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

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Chrystal v State of New South Wales (NSW Police Force) [2023] NSWPIC 341
APPLICANT:	Deborah Chrystal
RESPONDENT:	State of New South Wales (NSW Police Force)
Member:	Anne Gracie
DATE OF DECISION:	12 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation; consideration of applicant’s and respondent’s witness statements, medical reports and other treatment records, claim correspondence and factual material; consideration of whether the respondent can establish (pursuant to section 11A) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline or the provision of employment benefits; Department of Education and Training v Sinclair, Northern New South Wales Local Health Network v Heggie, Van VlietvLandscapeEnterprises Pty Ltd, Irwin v Director General of School Education, Federal Broom Co Pty Ltd v Semlitch, NSW Police Force v Gurnhill, Baker v Southern Metropolitan Cemeteries Trust, Patrech v State of New South Wales, Mitchell v Central West HealthService andAitkin v Goodyear Tyre Company considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury pursuant to section 36, 37 and 40 prior to the Workers Compensation Amendment Act 2012 for an exempt worker; Held – the applicant contracted a ‘disease’ injury pursuant to section 4(b)(i) meeting the criteria for post-traumatic stress disorder and major depressive disorder as a result of cumulative exposure to traumatic incidents during the course of employment over 30 years in relation to which employment with the respondent was a substantial contributing factor (section 9A); the injury deemed to have occurred on 10 October 2021; the respondent has failed to establish that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; award for the applicant pursuant to sections 36, 37 and 40 from 11 February 2022 to date and continuing.
determinations made:	The Commission determines: 1. The applicant suffered a psychological injury (post-traumatic stress disorder and major depressive disorder) in the course of her employment with a deemed date of injury, 10 October 2021. 2. The above injury has resulted in a total incapacity for employment between 11 February 2022 to 20 June 2022 and a partial incapacity for employment from 21 June 2022 to date and continuing. 3. The applicant’s current weekly wage rate and probable weekly earnings for the purpose of s 40(2)(a) and s 42 of the Workers Compensation Act 1987 (the 1987 Act) is $2,127.85 per week in accordance with the weekly payment provisions of the 1987 Act as enacted immediately before the 2012 changes brought about by the Workers Compensation Amendment Act 2012 (the 2012 amendments). 4. The applicant’s ability to earn in some suitable employment from 21 June 2022 for the purpose of s 40(2)(b) of the 1987 Act is $749.16. 5. The respondent is to pay the applicant weekly compensation pursuant to ss 36, 37 and 40 of the 1987 Act as follows: (a) for the period 11 February 2022 to 13 May 2022 at the rate of $2,127.85 pursuant to s 36; (b) for the period 14 May 2022 to 20 June 2022 at the rate of $545.20 pursuant to s 37; (c) for the period 21 June 2022 to 30 September 2022 at the rate of $545.20 per week pursuant to s 40; (d) for the period 1 October 2022 to 31 March 2023 at the rate of $550.80 per week pursuant to s 40, and (e) for the period 1 April 2023 to date and continuing as adjusted at the rate of $563.40 per week pursuant to s 40. 6. The respondent is to pay the applicant’s costs as agreed or assessed, including an uplift of 30% for complexity, the uplift being payable to the legal representatives of both parties.

STATEMENT OF REASONS

BACKGROUND

Deborah Chrystal, the applicant is 53-year- old. She was employed by the State of New South Wales (NSW Police Force), the respondent, between 1992 until her termination of employment on 11 March 2022. The applicant is seeking weekly benefits of workers compensation as a result of a psychological injury.
By way of an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission) on 5 April 2023, the following injury is pleaded:
“Psychological Injury (PTSD) as a result of cumulative exposure to traumata over the course of her employment as a police officer with the NSW Police Force.”
The injury has been pleaded as a disease injury with a deemed date of injury, 10 October 2021.
The claim for compensation in these proceedings is for weekly benefits of compensation from 11 February 2022 to date and continuing.
The respondent concedes that the applicant has a psychological injury and meets the criteria for the diagnosis of adjustment disorder with prominent anxiety and depressed mood. The respondent however disputes that the applicant has developed a post-traumatic stress disorder as a consequence of her 30 years’ service with the respondent.
The respondent relies on s 11(A) of the Workers Compensation Act 1987 (the 1987 Act) to dispute the applicant’s entitlement to weekly benefits of compensation. The respondent submits that the applicant’s psychological condition of an adjustment disorder with prominent anxiety and depressed mood arises solely out of the introduction of the compulsory vaccine mandate for police officers in New South Wales issued on 7 September 2021.
Section 11A of the 1987 Act provides as follows:
“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 relies on the employer’s actions of discipline and provision of employment benefits in support of its s 11A defence.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    what is the applicant's psychological disorder. The applicant claims a major depressive disorder and post-traumatic stress disorder as a result of cumulative exposure to trauma during the course of her employment with the respondent. The respondent concedes an adjustment disorder with prominent anxiety and depressed mood wholly and predominantly caused by the introduction of the vaccination mandate issued by the respondent on 7 September 2021;
(b)    the s 11A defence of the respondent in relation to the psychological injury. The respondent submits that the psychological injury (an adjustment disorder with prominent anxiety and depressed mood) has been wholly or predominantly caused by the reasonable actions of the respondent in issuing the vaccine mandate. The respondent submits that the applicant’s failure to comply with the vaccine mandate and subsequent development of an adjustment disorder with prominent anxiety and depressed mood resulting in her being stood down from work, comes within the purview of reasonable action taken in respect of discipline and the provision of employment benefits pursuant to s 11A, and
(c)    capacity for work.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 14 June 2023 by the Teams platform.
Mr Stefan Mueller of counsel instructed by Mr John Palmieri, solicitor appeared for the applicant. Ms Deborah Chrystal, the applicant was present. Mr John Gaitanis of counsel instructed by Ms Psirakis, solicitor and Ms Ana M from EML appeared for the respondent.
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.
Following the unsuccessful conciliation phase, the matter commenced.
The applicant objected to the letter from Commissioner Webb to the applicant dated 11 March 2022 which was attached to the application to admit late documents filed by the respondent on 7 June 2023.
The letter was admitted, for reasons provided at the arbitration which have been recorded.
The applicant also objected to paragraph 22 of a statement relied on by the respondent of Mr Duncan Eddington dated 12 January 2022 and paragraph 21 of a statement also relied on by the respondent of Ms Tina Jones dated 13 January 2022. The two statements are annexed to the reply. The paragraphs were allowed for the reasons provided at the hearing which have been recorded.
The applicant sought to amend the claim for weekly benefits to commence on 11 February 2022. This amendment was consented to by the respondent. The applicant also sought to amend the figure relied upon in the ARD in respect of comparable/probable earnings to $2,127.85. This respondent also consented to this amendment.
Following the arbitration, the Commission issued a Direction for written submissions from the applicant and written submissions in reply from the respondent. The last of these submissions was received on 29 June 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents filed on 5 April 2023;
(b)    Reply and attached documents filed on 3 May 2023.The statement of Mr Duncan Eddington dated 12 January 2022 and the statement of Ms Tina Jones dated 13 January 2022 annexed to the reply were admitted in their entirety over objection by the applicant, and
(c)    Application to Admit Late Documents (AALD) and annexures filed by the respondent on 7 June 2023 admitted in its entirety over objection by the applicant in relation to the letter from Commissioner Webb dated 11 March 2022.

