Dedic v Western Sydney Institute

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dedic v Western Sydney Institute [2023] NSWPIC 168
APPLICANT:	Mirsada Dedic
RESPONDENT:	Western Sydney Institute
Member:	John Isaksen
DATE OF DECISION:	18 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for psychological injury; whether the worker sustained injury in the course of her employment; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause her injury; reference to Attorney General’s Department v K; whether injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; reference to Hamad v Q Catering P/L; Held – the worker sustained an injury in the course of her employment with the respondent; the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal; referral for assessment of permanent impairment to Medical Assessor.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent. 2. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. 3. The deemed date of injury for the claim made by the applicant for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 is 24 September 2021, being the date when that claim was made by the applicant upon the respondent. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 24 September 2021 Body Part: psychological injury Method of Assessment: whole person impairment 2. The documents to be forwarded to the Medical Assessor are as follows: a. Application to Resolve a Dispute with attachments; b. Reply with attachments; c. Application to Admit Late Documents filed by the respondent on 4 April 2023, and d. Application to Admit Late Documents filed by the respondent on 12 April 2023.

STATEMENT OF REASONS

BACKGROUND

Mirsada Dedic, the applicant in these proceedings, claims that she sustained a psychological injury while working as a teacher with the respondent, Western Sydney Institute.
Ms Dedic claims that during the course of her employment she was subjected to harassment by other employees, in particular from the Head Teacher, and that she ceased work as a result of a psychological injury on 30 April 2020.
Ms Dedic was paid weekly payments of compensation and medical expenses until a dispute notice was issued by Allianz Australia Insurance on behalf of the respondent on
4 February 2021 wherein liability was disputed on the grounds that any psychological injury sustained by Ms Dedic did not arise out of or in the course of her employment with the respondent and, or in the alternative, any psychological injury sustained by Ms Dedic was wholly or predominantly cause by reasonable action taken by the respondent with respect to discipline, the provision of employment benefits and/or dismissal.
The Application to Resolve a Dispute (ARD) filed on behalf of Ms Dedic makes a claim for weekly payments of compensation from 3 March 2021, an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (the 1987 Act) for the payment of future psychological counselling and medication, and a lump sum payment for 22% whole person impairment pursuant to s 66 of the 1987 Act. Ms Dedic discontinued her claims for weekly payments of compensation and the order sought pursuant to s 60 (5) of the 1987 Act at a preliminary conference conducted on 3 March 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury arising out of or in the course of her employment with the respondent (s 4 of the 1987 Act), and
(b) whether any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal (s 11A of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a hearing on 6 April 2023. 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.
Mr Carney appeared for the applicant, instructed by Ms Dulichan. Mr Saul appeared for the respondent, instructed by Mr Lichaa.
The hearing was conducted by video and was recorded.
A direction was issued at the conclusion of the hearing that the respondent file and serve a copy of a letter of termination of employment addressed to the applicant which was dated
18 February 2021.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on 4 April 2023, and
(d)    Application to Admit Late Documents filed by the respondent on 12 April 2023.

Oral evidence

There was no application to cross examine the applicant or any other witnesses who have provided evidence, or to adduce oral evidence from the applicant or from any other witnesses.

FINDINGS AND REASONS

Whether the applicant sustained a psychological injury in the course of his employment with the respondent

