Cotterill v State of New South Wales (Hunter New England Local Health District)
[2022] NSWPIC 468
•24 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Cotterill v State of New South Wales (Hunter New England Local Health District) [2022] NSWPIC 468 |
| APPLICANT: | Catherine Cotterill |
| RESPONDENT: | State of New South Wales (Hunter New England Local Health District) |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 24 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims weekly benefits and medical and related treatment expenses payable under the Workers Compensation Act 1987 (1987 Act) resulting from alleged primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with injury, incapacity and need for medical and related treatment placed in issue; defence is also raised under s 11A(1) of the 1987 Act with respect to performance appraisal; Held – the applicant sustained primary psychological injury in the course of her employment with the respondent and the applicant’s employment is the main contributing factor to injury; the applicant’s injury was not wholly or predominately caused by reasonable action taken by the hospital with respect to performance appraisal; the applicant suffers an incapacity for work resulting from injury and has entitlement to weekly compensation payable under section 37 of the 1987 Act; as the applicant requires medical and related treatment she has an entitlement to compensation payable under section 60 of the 1987 Act. |
| determinations made: | The Commission determines: 1. The applicant sustained primary psychological injury, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process, in the course of her employment with the respondent. The applicant’s employment with the respondent is the main contributing factor to injury. The deemed date of injury is 28 April 2021. 2. The injury sustained by the applicant in the course of her employment with the respondent was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal. 3. The applicant’s pre-injury average weekly earnings are agreed to be $1,709.63. Between 4. The applicant has an entitlement to medical and related treatment expenses payable under |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Catherine Cotterill (Ms Cotterill) allegedly sustained injury the subject of these proceedings, she was employed by the respondent, State of New South Wales (Hunter New England Local Health District) (incorrectly sued as Manning Rural Referral Hospital) (the Hospital). Ms Cotterill was employed by the Hospital, working as a social worker, between 2016 and 2021. Ms Cotterill is currently 47 years of age.
Ms Cotterill alleges she sustained primary psychological injury in the course of her employment with the Hospital, with a deemed date of injury of 28 April 2021. The circumstances of Ms Cotterill’s alleged injury are described in the following terms:
“The applicant suffered an aggravation, exacerbation, acceleration and/or deterioration of her pre-existing anxiety and depressive symptoms in the context of interpersonal conflict with her supervisor and colleague as well as excessive workload.”
Ms Cotterill claims:
(a) weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 22 July 2021 ongoing, and
(b) medical and related treatment expenses payable under s 60 of the 1987 Act (particularised in the sum of $1,709.63 for medical and related treatment incurred in the past).
Ms Cotterill’s pre-injury average weekly earnings (PIAWE) are agreed to be $1,709.63.
Ms Cotterill’s claim for compensation is declined and she has been issued with notices dated 13 July 2021[1] and 13 November 2021[2] in which she has been advised of the decision to decline her claim. In essence, the Hospital disputes Ms Cotterill sustained psychological injury in the course of her employment with the Hospital, disputes Ms Cotterill suffers an incapacity for work and disputes Ms Cotterill requires medical or related treatment. In the alternative, the Hospital raises defence under s 11A(1) of the 1987 Act in that the Hospital disputes Ms Cotterill has any entitlement to compensation in the event she has sustained psychological injury in the course of her employment as the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to performance appraisal.
[1] Reply at page 74.
[2] Reply at page 83.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Ms Cotterill sustained primary psychological injury in the course of her employment with the Hospital (specifically, whether Ms Cotterill sustained an aggravation, acceleration, exacerbation or deterioration of a disease process), with her employment being the main contributing factor to injury;
(b) if so, whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to performance appraisal, and if not,
(i)whether Ms Cotterill has suffered an incapacity for work resulting from her injury, and
(ii)whether Ms Cotterill requires medical and related treatment since
4 October 2021 resulting from her injury.
Procedure before the Personal Injury Commission (the Commission)
Ms Cotterill’s claim for compensation came before me for teleconference on
18 February 2022. Mr Dougall appeared for Ms Cotterill and Ms Singh appeared for the Hospital. Ms Robertson, a representative of the Hospital was present. Ms Cotterill was present.With Ms Cotterill’s claim unresolved at teleconference, her claim came before me for conciliation/arbitration hearing on 20 April 2022. Mr Parker of counsel appeared for
Ms Cotterill, instructed by Mr Ryan. Mr Doak of counsel appeared for the Hospital, instructed by Ms Singh. Ms Robertson was present as was Ms Omara, a representative of QBE.
Ms Cotterill was present.I am satisfied after long discussion with counsel that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
When it became evident the arbitration hearing would not conclude during the day of
20 April 2022, I issued directions for the lodgement and service of written submissions by both parties. This has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 12 April 2022 lodged on behalf of
Ms Cotterill and attached documents (A AALD), and(d) Application to Admit Late Documents dated 13 April 2022 lodged on behalf of the Hospital (save for an email dated 16 March 2021 from Lorri Chandler to Jamil Ahmad) (R AALD).
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of the evidence
Statements of Ms Cotterill
Ms Cotterill provided a number of statements, which are dated 24 May 2021[3],
3 August 2021[4], 30 August 2021[5] and 7 April 2022[6]. Ms Cotterill was employed with the Hospital on a permanent part time basis, working 32 hours each week. Ms Cotterill commenced her employment with the Hospital in 2016. Ms Cotterill resigned from her employment with the Hospital on 26 September 2021. Ms Cotterill was employed as social worker. Ms Cotterill’s manager was Jamil Ahmad (Mr Ahmad).[3] ARD at page 1.
[4] ARD at page 19.
[5] ARD at page 24.
[6] A AALD at page 2.