Oral evidence

There was no oral evidence called at the arbitration. The respondent’s counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties. The applicant’s submissions were in writing as were the respondent’s submissions in reply.

Applicant’s evidence

The applicant has provided two statements dated 9 June 2022 and 25 January 2023 (on pages 1 and 12 of the ARD). The applicant also relies on an Incident Notification form dated 9 November 2021 (on page 16 of the ARD). The applicant further relies on an application for review prepared by her solicitors dated 20 October 2022 (on page 25 of the ARD).
In relation to the question of capacity the applicant has provided a pay slip from her current employer dated 30 March 2023 on page 80 of the ARD and a summary entitled Wages Claim Particulars (on page 79 of the ARD).
The applicant’s medical case is based on an independent medical report prepared by Dr Clayton Smith dated 18 October 2022 (on page 35 of the ARD). The applicant also relies on a medical report prepared by her general practitioner, Dr Marita Garcia dated 22 December 2021 (on page 46 of the ARD) and two reports from her treating psychologist Ms Anne Da Cruz dated 16 December 2021 and 21 December 2021 (on pages 48 and 49 of the ARD). The applicant has also provided clinical notes from Ms Da Cruz (on page 53 of the ARD) together with several certificates of capacity prepared by Dr Garcia (on pages 70 to 78 of the ARD).
The applicant’s statement dated 9 June 2022 provides a comprehensive history of the work she has undertaken with the respondent since she first commenced employment with the respondent in 1992. The applicant initially undertook general duties as a police officer between 1992 to 2008. The applicant then applied for and was appointed a youth liaison officer. The applicant performed this role between 2008 to 2020. The applicant then applied for and was transferred to the position of assistant education officer at police headquarters in June 2020.
I do not intend to summarise the applicant’s statement of 9 June 2022. Needless to say, the work the applicant performed in general duties and in her role as a youth liaison officer was extremely stressful and confronting.
The statement of 25 January 2023 addresses the difficulties the applicant faced from June 2020 onwards when she was transferred to the role of assistant education officer including the impact of the introduction of the vaccine mandate on her in September 2021. The statement also provides details of the applicant’s current symptoms, restrictions, limitations and work capacity.
There is no dispute that the applicant has suffered a psychological injury. The issue in dispute is the genesis of the psychological condition.
Dr Smith in his report of 18 October 2022 provides the following opinion in relation to the genesis of the applicant’s psychological injury:
“Ms Chrystal is a 52-year-old woman previously employed as a Youth Liaison Officer for the NSW Police Force. She developed symptoms consistent with incipient post-traumatic stress disorder as early as 2012 and structured her career to avoid frontline policing. She decompensated in October 2020 when she was required to return to frontline police duties, understanding that her role in Police Headquarters would be eroded over time and that she would gradually return to operational policing. The vaccine mandate triggered her to take time off work, during which she confronted her mental health difficulties and lodged a workers compensation claim. Up to that point, she had hoped to sustain a career with the NSW Police Force by avoiding frontline police work.
Ms Chrystal meets DSM-5 criteria for post-traumatic stress disorder. The cause of her symptoms was the cumulative effect of trauma exposure throughout her career as an NSW Police Officer. The vaccine mandate was a minor cause in that she felt betrayed and unsafe with her employer, increasing the intensity of post-traumatic stress disorder symptoms. The vaccine mandate cannot account for the symptoms specific to post-traumatic stress disorder particularly re-experiencing and hyperarousal.
Typical of post-traumatic stress disorder, Ms Chrystal developed repeated disturbing memories, reports and images of critical incidents; repeated disturbing dreams; distress when reminded of the incidents of the police force in general; and aversion to reminders of the police force; physical anxiety symptoms when reminded of traumatic incidents; avoidance of thoughts about her activities which reminded her of traumatic incidents; loss of interest in previously enjoyed activities; emotional changes including depressed and angry mood and symptoms of hyperarousal including insomnia, impaired concentration and hypervigilance. The symptoms have persisted for more than three months and are not attributable to another cause. She meets criteria for a DSM-5 major depressive disorder with persistently depressed mood, anhedonia, sleep disturbance, changes in appetite and depressive thoughts and feelings including self-recrimination, guilt and suicidal thoughts.
No pre-existing psychiatric conditions or concurrent non-work-related stressors were identified that could cause post-traumatic stress disorder symptoms. Her account was consistent with the medical evidence provided by her treating clinicians. The mechanism of injury is consistent with the symptoms described. There was no evidence of exaggeration, malingering, or hyperbole, and Ms Chrystal presented as a reliable historian.
Ms Chrystal’s treatment has been limited. She has had trauma-informed psychotherapy but is reluctant to take medication. Given her reluctance to consider more assertive medical treatment, and the chronicity and severity of her symptoms, she has reached Maximum Medical Improvement.”
Dr Garcia is the applicant’s nominated treating doctor. In her report of 22 December 2021 (on page 46 of the ARD), Dr Garcia provided the following opinion in relation to the cause of the applicant’s psychological condition:
“I confirm the current diagnosis of Post-Traumatic Stress Disorder. I believe that she has acquired this in the course of her duties as a NSW Police Officer.
In my opinion, Deborah sustained this psychological injury arising out of or during her employment with NSW Police Force.”
Ms Da Cruz, psychologist, in her report of 16 December 2021 states:
“Deborah meets the criteria for PTSD which from a clinical perspective she has acquired in the course of her duties as a NSW Police Officer”.
In her report addressed to the insurer EML dated 21 December 2021, Ms Da Cruz further opines:
“Deborah presented to the practice on the 22nd November 2021 and detailed a long history of exposure to trauma through her work as a NSW Police Officer... Deborah meets the criteria for PTSD... Deborah's employment with NSW Police is wholly responsible for the PTSD symptoms that she is experiencing. Deborah can detail a consistent timeline of behaviours driven by symptom commencing over 10 years ago”.
Ms Da Cruz lists the criteria required for a diagnosis of post-traumatic stress disorder including hypervigilance, flashbacks and physical and emotional reactivity to traumatic reminders together with the other set criteria for a diagnosis of post-traumatic stress disorder. In Ms Da Cruz’s opinion the applicant meets the criteria for post-traumatic stress disorder.
The Certificates of Capacity issued by Dr Garcia initially refer to a generalised anxiety disorder with ongoing anxiety attacks due to the applicant feeling betrayed by the organisation and unsupported when dealing with constant stress with work dealing with traumatic troubles from clients past and present. Dr Garcia also notes exposure to difficult cases in the workplace in the last 12 years has caused an accumulation of stress. Later in the certificate dated 21 October 2022 (on page 77 of the ARD) Dr Garcia notes the applicant’s psychological injury as post-traumatic stress disorder.

