Diomidhous v Global Express Courier

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Diomidhous v Global Express Courier [2022] NSWPIC 412
APPLICANT:	Andromides Diomidhous
RESPONDENT:	Global Express Courier
MEMBER:	John Isaksen
DATE OF DECISION:	27 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for psychological injury; whether the applicant was a worker or deemed worker; reference to Stevens v Brodribb Sawmilling Co P/L, On Call Interpreters and Translators Agency P/L, and Construction, Forestry, Maritime, Mining and Energy Union v Personal Contracting P/L on issue of worker; reference to Humberstone v Northern Timber Mills and Amalgamated Pest Control P/L v Chaaya on the issue of deemed worker; whether applicant sustained injury in the course of his employment; reference to Attorney General’s Department v K on issue of injury; section 11A of the Workers Compensation Act 1987 (1987 Act) defence raised by employer that psychological injury was wholly or predominantly caused by reasonable action in respect to transfer; Held – applicant was a worker as provided for by section 4 of the Workplace Injury Management and Workers Compensation Act 1998, or in the alternative a deemed worker; applicant sustained psychological injury by way of a disease as provided for by section 4 (b)(i) of the 1987 Act; respondent has failed to establish that the injury was wholly or predominantly caused by reasonable action taken with respect to transfer; applicant has had no current work capacity since 2 February 2021 and award for weekly payments and medical expenses made accordingly.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was a worker who worked under a contract of service with the respondent when he sustained a psychological injury in the course of his employment with the respondent. 2. The applicant also meets the definition of a deemed worker within the meaning of cl 2 of Schedule 1 of the Workplace Management and Workers Compensation Act 1998 (the 1998 Act). 3. The applicant sustained a psychological injury pursuant to s 4 (b)(i) of the Workers Compensation Act 1987 (the 1987 Act), with a deemed date of injury of 2 February 2021. 4. The respondent has failed to establish a defence pursuant to s 11A (1) of the 1987 Act. 5. That the applicant has had no current work capacity since 2 February 2021. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $1,356.88 per week from 2 February 2021 to 3 May 2021 pursuant to s 36 (1) of the 1987 Act, and (b) $1,142.64 per week from 4 May 2021 to date and continuing pursuant to s 37 (1) of the 1987 Act. 2. The respondent is to pay the cost of the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant, Andromides Diomidhous, claims that he sustained a psychological injury while working as a courier with the respondent, Global Express Courier.
The applicant claims that during the course of his employment he was subjected to bullying and harassment by management and that his last day of work for the respondent was on 2 February 2021.
The applicant claims that he has had no current work capacity since 2 February 2021.
The respondent has disputed the applicant’s claim for workers compensation benefits on the following grounds:
(a)    that the applicant was not a worker or a deemed worker within the meaning of the workers compensation legislation;
(b)    that the applicant did not sustain any injury arising out of or in the course of any employment with the respondent;
(c) that the applicant did not give notice of injury as required by s 254 of the Workplace Injury Management and Workers Compensation Act (the 1998 Act);
(d) that the applicant did not make a claim for compensation within the time required by s 261 of the 1998 Act;
(e)    that any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer, retrenchment and/or provision of employment benefits;
(f)    that the applicant does not have any incapacity for work as a result of any injury sustained in the course of any employment with the respondent, and
(g)    that the respondent is not liable for any medical treatment for the applicant as a result of any injury sustained in the course of any employment with the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant was a worker if or when he sustained injury (s 4 of the 1998 Act));
(b)    whether the applicant was a deemed worker if or when he sustained injury (cl 2 of Schedule 1 of the 1998 Act);
(c)    whether the applicant sustained injury arising out of or in the course of any employment with the respondent (s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(d)    whether the applicant gave notice of injury as soon as possible after the injury happened (s 254 of the 1998 Act);
(e)    whether the applicant made a claim for compensation within the required time after the injury happened (s 261 of the 1998 Act);
(f)    whether the applicant can receive any compensation because the psychological injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer (s 11A of the 1987 Act);
(g)    whether the applicant has any incapacity as a result of any injury sustained by the applicant in the course of his employment with the respondent (ss 32A, 33, 36 and 37 of the 1987 Act), and
(h)    whether the respondent is liable for any medical treatment for the applicant as a result of any injury sustained in the course of any employment with the respondent (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 1 June 2022. 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.
Ms Goodman appeared for the applicant, instructed by Ms Parisis. Mr Brendan Jones appeared for the respondent, instructed by Ms Bauer.
The hearing was conducted by video in accordance with the protocols set out by the Commission as a result of the coronavirus pandemic.
The hearing could not be completed on 1 June 2022 and a timetable was set for written submissions to be filed and served as follows:
(a) the respondent to file and serve written submissions in reply to the applicant’s oral submissions by 22 June 2022, and
(b) the applicant to file and serve written submissions in reply to the respondent’s submissions by 6 July 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 3 May 2022, and
(d)    Application to Admit Late Documents filed by the respondent on 5 May 2022.

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 was a worker who entered into or worked under a contract of service with the respondent

The applicant’s evidence

The applicant has provided statements dated 18 October 2021 and 2 May 2022.
The applicant states that “Toll” has been his “main employer” since 1997. He also states that his employment status with “Toll” was as a subcontractor. He states that he has one ABN in his name, which is known to the respondent.
The applicant states that the respondent would direct his work and provide him with jobs each week. He states that he would normally perform his permanent work for the respondent and would then be asked by the respondent for jobs which fell between permanent jobs. He states that for 10 years he did the ‘Toyota run’ across Sydney.
The applicant states that he understood that the respondent was to provide a minimum amount of hours of work per week, and if earnings were less than the number of hours worked then there would be payment to him by way of a safety net.
The applicant states:
“My understanding is to supply my vehicle for the exclusive use by Toll. I am responsible for the maintenance and cleanliness of my van. I am responsible for paying the fuel and relevant insurances. I am not allowed to work for any other company. Toll is allowed to put Toll advertising stickers on my van. Plus everything else that is described to the contract that us drivers have with Toll.”
The applicant states that he was required to wear a uniform, which was supplied by the respondent, and which had a “Toll logo” on the shirt and pants. He states that the respondent also paid for the installation of stickers or ‘decals’ on his vehicle, and for ‘PDA units’, which are hand held computers for receiving jobs.
The applicant states that he did a full day of training when he first commenced work for the respondent, which included how to use the PDA unit and the respondent’s preferred way to manage jobs, load and unload freight, and methods of communication with operators and customers. The applicant states that there was ongoing refresher training to complete and updated policies and procedures were sent to him, initially in paper form and then by email.
The applicant states that he could reject jobs, but this had implications for him because the respondent would not be required to pay the safety net for the relevant month and would not provide the applicant with high paying jobs. He states that he had heard from other drivers that the respondent would send warning letters to a driver who did not accept jobs from the respondent, although he had not personally experienced this.