Ms Cotterill explained the team within which she worked at the Hospital changed in 2019 because of staff leaving and Mr Ahmad becoming supervisor. In December 2020
Ms Cotterill’s secured a temporary role as a renal unit social worker. Ms Cotterill said the workload required of her by the Hospital was excessive in that she worked in excess of her allocated hours and she was also required to undertake work outside the renal unit due to insufficient staff levels. Mr Cotterill said she was subjected to intimidation by Mr Ahmad. She said Mr Ahmad yelled and belittled her in front of her colleagues. She also said she felt intimidated by Mr Ahmad, particularly so when he met with her in his office with a closed door. Ms Cotterill made specific reference to a meeting between her and Mr Ahmad on
10 September 2020, during which she said Mr Ahmad asked her questions about her father and her own health. She said at that particular meeting Mr Ahmad offered her various options, which she said she was required to consider and provide response to by the next morning. Ms Cotterill described the options provided by Mr Ahmad in terms of a reduction of her workload by a downgrade in her classification, a reduction in her hours of work or a reduction of her number of days of work. Ms Cotterill said too she was micromanaged by Mr Ahmad. She said too she was excluded in her workplace and made specific reference to a training session being scheduled for a Wednesday, being a day she did not work.Ms Cotterill also said she experienced difficulties with a work colleague, Lori Chandler, about whom she complained to Mr Ahmad.
Ms Cotterill’s statements are signed statements.
Statement of Adrienne Greene
Adrienne Greene provided a statement dated 10 June 2021[7]. Ms Greene is a clinical supervisor with the Hospital. Ms Greene said she mentored and provided guidance to
Ms Cotterill. Ms Greene said Ms Cotterill had spoken to her about her excessive workload. Ms Greene said Ms Cotterill had spoken to her about feeling unsafe in her meetings with
Mr Ahmad and made specific reference to the meeting occurring between Ms Cotterill andMr Ahmad in September 2020. Ms Greene said Ms Cotterill had spoken with her about the difficulties she was experiencing with a work colleague, who was also a social worker.[7] ARD at page 27.
Ms Greene’s statement is a signed statement.
Statement of Stacey Gow
Stacey Gow provided a statement dated 11 June 2021[8]. Ms Gow is a social worker with the Hospital and a colleague of Ms Cotterill. She provided no comment as to the relationship between Ms Cotterill and Mr Ahmad other than to say “when I worked there things seemed to be OK”. Ms Gow recalled Ms Cotterill being quite distressed when she spoke with her on the telephone during the afternoon of 10 September 2020, being a time after Ms Cotterill’s meeting with Mr Ahmad. She said Ms Cotterillhad described the three options that had been presented to her by Mr Ahmad. Ms Gow described the social work department as always being in various states of understaffing and said “recently it appears to be quite understaffed for quite a significant period of time but Jamil and his manager would manage the staffing levels”.
[8] ARD at page 36.
Ms Gow’s statement is a signed statement.
Statement of Lorri Chandler
Lorri Chandler provided a statement dated 11 June 2021[9]. Ms Chandler is a social worker with the Hospital and a colleague of Ms Cotterill. Ms Chandler said Ms Cotterill had not complained to her about Mr Ahmad’s behaviour towards her. Ms Chandler confirmed there were workplace concerns about Ms Cotterill’s health and said she had been approached by two doctors within the Hospital regarding such concerns. Ms Chandler accepted there was “an incident” between her and Ms Cotterill when she asked Ms Cotterill take a knitted blanket home to launder, which had been reported to Mr Ahmad by Ms Cotterill, and was subsequently escalated to the Allied Health Director.
[9] Reply at page 25.
Ms Chandler’s statement is unsigned.
Statement of Mr Ahmad
Mr Ahmad provided a statement dated 24 June 2021[10]. Mr Ahmad said that prior to December 2020 Ms Cotterill was not required to work in excess of her allocated hours and that this remained the situation after she transferred to the renal unit. Mr Ahmad said he was always available to alleviate Ms Cotterill’s workload if necessary. Mr Ahmad denied subjecting Ms Cotterill to intimidating behaviour. Mr Ahmad denied he yelled at or belittled Ms Cotterill either in private or in front of her colleagues. Mr Ahmad denied he micromanaged Ms Cotterill and also denied that he specifically arranged a training day for a day when Ms Cotterill was not at work.
[10] Reply at page 33.
Mr Ahmad accepted that at the meeting on 10 September 2020 he asked Ms Cotterill about her father and also asked about her own health. Mr Ahmad said he had simply enquired after Ms Cotterill’s father’s health because Ms Cotterill had previously said he had been unwell. He said he had enquired after Ms Cotterill’s own health in the context of her ability or otherwise to undertake her work duties because she had often spoken about her health with both him and her colleagues, and he had received concerned reports about her health from a number of Ms Cotterill’s colleagues. Mr Ahmad said he consulted with the Hospital’s human resources department with a view to obtaining guidance as to how to address the issue of Ms Cotterill’s health in the context of her work performance, prior to his meeting with Ms Cotterill.
Mr Ahmad said he was aware of an incident occurring between Ms Cotterill and Ms Chandler which was ultimately managed by Mr Ahmad’s manager.
Mr Ahmad’s statement is a signed statement.
Statement of Deborah Bliss
Deborah Bliss provided a statement dated 9 June 2021[11]. Ms Bliss is the Director of Allied Health and Integrated Care with the Hospital. She is Mr Ahmad’s supervisor. Ms Bliss denied Ms Cotterill’s workload with the renal unit was excessive and said Ms Cotterill did not complain to her about her workload being excessive. Ms Bliss confirmed the Hospital harboured concern about Ms Cotterill’s ability to undertake her role given her health, and was aware Mr Ahmad had raised the Hospital’s concerns with Ms Cotterill and suggested strategy that may assist her. Ms Bliss said Ms Cotterill had not complained to her about Mr Ahmad’s behaviour towards her. Ms Bliss said she was aware of an incident occurring between
Ms Cotterill and Ms Chandler, which she managed. Ms Bliss said she thought the incident had been successfully managed and Ms Chandler and Ms Cotterill “were working together again well”.[11] Reply at page 1.
Ms Bliss’ statement is unsigned.