Respondent’s evidence

The respondent relies on the s 78 notice (on page 18 of the ARD) and the annexures to that notice which it has attached to the reply. The s 78 notice sets out the chronology of events in relation to the claim and the introduction of the vaccine mandate. The s 78 notice also summarises the email exchanges between the applicant and various officers in the employ of the respondent including Karen Webb, Duncan Eddington and Tina Jones in relation to the vaccine mandate.
The respondent relies on three statements from the following employees of the respondent: Tina Jones, Duncan Eddington and Bradley Taylor in support of the s 11A defence. (On pages 30, 34 and 40 of the ARD.)
The respondent also relies on the report of Dr Anand dated 19 January 2022 (on page 46 of the Reply) and a supplement report from Dr Anand dated 15 May 2023 (on page 12 of the AALD).
The respondent has provided a list of payments (on page 56 of the reply), a copy of the s 287A notice dated 3 November 2022 which confirmed the s 78 notice (on page 28 of the ARD) and the applicant’s leave records (on page 16 of the Reply).
The respondent has included the applicant’s submission for an exemption to the vaccine mandate dated 20 September 2021 (on page 5 of the Reply) and the applicant’s further request seeking an extension of time to comply with the Commissioner’s direction dated 7 October 2021 (on page 15 of the Reply).
In the AALD filed on the 7 June 2023 the respondent relies on the letter of termination from Commissioner Webb dated 11 March 2022 (on page 1 of the AALD) together with the supplementary report from Dr Anand dated 15 May 23 referred to above.