The applicant’s evidence

Ms Dedic has provided a statement dated 20 May 2020.
Ms Dedic states that she commenced employment with TAFE in 1999. She states that she had a week or two off work in 2015 and claimed workers compensation when she made a formal complaint when another staff member was successful in gaining extra hours of work despite not being as qualified as Ms Dedic.
The evidence indicates that Ms Dedic transferred to TAFE Digital in 2016. She states that she worked in a casual teaching role and worked on average 19 hours per week.
The statement provided by Ms Dedic does not follow a chronological timeline of what occurred at TAFE Digital, but instead identifies at least 10 different causes for her psychological injury.
Ms Dedic states that she was accused of gossiping about the Head Teacher, Kim Foster, whereas it was other employees who did this gossiping. She states that Ms Foster would not listen to her or any of the other employees involved on this issue, which caused Ms Dedic to feel targeted and upset.
Ms Dedic states that her working hours were reduced by 12 hours per week by Ms Foster, although Ms Dedic does not state when this occurred. She states that she was advised that this was due to budget cuts, but another teacher was brought into her section and other employees did not have their hours reduced. She states that her hours were further reduced at the beginning of 2020 to 10.5 hours per week.
Ms Dedic states that at the beginning of 2020 she tried to negotiate a more suitable start time with Ms Foster because she was experiencing problems with parking at the train station. She states that Ms Foster did not support her request and yet other employees, including Cihan Baeza, were allowed to start work at an earlier time.
Ms Dedic states that she did not have access to the TAFE Digital email inbox, which is where students send their enquiries. She states that this created more work for her because she had to send an email to the inbox employee to provide information to a learner because she did not have that access. She states: “Kim has provided access to all teachers as well as permitting them to forward emails from the inbox to me”, and that Ms Foster has not provided her with a reason as to why she does not have access to the inbox.
Ms Dedic states:
“Jennifer Aquino, Educational Support Officer, has access to office-admin inbox and is replying to students’ enquiries yet I, as a qualified teacher do not. This situation is not practical or equitable, and it puts me at a great disadvantage as I endeavour to do my job. I feel intimidated and isolated from the team. I have made attempts to reinstate my access to the inbox with no success.”
Ms Dedic states that on 13 April 2018 she was allocated a task to update thousands of student records. She states that by her count she clipped her mouse more than 5,500 times, which resulted in swelling in her right wrist and numbness in her right hand. She states that she sent an email to Ms Foster to advise her of this injury. She states that Ms Foster should have shared this task between all of the teachers and not just Ms Dedic.
Ms Dedic states that communications and relevant information were restricted and withheld from her while working for the respondent. An example provided by Ms Dedic is that she was sent a particular form to be used by learners, but then found out this form was not being used anymore. Ms Dedic states: “From my understanding and according to the latest organisational health survey, not providing information to an employee is considered as bullying.”
Ms Dedic states that she felt isolated at work because the was no inclusion for her or no engagement in teamwork. She provides examples of not being invited to a meeting held on 21 August 2019 and not being invited to a training session on 4 December 2019. Ms Dedic also refers to an event on 14 November 2019 when she was questioned by Ms Foster regarding a student’s assessment, but what had been provided by the student was based upon tuition from another teacher, whom Ms Dedic knew as Stephanie. Ms Dedic states: “I feel I am being intimidated and questioned about my marking when Stephanie is clearly the one who is doing the wrong thing.”
Ms Dedic states that on 18 April 2020 she was assigned 114 assessments by Ms Foster without there being any prior consultation. She states that this was a large number of assessments to mark, and it placed both physical pressure (because of the previous injury to her wrist) and emotional pressure upon her to complete those assessments within 10 working days.
Ms Dedic states Ms Foster “is trying to bait me” by sending Ms Dedic emails regarding job advertisements which Ms Dedic could not meet or for which she was already on the eligibility list. Ms Dedic also states that Ms Foster always made comments about Ms Dedic’s appearance and how she looked glamorous, which made Ms Dedic feel extremely uncomfortable.
Ms Dedic states that she had been absent from work for three weeks in January and February 2020 due to a broken toe, and that when she returned to work on 12 February 2020 she only received two minutes notice of a staff meeting that she was to attend. She states that at that meeting Ms Foster made comments regarding feedback from Ms Dedic’s students that Ms Foster was not happy with. Ms Dedic states that after “this targeted meeting” she sent an email to Ms Foster requesting that they meet alone to discuss what arose from that meeting, although Ms Foster wanted Karen Edwards to be present.
Ms Dedic states that Ms Foster told her at the start of the meeting that Ms Foster did not want to meet alone with Ms Dedic. Ms Dedic then asked a head teacher, Lillian Walsh, to join them and states that Ms Foster became very angry and said: “you win again”. Ms Dedic also states that Ms Foster said that she did not want to meet with Ms Dedic alone because she had been abused by Ms Dedic in the past. Ms Dedic states that she was intimidated and shocked by this comment.
Ms Dedic states that Ms Foster suggested that Ms Dedic speak with someone about her mental health, which made Ms Dedic feel constantly intimidated and concerned about her well-being.
Ms Dedic states that she had been in correspondence with Kerry Sharp from HR to discuss her concerns, although Ms Dedic does not identify a timeframe as to when this occurred.
Ms Dedic states that she was able to speak with Ms Sharp by phone and was told by
Ms Sharp that she had not forgotten Ms Dedic, even though those Ms Sharp had been very busy.
Ms Dedic states that she spoke to Lucille Kerslake, a Business Partner from HR on
19 September 2019, regarding issues that Ms Dedic had been experiencing at work with the respondent. Ms Dedic states that she had asked Ms Kerslake to contact Ms Sharp as she understood that Ms Sharp had taken comprehensive notes from Ms Dedic. She states that before seeing Ms Kerslake, she had been referred to another Business Partner, Anna Yates, who Ms Dedic found to be a very rude person, and that she had not heard back from
Ms Yates after an initial meeting.
Ms Dedic states that at the time she provided the statement dated 20 May 2020 she just wanted to be supported and for there to be some form of resolution “given the currently untenable working environment”.
An undated claim form nominates the date of injury to be “ongoing 15/9/18”. An Incident Register form completed by Stefan Knight nominates the “Date of Incident” as
15 September 2018 and the date of the report of the injury to be 30 April 2020.