Treating medical evidence
Taree Access Healthcare
Ms Cotterill has been under the general medical care of Dr Lenkic who practises out of Taree Access Healthcare. The clinical records of the practice as of 16 August 2021[12] are in evidence. The clinical records demonstrate Ms Cotterill has suffered from an eating disorder since she was 16 years of age, with the need for frequent hospitalisation. The clinical records demonstrate Ms Cotterill suffers severe osteoporosis and has a long history of depression, anxiety, post-traumatic stress disorder, panic attack and chronic eating disorder. It is evident Ms Cotterill is prescribed medication for her mental health fragility.
[12] ARD at page 84.
The clinical records demonstrate that in approximately 2020 Ms Cotterill’s complaints included issues arising in her workplace. The clinical records also demonstrate that during the period 2016 to 2020 Ms Cotterill was suffering significant mental health fragility and physical health difficulties that may have impacted on her capacity for work. Under cover of letter dated 26 March 2020[13] Dr Lenkic was sufficiently concerned about Ms Cotterill’s wellbeing that he relevantly wrote to Mr Ahmad about her workload, with polite conclusion:
“I understand that at this time due to staff shortages and increased workload in the current environment, your time is limited, however, to ensure Catherine’s wellbeing, and that she remains well and a capable and functioning member of the team, it may be helpful to monitor her workload closely, and prevent any excess or unnecessary strain is placed on her.”
[13] Reply at page 171.
Dr Lenkic provided a report dated 3 June 2021[14] in which he confirmed he had been
Ms Cotterill’s regular general medical practitioner for eight years. He provided diagnosis of anxiety disorder, which he said commenced “from June 2020 to present”.[14] ARD at page 82.
In response to specific questioning as to whether Ms Cotterill’s employment with the Hospital is a substantial contributing factor to injury, Dr Lenkic relevantly wrote:
“Yes, there is a temporal relationship between an increase in Catherine’s general anxiety and a deterioration in her relationship with her Social Work Manager (Jamil Ahmad).
There have been numerous incidents in which Catherine has been left feeling completely unsupported in the workplace. This reflects a cultural change in the workplace environment which seems to have occurred following Jamil’s ascension to Social Work Manager, although their initial relationship was very workable.”
In response to specific questioning as to whether Ms Cotterill’s employment is the main contributing factor to her injury, Dr Lenkic wrote:
“I believe Catherine’s employment is the main contributing factor to injury. Please note that Catherine began working at Manning Base Hospital from 2016, and I am not aware of any particular workplace concerns from Catherine prior to approximately June 2020.”
In response to specific questioning as to Ms Cotterill’s capacity for work, Dr Lenkic wrote:
“At present Catherine remains unfit to return to the normal workplace. I believe attempting to pursue this at the time would be detrimental to her outcome. It is my opinion that after a period of recovery and ongoing psychological support Catherine will likely be able to return to a role suitable for her level of training an alternate department under a different manager.
…
Catherine could certainly work exclusively within the renal unit (her official position) and report to an alternate Social Work Manager or other suitable supervisor. She also feels she could be of assistance with 16A’s (child protection reports) or a social work position within community health.
…
Catherine is eager to return to the workplace and she generally enjoys her role. Unfortunately due to interpersonal conflict, a return to the previous environment is not possible.”
Barbara Squire
Ms Cotterill has come under the care of Ms Squire, who is a clinical social worker. Ms Squire provided a report dated 15 August 2021. Ms Squire said she has worked with Ms Cotterill in the capacity as mental health therapist since 2010, following referral by her general practitioner “to address a longstanding and treatment-resistant eating disorder” which had been present since Ms Cotterill was approximately 15 years of age and for which she had been hospitalised on multiple occasions. Ms Squire reported that during this 10 year period, Ms Cotterill’s eating disorder stabilised sufficiently to enable Ms Cotterill to complete university and attain her social work qualifications in or about July 2016.
Ms Squire reported Ms Cotterill commenced working with the Hospital in or about August/September 2016 and she described Ms Cotterill as having secured work “that she found meaningful and gave her a sense of purpose”. However, Ms Squire reported that in February 2019 she “became seriously concerned” about Ms Cotterill. Ms Squire described Ms Cotterill as being “the most unwell she had been” during the period of time she had worked with her. She described Ms Cotterill’s general medical practitioner sharing her concerns, and with Ms Cotterill’s physical conditioning worsening she was hospitalised for a brief period of time. Ms Squire reported Ms Cotterill was describing ongoing stressors at work at this time, which included working extra days at work and an increase in her workload due to understaffing. Ms Squire also reported discussion about the “boundary issues” Ms Cotterill was experiencing with Mr Ahmad. Ms Squire noted Ms Cotterill’s concern about her closed door meetings with Mr Ahmad and his public humiliation of her, which continued into October 2019. In March 2020 Ms Cotterill spoke with Ms Squire about the exodus of her colleagues, with consequential increase in workload. Ms Squire wrote to Ms Cotterill’s general practitioner regarding harboured concerns about Ms Cotterill’s workload and Ms Cotterill’s general practitioner wrote to Mr Ahmad requesting without apparent success that Mr Ahmad “monitor her workload closely, and prevent any excess or unnecessary strain being placed on her”.
Ms Cotterill’s mental health reportedly continued to deteriorate with the commencement of a social worker who “constantly criticised her work”.In September 2020 Ms Squire again became aware of a deterioration in Ms Cotterill’s physical heath, with Ms Cotterill reporting to Ms Squire in November 2020 that work colleagues were commenting on her appearance and checking in on her wellbeing. Ms Squire described Ms Cotterill’s mental health having deteriorated so significantly by late March 2021 that she became concerned about her safety, in that she “spoke of fantasising about driving into a tree”.
Ms Squire expressed observation that since Ms Squire had ceased working with the Hospital her “mood and health have improved quite dramatically” and while reportedly Ms Cotterill still had days of intense anxiety and anger, “these are directly related to the experience of making a Workcover claim”. She described Ms Cotterill as having now “found the confidence and the motivation to start planning for the future”.