Respondent’s submissions

The respondent submits that the applicant's claim that her psychological condition has arisen out of the cumulative exposure to trauma during the course of her work as a police officer is disingenuous and a cynical pleading.
The respondent submits that the commonsense approach, based on the evidence as a whole, demonstrates that the psychological injury has been wholly or predominantly caused by the actions of the employer introducing the vaccine mandate.
In support of this, the respondent notes the vaccine mandate comes within the purview of discipline and, if not complied with, will impact the provision of employment benefits consistent with the respondent’s s 11A defence. The respondent submits that the law does not say that the discipline has to be a punitive action. In relation to the provision of employment benefits there is a suggestion that one of the options available to the applicant if she did not want to have the vaccine was to go on unpaid leave while awaiting an outcome in relation to her application for an exemption, thereby bringing that action under the umbrella of the provision of employment benefits.
The respondent also noted that the actions of the employer must be reasonable and referred me to the decision of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 12 DDCR 95 (Heggie). The respondent submitted that the actions of the employer is a question of fact and must be considered on an objective basis. The respondent submits that it is necessary to look at the fairness of the action.
The respondent also provided a definition of the concept of reasonableness from the decision of Van VlietvLandscapeEnterprises Pty Ltd [2022] NSWPICPD 49. In that decision Judge Phillips found that employer’s actions do not need to be flawless, and the actions do not require a “counsel of perfection”.
The respondent referred to the s 78 notice which sets out the chronology in relation to the introduction of the vaccine mandate.
Of note was the initial circular sent to police officers from Commissioner Fuller advising that because of COVID, NSW police officers were required to get an injection. The circular was dated 7 September 2021. The applicant sought an exemption from the vaccine mandate on 20 September 2021. The exemption was refused by letter dated 27 September 2021. The applicant then took leave from 1 October 2021. The applicant’s employment was terminated on 11 March 2022. The respondent confirmed in submissions that they are not arguing that the dismissal had anything to do with the applicant’s psychological injury as she had already put in a claim for workers compensation on 9 November 2021 noting a date of injury 10 October 2021.
The respondent submits that the aetiology of the applicant’s psychological condition is not related to any stress experienced by the applicant during her 30 years’ service as a police officer.
The respondent took me to page 15 of the Reply and the applicant’s letter to the Manager of Shared Services dated 7 October 2021. In that letter the applicant advised that she had engaged solicitors to initiate proceedings in the Industrial Relations Commission to test the lawfulness of the Commissioner’s direction in relation to the vaccine mandate and also the lawfulness of terminating her employment if she failed to get vaccinated. The respondent submits that the vaccine mandate was foremost in her mind at that time rather than the trauma she had experienced in her 30 years as a police officer.
The respondent then referred to the three lay statements that appear in the reply from Mr Bradley Taylor, Ms Tina Jones and Mr Duncan Eddington (pages 40, 30 and 34 of the Reply). In his statement, Mr Bradley Taylor notes the applicant’s husband had also refused to be vaccinated.
The respondent submitted that there is no contemporaneous medical evidence over the
30-year period of service which refers to the applicant experiencing psychological symptoms. The first time the applicant sought medical treatment in relation to a psychological condition was after the introduction of the vaccine mandate.
The respondent further submitted when you look at the s 11A test of “wholly or predominantly caused” there is no contemporaneous evidence of a psychological condition during the applicant’s 30 years of service. The applicant’s psychological injury only arose after the introduction of the vaccine mandate. The respondent says that the only plausible explanation is that the applicant has suffered a psychological injury due to the impact of the vaccine mandate which is an action of the employer.
In relation to discipline the respondent points out that it must be guided by the government of the day, it must be guided by the needs of the community, it must be guided by the needs of its employees and the direction of Commissioner Fuller. The decision to introduce a vaccine mandate should be considered part of a disciplinary process. The failure to comply with the mandate may result in some form of disciplinary action.
The respondent submits that I would be satisfied on the evidence that the applicant’s psychological injury has resulted wholly or predominantly from the actions of the employer with respect to discipline and the provision of employment benefits and that I would reject any argument that the psychological injury suffered by the applicant is due to trauma suffered by the applicant during the 30-year course of her employment.
The respondent then took me to the report from Dr Smith dated 18 October 2022 relied on by the applicant. The respondent submits that Dr Smith does not explain his opinion and that it is a cynical exercise to say that the vaccine mandate was only a minor cause of the applicant’s psychological condition. The respondent further submits that the report is of little probative value and Dr Smith does not provide an explanation for his diagnosis of post-traumatic stress disorder. Dr Smith does not explain what “hyperarousal” or “reexperiencing” mean within the context of post-traumatic stress disorder nor does he explain why he rejects that the vaccine mandate was the whole or predominant cause of the applicant’s psychological condition. The respondent referred to Personal Injury Commission Rules 2021 rule 73 which sets out the guiding principles that must be addressed, the first of which is that the evidence must be logical and probative. The respondent submits that Dr Smith’s report is not logical or probative.
The respondent then took me to the report from Dr Garcia dated 22 December 2021. The respondent suggests that the only reason the applicant went to see Dr Garcia on 6 October 2021 was due to the introduction of the vaccine mandate but there is no mention of this in her report. The respondent submits that it is utterly fanciful to suggest that the applicant went to see Dr Garcia on 6 October 2021 to tell her doctor about the psychological impact of her 30 years’ service as a police officer.
The respondent then took me to the report from Dr Anand dated 19 January 2022 (on page 49 of the Reply). Dr Anand expresses the opinion that the applicant’s psychological injury has been wholly and predominantly caused by the introduction of the vaccine mandate.
The respondent then addressed the reasonableness of the respondent’s actions and concluded that the applicant remained unvaccinated, the applicant’s husband also refused to be vaccinated and the applicant had advised the respondent as early as 7 October 2021 that she had engaged solicitors to advise in relation to the lawfulness of the vaccine mandate. The respondent had followed up with the applicant after her application for exemption had been rejected by the respondent in relation to her welfare. The respondent referred the applicant to the police chaplain. The respondent referred to the three statements in the Reply from Mr Taylor, Ms Jones and Mr Eddington in further support of the reasonableness of the actions taken by the respondent in relation to the applicant and her refusal to be vaccinated. The respondent travelled from Parramatta to the Hunter Valley to personally advise the applicant that her employment had been terminated. The respondent submits that there is really nothing further the respondent could have done.
The respondent then took me to three decisions of the Industrial Relations Commission and Fair Work Commission dealing with police officers and the covid vaccine mandate however the respondent acknowledged that the decisions were not binding on the Commission.
The respondent then referred me to the decision of Irwin v Director General of School Education NSWCC Geraghty J, No 14068/97, 18 June 1998 where Judge Geraghty looked at the test of reasonableness. In that decision the respondent submits Judge Geraghty found that it was necessary to weigh up the all the relevant factors. The test of reasonableness is a test less demanding than a test of necessity but more demanding than a test of convenience and one must weigh the rights of the employee against the objectives of the employer.
The respondent summarised its submissions and urged upon me a finding that the actions of the respondent were reasonable, all of the limbs under s 11A have been satisfied and the s 11A defence should succeed in this matter. The respondent submits that the temporal connection between the development of the applicant’s psychological injury and the introduction of the vaccine mandate is apparent from the material before me.
In relation to capacity, the respondent submits that Dr Smith notes the applicant is currently working eight hours per day three days per week in a much less stressful position. The respondent queried whether or not the applicant could be working more than this but did not take me to any further evidence in support of this submission The respondent also adopts the wage summary provided in the reply and marked annexure A in relation to the applicant’s comparable earnings and her current actual earnings.

Applicant’s submissions

Due to significant technical difficulties experienced during the arbitration of this matter, resulting in lengthy periods of delay, the matter did not conclude within the three-hour period set aside by the Commission. In the circumstances, and with agreement from both parties, an order was made for the applicant to provide written submissions by 23 June 2023 and the respondent to provide submissions in reply by 30 June 2023.
The applicant's submissions, filed on 23 June 2023 can be summarised as follows:
The applicant submits that the injury is a disease injury pursuant to s 4 (b) (i) of the 1987 Act relying on the decision of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 per Kitto.
The applicant submits the pathology is a post-traumatic stress disorder and a major depressive disorder diagnosed by Dr Smith in his report dated 18 October 2022.
The applicant’s case is supported by the medical evidence, the lay evidence and the applicant’s undisputed employment history.
The applicant summarised the applicant's medical case, in particular the opinions expressed by Dr Garcia, Dr Smith and Ms Da Cruz.
The applicant distinguished the opinion of Dr Anand’s forensic medical reports of 19 January 2022 and 15 May 2023 which are relied upon by the respondent.
The applicant submits that Dr Anand noted the applicant suffered from hypervigilance and noted that certain locations served as triggers consistent with a diagnosis of post-traumatic stress disorder (on page 52 of the reply)
Dr Anand provided his opinion that the issue of the vaccination mandate appears to be the predominant cause of the applicant’s mental health issues in the absence of obtaining a formal psychiatric history from the applicant prior to October 2021 nor a formal diagnosis of mental health issues prior to October 2021 and in the absence of medication or other medical treatment for psychological issues prior to October 2021. Dr Anand also noted that the applicant advised that she had always been self-aware of her mental health needs.
The applicant submits that Dr Smith considered the opinion expressed by Dr Anand and provided a differential diagnosis relying on the presence of hypervigilance and the fact that certain locations served as triggers for psychological episodes. Dr Smith opined that the adjustment disorder diagnosed by Dr Anand must be considered post-traumatic stress disorder in light of these additional factors.
Dr Smith opines the vaccine mandate could not account for hypervigilance and hyperarousal.
The applicant submits that it is unclear if Dr Anand considered the statement of the applicant dated 9 June 2022 (on page 1 of the ARD) which sets out a detailed history of the applicant’s work with the respondent for over 30 years.
The applicant submits that the applicant is an exempt worker and as such does not need to meet the current iteration of s 4 (b) (i) of the 1987 Act which requires that her employment was the main contributing factor to the development of her injury. The applicant must meet the definition of injury in the 1987 Act before the amendments brought about by the Workers Compensation Amendment Act 2012 (the 2012 amendments). The definition of injury at that time in s 4 (b) (i) was that her employment was a contributing factor to her psychological injury (Schedule 6 Part 19H cl 25 of the 1987 Act).
The applicant referred to the decision of NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill) in relation to the definition of disease and submits that the applicant has suffered a s 4 (b) (i) injury due to exposure to repeated traumatic events in the course of her employment with the respondent.
The applicant then addressed s 9A of the 1987 Act in its pre 2012 form. The applicant submits that I can safely conclude that the applicant's employment as a police officer was a substantial contributing factor to the development of the post-traumatic stress disorder and major depressive disorder based on the medical evidence.
The applicant rejects the suggestion that the applicant has developed an adjustment disorder due to her husband's influence and states there is no evidentiary basis for the respondent’s submission in this regard.
The applicant points out that the applicant’s statements were unchallenged.
The applicant then addresses the respondent’s s 11A defence. In this respect the applicant notes the respondent has the burden of proof in establishing the elements necessary to be successful in their defence and referred to the decision of Department of Education and Training v Sinclair [2004] NSWWCCPD 90 at [23].
The applicant takes issue with the respondent's reliance on the vaccine mandate in the s 78 notice (on page 28 of the ARD) on the basis that the respondent has not particularised the vaccine mandate in its s 78 notice but only identified its reliance on discipline and the provision of employment benefits.
The applicant also submits that the development of the applicant’s psychological symptoms predate the introduction of the vaccine mandate and therefore the vaccine mandate cannot be considered the whole or predominant cause of the applicant’s psychological injury.
The applicant’s statement supports the submission that the applicant has been affected by stressors in her workplace prior to the introduction of the vaccine mandate (on page 20 of the ARD).
The applicant has provided a history of symptoms prior to the introduction of the vaccine mandate to Dr Smith and Dr Garcia and Ms Da Cruz.
In October 2020, the applicant had been required to return to frontline duties (on page 41 of the ARD).
The applicant makes no mention of the effect of the vaccine mandate on her psychological health in her incident report form (on page 17 of the ARD).
The applicant provides a chronology of events at the end of the applicant’s submissions.
Finally, the applicant provides submissions on the reasonableness of the applicant’s termination of employment.

