night and involved no public contact, although the applicant had contact with drivers who themselves had public contact;
(b) at relevant times, and particularly on 28 August 2020, the applicant was not required by the Public Health Orders to be vaccinated against COVID-19 because he lived outside of LGAs of concern;
(c) the Ausreo Memorandum was issued to Ausreo’s staff, not to the respondent’s employees. It stated that Ausreo employees who lived outside of LGAs of concern could attend work regardless of their vaccination status;
(d) on Friday 27 August 2021, Mr Smith spoke with the applicant and enquired as to his intention to get vaccinated. Mr Smith did not issue any request or direction to get vaccinated. Also on that day, Mr Smith informed the applicant that after enquiring with the Ausreo manager, the position was that, because the applicant did not live in a LGA of concern, he could continue to work provided he complied with COVID-19 testing requirements;
(e) the respondent did not consult with the workforce generally regarding COVID-19 vaccination. The issue of mandatory vaccination was not discussed at any toolbox meeting because there was only a small number of employees, and finally only the applicant, who was resistant to vaccination;
(f) at no time prior to 28 August 2020, did the respondent communicate to the applicant that COVID-19 vaccination would be made mandatory for him;
(g) on Saturday 28 August 2020, being the applicant’s day off work, Mr Sams telephoned the applicant. The applicant told Mr Sams that Mr Smith had indicated that he could continue to work provided he complied with COVID-19 testing requirements. Mr Sams said words to the effect that it may be difficult for the applicant to continue work with the respondent if he was not vaccinated. The applicant perceived such communication to the effect that he would lose his job if he was not vaccinated;
(h) the applicant was given no warning, prior to his telephone conversation with
Mr Sams on 28 August 2020, that he may not be able to continue working with the respondent;(i) the applicant was given no warning or opportunity to prepare for the telephone conversation with Mr Sams on 28 August 2020 because, although he was told to expect a call from Mr Sams to discuss vaccinations, he was not warned of the nature of the call;
(j) the applicant was not afforded the opportunity to have a support person in attendance during his telephone conversation with Mr Sams on 28 August 2020;
(k) on 30 August 2020, the applicant informed Mr Smith by text message that
Mr Sams told the applicant that “I do not have a job on account of my vaccination status”. Mr Smith instructed the applicant to “leave it with him and he would see what was going on”. The applicant requested Mr Smith provide him with the respondent’s COVID-19 vaccination policy. The applicant informed Mr Smith that, because of his stress and emotional state, he would not be working before
3 September 2021;(l) subsequently, neither Mr Smith nor any other person on behalf of the respondent initiated any further contact with the applicant;
(m) notwithstanding that the respondent was made aware, on 30 August 2020, (by the applicant’s report to Mr Smith) that Mr Sams had told the applicant that he did “not have a job on account of my vaccination status”, the respondent did nothing to correct or change the applicant’s perception in that regard;
(n) on 3 September 2021, the applicant telephoned Mr Smith, enquired what was happening, again asked Mr Smith to provide him with relevant vaccination policies and again reminded Mr Smith that the Public Health Orders did not require him to be vaccinated. Mr Smith then told the applicant that the respondent and Ausreo were “looking at implementing mandatory vaccinations as of 6 September 2021”. The applicant perceived Mr Smith’s statement to mean that he could only return to work if he was vaccinated or had a medical exemption;
(o) the respondent did not, at any time, offer the applicant any other support or assistance, such as the services of an EAP;
(p) the respondent never provided the applicant with its COVID-19 policy. Based on Mr Sams’ evidence, such a policy did not exist at the time;
(q) the applicant was the only one of the respondent’s 150 employees who maintained resistance to vaccination, and
(r) from 28 August 2021, the respondent never offered, nor explored with, the applicant alternative working arrangements to vaccination.
Mr Sams’ evidence is that the orderly and reasonable procession of the respondent’s actions and proposed actions was interrupted by the applicant’s reaction to the respondent’s actions and behaviour, such as by getting angry and terminating the telephone call with Mr Sams on 28 August 2020.
However, I do not accept the respondent’s submission that the applicant’s angry reaction to the conversation with Mr Sams on 28 August 2020 and his psychological decompensation prevented it from taking reasonable action in relation to the applicant.
I do note that the respondent’s actions or proposed actions do not need to be perfect to be reasonable: Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 at [140], [179] – [183].