Other evidence

The applicant has included a document headed “Operational Protocols” from Toll Fast dated 27 April 2009. The document states that it sets out the policies and procedures of Toll Fast and is intended as a reference to all contract carriers and staff. Although that document is now over 10 years old, the respondent did not contend that those protocols are no longer applicable. The document includes the following:
(a)    all requests for a permanent late start or early finish must be submitted in writing to an Operations Supervisor for authorisation;
(b)    if the contract carrier has not started by 8.30am or logged off without prior notice, then the Operations Supervisor is to investigate and contact the contract carrier for an explanation;
(c)    that “in all cases” it is expected that the contract carrier will carry out the work allocated, and that if the contract carrier feels “hard done by” then there will be a discussion with the Operations Manager after the job is done;
(d)    approval is required from the Operations Controller/Manager or Operations Supervisor if a contract carrier finishes work prior to 5.00pm;
(e)    contract carriers are required to be available for work for 222 days per year. If not, then the contract carrier “will be disciplined according to company procedure”;
(f)    any contract carrier wishing to take annual leave shall fill in a form, but leave is not available for certain times of the year, including the month of December;
(g)    a refusal by a contract carrier to accept an allocated job without due cause may result in immediate 24 hour suspension and further disciplinary action;
(h)    a contract carrier found with decals removed from their vehicle, and who has not notified the Operations Supervisor of this, will be removed from further contracts of carriage until the decals have been replaced, and
(i)    any contract carrier found to be out of uniform at any point may be stood down immediately and have any further contracts of carriage withdrawn.
The applicant has also provided a document headed “Minimum Vehicle Standards Checklist” dated 27 September 2019. A list of attributes includes: “Signage free other than Toll Corporate logo.”
The respondent has provided a copy of the (NSW) Transport Industry – Courier and Taxi Truck Contract Determination published on 2 June 2011. That Determination includes:
(a)    that a contract carrier shall be entitled to negotiate with the principal contractor in respect of periods when the contract carrier shall not be available to undertake contracts of carriage (cl 3.1(a));
(b)    that a principal contractor may not require a contract carrier to work more than 222 days in a year (cl 3.1 (b));
(c)    that a contract carrier is to wear a uniform in accordance with instructions from the principal contractor while undertaking work for the principal contractor (cl 4.1);
(d)    that a contract carrier is to be available at all reasonable times to perform contracts of carriage at the request of the principal contractor (cl 5.1);
(e)    that the contract carrier cannot engage the use of another driver for his vehicle without the approval of the principal contractor (cl 5.5);
(f)    the contract carrier shall by himself/herself, or in co-operation with the principal contractor, obtain and maintain insurance for public liability and motor vehicle, and for workers compensation for any person employed by the contract carrier (cl 7.2);
(g)    where the contract carrier is not, or is deemed not to be, a worker for the purposes of the Workers Compensation Act 1987, then the contract carrier is to obtain and maintain a personal accident and sickness insurance policy (cl 7.3);
(h)    all contracts of carriage performed by a contract carrier with the principal contractor shall be treated as individual contracts of carriage (cl 13.3), and
(i)    that notwithstanding anything contained in the Determination, the relationship between a contract carrier and a principal contractor shall be that of independent contractors and not master and servant (cl 13.4).
Zoran Delovski has provided a statement dated 31 March 2021. Mr Delovski states that he has been employed with the respondent for four years – the first two years as an Allocator, and the following two years as an Operations Supervisor. He states that he has known the applicant for those four years and that the applicant has reported to him since he became an Operations Supervisor.
Mr Delovski states that the applicant was employed as a driver contractor, but he does not know if the applicant operated an independent business in his name or worked under an ABN.
Mr Delovski states that he believed the applicant worked exclusively for the respondent, and that the applicant had permanent runs allocated to him, those runs being the Toyota run and the NAB run. He states that the applicant worked five days per week from around 10.00am to 6.00pm, and the applicant did not work overtime.

Determination

Section 4 of the 1998 Act relevantly provides the definition of “worker” as:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and where the contract is oral or in writing)…”
Ms Goodman for the applicant submits that the degree of control exercised by the respondent over the applicant was such that the applicant was working under a contract of service and was therefore a worker as defined by s 4 of the 1998 Act.
Ms Goodman submits that other supplying a vehicle, the applicant was answerable to the respondent for all of the time that he worked. She submits that the applicant at all times was under the complete supervision and direction of agents of the respondent. Ms Goodman submits that mandatory requirements such as the applicant being required to wear a uniform with the Toll logo and have Toll stickers on his vehicle, supports a finding that the respondent had complete control over the applicant’s work duties, and the applicant must therefore be found to be a worker within the meaning of section 4 of the 1998 Act.
Mr Jones for the respondent submits that the applicant considered himself to be a contractor, by stating this in his first statement and telling Dr Chow he was “an owner driver/subcontractor.” Mr Jones submits that the applicant having his own ABN, supplying his own vehicle, and paying for his running costs and insurance are all indicative of the applicant being a contractor.
Mr Jones also submits that the recent High Court decisions of ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personal Contracting Pty Ltd [2022] HCA 1 (Personal Contracting) now provide that it will be the terms of a written agreement which will determine whether the relationship between the parties is one of employment or otherwise. Mr Jones submits that the (NSW) Transport Industry – Courier and Taxi Truck Contract Determination was an agreement, and that the terms of that Contract Determination are those of a company engaging the services of a contractor. He submits that having regard to the evidence and arrangements in place between the applicant and respondent, the relationship was conducted in accordance with the Contract Determination.
Until the recent High Court decisions of Jamsek and Personal Contracting, the determination of whether an injured person who claims workers compensation is a worker involved a consideration of all relevant indicia in the relationship between the person claiming to be a worker and the entity which engages that person to provide his or her labour.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 (Stevens), Mason J said at [9]:
“… the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it as merely one of a number of indicia which must be considered in the determination of the question… Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
Wilson and Dawson JJ in Stevens said at [10] that “the control test in the first instance remains the surest guide to whether a person in contracting independently or serving as an employee” but then said at [11]-[12]:
“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person to the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”