Respondent’s submissions in reply

The respondent’s submissions in reply were reduced to writing and filed on 29 June 2023.
In the submissions in reply the respondent repeats the submissions made during the arbitration which can be summarised as follows:
The applicant’s psychological injury coincided with the vaccination mandate.
The temporal connexion between the injury and the vaccine mandate is overwhelming.
Any suggestion that the psychological injury is due to trauma dating back 30 years is implausible.
The respondent, once again, addresses the reports of Dr Smith and Dr Anand and submits that the opinion of Dr Anand is to be preferred in all of the circumstances of the case.
The respondent notes the following chronology of events:
(a)     there is an absence of reports or complaints by the applicant of a psychological injury prior to the introduction of the vaccine mandate;
(b)     the vaccine mandate was introduced;
(c)     the applicant had an acute response, and
(d)     in the circumstances, the overwhelming inference is that it is the vaccine mandate that has affected the applicant’s psychological health (paragraph 8 of the submissions in reply).
The respondent submits that the applicant's reliance on the decision of Gurnhill is not supported by the evidence. The respondent states that this is not a case of a disease of gradual onset. The respondent submits that this is a case where the applicant has suffered an adjustment disorder because of the implications of the introduction of the vaccination policy.
The respondent submits in relation to the issue of “wholly or predominantly” that there is no independent evidence that the applicant was affected by stressors prior to the introduction of the vaccine mandate.
The respondent addresses the applicant’s submission that the vaccine mandate was not specifically referred to in the s 78 Notice and therefore cannot be relied on and submits that this is a misunderstanding by the applicant. The respondent relies on discipline and submits that the introduction of the vaccine mandate and the ramifications of the introduction of the vaccine mandate on the applicant support its defence of discipline.
The respondent also refers to the case of Heggie stating that the expression “action with respect to discipline” can extend to the entire process involved in the disciplinary action.
In relation to the respondent's reliance on the provision of employment benefits under s 11A of the 1987 Act, the respondent notes that if the applicant did not get vaccinated, she would not be allowed to work and therefore her source of income will be impeded. Her refusal to get vaccinated directly affects the provision of employment benefits, that is, her wages from the respondent.

FINDINGS AND REASONS

The applicant and the respondent agree that the applicant has a psychological injury. The applicant claims the psychological injury is post-traumatic stress disorder and a major depressive disorder which is the result of cumulative exposure to traumata over the course of her employment as a police officer with the NSW Police Force The applicant claims the psychological injury is a disease injury pursuant to s 4(b)(i) of the 1987 Act, as it was, prior to the 2012 amendments to that Act. As such it is only necessary for the applicant to prove that the applicant’s work was “a” contributing factor rather than the more onerous post 2012 definition of “the main” contributing factor.
The respondent claims the applicant’s psychological condition is an adjustment disorder with mixed anxiety and depressed mood which is a result of the introduction by the respondent a mandatory vaccination policy for all its employees from 7 September 2021.
I have considered all of the evidence in this matter and on the basis of the detailed statements of the applicant and the comprehensive medical opinions expressed by Dr Smith, Dr Garcia and Ms Da Cruz which I have reproduced above, I accept the applicant’s submission that she suffers from a psychological injury which meets the criteria of post-traumatic stress disorder and a major depressive disorder which is the result of cumulative exposure to traumata over the course of her 30 years employment as a police officer with the NSW Police Force.