The evidence of other lay witnesses

Kim Foster has provided a statement dated 15 June 2020. Ms Foster states that she is employed by the respondent as a Head Teacher Band 2.
Ms Foster states that in 2016 she was asked to provide a part time teaching role for
Ms Dedic because Ms Dedic could not return to the College she had been working at due to a number of HR matters. Ms Foster states that Ms Dedic is a sullen person who isolates herself and does not willingly engage in conversation. She states that Ms Dedic struggles to work within the team environment and has received considerable negative feedback over time from students and staff. Ms Foster states that Ms Dedic becomes argumentative during meetings and her desk has been moved three times due to conflict with other team members.
Ms Foster states that she was informed by a number of staff members of negative comments made about her by Ms Dedic when Ms Foster returned from an overseas trip in 2016. She states that she met with Ms Dedic, in the company of her manager Jannette Redmond, and Ms Dedic started raging at her, with Ms Dedic slamming her hands on the table and slamming doors. Ms Foster states that she found this intimidating and threatening. She states that Ms Dedic continued to criticise her in front of others and continued poor conduct.
Ms Foster states that she referred this issue to Ms Redmond and HR for escalation, but this did not occur, and the rude behaviour of Ms Dedic continued. She states that she had been advised not to meet with Ms Dedic on her own and that she does not wish to meet with
Ms Dedic ever again.
In response to the claim made by Ms Dedic that another teacher was brought in while
Ms Dedic’s hours were reduced, Ms Foster states that different teachers have different skills.
Ms Foster states that the hours of work for Ms Dedic need to be between 9.00am and 5.00pm, and that Ms Baeza is in a totally different role and therefore has to start her work earlier.
Ms Foster states that she does not believe that Ms Dedic ever had access to the digital business inbox because there was no requirement for her to have this access. She states that Ms Dedic has her own individual email and access to shared areas and there is no need for her to have access to the main inbox which can hold thousands of emails. Ms Foster states that Ms Dedic made numerous demands about this, and she would not discuss the matter any further with Ms Dedic. She states that although Lillian Walsh offered to take this matter up with Ms Dedic, Ms Foster believes it is a HR matter and should have been addressed long ago.
Ms Foster states that she cannot recall any report of a wrist injury made by Ms Dedic and that Ms Dedic has not been punished for anything.
Ms Foster disputes the claim made by Ms Dedic that communications and relevant information was restricted and withheld from her. Ms Foster states that information and changes are easily accessible online, and teachers have a responsibility to check for changes.
Ms Foster states that she would reply to emails from Ms Dedic but they became a form of harassment because Ms Dedic would become argumentative. She states that she would not respond to emails from Ms Dedic when Ms Dedic would repeatedly ask the same thing.
Ms Foster states that in regard to the event on 14 November 2019, Ms Dedic would not accept feedback from a subject matter expert. Ms Foster states that Ms Dedic did not have her application in on time for the training session for December 2019, which Ms Dedic claims she was not invited to, because Ms Dedic had been on sick leave, and there were allocated spaces which Ms Dedic had not booked in advance.
Ms Foster states that the increased workload which Ms Dedic claims she received in
April 2020 was sent independently of Ms Foster. She states that this is a secondary offsite role to teaching and that many teachers accept this extra money, but Ms Dedic was not obligated to undertake this work. She states that a similar situation arose in 2019 when
Ms Foster reallocated marking that had been assigned to Ms Dedic.
Ms Foster states that she sends a lot of staff job advertisements to staff in case any of the staff have not seen an advertisement and Ms Dedic is included in this. She states that if she sees a staff member looking nice then she will tell them, and she is not the only one who does this.
Ms Foster states that she has told Ms Dedic on many occasions that she had been instructed not to speak alone with Ms Dedic, but Ms Dedic continually made attempts to meet with
Ms Foster on their own. She states that at 6.00pm on a Wednesday in December 2019,
Ms Dedic pulled up a chair to Ms Foster’s desk and repeatedly made derogatory comments about her, including: “why don’t you like me”. Ms Foster states she has a physical disability and cannot move quickly, so she called out a fake request to another staff member to break the space between herself and Ms Dedic. Ms Foster states that she felt so distressed by this conduct that she seriously considered retirement from work.
Ms Foster states that she has never spoken to Ms Dedic regarding Ms Dedic’s health, although she has advised Ms Dedic that Ms Dedic appears to be fixated on whether
Ms Foster likes her or not.
Lillian Walsh has provided a statement dated 15 June 2020. Ms Walsh states that she is employed as a Head Teacher with TAFE Digital NSW.
Ms Walsh states that Ms Dedic is a productive and valued teacher. She states that she does not recognise Ms Dedic as a person who gossips in the office. Ms Walsh states that she had to have a chat with Ms Dedic when Ms Foster was overseas regarding an email which
Ms Dedic sent to everyone on the staff list regarding the manner in which Ms Foster and
Ms Walsh ran the section. She states that she advised Ms Dedic that the email was not appropriate, and that Ms Dedic accepted this and acknowledged that she had been angry at the time.
Ms Walsh states that she has spoken to Ms Dedic in regard to the email inbox and Ms Dedic is not the only person who does not have access to this. She states that the inbox is like a triage system where emails are distributed to the relevant person.
Ms Walsh states that there is a distribution list, and she would be surprised if Ms Dedic or anyone else on the list did not receive relevant communications.
Ms Walsh states that she has never seen Ms Foster bully Ms Dedic.
Ms Walsh states that emails are sent to certain people when there are opportunities to act or apply for certain roles and Ms Dedic is not singled out in regard to this. She states that
Ms Foster tries to build rapport with Ms Dedic, and that Ms Foster is genuine and not sarcastic with her comments.

Karen Edwards has provided a statement dated 16 June 2020. Ms Edwards states that she is employed in the position of Teacher Business Administration with TAFE Digital NSW.
Ms Edwards states that Ms Dedic is a good teacher but is definitely not a team player. She states that Ms Dedic is difficult to work with and she tries to avoid Ms Dedic if possible.
Ms Edwards states that Ms Dedic would have her own email but that not everyone has access to the main group. She states that access is provided on a needs basis.
Ms Edwards states that she is aware that Ms Dedic sends a lot of emails. She states that she tries to avoid sending emails to Ms Dedic because Ms Dedic is ‘a serial emailer’ and constantly and unnecessarily responds to emails.
Ms Edwards states that Ms Foster sends job advertisements to all of them. She states that Ms Foster is very complimentary and frequently tell staff that they look nice.
In regard to the meeting where Ms Dedic claims that she was only given two minutes notice to attend, Ms Edwards states that the meeting was “last minute”, and that Ms Dedic was sent an official invitation and agenda because Ms Dedic was so pedantic about everything.
Ms Edwards states that Ms Dedic did not have to prepare for the meeting.
Ms Edwards states that there were two emails from students about Ms Dedic’s feedback, among other items on the agenda, but this was “a very common type of meeting”.
Ms Edwards states that the issue was that Ms Dedic was “re-submitting students on their assessment” of a first draft when she should have only been providing feedback to the student so that this could be used for their second assessment. She states that some teachers were overly assessing at times, and this had to be monitored.
Ms Edwards states that there were two meetings held with Ms Dedic on this issue and
Ms Foster wanted Ms Edwards to attend those meetings because she was the subject matter expert. She states that she also knew that Ms Foster did not want to meet Ms Dedic on her own. Ms Edwards states that at the second meeting Ms Dedic was shouting and throwing her arms around and banging the table. She states that she has never seen such shocking behaviour.
Cihan Baeza has provided a statement dated 15 June 2020. Ms Baeza states that she is employed as an administration assistant and casual teacher with TAFE NSW.
Ms Baeza states that Ms Dedic is quiet but can demonstrate passive aggressive behaviour at times.
Ms Baeza states Ms Dedic said that it was better when Ms Foster was not there when
Ms Foster was on holidays. Ms Baeza states that everyone who heard this looked with surprise at Ms Dedic, and Ms Dedic then said: “I am just saying what everyone is thinking”.
Ms Baeza states that Ms Dedic is “a very paranoid person” and takes things seriously when she does not need to. She states that information is not restricted or withheld from Ms Dedic and that Ms Dedic needs to be responsible for her own actions, but she repeatedly blames others.
Ms Baeza states that the training session in December 2019 was not for everyone but only those teachers involved in the TDC platform.
Ms Baeza states that Ms Foster sends job advertisements to a lot of people to see if they are interested. She states that Ms Foster compliments a lot of people on how they look, including herself.
Ms Baeza states that Ms Edwards wanted to speak to teachers who were marking a particular unit and to provide general comments on their assessment. She states that it was not targeted at anyone personally.
Jannette Redmond has provided a statement dated 16 June 2020. Ms Redmond states that she is employed as Manager Education Skills Team with TAFE Digital.
Ms Redmond states that she has known Ms Dedic since the beginning of 2019, but she does not know her well. She states that Ms Foster asked for her assistance on how to address negative comments that were being made by Ms Dedic about Ms Foster’s management while Ms Foster was on leave. Ms Redmond states that Ms Foster had informed her that she had experienced physical risk at times when Ms Dedic had become aggressive, and that
Ms Foster had to end a previous meeting she was having with Ms Dedic because Ms Dedic was not listening and was talking over her.
Ms Redmond states that only certain teachers have access to the business inbox where the emails would then be allocated as required. She states that Ms Dedic was not the only teacher who did not have access to the business inbox, but that Ms Dedic became fixated on having this access when it was not necessary for her to perform her work.
Ms Redmond states that she was not aware of Ms Dedic having a wrist injury until this claim which has now been made by Ms Dedic.
Ms Redmond states that she was not aware of any intentional withholding of communications from Ms Dedic.
Ms Redmond states that Ms Dedic was under no obligation to accept the off-site marking.
Ms Redmond states that Ms Foster quite often complements staff on their clothing.
Rebecca Bayley has provided a statement dated 16 June 2020. Ms Bayley states that she has been employed as People Business Partner with TAFE Digital since October 2019.
Ms Bayley states that she has never personally met Ms Dedic but she had been requested by managers to provide information to Ms Dedic regarding Ms Dedic’s repetition of the same demands she made by email. Ms Bayley also states that in April 2020 she understands that Ms Foster advised Ms Dedic that Ms Dedic did not require access to the respondent’s email box and Ms Dedic became upset by this. Ms Bayley states:
“Management have done their best to explain reasons to Mirsada as to why she does not have or need the access to the email box yet Mirsada continues to request access and becomes demanding with her repeated requests.”