The balance of indicia was also referred to by Kirby P in Connelly v Wells (1994) 10 NSWCCR 396 (Connelly) when he said at [412D]:
“Both parties to the appeal agreed that the proper approach of this Court was to follow the course mandated in Stevens and to examine the indicia appointing respectively in favour of, or against, the conclusion that Mr Wells was a ‘worker’ of Mr Connelly.”
That the terms of any written contract now usurp the consideration of various indicia in determining whether there exists a contract of employment, is set out by Kiefel CJ, Keane and Edelman JJ in Personal Contracting at [59]:
“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.”
Justice Gordon was also clear on his view of how to approach the determination of a contract of employment at [162]:
“Where the parties have entered a wholly written employment contract, as in this case, the totality of the relationship which must be considered is the totality of the legal rights and obligations provided for in the contract, construed according to the established principles of contractual interpretation. In such a case, the central question neither permits nor requires consideration of subsequent conduct and is not assisted by seeing the question as involving a binary choice between employment and own business.”
However, in this dispute there is no evidence of a written contract between the applicant and respondent. Mr Jones submits that the (NSW) Transport Industry – Courier and Taxi Truck Contract Determination is an agreement, but there is no evidence that the applicant and respondent expressly agreed in writing to be bound by the terms of that agreement and that agreement alone.
Furthermore, it has been well established that industrial awards or agreements and contracts of employment operate in parallel with each other. In Byrne v Australian Airlines Ltd [1995] HCA 24; 131 ALR 422; (1995) ALJR 797; (1995) 185 CLR 410 (Byrne), Brennan CJ, Dawson and Toohey JJ said at [9]: “The award regulates what would otherwise be governed by the contract.”
The principles set out by the majority decisions in Personal Contracting are contingent upon the parties having “comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute” (Kiefel CJ, Keane and Edelman JJ) or having a “wholly written employment contract” (Gordon J). However, there is no evidence of such a written contract in this dispute. It is therefore necessary to return to the consideration of the various indicia, as Kirby P said in Connelly, in “appointing respectively in favour of, or against, the conclusion” that the applicant was a worker.
Although Mason J in Stevens warned against the existence of control as being the sole criterion to determine an employment relationship, it is apparent in this dispute that the respondent was exercising a significant amount of control over the work being undertaken by the applicant. The “Operations Protocols” which have been referred to, and which the respondent has not challenged, required the applicant to commence work by 8.30am (otherwise there would be an investigation) and to obtain approval to finish work before 5.00pm. The practical effect of this is that if the applicant wanted to undertake courier work other than with the respondent, it could only be done at night or on weekends. I accept that this would be difficult to achieve, and would also raise concerns regarding safety if the applicant was undertaking extensive hours of work.
The “Operations Protocols” also required the applicant to be available for work for 222 days of the year, which after allowing for public holidays, would amount to working for almost 47 weeks of the year. That is close enough to a full-time job. Other significant controls over the applicant were that there be no discussion in regard to an allocated job until that job is completed, that a refusal to accept an allocated job may result in suspension, and that there will be certain times of the year (including the month of December) when a driver cannot take leave. The applicant states that he could reject jobs but there would be financial implications if this was done.
Mr Delovski’s understanding of the time period during which the applicant of 10.00am to 6.00pm is different to the hours mandated by the respondent in the “Operations Protocol”, but he nonetheless states that those hours were worked by the applicant for five days per week for the respondent. He also confirms that the applicant had permanent runs for Toyota and National Australia Bank.
It is therefore apparent from the evidence that the applicant was working from Monday to Friday for the respondent, and that the respondent was exercising control and direction of the work being undertaken by the applicant. The applicant’s circumstances were similar to an observation made by Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3) [2011] FCA 366; 279 ALR 341 (On Call Interpreters) at [268]:
“A requirement that a person commence work at a particular time and a prohibition on the refusal of work (as was the case in relation to the bicycle couriers dealt with in Hollis: see at [49]) is a manifestation of the existence of control by the putative employer.”
The “Operations Protocol” required a commencement time for work of no later than 8.30am, and approval from the respondent was required to finish before 5.00pm. The implications for not accepting a job were dire because a refusal might result in an immediate 24-hour suspension and further disciplinary action, and the job had to be completed in any event before the respondent would entertain concerns raised by the driver. That the applicant could be subject to discipline and investigation by the respondent is also an indication of the level of control being exercised by the respondent.
There is no evidence from anyone in a senior managerial position with the respondent as to the practical effect of the “Operations Protocol” in terms of the control the respondent had over the applicant’s work. The evidence from the highest level of management is from Mr Delovski, and it was his belief that the applicant worked exclusively for the respondent.
Mr Jones submits that the wearing of a uniform, the allocation of shifts, the signage on the applicant’s vehicle, and mandated rates of pay, do not trump the intention of the parties. However, that alleged intention of the parties is not clarified in any evidence from the respondent. Mr Jones submits that it is based upon what is contemplated and provided for by the Contract Determination, but I have already observed that there is no evidence of any express agreement between the parties that the Contract Determination alone would set out the relationship between the applicant and respondent and govern their intentions.
Mr Jones submits that the induction of the applicant is of no significance because that is seen in various relationships, and he provides the example of contractors being inducted onto building sites so as to understand the running and operation of site. However, the applicant did not just have an induction. The applicant states that he was trained to perform duties which were quite specific to the respondent’s business requirements including the use of the PDA unit, the respondent’s preferred way to manage jobs, how to load and unload freight, and methods of communication with operators and customers.
That evidence is not challenged by the respondent and nor is the applicant’s evidence that there was ongoing refresher training to complete and that updated policies and procedures were sent to him. All of that evidence indicates a significant level of control being exercised by an employer. It is a level of control which is much more than someone merely being provided with a summary of how a particular business might operate to allow access to a particular site or location.
Mr Jones submits that the applicant considered himself to be a contractor and used an ABN. Ms Goodman responds that it matters not that the applicant considered himself to be a contractor, but it is a matter for the Commission to decide having regard to all the evidence.
A similar submission to that made by Mr Jones was dismissed by Bromberg J in On Call Interpreters, when His Honour said at [244]:
“Each of these interpreters perceived themselves to be self-employed and had an ABN. Their evidence also indicated that they interacted with the ATO on the basis that they conducted a business. I attach little weight to those indicators. Obtaining an ABN is a simple process in which the existence of a business is not required to be demonstrated. Further, it is not surprising that in circumstances where these individuals perceived themselves to be self-employed that some of the regulatory requirements of a business were in evidence ... In the absence of other indicators of the existence of a business, the fact that some of the regulatory requirements of a business were in place, is likely to have had more to do with an incorrect self-assessed conclusion of the existence of a business than the fact of such a business existing.”
Buchanan J (with Lander and Robertson JJ agreeing) in In ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 (Trifunovski) said at [37]:
“It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.”
In recent times the Commission has favoured what is termed the ‘entrepreneur test’ in determining whether an applicant works under a contract of service. In Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 (Malivanek), when the DP Roche said at [184]:
“…Suffice to say that, in cases of this kind in the future, the parties would be well advised to give careful attention the questions posed byBromberg J in On Call Interpreters, which are based on the majority decision in Hollis. A consideration and balancing of the indicia is critical, but the focal point around which one examines the indicia is whether the applicant is working in the business of another, or in the business of the applicant.”
Justice Bromberg had said in On Call Interpreters at [208]:
“Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
Although the applicant had an ABN, was responsible for his taxation obligations, supplied a vehicle, and met his running costs, he was required to work from Monday to Friday for all but six weeks of the year for the respondent’s business. For many years the applicant was provided with a permanent run for the delivery of motor parts for Toyota. The applicant wore a uniform and drove a vehicle which identified him as working for the respondent. It was the respondent who was receiving the courier business work and the applicant was performing duties for the business of the respondent. The evidence weighs in favour of a finding of the applicant working in the business of the respondent and not in his own courier business.
After consideration of the various indicia in the relationship between the applicant and the respondent, and having particular regard as to whether the applicant was working in the business of the respondent or working in his own business, and providing reasons as to why the decisions of Personal Contracting and Jamsek have no particular application to this dispute, I am satisfied that the applicant was a worker within the meaning of s 4 of the 1998 Act.