I do not accept the respondent’s submission that Dr Smith’s report is of little probative value and does not explain how the symptoms of hyperarousal, reexperiencing and hypervigilance are only symptoms of post-traumatic stress disorder. Dr Smith was provided with a comprehensive history of cumulative exposure to traumata over the course of her employment as a police officer (on page 41 of the ARD). He finds that the applicant meets the criteria for post-traumatic stress disorder and a major depressive disorder. In so finding it is not necessary for him to consider another cause for these symptoms. Dr Smith does however address the impact of the introduction of the vaccine mandate on the applicant and opines that it was a minor cause of her presenting symptomology. Dr Anand was not provided with this comprehensive history and as such I find Dr Anand’s report of little probative value.
In so finding, I do not need to deal with the respondent’s s 11A defence. I do not accept that the applicant’s psychological injury has been wholly or predominantly caused by the introduction of the vaccine mandate. As a result of my finding, I do not need to address the s 11A defence of the reasonableness of the respondent’s actions in relation to discipline and/or provision of employment benefits.
In this respect I note the respondent maintains that the temporal connexion between the injury and the vaccine mandate is overwhelming. I disagree with this submission. The respondent has submitted that I should adopt a commonsense approach and find that the applicant’s 30 years’ service as a police officer has not caused her psychological injury. I do not accept this submission. To do so would require me to reject the medical opinions expressed by Dr Smith, Dr Garcia and Ms Da Cruz. It would also require me to disregard the comprehensive statements provided by the applicant who has been described by her work colleagues as well respected and an outstanding police officer. I would also need to disregard Dr Smith’s comment that the applicant was a reliable historian with no evidence of exaggerating, malingering or hyperbole.
In support of my finding of a psychological injury meeting the criteria of post-traumatic stress disorder and a major depressive disorder, I note the applicant has provided a detailed statement outlining numerous horrific incidents she attended as a general duties police officer in the first years of her employment with the respondent between 1992 and 1998. The applicant has also provided a history of the stress and work pressures that her job as a youth liaison officer presented her with between 1998 to June 2020. The applicant then described in her statement the extreme work pressure she worked under as an education development officer and the fear she had that she would be required to return to front line duties in June 2020 when she transferred to the education development role at Police Headquarters. The applicant provided this history to Dr Smith and Dr Garcia and Ms Da Cruz.
The applicant in her statement described an incident in 1992 when she attended a reported robbery involving armed and dangerous persons in a vehicle in Ultimo at 3.00am. At that incident the applicant was accompanied by a probationary constable. Four occupants exited the vehicle and the applicant was able to talk to them until backup arrived and assisted with the arrest. The applicant later found out that one of the occupants had been in the possession of a machete and had used it on a person just before the applicant stopped their vehicle. The applicant advises that she had flashbacks of the incident and after the incident the applicant was always anxious stopping vehicles and became hypervigilant.
The applicant then described a specific incident in 1994 when she witnessed a prisoner being bashed by a senior officer. The applicant’s psychologist has advised her that this incident triggered an avoidance anxiety that has eventually resulted in the applicant transferring from general duties to her part time role as a youth liaison officer and then in June 2020 to the education development officer to avoid front line duties. In 1996 the applicant was drinking quite heavily which she addressed and has been abstinent from alcohol since 1996.
In 2012 the applicant states she developed symptoms consistent with incipient post-traumatic stress disorder. She was enjoying her work less and dreaded putting her uniform on.
According to the applicant in her role as an education development officer which she commenced in June 2020 she retained full operational status. As the COVID crisis unfolded, the applicant became increasingly anxious that she would be transferred back to front line duties. Her fears were well founded as she was eventually periodically drafted to Border Protection policing areas of concern in relation to the enforcement of masking mandates. She became incredibly anxious and had flashbacks to violent jobs she had done in the past. She would often finish the shift feeling shaken and depressed and not knowing how she would be able to face the public the next day.
The applicant was experiencing these symptoms well prior to the introduction of the vaccine mandate.
The respondent submits that the applicant’s lack of medical treatment and lack of complaint prior to September 2021 for a psychological condition demonstrates that the applicant’s psychological condition arose wholly or predominantly as a result of the introduction of the vaccine mandate in September 2021
I do not accept this submission.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury.
The Deputy President noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr. Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker's assertion that certain events occurred and that they affected the worker in a certain way.
81. However, on its own, the absence of such a complaint to Mr Baker's general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the Arbitrator erred in treating it as if it was.
82. Whether Mr. Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence… it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83. The Arbitrator's conclusion, on this issue, really amounts to a finding that he did not accept Mr. Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]) and, to the extent that the Arbitrator thought such corroboration was necessary, he erred.
84. Moreover, as Beazley JA (as her Honour then was) (Campbell and MacFarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness”.
The applicant has demonstrated symptoms of post-traumatic stress disorder from as far back as 1992 as set out by her in her statements which are unchallenged.
Furthermore Dr Smith, having been briefed with a comprehensive history by the applicant in relation to her 30 years’ service as a police officer describes the impact of the introduction of the vaccine mandate as “minor” (see page 41 of the ARD).
Dr Smith also considers the report prepared by Dr Anand dated 19 January 2022 and concludes Dr Anand has indicated the prominent cause of the applicant’s injury was the introduction of the vaccine mandate. Dr Smith explains that this does not account for the re-experiencing and hyperarousal symptoms that can only be caused by post-traumatic stress disorder. Dr Smith opines that the mechanism of injury is consistent with the symptoms described by the applicant. Dr Smith notes that there are no pre-existing psychiatric conditions or concurrent non-work related stressors identified that could cause post-traumatic stress disorder symptoms. Dr Smith states that while the applicant initially had time off due to the vaccine mandate in which she took a period of annual leave and sick leave, this period allowed the applicant to reflect on her deteriorating mental health and lodge a compensation claim related to symptoms of post-traumatic stress disorder .
The opinion of Dr Smith is consistent with the chronology of events. The vaccine mandate was introduced on 7 September 2021. The applicant sought an exemption from the mandate on 20 September 2021. The exemption was refused on 27 September 2021. The applicant had a face-to-face meeting with Duncan Eddington on 29 September 2021. Following the meeting the applicant left Police Headquarters.
A colleague who was present on that day, Mr Bradley Taylor has provided a statement dated 20 January 2022 (see page 40 of the Reply). In that statement Mr Taylor states:
“On 29 September 2021 the claimant was called into a meeting with C/Inspector Eddington, the plaintiff returns to her desk visibly upset. As she was gathering up her personal belongings she was crying and appeared angry... She was upset about the vaccination mandate and felt the organisation was treating her like a criminal.”
The applicant sought an extension of time to obtain legal advice in relation to the vaccine mandate on 30 September 2021 and at that time asked if she could use her annual leave. I note at that time the applicant made no claim for workers compensation benefits. The extension of time was refused.
On 1 October 2021, the applicant commences her annual leave. On 6 October 2021 the applicant attends her general practitioner, Dr Garcia. Dr Garcia in her report of 22 December 2021 (see page 46 of the ARD), notes the applicant was distressed but makes no mention of the introduction of the vaccine mandate being the reason for this distress. Dr Garcia asks the applicant to provide her with more details for her distress which she did on 12 November 2021.
After Dr Garcia had obtained a full history from the applicant in relation to the difficulties she had been experiencing in the last 12 years of her employment, Dr Garcia, at that time diagnosed a work related post-traumatic stress disorder condition and provided the applicant with her initial certificate of capacity dated 12 November 2021.
An incident report form was lodged by the applicant with her employer on 9 November 2021. It is important to note that in that form the applicant has recorded the following.
“How did the incident or near miss occur?”
“I have worked 30 years in the field. Last 12 years worked as Youth Liaison Officer - I have been suffering increasing stress after leaving role in June 2020 - I've seen a gp about stress, gp advised I am suffering from anxiety disorder. I currently have a referral to see a psychologist. Dr advised likely to become work cover matter”.
The incident report form notes the incident was reported to her employer, Sergeant Bradley Taylor on 10 October 2021. The incident report form also records the applicant had seen her general practitioner Dr Garcia and she had been referred to a psychologist. The form states that she had no capacity for any type of work.
In light of this chronology of events, I reject the submission made by the respondent that the applicant’s psychological injury coincided with the introduction of the vaccine mandate. As Dr Smith correctly pointed out, at the time of the introduction of the vaccine mandate, the applicant only took annual leave. The applicant did not immediately attend her doctor requesting a certificate of capacity. During the period the applicant was on annual leave she had time to reflect on her career as a police officer and her deteriorating mental health. The applicant first sought medical treatment from Dr Garcia on 6 October 2021.
At this point it is important to acknowledge the comments made by Mr Taylor in his statement dated 20 January 2022 in relation to the applicant’s work ethic. Mr Taylor says as follows:
“27. In relation to performance issues with the claimant. the claimant was an outstanding work colleague and employee, she was diligent, professional, has great time management, very efficient, and has excellent customer service skills. she is well respected amongst her peers and customers”.
Furthermore, in a statement dated 12 January 2022 made by Mr. Duncan Eddington, (see page 34 of the Reply), Mr Eddington states as follows “I would describe the plaintiff as an outstanding police officer who had a passion for helping others. She is well regarded by not only her immediate team but Shared Services as a whole”.
Dr Smith assessed the applicant to be a reliable historian with no evidence of exaggeration, malingering or hyperbole (see page 42 of the ARD).
The applicant’s statements were not challenged.
Dr Anand acknowledged that the Applicant’s presentation was “very complex” (See page 30 of the Reply) and that “Ms Chrystal has been employed by the NSWPF for over 30 years and has in the course of her employment faced a lot of trauma, deceased and violent incidents.”
The comprehensive statement of the applicant dated 9 June 2022 which sets out a detailed history of the traumatic events the applicant was exposed to during the course of her employment postdated the report of Dr Anand which is dated 19 January 2022. The respondent had the opportunity to provide Dr Anand with this statement for his consideration and comment. Dr Anand provided a supplementary report dated 15 May 2023 (see page 12 of the AALD). It appears from that report that the respondent did not provide Dr Anand with this statement despite having the opportunity to do so.
Furthermore, as Dr Smith points out, Dr Anand also noted the applicant’s symptoms of reexperiencing and hyperarousal which Dr Smith opines can only be symptoms of post-traumatic stress disorder and support the diagnosis of post-traumatic stress disorder. (On page 43 of the ARD.)
I am therefore satisfied that the applicant has sustained a psychological injury meeting the criteria of post-traumatic stress disorder and a major depressive disorder as a result of cumulative exposure to traumata over the course of her 30 years employment as a police officer with the respondent with a deemed date of injury 10 October 2021 pursuant to
s 4(b)(i).
I am further satisfied that the applicant’s employment with the respondent was the main contributing factor to the development of the applicant’s psychological injury however I do note that under the pre 2012 amendments to the 1987 Act, the applicant’s employment only needs to be “a contributing factor” to the development of her psychological injury pursuant to s 4(b)(i) as it then was. I am also further satisfied that the applicant’s employment was a substantial contributing factor to the development of her psychological injury pursuant to s 9A of the 1987 Act
The respondent’s defence pursuant to s 11A of the 1987 Act has not been established.