Other relevant evidence

An investigation was undertaken by Kate Peterson of Workdynamic Australia between July and October 2020 into allegations of bullying raised by Ms Dedic against Ms Foster, and counter allegations raised by Ms Foster. This investigation was after Ms Dedic had ceased work due to her psychological injury. That investigation was then made the subject of a report from Ms Peterson dated 23 October 2020.
The report lists 13 allegations made by Ms Dedic against Ms Foster which include refusal for Ms Dedic to access the TAFE Digital business inbox, the reduction of Ms Dedic’s hours of work, the withholding of information from Ms Dedic, the exclusion of training for Ms Dedic, the request to start work at an earlier time, and the 114 assessments which Ms Dedic was required to mark during the Easter period in 2020 when Ms Dedic had earlier indicated that she did not wish to do this marking.
Ms Peterson found that the allegations made by Ms Dedic could not be substantiated or did not involve unreasonable conduct on the part of Ms Foster. Ms Peterson was satisfied that Ms Dedic was assigned 114 assessments when Ms Dedic had earlier indicated that she did not wish to do this during the Easter period, but that this was not due to any positive action taken by Ms Foster. Ms Peterson concluded that it was plausible that Ms Dedic’s request was overlooked or misunderstood, particularly as it occurred in the midst of the COVID-19 pandemic.
Ms Peterson did find seven allegations made by Ms Foster against Ms Dedic to be mostly or partly substantiated. Those allegations were mainly in regard to Ms Foster feeling intimidated by aggressive behaviour on the part of Ms Dedic.
Ms Peterson found that from at least August 2019 Ms Dedic was aware that Ms Foster was unwilling to meet Ms Dedic, but that Ms Dedic sought to have one on one interactions with Ms Foster on more than one occasion. Ms Peterson states:
“… I also make the observation that it is less than ideal that this instruction and the disquiet between Ms Foster and Ms Dedic was not more directly resolved and addressed, for example by internal voluntary dispute resolution and some agreed working protocols at the time of the key incident prompting Ms Foster’s concern about her physical security.”
The respondent sent a letter to Ms Dedic on 18 February 2021 wherein Ms Dedic was informed that her employment was terminated due to findings made that Ms Dedic had repeatedly bullied Ms Foster, had targeted Ms Foster with unreasonable behaviour including physical and verbal aggression, and did not communicate with Ms Foster with courtesy, dignity and respect.