Further, I do have regard to the fact that the relevant events occurred in the context of very serious threats presented by the COVID-19 pandemic, which was unprecedented in recent history. I accept that the respondent was dealing with a rapidly evolving situation which included health risks, government requirements and the requirements and expectations of its customers and the community at large and also rapidly evolving restrictions in place in the community and workplaces at that time.
I accept that the particular circumstances warranted a more flexible approach than might have been otherwise appropriate.
I also accept that the applicant’s resistance to vaccination was not supported by the grant of a medical exemption from COVID-19 vaccination.
However, taking those matters and all the evidence into account, I am of the view that the causative actions of the respondent, in all of the circumstances, were unfair on the applicant and not reasonable.
In my view, the respondent has not established, on the basis of probabilities, that the action taken or proposed to be taken by the employer with respect to discipline or provision of employment benefits was reasonable.
Is the proposed medical or related treatment reasonably necessary as a result of an injury, pursuant to ss 59 and 60 of the 1987 Act?
Subsection 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”
The test for determining if medical treatment is reasonably necessary as a result of a work injury was set out by Roche DP in Diab v NRMA Ltd,[14] referring to the decision in Rose v Health Commission (NSW).[15]
[14] [2014] NSWWCCPD 72.
[15] [1986] NSWCC2; (1986) 2 NSWCCR 32.
Dr Gertler opined that the applicant would benefit with psychological therapy sessions, at least fortnightly over a period of six months, which would cost in the order of $200 each. In addition, the applicant would need medication for up to 12 months, which would cost around $35 per month.
Dr Davies opined that the applicant would benefit from psychological treatment sessions on a weekly or fortnightly basis for at least six months, which would cost about $200 to $250 per session.
The respondent has not raised any issue regarding the particular items nor the quantum of the medical expenses claimed by the applicant.
Having regard to my findings in relation to the injury above, I am satisfied that the psychiatric and psychological treatment and expenses claimed by the applicant was reasonably necessary as a result of a work injury.
On that basis, the applicant is entitled to payment of his costs and expenses pursuant to s 60 of the 1987 Act.
Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
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 the incapacity.
….”
Work capacity
Section 32A defines “current work capacity”, “no current work capacity” and “suitable employment” as follows:
“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 work, either in the worker’s pre-injury employment or in suitable employment”
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
The relevant period during which the applicant seeks weekly compensation is from
28 August 2021 ongoing.Medical records evidence that the applicant received treatment as a psychiatric inpatient:
(a) on 3 September 2021, and
(b) between 8 and 21 September 2021.
Various Certificates of Capacity and medical certificates evidenced as follows:
(a) certificates of capacity certified that the applicant had no current work capacity for any employment from 24 September 2021 to 5 November 2021 in respect of a diagnosis of major depression and anxiety, with a stated date of injury of
28 August 2021, and(b) medical certificates certified that the applicant was unfit to work in his usual occupation from 5 November 2021 to 26 January 2022.
In his report dated 2 May 2022, Dr Gertler stated that the symptoms of the adjustment disorder has adversely affected the applicant’s ability to engage in future employment in the open labour market because of his loss of trust in a future employer, his social withdrawal and his general lack of motivation. Dr Gertler noted that the applicant had been undertaking woodwork at home for sale, however his ability to continue to do so successfully remains uncertain.
In his report dated 5 August 2022, Dr Davies stated that the applicant also had co-existing characterological vulnerabilities, characterised by mistrust, impulsivity and emotional dysregulation. He noted that the applicant describes an erosion of trust with the respondent and extrapolates this to other employers or positions of authority and situations in which he perceives a lack of control. Dr Davies noted that the applicant had been able to do some part-time work from home, albeit at a level considerably below his previous responsibility and remuneration. Dr Davies opined that the applicant’s vaccination status would represent a potential obstacle for other avenues of re-employment or alternate employment.
The applicant’s evidence is that he continues to experience ongoing psychiatric symptoms and associated restrictions despite ongoing treatment and he continues to struggle on a daily basis. The applicant states that, due to his psychological disability and restrictions, he has been and remains unable to work, apart from the small-scale production and sale of artworks, since 13 December 2021, (under an ABN registered in his name) which derives a modest income for his family. The applicant adapts his art work to accommodate his psychological symptoms at any given time. He works from home which is a safe place for him, with limited interactions. He takes breaks or elects not to work at all for one or more days if he is restricted. His wife handles most public interactions. The applicant feels that he has no other way of making money due to his disability and restrictions.