Capacity

In light of my findings in relation to the applicant’s psychological injury, I know turn to the question of the applicant’s capacity to work.
The applicant ceased working with the respondent on 1 October 2021 as a result of her psychological injury. Provisional payments of workers compensation were paid up to 10 February 2022. The claim for weekly benefits of workers compensation commences on 11 February 2022. At that time the applicant had been certified unfit for work by Dr Garcia in a certificate of capacity dated 10 December 2021 (on page 73 of the ARD which certified her unfit for work up until 2 February 2021 [sic 2022]. Dr Anand, in his report of the 19 January 2022 stated that the applicant had nil capacity for work.
The medical evidence relied upon by the applicant and the respondent is in agreement that applicant is unfit to return to work as a NSW police officer.
Dr Anand in his report of 19 January 2022 states “she has nil capacity for her pre-injury duties…She has nil capacity for work…She lacks total capacity for work”.
Dr Smith in his report of 18 October 2022 provides the following opinion in relation to the applicant’s capacity for work (on page 43 of the ARD):
“Ms Chrystal is not fit for pre-injury duties and she has been terminated with the NSW police force… The characteristics of suitable employment would include limited face to face contact with the public, low probability of exposure to trauma triggers or interpersonal conflict, a smaller workforce a high degree of autonomy, and lower demand on her cognitive capacity”.
In her statement of 25 January 2023 (page 13 and page 14 of the ARD) the applicant records she has not done any police work since her last date of employment. She cannot concentrate and gets angry and frustrated very quickly. She often makes mistakes and has difficulty keeping “her head above water”. She attempted to return to work as a cleaner in May 2022 “but was only able to work three days before having to leave due to my injury related disabilities”. In this respect, I note neither the applicant nor the respondent have provided me with any wage information in their respective wage schedules informing me of the applicant’s earnings for the three days the applicant attempted to work as a cleaner. Neither counsel made submissions in relation to this three-day period. In the circumstances I intend to adopt the information in the wage schedules wage provided by the parties to the effect that the applicant was not paid for the work she performed as a cleaner for three days in May 2022.
On 21 June 2022 the applicant commenced working in a warehouse for approximate 24 hours per week (eight hours per day, three days per week). She states she pushed herself before she was ready. On her first day at work, she heard the phone ring and was instantly reduced to tears. In her current position she has no contact with the public. She does not have to answer telephones and she works with a team of three people. She struggles to get up in the morning and thinks about resigning every day. She cries at work and has frequent panic attacks. She cannot focus and has difficulty concentrating. She suffers from sleep deprivation and is tired and exhausted during the day. This evidence was unchallenged.
I was advised at the commencement of the proceedings by Mr Mueller and the applicant that she had recently reduced her hours to eight hours per day, two days per week and her current certificate of capacity dated 28 April 2023 reflected this downturn in her capacity. This certificate however was not in evidence before me.
The parties agree that the applicant's entitlement to weekly benefits of workers compensation are to be assessed in accordance with the weekly payment’s provisions of the 1987 Act as enacted immediately before the 2012 changes brought about by the Workers Compensation Amendment Act 2012 (the 2012 amendments).
On the medical evidence before me and the statement of the applicant dated 25 January 2023, I find that the applicant was totally unfit to work at the time liability for her claim was declined on 2 February 2022 and remained unfit for work until she secured part time employment with another employer on 21 June 2022 performing restricted duties in a warehouse eight hours per day, three days per week earning, on average, $749.16 per week. Whilst I accept that there is a gap in the treating medical evidence in relation to capacity between 3 February 2022 to 20 June 2022 the statement of the applicant and the report of Dr Anand are consistent with the applicant’s symptoms continuing during that period up until she secured part time employment with another employer. The applicant’s current weekly wage rate as agreed is $2,127.85 per week