The medical evidence

There are clinical notes in evidence from MyHealth Medical Centre Baulkham Hills. There is an entry made by Dr Watt on 1 June 2015 which includes “stress at work” and “Problem with one person, head teacher”. There is a prescription for Diazepam in the notes for a consultation the following day. Reference is made to a mental health plan and referral to a psychologist in notes on 5 June 2015.
An entry made by Dr Nandakumar on 16 June 2015 includes: “Says since the new boss came 1.5y ago she feels unsupported, not given opportunity to communicate her views.”
An entry made by Dr Nandakumar on 2 August 2015 includes Ms Dedic saying: “she is in a much better place with regards to her mental status”, and on 7 August 2015 the notes record a “final certificate” for her workers compensation claim.
There is an entry made by Dr Nandakumar on 6 April 2018 with the reason for the visit being “Adjustment disorder with mixed anxiety and depressed mood”. The notes record Ms Dedic clicking 5,866 times in a day and having right shoulder and arm and neck pain. The notes also record: “been well in mood and energy levels till a few months ago stresses at current workplace.”
There is an entry made by Dr Torbolov on 26 November 2019 of Ms Dedic being very anxious due to a hostile neighbour and being bitten by the neighbour’s dog.
Notes made by Dr Torbolov records on 29 April 2020 include the following:
“not managing at work”
“feels that she is being bullied”
“issue with her supervisor - feels that she is sending her too much marking”
“has been denied access to the student inbox, excluded form communication, has not been called to training, excluded from meetings”
“long-standing issues since September 2018”
“causing patient stress and anxiety ++”
There is an initial report from Dr Jovanova, consultant psychiatrist, dated 20 July 2020. The details recited by Dr Jovanova in that report are generally consistent with the evidence provided by Ms Dedic in this dispute, including Ms Dedic not being allowed to access information necessary for her work, being deliberately excluded from further training, having her working hours reduced but then extra work being given to other colleagues, and her reputation being systematically degraded by Ms Foster.
Dr Jovanova made a diagnosis of adjustment disorder with depression and anxiety, related to bullying at work.
Dr Allan, consultant psychiatrist, has provided a report at the request of the lawyers acting for Ms Dedic dated 25 June 2021. It is apparent from the contents of that report that Dr Allan initially saw Ms Dedic on 5 November 2020, and again on 21 June 2021. Dr Allan lists various documents which he has reviewed including the statement from Ms Dedic dated
20 May 2020 and the report from Work Dynamic Australia dated 23 October 2020. However, Dr Allan does not list any statements from those witnesses relied upon by the respondent.
Dr Allan recites details which are generally consistent with the evidence provided by
Ms Dedic including being excluded from training meetings, being isolated from colleagues, being excluded from receiving information necessary to carry out her role, and on one occasion being given 114 assessments to complete in seven days. Dr Allan records that “the multitude of difficulties” that Ms Dedic encountered with Ms Foster occurred over a period of approximately two and a half years until Ms Dedic ceased work in April 2020.
Dr Allan diagnoses Ms Dedic as having a major depressive disorder. He opines:
“In my opinion, the work incident that I recited in the “History” by Ms Dedic are the cause of what is now diagnosed as a major depressive disorder. I found no evidence of nonwork related factors contributing to her condition. It is the treatment over time from Ms Foster and the circumstances of Ms Dedic’s employment as discussed above that led to her developing a major depressive disorder.”
Dr Allan is asked whether Ms Dedic perceived events in her workplace as creating an ‘offensive or hostile working environment’ which resulted in a psychological injury, and
Dr Allan responds:
“The events that Ms Dedic describes are referred to above and also referred to in the supplied paperwork. They clearly relate to Ms Dedic observing what had become what could be considered a ‘offensive or hostile working environment’ where she was repeatedly a victim of detrimental treatment by Ms Foster. It is the circumstances that are described in my report which led to her developing her condition over a two and a half year period prior to going off work.”
Dr Allan concludes:
“It is my strong opinion that the various factors contributed to her depressive condition, predominantly the treatment of Ms Foster over a two and a half year period through feelings of being excluded, isolated, intimidated, being provided with insufficient support, being denied access to systems and emails, being accused of gossip and having excessive workload. All of these factors contributed to her depressive disorder which predates disciplinary action.”
Dr Allan make an assessment of 22% whole person impairment as a result of psychological injury sustained by Ms Dedic.
Dr Chow, psychiatrist, has provided reports at the request of the respondent’s lawyers dated 24 August 2020, 19 October 2022 and 20 February 2023.
In his first report dated 24 August 2020, Dr Chow lists various documents he has reviewed including the statement from Ms Dedic dated 20 May 2020 and statements from lay witnesses obtained at the request of the respondent.
Dr Chow records that Ms Foster took Ms Dedic “off the student email inbox access” and despite many attempts by Ms Dedic to obtain email access again, Ms Dedic was told she would never get it back. He records that Ms Dedic said that the head teacher treated her email like a dog and kept feeding her with emails from students.
Dr Chow records that the email issue continued for two and a half years and Ms Dedic was the only one who did not have the email access. He records that when Ms Dedic was required to work at home due to the COVID-19 situation, every teacher had access to emails but not Ms Dedic.
Dr Chow records that Ms Dedic was isolated and excluded from meetings, and that information was withheld from her so she could not do her job. He records that Ms Dedic was intimidated by Ms Foster at a meeting in late 2019 and after that Ms Foster really hated
Ms Dedic and excluded her from training and cut her hours.
Dr Chow makes a diagnosis of adjustment disorder. Dr Chow concludes:
“Ms Dedic reports recurrent interpersonal difficulties with Ms KF and maltreatment and also being excluded from activities and meetings together with her hours being cut.
I do note that from the number of workplace statements her account of events was not supported, and they were contradicted.
Ms Dedic’s claimed maltreatment from Ms KF appear to be the predominant cause of her psychiatric condition.
Please note determining the truth of the workplace situation is not my role.”
Dr Chow does not really add anything further in regard to the issue of the cause of the psychological injury sustained by Ms Dedic in his second report dated 19 October 2022. He does make an assessment of 22% whole person impairment as a result of psychological injury, and includes the same classes in the psychiatric impairment rating scale (PIRS) Categories as Dr Allan.
In his final report dated 20 February 2023, Dr Chow is asked several questions including whether Ms Dedic has been upset by the treatment she has allegedly received or perceived that she had received rather than having a genuine psychological injury within the meaning of the 1987 Act. Dr Chow answers:
“I note Ms Dedic’s version of events contradicted with the workplace witnesses’ version of events. Assuming the validity of the workplace witnesses’ statements, Ms Dedic’s psychological difficulties would be the product of her perceived bullying and harassment at work rather than her employment.”
Dr Chow is also asked if Ms Dedic’s psychological injury is the product of features which are inherent in her personality rather than injury which is the product of her employment per se, and Dr Chow answers:
“Assuming the validity of the workplace witnesses’ statements, Ms Dedic’s psychological condition would be the product of features, which are inherent in her personality, such as the inability to cope with legitimate employer direction and instructions and/or criticism rather than injury, which is a product of employment per se.”