Independent medical evidence
Dr Smith
Ms Cotterill was psychiatrically assessed on 19 August 2021 by Dr Smith in his capacity as independent medical examiner. Dr Smith provided a report dated the same day[15].
[15] ARD at page 61.
Dr Smith noted Ms Cotterill’s extensive history of mental health fragility and chronic eating disorder. He described Ms Cotterill as having valued her social work role with the Hospital “very highly”. Ms Cotterill reportedly told Dr Smith that she particularly enjoyed working with very complex cases and “had progressed to a senior level with no major difficulties”.
Dr Smith reported the following history of injury:
“Ms Cotterill stated that from around 2019 her direct manager changed and there were issues between the previous manager and her new manager, “he somehow got the position while the previous manager was on annual leave”. She stated, “everybody employed under the previous manager started to get targeted by the new manager, one by one they left [the MBH], I was the only one left”.
Ms Cotterill stated, “it felt like I was used in a game for information on other employees, to target them and get rid of them”. She also noted that she was required to perform a very large amount of work. She stated that because “I loved doing the work, it was the purpose in my life” she would take on the excessive workload.
Ms Cotterill stated that from around late 2019, her manager started to pressure her for information, “I wasn’t going to give him any anything, he asked me to go through the clinical notes to see if there was anything to get them performance managed”. She described feeling very anxious and worried regarding this request and “whether I knew who the manager was, whether I could trust him”.
Ms Cotterill stated that in early 2020, a new employee, Lorri, commenced and she took over a lot of Ms Cotterill’s previous roles. Ms Cotterill found this very difficult because she enjoyed working with the complex cases that she was no longer involved in. She stated that Lorri, “was very loud, outgoing, it was her way or the highway”. She stated, “if I opened my mouth, I got my head bitten off, she told me what to do”. She stated that in early to mid-2020 her manager told her to work in the renal department and this was not her favoured area of work, “I didn’t have the purpose anymore, renal just wasn’t really my scene”. Notwithstanding that, she noted, “I tried to make it work.”
Ms Cotterill described an incident in which Lorri was aggressive and abusive towards her, “she couldn’t stand me, she made remarks about me in my face, yelling, I was frightened she would punch me”. She stated that she told her supervisor and manager regarding Lorri’s behaviour, but her manager was unsupportive and said to her, “you need to be able to stand up for yourself”.
Ms Cotterill stated that in the context of abusive behaviour from Lorri and the lack of support from her manager she felt anxious about going to work, “it became clear that Lorri was his new ally, and I was his new target”. She stated that her manager would often call her into his office, “I never knew what it was to talk about, he would yell at me, berate me over different things, I felt like suddenly I was in danger”.
Ms Cotterill described an incident in around September 2020 when she was called into her manager’s office alone and he told her that “he wanted to regrade me, to grade one, because my father was sick, as a supportive measure, he suggested that I take it, I asked if there were performance issues and he said ‘no, it was just for support’”. She stated that in the week after that incident she was thinking about the meeting and talking with a friend, and she had “a severe panic attack”. She stated that she continued counselling with Ms Squire every three weeks. She also continued fluoxetine 40mg daily.
Ms Cotterill stated that by early 2021, her anxiety and depressive symptoms had worsened to the extent that she was concerned about her ability to continue to work and to function. She stated she was feeling depressed and suicidal. She stated, “things were just not okay at work”. She saw her general practitioner (GP) and she was certified unfit for work.
Ms Cotterill stated that being away from that work environment, her anxiety and mood had improved but she felt a general loss of interest and lack of purpose in her life without involvement in work.”
Following mental state examination, Dr Smith provided diagnosis of major depressive disorder, with anxious distress in partial remission and anorexia nervosa. Dr Smith provided opinion Ms Cotterill’s depression and anxiety developed in the context of recurrent aggressive behaviour from her colleague, Ms Chandler, and feeling intimidated by her manager, Mr Ahmad. He described Ms Cotterill’s psychological injury as having commenced in or around 2019 and having deteriorated in late 2020.
In response to specific questioning, Dr Smith provided opinion Ms Cotterill’s employment with the Hospital is the main contributing factor to an aggravation of her anxiety and depressive symptoms “in the context of aggressive behaviour by her work colleague and manager from at least early 2020”. Dr Smith provided opinion Ms Cotterill was not fit to work with the Hospital “due to risk of a predictable deterioration of anxiety and depressive symptoms in that context when exposed to reminders of the events from late 2019 to 2021”. However,
Dr Smith considered Ms Cotterill’s psychological symptoms had improved to the extent she would be fit to consider an alternate role “ideally initially on a part time basis”. Dr Smith also provided opinion Ms Cotterill would benefit from ongoing psychological treatment and medication.
Dr Vickery
Ms Cotterill was psychiatrically assessed by Dr Vickery in his capacity as independent medical examiner. Dr Vickery provided a report dated 24 March 2022[16]. Dr Vickery noted
Ms Cotterill’s extensive history of mental health fragility and chronic eating disorder.[16] R AALD at page 24.
Dr Vickery recorded a history of Ms Cotterill suffering stress due to her closed door meetings with Mr Ahmad. Ms Cotterill made specific mention to Dr Vickery of the meeting on
10 September 2020 when she was provided with three options which required response by her the following day. Dr Vickery recorded a history of Ms Cotterill feeling targeted by
Mr Ahmad and another colleague. Dr Vickery noted Ms Cotterill resigned from her employment with the Hospital on 26 September 2021 and while she commenced working as an aged care consultant with Calvary Community care on 27 September 2021, Ms Cotterill explained to Dr Vickery “I didn’t have a passion for it and I finished up in February 2022”. At the time of assessment Dr Vickery noted Ms Cotterill was undertaking an online training course of approximately one hour each day to achieve accreditation and was seeking work in social work positions with a preference for “crisis type work with domestic abuse and violence”.Dr Vickery noted Ms Cotterill was taking medication and undergoing counselling sessions. While Dr Vickery provided opinion that Ms Cotterill suffered no current diagnosable psychological injury as a result of her employment with the Hospital, he went on to say in response to specific questioning that her psychological injury was wholly or predominantly caused by the action taken by the Hospital with respect to performance appraisal.