Whether the applicant was a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act

If I am wrong in my determination that the applicant was a worker, then I need to determine whether the applicant is a deemed worker as provided in cl 2 of Schedule 1 of the 1998 Act. That clause relevantly provides:
“(1) Where a contract—
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
A predecessor to this clause was s 6 (3A) of the Workers’ Compensation Act 1926 (the 1926 Act), and a summary of the application of s 6 (3A) and now this clause in the 1998 Act was provided by Dixon J in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 at [402]:
“…it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like an ordinary employee, be insured by the Act against the risk of injury in his work.”
In Turner v Stewardson [1962] NSWR 137 (Turner), Evatt CJ, Herron and Collins JJ in the Full Court of the Supreme Court of New South Wales said of s 6 (3A) of the 1926 Act at [139]:
“Looked at broadly, the Legislature meant to provide that persons who are in business for themselves, and who systematically and regularly accept work to be done under contract, and who hold themselves out as open to be employed under contract, are expected to undertake the risk of injury and not rely for compensation upon the principal whose contract work they are performing at the moment of injury.”
In Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri), Bainton AJA, with Kirby ACJ and Rolfe AJA agreeing, set out the requirements for the application of cl 2 of Schedule 1 at [399]:
“On its proper construction, clause 2 of Schedule 1 requires an applicant who relies on it to establish each of the ingredients, both positive and negative which identify the relevant ‘work’.
What he must establish is:
1.that he was a party to a contract with the respondent to perform work;
2.that the work exceeds $10 in value;
3.that the work is not work incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and
4.that the applicant has neither sublet the contract nor employed workers in the performance of it.”
There is no evidence that the applicant did any courier work for anyone else other than the respondent. The conditions imposed by the respondent, which I have already referred to, of the applicant being required to work for the respondent from Monday to Friday for all but about six weeks of the year, and with serious consequences for not being available and not accepting jobs, meant that it would be difficult, if not impossible, for the applicant to carry on a business in his own name or under a business name.
I find the applicant’s situation similar to what was said by DP Roche in Amalgamated Pest Control Pty Ltd v Chaaya [2015] NSWWCCPD 53 (Chaaya) at [192] on the question of a deemed worker, where the Deputy President said that the worker in that dispute:
“… did not perform work successively or concurrently for his customers in the course of a trade or business. Mr Chaaya had no customers and no independent business outside of the work he did for the appellant.”
Similarly, in this dispute the applicant had no customers or independent business outside of the work that he did for the respondent.
Further, there is no evidence that the applicant sublet or employed any other worker. I could not locate, not was I directed to, any bar to the applicant sub-letting his contract or employing another worker to perform the work that he was required to do for the respondent. However, DP Roche also said in Chaaya at [193]:
“... The disentitling provision only applies if, in the performance of the contract, the claimant actually ‘sublet the contract’ or ‘employ[ed] any worker’. He did neither. It is therefore not relevant that the Agreement permitted him to do so.”
I am satisfied that the applicant only worked for the respondent, and he did not undertake work or business outside of this arrangement, and he did not sublet the contract he had with the respondent or employ any other worker. I find that the applicant can also be regarded as a deemed worker within the meaning of cl 2 of Schedule 1 of the 1998 Act.