A summary of the submissions made by the parties in this dispute

Mr Carney on behalf of Ms Dedic submits that all of the events described by Ms Dedic were real events, even though some of the details of those events might differ in the evidence provided by the various witnesses. He submits that so long as the events were real, and that the perception of those real events caused Ms Dedic to sustain injury, then that satisfies s 4 of the 1987 Act.
Mr Saul for the respondent submits that the significant difference in the description of events by Ms Dedic compared to the several witnesses relied upon by the respondent means that Ms Dedic cannot prove that the events happened in the manner which she describes and had the effect upon her which she now claims is the cause of her psychological injury.
Mr Saul submits that the evidence from the witnesses relied upon by the respondent have “no axe to grind” and those witnesses are unified in their evidence in supporting the respondent’s contention that the allegations made by Ms Dedic are unwarranted, unsubstantiated and do not occur in any real sense. He submits that far from Ms Dedic being the victim of bullying and harassment, the evidence establishes that Ms Dedic was the bully, especially towards Ms Foster.
Mr Saul submits that the allegations which Ms Decic makes in April 2018 and April 2020 mirror those allegations made in 2015 and it is only in Ms Dedic’s own mind that everything which is done in the workplace seems to be against her.

Determination

A central argument between the parties in this dispute is whether certain events in the workplace as described by Ms Dedic did occur, and if so, whether those events as perceived by Ms Dedic were so hostile or offensive so as to cause her psychological injury.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche said in regard to the claim for a psychological injury 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 the 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’.”
Ms Dedic has not assisted her own case in the manner in which she has provided her own evidence. As I observed when commencing my review of her evidence, she has chosen to set out various allegations of bullying and harassment rather than follow a chronological timeline of what occurred while she worked at TAFE Digital. A chronological timeline would have assisted in understanding over what period Ms Dedic claims to have been subjected to harassment, and what effect certain events at certain times had upon Ms Dedic. For instance, Mr Saul observed that the claim form completed by Ms Dedic nominated the date of injury as “ongoing 15/9/18”, but there appears to be no particular incident or event of harassment at that time.