Relevant to Ms Cotterill’s capacity for work, Dr Vickery provided opinion Ms Cotterill was able to resume her work duties with an alternate employer.
Dr Vickery provided opinion Ms Vickery does not require psychological treatment.
Submissions
Mr Parker and Mr Doak provided written submissions, which are available to the parties. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance they have afforded me in this matter.
In noting Mr Doak has made submission relevant to costs, while it is not within the Commission’s jurisdiction to make the order sought by Mr Doak on behalf of the Hospital, I am inclined to agree with Mr Doak that this particular matter was not without complexity, which is reflected in the lengthy conciliation process engaged in by the parties prior to Ms Cotterill’s claim proceeding to arbitration hearing, with written submissions ultimately being ordered to assist the Commission in determination.
Determination
Injury
It is disputed Ms Cotterill sustained primary psychological injury in the course of her employment with the Hospital, with a deemed date of injury of 28 April 2021.
Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury where the worker’s employment is the main contributing factor to injury. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[17] with comment that the test of “main contributing factor” is one of causation that involves consideration of the evidence overall.
[17] [2020] NSWWCCPD 9.
Relevant to the issue of causation, in Kooragang v Cement Pty Ltd v Bates[18] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[18] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Relevant too when considering the issue of establishing psychological injury in circumstances of a worker’s perception of real events occurring at work, is that in Attorney General’s Department v K[19] Deputy President Roche usefully summarised the principles to be applied at [52]:
[19] [2010] NSWWCCPD 76.
“(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’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (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);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 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.”
And said at [54]:
“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…”
The Hospital has placed injury in issue and Ms Cotterill has the onus of proving she sustained psychological injury during the course of her employment with the Hospital and that her employment with the Hospital is the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[20] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[20] [2008] NSWCA 246 (Nguyen).
In these proceedings Ms Cotterill essentially argued she sustained psychological injury as a result of her excessive workload and her interpersonal conflict with Ms Chandler and with
Mr Ahmad. The Hospital essentially argued Ms Cotterill had not sustained psychological injury as the alleged causative workplace incidents had not occurred.The only signed statements in these proceedings are those provided by Ms Cotterill,
Mr Ahmad, Ms Gow and Ms Greene and while I have also carefully considered the statements of Ms Chandler and Ms Bliss, I have afforded their evidence minimal weight in circumstances where their statements are unsigned, preferring instead to place more evidentiary weight on those statements prepared and signed by Ms Cotterill, Mr Ahmad,
Ms Gow and Ms Greene.Ms Cotterill said that the team within which she worked at the Hospital changed in 2019 with a number of staff leaving and Mr Ahmad becoming supervisor. Ms Cotterill said in December 2020 she commenced working as a renal unit social worker and her workload became excessive. Ms Greene confirmed Ms Cotterill frequently raised with her that her workload was excessive. Ms Greene confirmed the Social Work Department is understaffed. While
Mr Ahmad said Ms Cotterill was not required to work in excess of her allocated hours and he was available to alleviate Ms Cotterill’s workload if necessary, in his letter to Dr Lenkic dated 6 April 2020 Mr Ahmad assured Dr Lenkic he had continued to assure Ms Cotterill of her clinical ratio and her ability to approach him about her workload “especially during times of reduced staffing”.Ms Cotterill said she felt intimidated by Mr Ahmad who often met with her with a closed door. Ms Cotterill said of her meeting with Mr Ahmad on 10 September 2020 that Mr Ahmad offered her three options relevant to a possible decrease in her current workload, one of which was a downgrade in her classification and the other two of which involved a decrease in her hours of work. Ms Greene said Ms Cotterill raised with her in September 2020 that she felt unsafe in meetings with Mr Ahmad. Ms Greene recalled Ms Cotterill having raised with her the meeting Ms Cotterill had with Mr Ahmad in which she was presented with three options (all of which Ms Greene considered were detrimental to Ms Cotterill) which
Ms Cotterill said required response the following day. While Mr Ahmad denied subjecting
Ms Cotterill to intimidating behaviour, Mr Ahmad accepted that at the meeting on
10 September 2020 he had spoken to Ms Cotterill about options available to her that would have the effect of reducing her workload. Mr Ahmad said the options were provided to
Ms Cotterill in the context of reported concerns about her health and wellbeing and he denied requesting a response from Ms Cotterill by the following day.Ms Cotterill said she felt she was micromanaged by Mr Ahmad and excluded. She made specific reference to a training session organised for a day when she did not attend work.
Mr Ahmad denied micromanaging Ms Cotterill and while he accepted he arranged a training day on a day when Ms Cotterill did not attend work, Mr Ahmad said this particular day was the most suitable day for the presenter, other stakeholders and venue availability.The clinical records of Access Healthcare Taree indicate
Dr Lenkic recorded complaint by Ms Cotterill of “lots of work at hospital” and it is Ms Cotterill’s complaints to Dr Lenkic periodically included complaint of conflict with work colleagues, including Ms Chandler and Mr Ahmad. The report of Ms Squire dated 15 August 2021 canvassed Ms Cotterill’s description of stressors at work in early 2019, which included reference to a heavy workload, the “boundary issues” Ms Cotterill experienced with Mr Ahmad, and Ms Cotterill’s difficulties with Ms Chandler. With the change in Ms Cotterill’s working environment in March 2020, Ms Squire raised her concerns about Ms Cotterill’s wellbeing with Dr Lenkic, which resulted in Dr Lenkic writing to Mr Ahmad on 26 March 2020. By late March 2021 Ms Squire described Ms Cotterill’s mental health having deteriorated so significantly in the context of her workload and her disharmonious relationship with Mr Ahmad that Ms Squire became concerned about her safety.Ms Cotterill was independently psychiatrically assessed by Dr Smith on 19 August 2021.