The applicant’s tax and financial records indicate that he has received a relatively modest, fluctuating and irregular income since around 13 December 2021 from the sale of artworks under an ABN registered in his name.
I note that the applicant is currently aged 44 years. The applicant’s history, recorded in
Dr Gertler report dated 2 May 2022, is that he completed his Higher School Certificate at the age of 17 and then completed a course in Design at the University of Western Sydney. The applicant then worked in the bicycle industry before working as a truck driver for approximately seven years. For a period of approximately two years commencing from around September or October 2019, the applicant worked for the respondent as a Shunt Driver and his duties were to move trucks and trailers in and out of sheds and loading bays.There is no evidence of any return to work plan or of occupational rehabilitation services provided to the applicant. There is no evidence regarding any “suitable employment” for the applicant.
Counsel for the applicant submitted that having regard to the evidence, and the provisions of s 32A of the 1987 Act, the Commission should find that the applicant has no, or very little, current capacity to work, notwithstanding that he generates a modest income from the sale of artwork that he creates at home.
Counsel for the respondent submitted that there is insufficient evidence for the Commission to be satisfied that the applicant had no current work capacity as a result of his injury. He submitted that the applicant has undertaken some artwork since he ceased work with the respondent. He further submitted that the applicant’s vaccination status, rather than the applicant’s injury, impeded his capacity to work.
With respect, I do not accept the submissions of counsel for the respondent in that regard. I am satisfied that, as a whole, the evidence supports a finding that the applicant’s psychological injury has been significant and ongoing and further, on the balance of probabilities, has resulted in the applicant having no capacity to work from 28 August 2021 to 12 December 2021 and then, from 13 December 2021 ongoing, having current capacity and returned to work for less than 15 hours per week. There is no evidence that the applicant’s vaccination status played any ongoing role in relation to his work capacity.
Having regard to the evidence as a whole, I am satisfied the applicant had an inability arising from the psychological injury such that he was not able to return to work, either in his pre-injury employment or in suitable employment during the period from 28 August 2021 to
12 December 2021. Further, I am satisfied that the applicant had current work capacity and that he returned to work for less than 15 hours per week from 13 December 2021 ongoing.
The award to be entered in respect of weekly compensation
Section 36 of the 1987 Act states:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Wage schedules have been filed by the applicant. In the absence of evidence to the contrary, I accept the applicant’s calculation of pre-injury average weekly earnings (PIAWE) of $1,559.24.
The issue of calculation of weekly compensation in the present circumstances is complicated by the nature of the applicant’s post-injury work arrangements in his own business. I have had regard to the principles set out by Deputy President Roche in Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16, [50] – [68] in relation to calculation of weekly compensation in circumstances where a worker engages in their own business post-injury.