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

The applicant’s evidence

In addition to the applicant’s statements dated 18 October 2021 and 2 May 2022, there is also a document titled ‘Intimidations Diary’ in the ARD, which is referred to throughout the applicant’s statement dated 18 October 2021.
The first episode of significant stress which the applicant states that he experienced while working for the respondent was on or about 10 December 2008. The applicant states that he rang the office to enquire what he should do with an empty pallet after a load had been conveyed to a site in Concord West. He states that a manager who he knew as ‘Murphy’ verbally abused him over the phone for about 15 minutes, and that he was subjected to further abuse during a second call for another five minutes.
The applicant states that he vomited after the second phone call. He states that he saw his general practitioner, Dr Verma, and was given a medical certificate to have two days off work. The applicant states that he could not report the incident to anyone with the respondent because Murphy was the highest manager he knew, although he did contact his union delegate. The applicant states: “This incident had a significant impact on my mental health – I still think about it now, but it was one of many incidents that followed.”
The applicant states that on a day in July 2010 he was accused by a superior by the name of ‘Wayne’ that he had been “sitting on my ass all day”, when the applicant had actually completed an extra run to help out for a driver who was sick that day. He states that this incident made him feel extremely depressed, uncomfortable and sad.

The applicant states that during 2010 there was a delay in the respondent paying a safety net when he was not given enough jobs. He states that the payment of the safety net was required because he was not getting the well paid jobs, and the respondent was discriminating as to who should get such jobs. The applicant states that the union had to be involved, otherwise he was getting $8,000 less while he continued to work for the respondent.
The applicant states that the work was not evenly and fairly distributed by the respondent, and often his income was one of the lowest, if not the lowest. He states that the failure to enforce an equal share of the work, and the failure to pay the safety net, contributed to the deterioration of his mental health in 2021.
The applicant refers to another incident in 2011 when he was contacted by an operator and asked why it had taken an hour to drive from Banksmeadow to the city. The applicant replied that it was because of heavy traffic, but the operator said he marked the applicant’s status as ‘non-available’, which meant the applicant lost his safety net for this period. He states that this made him feel very anxious and depressed.
The applicant also refers to an incident in July 2011 when he made a call to an operator with the respondent for assistance in regard to picking up a load at the international airport, and the operator spoke to him in an abusive way and told the applicant that he was the only one of 900 drivers who was causing trouble for the respondent.
The applicant states that around December 2008 he was given a run to Wollongong and was told by a manager, John Reeves, that the job would be paid at a one tonne rate, when the applicant claims he should have been paid at least at a two tonne rate in accordance with the capacity of his vehicle. He states that the reaction of Mr Reeves was to downgrade the vehicle classification to one tonne and “don’t complain.” The applicant states:
“The small picture is, this incident alone, it wasn’t strong enough for me, to ask for any medical attention. Especially if the real problem was Toll’s ‘foul play’ strategies, not necessarily my psychology. The big picture is the accumulation of these incidents here and there over the years had negatively impacted my mental health.”
The applicant states that from 2015 he had a two tonne vehicle, but the respondent “still refuses to have me as a 2TH vehicle.”
The applicant states that the job he had for deliveries from Toyota should have been a ‘2 tonne job’ but the designation on his payslip was for a ‘1 tonne job’, which reduced the respondent’s liability for safety net payments and other industrial obligations.
The applicant states that until 2018 he was grossing around $2,000 per week, but in the 12 months before March 2020 he was travelling 2,000 kilometres for only $1,000 gross each week. He states that he was told he would get something better and not to worry, but he was not given any new work.
The applicant states that between March 2020 and February 2021 he was earning much less than $2,000 per week because the respondent was losing contracts. He states that other drivers were getting alternative runs, but no such runs were provided to him.
The applicant states that he was then offered the ‘Symbion’ run or nothing at all. He states that he realised after doing this run for a few days that he was being well underpaid. He states that one of the last drops was at Sutherland Hospital, but he found that he had to do 15 different drops within the hospital instead of just the one.
The applicant states that he opened his payslip on the night of 1 February 2021 after he had done the Symbion run for a few days and found the low pay he was receiving from the respondent. He states:
“Then, it was the realisation that it was going to be an extra 15 drops, in a covid infected hospital, all unpaid. The progression of these events/factor, in combination with the other incidents in the past, forced me to go and seek medical help.”
The applicant states that he did not have a regular doctor at that time, but he saw Dr Gerges who provided a medical certificate which stated: “suffering from stress related to work.” He states that he eventually attended Dr Mangahis for treatment for his psychological condition.

Other lay evidence

Zoran Delovski states that the applicant had a ‘Toyota’ run in the morning, which was to deliver spare parts, and did a ‘NAB’ run in the afternoon, which involved picking up and delivering mail bags in western Sydney. He states that the applicant was good at his job and there were no complaints or issues raised about him by clients or other staff.
Mr Delovski states that at the end of January 2021 the respondent lost the Toyota account, and the applicant was offered runs for Symbion. He states that the Symbion runs were going in a different direction to the applicant’s previous permanent run, so the applicant gave back the bank run but he was offered ad hoc courier work in addition to the four to five hours work on the Symbion runs. Mr Delovski states that the applicant told him that he was happy about this change. He states that the applicant’s pay would not have been impacted by this change.
Mr Delovski states that he was told by Glen Coker sometime later that the applicant had given back the Symbion run, but he does not know what happened to the applicant after that.
Mr Delovski states that he has no knowledge of historic issues involving the applicant which date back to 2008. He states that to his knowledge the applicant always drove a 1 tonne truck, and that the classification of a vehicle is done through the Fleet Team. Mr Delovski states that he has not been made aware that the applicant felt discriminated in regard to the issue of the classification of his vehicle and that it led to decreased pay and work opportunities.
Mr Delovski states that the applicant never complained about his runs or any issues that were causing financial and psychological stress, and that the applicant’s pay was always correct. He states: “The pricings were set and he had been doing that since I’ve been here.”
Glen Coker has provided a statement dated 31 March 2021. Mr Coker states that he is employed with Toll Group Services and is based at the Greystanes premises of Symbion, where he allocates runs to drivers with Toll.
Mr Coker states that the applicant did runs for from Symbion on consecutive days between 27 January 2021 and 1 February 2021. He states that the applicant seemed fine on each of those days and there was no indication of any issues with the applicant.
Mr Coker states that on 2 February 2021 the applicant arrived at the site and suddenly started shouting and swearing, which included the applicant saying: "I'm sick and tired of this. I'm not working for Toll anymore. They don't fucking pay. I'm sick of this bullshit and they can go fuck themselves". He states that the applicant said he was going to hand in his uniform and walked out of the office.