Dr Smith reported a consistent history of Ms Cotterill’s workplace difficulties, with reference to her workload and also her difficulties with Mr Ahmad and Ms Chandler, which left
Ms Cotterill feeling anxious. Dr Smith also reported a consistent history of Ms Cotterill’s meeting with Mr Ahmad in September 2020 (which caused Ms Cotterill significant distress), and the deterioration of Ms Cotterill’s psychological state to the point that she ceased working at the Hospital in early 2021. Dr Smith relevantly provided diagnosis following his mental state examination of Ms Cotterill in terms of major depressive disorder with anxious distress in partial remission, which he said had developed in the context of the behaviours Ms Cotterill was subjected to by Ms Chandler and Mr Ahmad. Dr Smith considered
Ms Cotterill’s employment with the Hospital is the main contributing factor to injury.
Ms Cotterill was subsequently independently psychiatrically assessed by Dr Vickery, who provided a report dated 24 March 2022. Dr Vickery also reported a consistent history of
Ms Cotterill’s workplace problems, with reference to her difficulties with Mr Ahmad and
Ms Chandler and her meeting with Mr Ahmed in September 2020. Dr Vickery provided opinion following mental state examination that Ms Cotterill suffered no current diagnosable psychological injury in the course of her employment with the Hospital.I am of the view Ms Cotterill provided a consistent and credible history to Dr Lenkic,
Ms Squire and the independent medical examiners, Dr Smith and Dr Vickery, regarding the circumstances of her psychological injury and following review of the evidence as a whole and consideration of both counsels’ submissions, I accept opinion provided by Dr Smith that Ms Cotterill suffered an aggravation, acceleration, exacerbation or deterioration of her pre-existing psychological injury in the course of her employment with the Hospital in the context of the behaviours she was subjected to by Mr Ahmad and Ms Chandler. It is the evidenced behaviours towards Ms Cotterill of both Mr Ahmad and Ms Chandler that gave Ms Cotterill the perception she was being bullied, and Ms Cotterill’s perception of real events will satisfy the test of injury (Chemler).
Relevant to any competing psychiatric evidence provided by Dr Smith and Dr Vickery that there may be, I am mindful that in Singh v FTW Products Pty Ltd[21] Snell ADP made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[21] [2007] NSWWCCPD 230.
Dr Smith and Dr Vickery are both psychiatrists. In submission Mr Doak referred me to the matters of City of Brimbank v Halilovic[22], Australian Securities and Investment Commission v Rich[23] and Paric v John Holland Constructions Pty Ltd[24] with argument that in circumstances where the assumed facts relied on by Dr Smith are “simply not supported by the contemporaneous medical records”. Mr Doak submitted Dr Smith’s opinion is compromised and should be given limited weight. However, I do not accept such submission in circumstances where Dr Lenkic noted in July 2020 that Ms Cotterill was experiencing conflict with Ms Chandler, which caused her distress; where Dr Lenkic noted in September 2020
Ms Cotterill was very fearful that her hours of work were going to be restricted “or similar” , and in his report dated 3 June 2021 Dr Lenkic accepted a temporal relationship between an increase in Ms Cotterill’s mental fragility and a deterioration in Ms Cotterill’s relationship with Mr Ahmad and also Ms Chandler’s behaviour towards her.[22] [2000]VSCA 12.
[23] [2005] NSWCA 152; 218 ALR 764
[24] [1984] 2 NSWLR 505.
While I accept Mr Doak’s submission Dr Smith gave no consideration to the evidentiary statement of Mr Ahmad, Ms Chandler and Ms Bliss, the evidentiary statements of
Ms Chandler and Ms Bliss are of limited evidentiary weight. While in his statement
Mr Ahmad denied behaving in an intimidating manner towards Ms Cotterill and denied micromanaging her, it is evident the meeting Mr Ahmad had with Ms Cotterill in September 2020 did occur and it is also evident Mr Ahmad was involved in the arrangement of a training day on a day when Ms Cotterill did not work, with Ms Cotterill adopting a particular perception to those events in which Mr Ahmad was involved.As to whether I prefer the opinion of Dr Smith to that of Dr Vickery as regards the issue of injury, it appears to me Dr Vickery has in essence provided opinion that at the time of his assessment of Ms Cotterill, Ms Cotterill had recovered from psychological injury that resulted from her employment with the Hospital (with resolution occurring in 2021), which he said was wholly or predominantly caused by actions taken by the Hospital with respect to performance appraisal (discussed below) and accordingly it is not necessary that I provide reasoning for preference of one independent medical opinion over that of the other as whether Ms Cotterill sustained psychological injury in the course of her employment with the Hospital. It seems to me both independent medical examiners are ad idem on this particular issue.
Although Dr Smith did not use the terminology “main contributing factor”, this is not fatal to Ms Cotterill’s claim as consideration of the evidence overall demonstrates Ms Cotterill’s employment with the Hospital was the main contributing factor to the aggravating injury she has sustained. There is no satisfactory evidence to suggest any other cause for the aggravation of Ms Cotterill’s pre-existing psychological injury and I am satisfied Ms Cotterill’s employment with the Hospital was the main contributing factor to the aggravation injury she has sustained.
For the reasons discussed above I accept Ms Cotterill as a credible witness and I accept
Ms Cotterill has discharged the onus of proof required of her. I accept Ms Cotterill sustained psychological injury in the course of her employment with the Hospital and that her employment with the Hospital was the main contributing factor to injury. The deemed date of injury is 28 April 2021.
Defence raised under s 11A(1) of the 1987 Act
While I have determined Ms Cotterill sustained psychological injury in the course of her employment with the Hospital and that her employment with the Hospital is the main contributing factor to injury, the Hospital has raised defence under s 11A(1) of the 1987 Act relevant to “performance appraisal”.
In essence, the Hospital says in the event it is accepted Mr Cotterill sustained psychological injury in the course of her employment with the Hospital with her employment being the main contributing factor to injury, Ms Cotterill has no entitlement to compensation payable under the 1987 Act as the injury she sustained is wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to performance appraisal.
The Hospital has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[25] and Department of Education and Training v Sinclair[26]) and there are two aspects to the defence raised by the Hospital.