I accept the applicant’s calculation of weekly compensation.
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 28 August 2021 to 27 November 2021, pursuant to ss 33 and 36 of 1987 Act as follows:
| Date from | Date to | Weeks | PIAWE | Rate Claimed | Weekly Amount | Actual Earnings | Entitle-ment |
| 28.08.21 | 13.11.21 | 1 - 11 | 1559.24 | 95% | 1481.28 | Nil | Weekly = $1,481.08 Total = $16,294.08 |
| 14.11.21 | 20.11.21 | 12 | 1559.24 | 95% | 1481.28 | 790 | $691.28 |
| 21.11.21 | 27.11.21 | 13 | 1559.24 | 95% | 1481.28 | 300 | $1,181.28 |
Further, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 28 November 2021 ongoing, pursuant to ss 33 and 37 of 1987 Act as follows:
| 28.11.21 | 4.12.21 | 14 | 1559.24 | 80% | 1247.39 | 707 | $540.00 |
| 5.12.21 | 11.12.21 | 15 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 12.12.21 | 18.12.21 | 16 | 1559.24 | 80% | 1247.39 | 460 | $787.39 |
| 19.12.21 | 25.12.21 | 17 | 1559.24 | 80% | 1247.39 | 450 | $797.39 |
| 26.12.21 | 01.01.22 | 18 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 02.01.22 | 08.01.22 | 19 | 1559.24 | 80% | 1247.39 | 1285 | 0 |
| 09.01.22 | 15.01.22 | 20 | 1559.24 | 80% | 1247.39 | 400 | $847.39 |
| 16.01.22 | 22.01.22 | 21 | 1559.24 | 80% | 1247.39 | 560 | $687.39 |
| 23.01.22 | 29.01.22 | 22 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 30.01.22 | 05.02.22 | 23 | 1559.24 | 80% | 1247.39 | 735 | $512.39 |
| 06.02.22 | 12.02.22 | 24 | 1559.24 | 80% | 1247.39 | 360 | $887.39 |
| 13.02.22 | 19.02.22 | 25 | 1559.24 | 80% | 1247.39 | 300 | $947.39 |
| 20.02.22 | 26.02.22 | 26 | 1559.24 | 80% | 1247.39 | 100 | $1147.39 |
| 27.02.22 | 05.03.22 | 27 | 1559.24 | 80% | 1247.39 | 2175 | 0 |
| 06.03.22 | 12.03.22 | 28 | 1559.24 | 80% | 1247.39 | 2342.14 | 0 |
| 13.03.22 | 26.03.22 | 29 - 30 | 1559.24 | 80% | 1247.39 | Nil | $2,494.78 |
| 27.03.22 | 02.04.22 | 31 | 1559.24 | 80% | 1247.39 | 450 | $797.39 |
| 03.04.22 | 09.04.22 | 32 | 1559.24 | 80% | 1247.39 | 335 | $912.39 |
| 10.04.22 | 16.04.22 | 33 | 1559.24 | 80% | 1247.39 | 375 | $872.39 |
| 17.04.22 | 30.04.22 | 34 - 35 | 1559.24 | 80% | 1247.39 | Nil | $2,494.78 |
| 01.05.22 | 07.05.22 | 36 | 1559.24 | 80% | 1247.39 | 235 | $1012.39 |
| 08.05.22 | 14.05.22 | 37 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 15.05.22 | 21.05.22 | 38 | 1559.24 | 80% | 1247.39 | 525 | $722.39 |
| 22.05.22 | 28.05.22 | 39 | 1559.24 | 80% | 1247.39 | 235 | $1012.39 |
| 29.05.22 | 04.06.22 | 40 | 1559.24 | 80% | 1247.39 | 245 | $1002.39 |
| 05.06.22 | 11.06.22 | 41 | 1559.24 | 80% | 1247.39 | 140 | $1,107.39 |
| 12.06.22 | 18.06.22 | 42 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 19.06.22 | 25.06.22 | 43 | 1559.24 | 80% | 1247.39 | 145 | $1107.39 |
| 26.06.22 | 02.07.22 | 44 | 1559.24 | 80% | 1247.39 | 300 | $947.39 |
| 03.07.22 | 09.07.22 | 45 | 1559.24 | 80% | 1247.39 | 50 | $1197.39 |
| 10.07.22 | 23.07.22 | 46 - 47 | 1559.24 | 80% | 1247.39 | Nil | $2,494.78 |
| 24.07.22 | 30.07.22 | 48 | 1559.24 | 80% | 1247.39 | 261 | $986.39 |
| 31.07.22 | 06.08.22 | 49 | 1559.24 | 80% | 1247.39 | 325 | $922.39 |
| 07.08.22 | 13.08.22 | 50 | 1559.24 | 80% | 1247.39 | 175.50 | $1071.89 |
| 14.08.22 | 20.08.22 | 51 | 1559.24 | 80% | 1247.39 | 800 | $447.39 |
| 21.08.22 | 27.08.22 | 52 | 1559.24 | 80% | 1247.39 | 282 | $965.39 |
| 28.08.22 | 03.09.22 | 53 | 1559.24 | 80% | 1247.39 | 212.50 | $1,034.89 |
| 04.09.22 | 10.09.22 | 54 | 1559.24 | 80% | 1247.39 | 430 | $817.39 |