One of Ms Dedic’s allegations is that communications and relevant information were restricted and withheld from her. However, Ms Dedic does not identify over what period of time this occurred. There can be a considerable difference between the occasional communication which did not reach Ms Dedic and the persistent withholding or restriction of communication over months or even years. However, Ms Dedic provides no insight in regard to this.
Ms Peterson in her report identifies an event in August 2018 when Ms Dedic claims that
Ms Foster did not provide a conflict of interest form to Ms Dedic, but the next event related to that allegation is not until April 2020 when Ms Dedic claims that she was given inconsistent information by Ms Foster regarding working from home due the COVID-19 pandemic. There is also the consistent evidence provided by other employees such as Ms Walsh and
Ms Baeza that there appeared to be no restrictions on relevant information being forwarded to staff.
Ms Dedic does not provide any insight as to the period of time she was forwarded job advertisements by Ms Foster which were not suitable for her, or the frequency of such correspondence. The same observation applies to Ms Dedic’s allegations regarding
Ms Foster’s comments about her appearance. Again, was it every few days or weeks or only occasionally?
Such evidence is important because it assists in understanding the extent of harassment which Ms Dedic claims she was subjected to and allows a comparison with the evidence provided by other witnesses who regard such actions as being quite benign.
There are nonetheless certain events and incidents which can be identified with some certainty which appear to have had an effect upon Ms Dedic. There is the event in April 2018 when Ms Dedic is given a task which requires several thousand clicks of her mouse, and which coincided with an onset of pain in her right arm and neck. That event is significant enough for Ms Dedic to seek medical treatment and for Dr Nandakumar to identify the reason for the consultation to be “Adjustment disorder with mixed anxiety and depressed mood”.
It is also around April 2018 that Ms Dedic states she encounters her own difficulties in accessing emails. Ms Peterson in her report refers to the allegation made that “Since April 2018, Ms Foster has unreasonably refused Ms Dedic access to the TAFE Digital business inbox”. The issue of access to emails for Ms Dedic continues for another two years and from my review of the evidence this issue becomes significant as one of the main causes claimed by Ms Dedic for her psychological injury.
Ms Peterson records that Ms Dedic made repeated requests for access to the email inbox between May 2018 and April 2020. Ms Redmond, who provides assistance to Ms Foster due to the ongoing demands made by Ms Dedic, states that Ms Dedic became fixated on having access when it was not necessary for her to perform her work. Dr Chow records Ms Dedic telling him in August 2020 that Ms Foster treated Ms Dedic’s email like a dog and that this was a power abuse.
Although Ms Foster and other witnesses provide a plausible explanation as to why Ms Dedic could not have an extended access to the email inbox, I nonetheless accept that Ms Dedic would have perceived this to be an ongoing impediment to her ability to perform her work.
The available evidence indicates that Ms Dedic was a competent and efficient teacher.
Ms Walsh states that Ms Dedic was a productive and valued teacher. Ms Edwards states that Ms Dedic was a good teacher, although not a team player. The difficulties which the respondent had with Ms Dedic appear to arise from her interaction with staff rather than her teaching ability.
It is therefore understandable that Ms Dedic experienced ongoing stress and frustration with her inability to access the email inbox in order for her to carry out her teaching duties. I accept Ms Dedic’s evidence that as she perceived the situation: “it is not practical or equitable, and it puts me at a great disadvantage as I endeavour to do my job.”
I also accept that such stress and frustration was increased by Ms Dedic’s understanding that there were other members of staff who did have access to the email inbox. Ms Dedic refers to Jennifer Aquino in her statement as having such access, and Ms Peterson in her report refers to examples provided by Ms Dedic of some staff having access to the email inbox.
A review of the evidence discloses that by the latter part of 2019 and the beginning of 2020, there were further events which Ms Dedic perceived to be hostile. There was the issue in November 2019 of the student assessment by way of re-submission which was raised by
Ms Foster and Ms Edwards. Although Ms Edwards appears to regard the issue as mundane by stating that it was only one item on an agenda in a “very common type of meeting”, I accept that Ms Dedic would regard this particular issue as being a criticism of her work performance and cause her some concern.
There is the further reduction in hours of work at the beginning of 2020, and although that might trespass into the application of s 11A of the 1987 Act, I accept that the action taken by the respondent would nonetheless have caused further concern for Ms Dedic.
The final event would appear to be the increased workload which was assigned to Ms Dedic on or about 18 April 2020. I accept that Ms Peterson in her report has provided a satisfactory review of this particular issue and concluded that it was not due to any positive action taken by Ms Foster. Ms Peterson refers to an email sent by Ms Foster to Ms Dedic on 8 April 2020 stating: “if you get to [sic] assessments let me know and I will fix it” and that the following day Ms Dedic replied that she would be “happy to be taken off the marking as discussed”, but that was not or could not be attended to by Ms Foster before the assessments were received.
Nonetheless it is understandable that Ms Dedic would regard the 114 assessments which she then received over the Easter break to be a hostile act, even if it was not specifically directed by Ms Foster. It was significant enough for Ms Dedic to have this particular issue recorded by Dr Torbolov as one of the stressful events that had impacted upon her at her consultation on 29 April 2020.
My conclusion that Ms Dedic was experiencing stress from the events and incidents which I have referred to is reinforced by the evidence from Ms Dedic that she had been endeavouring to obtain the assistance from HR. Ms Dedic states that she had been in correspondence with Kerry Sharp from HR, but Ms Sharp had informed Ms Dedic that she had been very busy. Ms Dedic states that she had spoken to Lucille Kerslake at HR on
19 September 2019 and that she had asked Ms Kerslake to contact Ms Sharp because
Ms Sharp would have had some details of issues raised by Ms Dedic. There is a letter from Ms Dedic dated 28 April 2020 addressed to Ms Kerslake, which is two days before Ms Dedic ceases work which raises the issues of gossiping, reduced hours, and access to the email inbox.
I could not locate, nor was I directed to, any material or correspondence from HR in response to the requests for assistance made by Ms Dedic which challenges this particular evidence from Ms Dedic. That the assistance of HR might have assisted in resolving issues between Ms Dedic and Ms Foster is also noted in the report from Ms Peterson.
I accept from my review of the evidence that, consistent with the test set out in Attorney General’s Department v K, actual events in Ms Dedic’s workplace between April 2018 and April 2020 which Ms Dedic perceived to be hostile, and which were capable of causing her to sustain a psychological injury.
It is nonetheless necessary for there to be medical evidence to support a finding on the cause of the psychological injury sustained by Ms Dedic. I give little weight to the opinion expressed by Dr Allan on the issue of causation. As was noted during my review of his report dated 25 June 2021, Dr Allan does not list any statements of the witnesses relied upon by the respondent in the documents he reviews for the purposes of his report. It is understandable that Dr Allan expresses a “strong opinion” that various factors over a two and a half year period contributed to her depressive condition when he is not provided with any evidence which might challenge the details provided to him by Ms Dedic.
I prefer the opinion provided by Dr Chow. Dr Chow is provided with the statements from witnesses obtained at the request of the respondent. In his first report dated 24 August 2020, Dr Chow acknowledges that there are differences between the account of events described to him by Ms Dedic and those witnesses relied upon by the respondent. His opinion is that the ‘maltreatment’ of Ms Dedic by Ms Foster appears to be the predominant cause of
Ms Dedic’s psychiatric condition, but he acknowledges that findings of fact need to be made to reach a conclusion as to the cause of the psychological injury sustained by Ms Dedic.
I have undertaken a factual investigation of the evidence and am satisfied that although the term ‘maltreatment’ as used by Dr Chow is perhaps too harsh to describe what Ms Dedic experienced in the final two years of her work as a teacher with the respondent, there were actual events which have been confirmed in the details taken by Dr Chow which Ms Dedic perceived to be hostile and which allows Dr Chow to conclude were the predominant cause of her psychiatric condition.
I do not consider that the opinion on causation provided by Dr Chow is changed in his final report dated 20 February 2023 because he opines that Ms Dedic’s psychological difficulties were the product of perceived bullying and harassment, even assuming the validity of the witnesses relied upon by the respondent. That perceived bullying and harassment was due to events in the workplace which I have referred to and which have been recorded by
Dr Chow. Some of those events were recorded by Dr Torbolov when Ms Dedic sought treatment in April 2020. I accept that those events coincided with stress being experienced by Ms Dedic.
Dr Chow also opines in that final report that Ms Dedic’s psychological condition would be the product of features inherent in her personality, but the decision in Attorney General’s Department v K specifically states at [54]:
“A worker’s reaction to the 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’.”
I am therefore satisfied from a review of the lay and medical evidence that Ms Dedic sustained a psychological injury in the course of her employment with the respondent.
Such a finding does not excuse other behaviour by Ms Dedic while she was employed by the respondent. Ms Edwards describes a meeting where Ms Dedic shouted and banged the table. The evidence discloses that Ms Dedic continued to try to have one on one interactions with Ms Foster despite being asked for this not to occur. Ms Foster describes a meeting after normal work hours in December 2019 when Ms Dedic confronted Ms Foster when she was on her own. Of particular concern is that the intimidatory behaviour by Ms Dedic was directed towards a person with a disability, and Ms Dedic does not appear to acknowledge or understand that.
Ms Dedic has not provided any further evidence in response to the evidence from Ms Foster contained in her statement dated 15 June 2020, although I do note that Ms Dedic denied the allegation in the report from Ms Peterson. Nonetheless there is compelling evidence from
Ms Foster, Ms Edwards and Ms Redmond that Ms Dedic engaged in intimidatory behaviour, especially towards Ms Foster.
Nevertheless, the determination which I have to make is whether Ms Dedic sustained a psychological injury in the course of her employment, notwithstanding other reprehensible behaviour on her part in the workplace. For the reasons I have given, I am satisfied that
Ms Dedic did sustain a psychological injury in the course of her employment with the respondent.
I do not consider that the finding I have made on injury is to be altered or discounted by
Ms Dedic experiencing an earlier episode of stress at work in 2015 which may have been due to her allegations of not being supported in the workplace at that time. Ms Dedic has been employed in the TAFE system since 1999, yet the respondent has not provided any material which relates to the problems Ms Dedic had in 2015.
Mr Saul was critical of the information provided by Ms Dedic as recorded by Dr Chow and
Dr Allan regarding what occurred in 2015. He submits that Ms Dedic downplays what occurred in 2015 when she sees Dr Chow. He points out that Dr Allan records that Ms Dedic did not see a psychologist or take medication when the notes from MyHealth Medical Centre Baulkham Hills include a referral to a psychologist and prescription for Diazepam.
However, I agree with the response provided by Mr Carney that in the absence of any other evidence, the problems experienced by Ms Dedic had resolved within two months and there is no other record of treatment until almost three years later in April 2018. There is no evidence to support Ms Dedic having ongoing psychological problems after August 2015, or to allow for an inference to be made that Ms Dedic engages in a pattern of behaviour where she routinely blames an employer for difficulties she experiences in the workplace.