[25] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[26] [2005] NWCA 465 (Sinclair).
Firstly, Ms Cotterill’s injury must be “wholly or predominantly caused” by the Hospital’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in
Ms Cotterill’s case, the Hospital relies on performance appraisal.Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[27] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[28] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang,Ponnan v George Weston Foods Ltd[29] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[30].
[27] [2017] NSWWCCPD 6.
[28] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[29] [2007] NSWWCCPD 92.
[30] [2008 NSWWCCPD 96.
Secondly, if the Hospital successfully establishes Ms Cotterill’s psychological injury was wholly or predominately caused by the Hospital’s actions regarding performance appraisal, then the Hospital is required to establish the Hospital’s actions were “reasonable”.
Looking first at whether the psychological injury sustained by Ms Cotterill was wholly or predominantly caused by actions taken or proposed to be taken by the Hospital with respect to performance appraisal, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[31] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[31] [2013] NSWWCCPD 64.
I have accepted opinion provided by Dr Smith that Ms Cotterill suffered an aggravation of her pre-existing psychological injury in the course of her employment with the Hospital in the context of the behaviours she was subjected to by Mr Ahmad and Ms Chandler as I am of the view it is evidenced behaviours of both Mr Ahmad and Ms Chandler towards Ms Cotterill that gave Ms Cotterill the perception she was being bullied, and perception of real events will satisfy the test of injury.
While Dr Vickery provided opinion the whole or predominant cause of Ms Cotterill’s psychological injury was action taken by the Hospital with respect to performance appraisal in the context of Ms Cotterill’s meeting with Mr Ahmad on 10 September 2020, I do not accept this particular meeting comes within the category of “performance appraisal”.
Mr Ahmad said that after reported concerns about Ms Cotterill’s wellbeing by her colleagues, following his discussion with his manager (who I assume to be Ms Bliss) and human resources, the agreed purpose of the meeting was to “put all the support options to Catherine to reduce any potential impact of her work on her health and wellbeing”. Ms Cotterill said that when she made enquiry of Mr Ahmad in the meeting as to whether there was any issue with her work (which she said she knew was the only way her grade or her hours of work could be altered), Mr Ahmad told her “no” and told her the options were provided to her as a supportive gesture. Ms Gow recalled Ms Cotterill telling her Mr Ahmad did not provide her with the three options “because of work performance” concerns but rather as support for her wellbeing. Performance appraisal was discussed in Dunn v Department of Education and Training[32] when Geraghty J referred to his earlier decision in Irwin v Director-General or Education[33], in which he said such appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment”.[32] [2000] NSWCC 11.
[33] NSWCC 14068/97, 18 June 1998 (Irwin).
Even if I was to accept Ms Cotterill’s injury was wholly or predominantly caused by action taken or proposed to be taken by the Hospital with respect to performance appraisal (which I do not for reasons discussed above), the Hospital is required to established that the Hospital’s action taken or proposed to be taken with respect to performance appraisal was “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[34]; Melder v Ausbowl Pty Ltd[35]) and in Irwin Geraghty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[34] [1998]NSWCC 13.
[35] [1997]NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[36] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[36] [2013] NSWCA 225; 12 DDCR 95.
Ms Cotterill described the meeting she had with Mr Ahmad on 10 September 2020 as a monthly “catch up” meeting but could not recall having their usual “catch up discussion” that particular day. She said rather that the discussions in the meeting were centred on her wellbeing and the presentation to her of three options, which required her response the following day. In circumstances where Mr Ahmad said he prepared for this particular meeting with Ms Cotterill on 10 September 2020 by discussing support options with his manager and human resources with a view to determining a strategy to support Ms Cotterill (being a strategy that may well have had detrimental professional and/or financial effect on Ms Cotterill) I do not consider the Hospital’s actions to be “reasonable action”. I am of the view that if the meeting was in the nature of “performance appraisal” (which I do not accept for reasons discussed above) Ms Cotterill should have been provided with some forewarning as to the purpose of the meeting that particularly day, as it was clearly not the usual monthly “catch up” meeting Ms Cotterill had anticipated, and Ms Cotterill should have been provided with the opportunity to have a support person with her, particularly so as the Hospital clearly knew of Ms Cotterill’s vulnerability at the time the meeting occurred.
For the reasons discussed above I am not satisfied the respondent has discharged the onus of proof required and the respondent cannot rely on defence raised under s 11A of the 1987 Act.
Capacity for work
As I accept Ms Cotterill sustained psychological injury in the course of her employment with the Hospital, with Ms Cotterill’s employment with the Hospital being the main contributing factor to injury, it follows Ms Cotterill may have an entitlement to weekly benefits payable under the 1987 Act.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 37 of the 1987 Act provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has 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’ is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(b) 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 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
(c) 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
the worker’s place or resident.”
Assessment of Ms Cotterill’s capacity for work from 22 July 2021 involves consideration as to whether since that time Ms Cotterill has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act. This requires consideration of
Ms Cotterill’s capacity to undertake not only her pre-injury employment with the Hospital but also her capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar[37]. It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.[37] [2014] NSWWCCPD 55 (Dewar).
Dr Lenkic reported on 3 June 2021 Ms Cotterill was not fit to return to her pre-injury employment with the Hospital but accepted “after a period of recovery and ongoing psychological support” Ms Cotterill would be able to return to a role suitable for her level of training in an alternate department under a different supervisor to Mr Ahmad.
In the initial Certificate of Capacity issued by Dr Lenkic for the period 28 April 2021 to 26 May 2021 Dr Lenkic certified Ms Cotterill totally incapacitated for work for the period between
28 April 2021 and 26 May 2021 but provided “estimate of time to return to any type of employment” at “1 – 3 months”. While in a Certificate of Capacity issued by Dr Lenkic for the period between 24 August 2021 and 24 September 2021(being a period during Ms Cotterill’s claim for weekly compensation) Dr Lenkic certified Ms Cotterill totally incapacitated for work, with the same estimate of time to return to any type of employment, Ms Cotterill shortly thereafter returned to work with an alternate employer working on a part-time basis.Ms Squire reported on 15 August 2021 that since Ms Cotterill had ceased working at the Hospital her “mood and health have improved quite dramatically” and described Ms Cotterill as having “found the confidence and to start planning the future”.