| 11.09.22 | 24.09.22 | 55 - 56 | 1559.24 | 80% | 1247.39 | Nil | $2,494.78 |
| 25.09.22 | 01.10.22 | 57 | 1559.24 | 80% | 1247.39 | 200 | $1047.39 |
| 02.10.22 | 08.10.22 | 58 | 1559.24 | 80% | 1247.39 | 161.86 | $1085.53 |
| 09.10.22 | 15.10.22 | 59 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 16.10.22 | 22.10.22 | 60 | 1559.24 | 80% | 1247.39 | 510 | $737.39 |
| 23.10.22 | 29.10.22 | 61 | 1559.24 | 80% | 1247.39 | 270 | $977.39 |
| 30.10.22 | 05.11.22 | 62 | 1559.24 | 80% | 1247.39 | 300 | $947.39 |
| 06.11.22 | 12.11.22 | 63 | 1559.24 | 80% | 1247.39 | 365 | $882.39 |
| 13.11.22 | 19.11.22 | 64 | 1559.24 | 80% | 1247.39 | 105 | $1142.39 |
| 20.11.22 | 26.11.22 | 65 | 1559.24 | 80% | 1247.39 | 890.13 | $357.26 |
| 27.11.22 | 03.12.22 | 66 | 1559.24 | 80% | 1247.39 | 395.60 | $851.79 |
| 04.12.22 | 10.12.22 | 67 | 1559.24 | 80% | 1247.39 | 1095 | $152.39 |
| 11.12.22 | 17.12.22 | 68 | 1559.24 | 80% | 1247.39 | 20 | $1227.39 |
| 18.12.22 | 24.12.22 | 69 | 1559.24 | 80% | 1247.39 | 120 | $1127.39 |
| 25.12.22 | 31.12.22 | 70 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 01.01.23 | 07.01.23 | 71 | 1559.24 | 80% | 1247.39 | 280 | $967.39 |
| 08.01.23 | 14.01.23 | 72 | 1559.24 | 80% | 1247.39 | 125 | $1122.25 |
| 15.01.23 | 21.01.23 | 73 | 1559.24 | 80% | 1247.39 | 30 | $1217.39 |
| 22.01.23 | 28.01.23 | 74 | 1559.24 | 80% | 1247.39 | 25 | $1222.39 |
| 29.01.23 | 04.02.23 | 75 | 1559.24 | 80% | 1247.39 | Nil | $1247.39 |
| 05.02.23 | 11.02.23 | 76 | 1559.24 | 80% | 1247.39 | 245 | $1002.39 |
| 12.02.23 | 18.02.23 | 77 | 1559.24 | 80% | 1247.39 | 204.97 | $1042.42 |
| 19.02.23 | 25.02.23 | 78 | 1559.24 | 80% | 1247.39 | 325 | $922.39 |
| 26.02.23 | 04.03.23 | 79 | 1559.24 | 80% | 1247.39 | 95.50 | $1151.89 |
| 05.03.23 | 11.03.23 | 80 | 1559.24 | 80% | 1247.39 | 898 | $349.39 |
| 12.03.23 | 18.03.23 | 81 | 1559.24 | 80% | 1247.39 | 195 | $1052.39 |
As at 18 March 2023 and ongoing.
Counsel’s submissions did not specifically address the calculation of weekly compensation entitlements. Counsel for the respondent noted COVID-19 payments referred to in the bank statements tendered into evidence on behalf of the applicant and stated that he may require the opportunity to make submissions in that regard. I note that the bank account was a joint account in the name of the applicant and his wife and there is no evidence or submissions as to the relevance of those payments to the applicant.
However, in the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
SUMMARY
The Commission determines:
The applicant sustained psychological injury arising out of or in the course of his employment with the respondent on 28 August 2021.
The applicant’s employment with the respondent was both a substantial contributing factor to the injury and the main contributing factor to the aggravation of disease.
The respondent has not established a defence pursuant to s 11A of the 1987 Act.
The psychiatric and psychological treatment provided to the applicant is reasonably necessary as a result of psychological injury sustained on 28 August 2021.
The applicant had no current work capacity as a result of the psychological injury from 28 August 2021 to 12 December 2021, and had current work capacity from 13 December 2021 ongoing.
The Commission orders:
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the 1987 Act as follows:
(a) $1,481.08 per week from 28 August 2021 to 13 November 2021;
(b) $691.28 per week from 14 November 2021 to 20 November 2021;
(c) $1,181.28 per week from 21 November 2021 to 27 November 2021.