The medical evidence

There is an entry made by Dr Verma on 11 December 2008 which coincides with the incident referred to by the applicant on 10 December 2008. The entry includes: “Problem at work, weakness at work also vomited.”
The notes from the first consultation which the applicant has with Dr Mangahis on 15 February 2021 includes the following:
“reports he has been quite stressed with work
Says he has been stressed for the past 2 weeks
Prior to this has been slowly building up for the past few years
He is an owner driver, subcontractor to Toll
Has been working with them for a long time
Has seen 2 different doctors
Would like to have a mental health plan
Owns a van, subcontract his for courier of goods
He says he is getting discriminated
Apparently his workload is being reduced
He has been losing money in the process
He has raised this with the union at work
He is going thru a divorce
Has a 9 year old boy”
The notes from Dr Mangahis refer to the applicant attending a psychologist on a few occasions, but the applicant ultimately returned to see Elizabeth Talbot, clinical psychologist, whom the applicant had previously seen on 12 occasions in 2017. Ms Talbot has provided a report dated 31 October 2021.
Ms Talbot writes that she saw the applicant in June 2021 and that the applicant described experiencing significant anxiety and distress relating to the circumstances of his employment and subsequent cessation of work with the respondent. She writes that there was “alleged discrimination and unfairness relating to the downgrading of his work vehicle.”
Ms Talbot diagnoses the applicant as having an adjustment disorder with mixed anxiety and depressed mood. She opines that the applicant’s current symptomology relates to the nature and conditions of his employment with the respondent.
Ms Talbot also writes that the issue for which the applicant sought treatment for in 2017 was resolved and specific to the circumstances of the time, and that the applicant was able to maintain work during this period. The clinical notes from Ms Talbot are in evidence and reveal that the treatment sought by the applicant in 2017 was in regard to difficulties with his neighbours and in-laws.
The clinical notes from Ms Talbot also include the following for her first consultation with the applicant on 23 June 2021:
“Toll. Stopped working for them, 2 February this year. Started in 2008, issues with the company. Union suggested writing a diary. Basic issue, 2008 2T licence, downgraded van to 1T to pay less money. For the last year, 2,000kms every week. Many instances. Doctor and adjustment disorder. Toll Insurance have rejected the claim.”
Dr Chow, psychiatrist, has provided a report at the request of the applicant’s solicitors dated 28 May 2021.
Dr Chow records that in 2008 the applicant’s vehicle classification was downgraded, which affected his pay, but he kept on working because of the financial obligation to his family. Dr Chow records that the respondent had discriminated against the applicant over the years by downgrading his hours and pay. Dr Chow records that for the previous 12 months the applicant was travelling 2,000 kilometres per week, but that his gross pay was $1,000 each week.
Dr Chow records that there were many different incidents over the years which affected the applicant while he worked for the respondent, and that the applicant noted all the issues in a diary.
Dr Chow records that the “pivotal point” for the applicant was the Symbion work where the applicant got paid for four hours but did eight and a half hours of work for the day.
Dr Chow diagnoses the applicant as having an adjustment disorder. Dr Chow writes: “Mr Dimidhous stated that he was being unfairly treated by the workplace over the years with him getting unfair assignments with lower pay.” Dr Chow opines that the applicant’s injury was sustained as a result of the nature and conditions of his employment with the respondent, and the applicant’s employment is the main contributing factor to this injury.
Dr Chow is asked whether the injury sustained by the applicant arose from merely performing his normal duties or from issues such as lack of support from management, stressful and/or unfair treatment, and Dr Chow responds:
“Mr Diomidhous reports being unfairly treated by the employer for a prolonged period of time. He stated that his vehicle classification was unfairly downgraded since 2008 and there were ongoing bullying and intimidation from the workplace with him being given increasingly lesser paid jobs over the years.”
Dr Vickery, psychiatrist, has provided reports at the request of the respondent dated 20 April 2021 and 26 July 2021.
Dr Vickery records the downgrading of the applicant’s vehicle and the applicant earning $1,000 per week for doing 2,000 kilometres of travel for his work. Dr Vickery also records the applicant being placed on the Symbion contract and working nine hours for four and a half hours of pay.
Dr Vickery diagnoses the applicant as having an adjustment disorder. He opines that “Mr Diomidhous’ perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided.”
In his supplementary report dated 26 July 2021, Dr Vickery is asked whether his opinion that the applicant’s “perception of not being paid an adequate income” was the main contributing factor to the applicant’s psychological injury, and Dr Vickery replies: “The reasoning is on the basis of the history provided by Mr Diomidhous.”