In light of this finding, I enter an award for the applicant in the sum of $2,127.85 per week pursuant to s 36 of the 1987 Act for the period 11 February 2022 to 13 May 2022 representing the balance of the 26 week period under s 36 of the 1987 Act for total incapacity and $545.20 per week pursuant to s 37 the 1987 Act for the period 14 May 2022 to 20 June 2022 on the basis of total incapacity during that period.
I now turn to the question of the applicant’s capacity for work after she secured employment with another employer on 21 June 2022. In this respect I note that I have already set out the medical opinions expressed by Dr Anand and Dr Smith and I have also referred to the applicant’s statement in relation to her capacity for work. On the basis of this evidence, I am satisfied that the applicant has only a partial capacity for work from 21 June 2022. As such, it is necessary for me to address s 40 of the 1987 Act.
Section 40 at that time provided:
“(1) Entitlement - the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
Note - Section 35 limits the maximum weekly payment of compensation under this section.
(2) calculation of reduction in earnings of worker – general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and
(b)the average weekly amount that the worker is earning or would be able to earn in some suitable employment, from time to time after the injury.
Note - the difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.”
The leading decision concerning payments pursuant to s 40 of the 1987 Act is Mitchell v Central West HealthService (1997) 14 NSWCCR 526 (Mitchell). in that decision, the Court of Appeal set out the following steps which must be undertaken:
(a)    determine the probable earnings but for injuries;
(b)    determine the worker’s actual earnings or the earnings she is capable of earning in suitable employment. The applicant's actual earnings are prima facie evidence of her ability to earn unless they are deliberately taking lower paid work or deliberately avoiding work (Aitkin v Goodyear Tyre Company [1945] 19 WCR (NSW) 107);
(c)    determine if there is a difference between the pre-injury earnings and actual earnings;
(d)    determine whether the difference between pre-injury earnings and actual earnings should be reduced under the exercise of the discretion under s 40(1) of the 1987 Act, and
(e)    make an award.
Addressing the steps set out in Mitchell, I note the parties agree that the applicant’s probable earnings are $2,127.85. On the evidence before me the applicant is currently working eight hours per day, three days per week with another employer earning $749.16 per week which I take as prima facie evidence of her capacity to earn. The difference between the probable weekly earnings of $2,127,85 and her actual earnings of $749.16 is $1,378.59. In light of the medical evidence and the statement from the applicant I do not intend to exercise my discretion under s 40(1) of the 1987 Act. I am satisfied that the applicant’s current actual earnings are a true indication of her capacity to earn. As such, I enter an award for the applicant pursuant to s 40 at the maximum indexed statutory rate for a worker with no dependents as follows:
(a) or the period 21 June 2022 to 30 September 2022 at the rate of $545.20 per week pursuant to s 40;
(b) or the period 1 October 2022 to 31 March 2023 at the rate of $550.80 per week pursuant to s 40, and
(c) for the period 1 April 2023 to date and continuing as adjusted at the rate of $563.40 per week pursuant to s 40.

SUMMARY

The applicant suffered a psychological injury (post-traumatic stress disorder and major depressive disorder) in the course of her employment with a deemed date of injury, 10 October 2021 pursuant to s 4 (b) (i), s 9A and s 11A(3) of the 1987 Act.
The above injury has resulted in a total incapacity for employment between 11 February 2022 to 20 June 2022 and a partial incapacity for employment from 21 June 2022 to date and continuing.
The applicant’s current weekly wage rate and probable weekly earnings for the purpose of s 40(2)(a) and s 42 of the 1987 Act is $2,127.85 per week in accordance with the weekly payment provisions of the 1987 Act as enacted immediately before the 2012 changes brought about by the Workers Compensation Amendment Act 2012 (the 2012 amendments).
The applicant’s ability to earn in some suitable employment from 21 June 2022 for the purpose of s 40(2)(b) of the 1987 Act is $749.16.
The respondent is to pay the applicant weekly compensation pursuant to ss 36, 37 and 40 of the 1987 Act as follows:
(a)    for the period 11 February 2022 to 13 May 2022 at the rate of $2,127.85 pursuant to s 36;
(b)    for the period 14 May 2022 to 20 June 2022 at the rate of $545.20 pursuant to s 37;
(c)    for the period 21 June 2022 to 30 September 2022 at the rate of $545.20 per week pursuant to s 40;
(d)    for the period 1 October 2022 to 31 March 2023 at the rate of $550.80 per week pursuant to s 40, and
(e)    for the period 1 April 2023 to date and continuing as adjusted at the rate of $563.40 per week pursuant to s 40.
The respondent is to pay the applicant’s costs as agreed or assessed, including an uplift of 30% for complexity, the uplift being payable to the legal representatives of both parties. In this respect at the conclusion of the arbitration hearing an application for an uplift was made by the applicant and supported by the respondent on the basis of complexity. The application for the uplift was recorded and based on the submissions made by the applicant, I am prepared to make an order for an uplift of 30% in relation to complexity.

[2023] NSWPIC 341

12 July 2023