When Dr Smith assessed Ms Cotterill a few days later on 19 August 2021, while he provided opinion Ms Cotterill was not fit to return to her pre-injury employment with the Hospital, he considered her psychological symptoms had improved to the extent she was fit to return to an alternate role “ideally on a part time basis”.
When Dr Vickery assessed Ms Cotterill on 15 March 2022 he reported Ms Cotterill was undertaking on-line training one hour each day for her mental health accreditation. Dr Vickery also reported Ms Cotterill had resigned from her employment with the Hospital on
26 September 2021 and commenced working as an aged care consultant with Calvary Care the following day. Relevant to this subsequent employment, Dr Vickery said Ms Cotterill told him:“I wasn’t kept on after the six month trial as I didn’t have a passion for it and I finished up in February 2022 and I’ve been looking for Social Work positions as I really like crisis type work with domestic abuse and violence.”
In her supplementary statement dated 7 April 2022 Ms Cotterill said she had been certified unfit for work since 28 April 2021 but confirmed that after her weekly compensation payments ceased she attempted to return to the workforce, working for 30.4 hours each week in a case manager’s role with Calvary Community Care. Ms Cotterill said this employment ceased on 17 February 2022 as she was unable to pass probation. Ms Cotterill said while working in this position she was earning approximately $1,190 gross each week.
Although Ms Cotterill said in her recent supplementary statement she was unable to pass her probation with Calvary Community Care, Ms Cotterill reportedly told Dr Vickery just over one month after she ceased working with Calvary Community Care that she ceased working there as she did not have a passion for it and was “looking for Social Work positions as I really like crisis type work with domestic abuse and violence”. I accept Ms Cotterill may well have been somewhat dissatisfied with her subsequent employment with Calvary Community Care as it is reflected in notations by Dr Lenkic that Ms Cotterill has an expressed preference for “interesting cases” with Dr Lenkic making specific reference on 2 December 2020 that Ms Cotterill is “bored in current general medical ward, not challenging enough, mainly geriatrics and NH placements etc”. Dr Smith likewise reported on 19 August 2021 that Ms Cotterill told him she liked “complex cases”.
Following review of the evidence as a whole and careful consideration of counsel’s submissions, while I accept Ms Cotterill is totally unfit for her pre-injury duties with the Hospital it is evident Ms Cotterill was able to secure part-time employment with Calvary Community Care commencing on 27 September 2021 and I accept, on the balance of probabilities, that despite Ms Cotterill ceasing work with Calvary Community Care on
17 February 2022 she has had current work capacity since 27 September 2021, earning at least $1,190 gross each week.
Quantification of entitlement to weekly compensation
Ms Cotterill’s PIAWE is agreed to be $1,709.63.
I am satisfied that between 22 July 2021 and 26 September 2021 Ms Cotterill had no current work capacity. Accordingly Ms Cotterill’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,367.70 each week (subject to indexation).
I am also satisfied since 27 September 2021 Ms Cotterill has had current work capacity, earning at least $1,190 gross each week. Accordingly Ms Cotterill’s entitlement to weekly compensation payable under s 37(2) of the 1987 Act during the period she returned to work for not less than 15 hours each week with Calvary Community Care between
27 September 2021 and 22 February 2022 is payable at the rate of $434.15 gross each week (subject to indexation) and her entitlement to weekly compensation payable under
s 37(3) of the 1987 Act since 23 February 2022 ongoing is payable at the rate of $177.70 gross each week (subject to indexation).
Treatment
As I accept Ms Cotterill sustained psychological injury in the course of her employment with the Hospital with Ms Cotterill’s employment with the Hospital being the main contributing factor to injury it follows Ms Cotterill may have an entitlement to compensation for the cost of medical or related treatment payable under s 60 of the 1987 Act, including those incurred costs particularised at $1,709.63.
While Dr Vickery provided opinion Ms Cotterill does not require psychological treatment,
Dr Vickery’s opinion is an outlier when considering opinion provided by Dr Smith who is of the view that Ms Cotterill would benefit from ongoing psychological treatment and medication and the evidenced continuing intense general medical care provided by Dr Lenkic and mental health care provided by Ms Squire.Following review of evidence as a whole and careful consideration of counsel’s submissions I accept Ms Cotterill has an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act from 4 October 2021 resulting from the psychological injury she sustained with the Hospital. The Hospital is to pay Ms Cotterill’s medical and related treatment in accordance with s 60 of the 1987 Act.
SUMMARY
Ms Cotterill sustained primary psychological injury, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process, in the course of her employment with the Hospital, with her employment with the Hospital being the main contributing factor to injury. The deemed date of injury is 28 April 2021.
The psychological injury sustained by Ms Cotterill in the course of her employment with the hospital was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to performance appraisal.
Ms Cotterill’s PIAWE is agreed to be $1,709.63. Between 22 July 2021 and 26 September 2021 Ms Cotterill had no current work capacity and accordingly Ms Cotterill’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,367.70 each week (subject to indexation). Since 27 September 2021 Ms Cotterill has had current work capacity, earning at least $1,190 gross each week, and accordingly
Ms Cotterill’s entitlement to weekly compensation payable under s 37(2) of the 1987 Act between 27 September 2021 and 22 February 2022 is payable at the rate of $434.15 gross each week (subject to indexation) and her entitlement to weekly compensation payable under s 37(3) of the 1987 Act since 23 February 2022 ongoing is payable at the rate of $177.70 gross each week (subject to indexation).
Ms Cotterill has an entitlement to medical and related treatment expenses payable under
s 60 of the 1987 Act resulting from the psychological injury she sustained with the Hospital. The Hospital is to pay Ms Cotterill’s medical and related treatment in accordance with s 60 of the 1987 Act.
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