Determination

Ms Goodman submits that consistent with what was said by the Court of Appeal in State Transit Authority v Chemler [2007] NSWCA 249 (Chemler), the perception of events in the workplace by a worker, so long as such events were real, is a sufficient basis for a psychological injury to be compensable, even if the worker does not have a proper perception of those events. Ms Goodman submits that the applicant’s evidence of stressful events in the workplace has not been challenged by the evidence provided by the respondent.
Mr Jones submits that both Dr Chow and Ms Talbot opine that the nature and conditions of the applicant’s employment with the respondent is the cause of his psychological condition, but neither expert appears to be aware of the extent of the stressful events complained of by the applicant in his own evidence.
Mr Jones points out that Dr Chow’s opinion on the cause of the applicant’s injury focuses on the downgrading of the applicant’s truck in 2008, being given a lower paying run and unspecified bullying and intimidation. He submits that other than the complaint of a lower paying run (which enlivens s 11A of the 1987 Act), Dr Chow’s opinion is provided without reference to a correct history and should be rejected.
Mr Jones also questions the opinion provided by Ms Talbot because the history she obtains is limited to general notations of the applicant experiencing anxiety and distress in respect of “employment and subsequent cessation.” He notes that the only specific complaint recorded by Ms Talbot is in regard to the downgrading of his vehicle, but that had occurred some years prior to the applicant ceasing work. Mr Jones submits that Ms Talbot relies on unhelpful conclusionary statements rather than referring to actual events, which becomes fatal to any acceptance of her opinion.
To attribute the cause of the applicant’s psychological injury to the ‘nature and conditions’ of employment, as both Dr Chow and Ms Talbot have done, is of no assistance in a dispute of this nature.
A claim of ‘nature and conditions of employment’ might be sufficient to identify the cause of an injury if it involves a worker performing the same physical tasks for a full working week for months or years on end where stress and strain is placed upon a particular part of the body, such as on a process line. However, there is no understanding or explanation contained in the reports from Dr Chow or Ms Talbot of what those experts understand to be the ‘nature and conditions’ of the applicant’s employment and how that has caused the applicant to sustain a psychological injury.
Dr Chow refers to the diary kept by the applicant but does not list that diary or the applicant’s statement as documents he perused when he provides his report dated 28 May 2021. I therefore cannot be satisfied that Dr Chow is aware of any other events in the workplace which the applicant claims to have caused him stress and which date back to 2008, other than those events identified by Dr Chow, being the vehicle classification downgrade in 2008 and the applicant being given lesser paying jobs “over the years.”
Neither the report or notes from Ms Talbot identify the specific sources of stress for the applicant other than “the downgrading of his work vehicle” and driving 2,000 kilometres for the last year.
Ms Goodman submits that it was not just the Symbion run which the applicant was given in late January 2021 which is the cause of the applicant’s psychological injury but rather several incidents over the years. However, if the incidents she refers to are those which have are set out in the applicant’s statement and which I have summarised in this decision, then they are not acknowledged at all by Dr Chow or Ms Talbot in the material provided by them in this dispute.
I agree with the submission made by Mr Jones that it is only the downgrading of the applicant’s vehicle classification and the reduction in jobs being provided to him, both of which led to a loss of income for the applicant, that can be found to be causative of the applicant’s psychological injury because it is only those events which are acknowledged with any precision by Dr Chow and Ms Talbot, as well as Dr Vickery.
However, I do not agree with the submission made by Mr Jones that the downgrading of the vehicle classification was not a contributing factor to the applicant’s psychological injury. That submission appears to be based on the applicant stating that in regard to the incident of downgrading: “alone, it wasn’t strong enough for me, to ask for any medical attention.”
The evidence provided by the applicant on this issue could have been better expressed. From my reading of his evidence, I understand that the applicant is referring to the incident in December 2008 involving the Symbion run to Wollongong and his subsequent conversation with Mr Reeves. The applicant states that this incident alone did not cause him to seek medical treatment, but the downgrading of the vehicle classification continued to be a source of stress for the applicant over the ensuing years, and particularly from 2015 onwards.
The applicant refers to the ongoing downgrade of his vehicle classification as part of the “accumulation” of incidents over the years. It is significant enough to be nominated as a particular source of stress for the applicant when he begins his treatment with Ms Talbot, and when he sees both Dr Chow and Dr Vickery.
Mr Jones submits that the truck downgrading is factually incorrect, and not just part of the applicant’s perception, but he does not refer to the evidence in support of that submission. Mr Delovski states that to his knowledge the applicant always drove a 1 tonne truck, and that the classification of a vehicle is done through the Fleet Team. However, no evidence has been provided by anyone from the Fleet Team. As with the issue of ‘worker’, the respondent volunteers no information from more senior management which might assist on this issue.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche said in regard to the claim of 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’.”
There is no evidence to challenge the claim made by the applicant that the vehicle classification downgrade in 2008 was a real event and that the ongoing concern he had as a result of this was a cause of the psychological distress that he experienced by the beginning of February 2021.
Both Dr Chow and Dr Vickery consider that the lower rate of pay received by the applicant was another cause of the psychological distress that the applicant experienced by the beginning of February 2021. I also accept that this issue is referred to in the notes from Ms Talbot at her first consultation on 23 June 2021 when it is recorded: “For the last year, 2,000kms every week.” It is also recorded in the notes of Dr Mangahis at the applicant’s first consultation on 15 February 2021.
The applicant claims that he was travelling 2,000 kilometres for only $1,000 gross each week. He states: “After I was deducting my running expenses, there wasn’t much left.” There is again no evidence to challenge this from the respondent. Mr Delovski responds that: “This is not correct”, but he provides no explanation for this other than to state: “All he did was a bank run and Toyota run that I know of, plus ad hoc work.”