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(a) $540.00 per week from 28 November 2021 to 4 December 2021;
(b) $1,247.39 per week from 5 December 2021 to 11 December 2021;
(c) $787.39 per week from 12 December 2021 to 18 December 2021;
(d) $797.39 per week from 19 December 2021 to 25 December 2021;
(e) $1,247.39 per week from 26 December 2021 to 1 January 2022;
(f) $0 per week from 2 January 2022 to 8 January 2022;
(g) $847.39 per week from 9 January 2022 to 15 January 2022;
(h) $687.39 per week from 16 January 2022 to 22 January 2022;
(i) $1,247.39 per week from 23 January 2022 to 29 January 2022;
(j) $512.39 per week from 30 January 2022 to 5 February 2022;
(k) $887.39 per week from 6 February 2022 to 12 February 2022;
(l) $947.39 per week from 13 February 2022 to 19 February 2022;
(m) $1,147.39 per week from 20 February 2022 to 26 February 2022;
(n) $0 per week from 27 February 2022 to 5 March 2022;
(o) $0 per week from 6 March 2022 to 12 March 2022;
(p) $2,494.78 per week from 13 March 2022 to 26 March 2022;
(q) $797.39 per week from 27 March 2022 to 2 April 2022;
(r) $912.39 per week from 3 April 2022 to 9 April 2022;
(s) $872.39 per week from 10 April 2022 to 16 April 2022;
(t) $2,494.78 per week from 17 April 2022 to 30 April 2022;
(u) $1,012.39 per week from 1 May 2022 to 7 May 2022;
(v) $1,247.39 per week from 8 May 2022 to 14 May 2022;
(w) $722.39 per week from 15 May 2022 to 21 May 2022;
(x) $1,012.39 per week from 22 May 2022 to 28 May 2022;
(y) $1,002.39 per week from 29 May 2022 to 4 June 2022;
(z) $1,107.39 per week from 5 June 2022 to 11 June 2022;
(aa) $1,247.39 per week from 12 June 2022 to 18 June 2022;
(bb) $1,107.39 per week from 19 June 2022 to 25 June 2022;
(cc) $947.39 per week from 26 June 2022 to 2 July 2022;
(dd) $1,197.39 per week from 3 July 2022 to 9 July 2022;
(ee) $2,494.78 per week from 10 July 2022 to 23 July 2022;
(ff) $986.39 per week from 24 July 2022 to 30 July 2022;
(gg) $922.39 per week from 31 July 2022 to 6 August 2022;
(hh) $1,071.89 per week from 7 August 2022 to 13 August 2022;
(ii) $447.39 per week from 14 August 2022 to 20 August 2022;
(jj) $965.39 per week from 21 August 2022 to 27 August 2022;
(kk) $1,034.89 per week from 28 August 2022 to 3 September 2022;
(ll) $817.39 per week from 4 September 2022 to 10 September 2022;
(mm) $2,494.78 per week from 11 September 2022 to 24 September 2022;
(nn) $1,047.39 per week from 25 September 2022 to 1 October 2022;
(oo) $1,085.53 per week from 2 October 2022 to 8 October 2022;
(pp) $1,247.39 per week from 9 October 2022 to 15 October 2022;
(qq) $737.39 per week from 16 October 2022 to 22 October 2022;
(rr) $977.39 per week from 23 October 2022 to 29 October 2022;
(ss) $947.39 per week from 30 October 2022 to 5 November 2022;
(tt) $882.39 per week from 6 November 2022 to 12 November 2022;
(uu) $1,142.39 per week from 13 November 2022 to 19 November 2022;
(vv) $357.26 per week from 20 November 2022 to 26 November 2022;
(ww) $851.79 per week from 27 November 2022 to 3 December 2022;
(xx) $152.39 per week from 4 December 2022 to 10 December 2022;
(yy) $1,227.39 per week from 11 December 2022 to 17 December 2022;
(zz) $1,127.39 per week from 18 December 2022 to 24 December 2022;
(aaa) $1,247.39 per week from 25 December 2022 to 31 December 2022;
(bbb) $967.39 per week from 1 January 2023 to 7 January 2023;
(ccc) $1,122.25 per week from 8 January 2023 to 14 January 2023;
(ddd) $1,217.39 per week from 15 January 2023 to 21 January 2023;
(eee) $1,222.39 per week from 22 January 2023 to 28 January 2023;
(fff) $1,247.39 per week from 29 January 2023 to 4 February 2023;
(ggg) $1,002.39 per week from 5 February 2023 to 11 February 2023;
(hhh) $1,042.42 per week from 12 February 2023 to 18 February 2023;
(iii) $922.39 per week from 19 February 2023 to 25 February 2023;
(jjj) $1,151.89 per week from 26 February 2023 to 4 March 2023;
(kkk) $349.39 per week from 5 March 2023 to 11 March 2023;
(lll) $1,052.39 per week from 12 March 2023 to 18 March 2023, and ongoing.
The respondent to pay the applicant medical treatment and related expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.
Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.
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