The s 11A defence

The dispute notices issued on behalf of the respondent rely upon reasonable action being taken by the respondent with respect to discipline, provision of employment benefits and/or dismissal as being the whole or predominant cause of the applicant’s psychological injury.
Section 11A (1) of the 1987 Act provides:
“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.”
Mr Saul submits that the actions by Ms Foster in response to the outbursts and complaints of Ms Dedic were with respect to discipline, performance appraisal and the provision of employment benefits.
Mr Saul submits that it is difficult to isolate the particular actions referred to in s11A to the particular allegations made by and against Ms Dedic, but a wide interpretation can be given to those actions to fit within s11A as provided for by Sackville AJA said in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR (Heggie) at [59]:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
Mr Carney submits that the respondent cannot establish a s 11A defence because the respondent has failed to identify the particular actions referred to in s 11A which are the whole or predominant cause of the psychological injury sustained by Ms Dedic.
In Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), DP Snell said at [88]:
“…There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The medical evidence in this dispute which is required to assist in the determination of the
s 11A defence is far from helpful. Dr Allan does not identify any action or actions referred to in s 11A as being the whole or predominant cause of the psychological injury sustained by Ms Dedic.
Dr Chow in his final report opines:
“Assuming the validity of the workplace witnesses’ statements, her psychological condition stemmed from the perceived difficulties relating to the workplace decision regarding her email access as well as the work hours allocated to her.
Therefore her psychological injury can be said to be predominantly the product of discipline and/or transfer and/or provision of employment benefits and/or any other matters canvassed under section 11A (1) of the 1987 Act.”
However, Dr Chow does not explain in any detail why Ms Dedic’s psychological condition stems only from the issues of email access and allocation of work hours when there were other events such as the onset of pain in her right arm and neck in 2018, the perceived criticism of a student assessment in late 2019, or the 114 assessments Ms Dedic was to mark over the Easter period, which were also events which were stressful for Ms Dedic. The onset of pain in her right arm and neck in 2018 and the 114 assessments Ms Dedic were significant enough for Ms Dedic to seek medical treatment at around the time both those events occurred.
The respondent has also not explained in the dispute notices or in the submissions made at the hearing what specific action with respect to the categories set out in s 11A have been the whole or predominant cause of the injury sustained by Ms Dedic. I do not agree with the submission made by Mr Saul that is enough to bundle up several different events or incidents which might involve one or more categories in s 11A and then rely on the “broad view” in Heggie to establish the s 11A defence.
For instance, it is arguable that the reduction of work hours is action taken with respect to the provision of employment benefits, but the respondent has not explained how s 11A applies in regard to this or how that particular action could be a whole or predominant cause of the injury sustained by Ms Dedic.
It is arguable that the issue of email access involves the category of discipline to extent that officers of the respondent repeatedly informed Ms Dedic that she could not have the access she sought. However, the stress which Ms Dedic experienced in regard to the email access was not limited to the action taken by the respondent in regard to this, but also included
Ms Dedic’s concern that it “puts me at a great disadvantage as I endeavour to do my job.” It is not enough for the respondent to merely assert that the issue of email access was action with respect to discipline, and add the opinion provided by Dr Chow in his final report, to establish a defence pursuant to s 11A.
I do not consider that the respondent has identified from the lay evidence the categories in
s 11A where action was taken which became the whole or predominant cause of Ms Dedic’s psychological injury. Nor has the respondent provided expert evidence as required by the decision of Hamad to establish a defence pursuant to s 11A of the 1987 Act. The respondent is therefore not able to rely upon s 11A of the 1987 Act to deny the claim for compensation made by Ms Dedic.

The s 66 claim

Dr Chow and Dr Allan both assess Ms Dedic as having 22% whole person impairment as a result of her psychological injury. As I have already noted, both experts select the same classes in the PIRS categories.
Given this agreement between the two experts, it is within the parameters of s 66 of the 1987 Act and consistent with the decision in Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53 (Etherton), that a determination can be made that Ms Dedic has 22% whole person impairment as a result of her psychological injury.

However, this was not sought by counsel for either party during the hearing and the expectation was that if Ms Dedic was otherwise successful then there would be a referral for assessment of whole person impairment by a Medical Assessor.
I am also mindful that the assessment of permanent impairment made by Dr Allan was made almost two years ago and that cl 1.6 of Part 1 of the Fourth Edition of the ‘NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment’ provides that:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant’s relevant medical history and all available relevant medical information.”
In the circumstances of this dispute, I consider it appropriate for there to be a referral to a Medical Assessor to assess the degree of whole person impairment.
The claim for a lump sum payment for 22% whole person impairment pursuant to s 66 of the 1987 Act was made by the lawyers acting for Ms Dedic on 24 September 2021.
Consistent with decisions such as Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277 (Stone) and Westpac Banking Corporation v Hungerford [2018] NSWWCCPD 50 (Hungerford), the deemed date for an injury which progressed over a period of time and therefore can be categorised as a disease is the date when the s 66 claim was made. The deemed date for the referral to a Medical Assessor to assess the degree of whole person impairment will be 24 September 2021.

[2023] NSWPIC 168

18 April 2023