The applicant’s pre-injury average weekly earnings (PIAWE), which is based upon his earnings for the 12 months prior to his injury, have been agreed by the parties to be $1,428.30. This suggests that the estimate made by the applicant of $1,000 per week, after the deduction of fuel and other expenses, is consistent with the claim made by the applicant of earning a relatively low rate of pay for the work that he was doing.
The schedules also reveal that although $1,428.30 is the average of the applicant’s earnings over a 12-month period prior to his injury, the applicant was earning less than $1,200 gross per week between January and April 2020, and from August 2020 until he ceased work in February 2021. That is evidence which supports the applicant’s claim that he was earning only $1,000 per week, which he considered to be a low rate of pay for the work that he was doing.
Then there is what Dr Chow terms the “pivotal point” in February 2021 when the applicant realises that the Symbion run he has been given due to the loss of the Toyota run will only result in pay for four hours, despite undertaking eight and a half hours of actual work for the day.
The evidence therefore supports the claim made by the applicant that he was earning about $1,000 per week during 2020 and that his concern regarding this was heightened by the realisation of what he would be earning on the Symbion run.
From my review of the evidence, the claims made by the applicant of downgrading his vehicle classification from 2008 and earning a lower rate of pay from at least 2020, were real events, which have not been challenged with any substance by the respondent, and which are consistent with the records made by Ms Talbot and Dr Mangahis, and the history recorded by both Dr Chow and Dr Vickery.
The applicant perceived that he was not being treated fairly by the respondent by these real events. Dr Chow concludes that the vehicle classification downgrade since 2008 and the applicant “being given increasingly lesser paid jobs over the years” were causes of the applicant’s psychological injury. Dr Vickery opines that the applicant’s perception of not being paid an adequate income was the substantial contributing factor to the injury on the basis of the history provided to him.
The weight of evidence therefore supports a finding that the downgrading of the motor vehicle and the lower rate of pay being received by the applicant were real events, and the applicant’s perception of them as being unfair and discriminatory were the cause of his psychological injury.
The injury sustained by the applicant meets the definition of ‘disease injury’ in s 4 (b)(i) of the 1987 Act. The progression of the applicant’s psychological condition, which reaches the “pivotal point” in February 2021, is consistent with the application of a disease injury as set out by Burke CCJ in Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; [1998] NSWCC 14 (Perry), even though His Honour was referring in that case to a physical injury:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”
To draw a parallel to this dispute, there was repeated stress upon the applicant’s psychological condition due to the downgrading of his vehicle classification and earning low rates of pay in recent years, and this has been the cause of his injury.
Dr Vickery refers to the mental health care plan prepared for the applicant on 15 February 2021 which notes the applicant having issues with his marriage, and opines that personal stressors were contributing to the applicant’s psychological condition. However, Dr Vickery still concludes in his first report that the applicant’s perception of not being paid adequate income is the substantial contributing factor to the applicant’s injury.
In his second report, Dr Vickery opines that the classification of the applicant’s vehicle and the reallocation of runs were the whole contributing factors to the applicant’s injury, but Dr Vickery also opines that the applicant’s marital difficulties would be a contributing factor to the applicant’s psychological injury.
Dr Chow records the applicant having a nervous breakdown in 2017 and seeing a psychologist for 10 sessions. Dr Chow records that the applicant stated that this “was due to the incidents at Toll”, although perhaps this is an observation being made by the applicant in hindsight, which is then recorded by Dr Chow.
The clinical notes from Ms Talbot record that the treatment sought by the applicant in 2017 was in regard to difficulties with his neighbours and in-laws. Ms Talbot also writes that the issue which the applicant sought treatment for in 2017 had resolved and was specific to the circumstances of the time, and that the applicant was able to maintain work during this period.
Deputy President Roche said in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
The opinions of Dr Chow and Dr Vickery, along with the records made by Dr Mangahis and Ms Talbot at each of their initial consultations with the applicant, lead me to accept that the applicant’s employment with the respondent was the main contributing factor to the contraction of a psychological disease.
The only other possible contributing factor could be marital difficulties which Dr Vickery assumes the applicant has by reference to the mental health plan prepared by Dr Mangahis in February 2021. However, that is not a factor identified by Dr Chow or Ms Talbot. Even Dr Vickery’s opinion on this issue is ambiguous when on the one hand he opines that the classification of the applicant’s vehicle and the reallocation of runs were the whole contributing factors to the applicant’s injury, but then also opines that the applicant’s marital difficulties would be a contributing factor to the applicant’s psychological injury.
Furthermore, the respondent in its written submissions “accepts it cannot point to any evidence which indicates the diagnosed Adjustment Disorder was caused by anything other than work.”
It follows that in accepting that the applicant has a disease injury pursuant to s 4 (b)(i) of the 1987 Act, the deemed date of injury should be 2 February 2021, being the first date of incapacity. That is in accordance with s 15 (1)(a)(i) of the 1987 Act.
It also means that there is no basis for the defences raised by the respondent pursuant to ss 254 and 261 of the 1998 Act. The dispute notice dated 2 April 2021 records that the respondent received a Certificate of Capacity on 4 March 2021 and a claim form was completed on 12 March 2021. The applicant has therefore complied with s 261.
The respondent’s complaint of prejudice in terms of notice of injury is based upon the applicant having sustained injury in 2017 as recorded by Dr Chow, and that the respondent is now precluded from investigations of these prior events. However, I have already provided reasons as to why I consider there is likely to have been an error or misunderstanding by Dr Chow on this point, and that what was recorded by Dr Chow is not consistent with the contemporaneous records of Ms Talbot.
Notice of injury was made by the applicant by at least the time of the provision of the Certificate of Capacity for an injury deemed to have occurred one month earlier. The respondent raises no prejudice in regard to that timeframe, and so the provisions of s 254 of the 1998 Act cannot be relied upon by the respondent to defeat the applicant’s claim.

The s 11A defence

The dispute notices issued by the respondent rely upon reasonable action being taken by the respondent with respect to transfer, retrenchment and/or provision of employment benefits as being the whole or predominant cause of the applicant’s psychological injury. However, the respondent’s submissions on this particular defence are limited to the category of ‘transfer.’
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 Jones submits that the respondent lost contracts and work became limited due to the covid 19 pandemic. He submits that the only option was to transfer the applicant to a new route, even though that would result in some wage loss. Mr Jones submits that it would have been seen as unreasonable not to transfer the applicant when work was available.
Mr Jones submits that the opinion of Dr Vickery should be accepted on the s 11A issue because Dr Vickery is the only expert who is asked to grapple with this issue. Dr Vickery concludes that the very factors which resulted in the reasonable transfer of the applicant wholly contributed to the applicant’s injury.
Ms Goodman submits that the transfer of the applicant from the Toyota run to the Symbion run was but one event in the cause of the applicant’s psychological injury, and that the applicant has always submitted that the cause of his psychological injury was the cumulative effect of all the various incidents which occurred at work, and more particularly the applicant’s perception of those incidents.
Ms Goodman also submits that it was not the actual transfer which was the cause of the applicant’s injury, but rather it was the perception of the effect the change or transfer had upon the applicant’s earning capacity that was one of the contributing factors to his injury.
I have set out me reasons as to why I do not consider all of the events referred to by the applicant in his evidence can be the cause of his psychological injury because many of those events have not been considered by either the treating doctors or independent experts. However, I have also determined that the downgrading of the applicant’s motor vehicle and the rate of pay being received by the applicant were real events which the applicant perceived to be unfair.
Those events extend well beyond the transfer of the applicant to the Symbion run in late January 2021. The downgrade of the motor vehicle dates back to 2008 and the applicant was receiving what he perceived to be a low rate of pay from at least the beginning of 2020, if not earlier. That means that the transfer in late January 2021 on its own cannot be regarded as the whole or predominant cause of the applicant’s injury.
Dr Vickery might have been specifically directed to s 11A in his second report, but I do not accept that he has properly considered the application of that section in terms of the available evidence. Dr Vickery is provided with a list of issues regarding “the classification of his vehicle, allocation of jobs, and displeasure with his financial position” and is asked whether those issues involved wholly or predominantly reasonable action taken with respect to transfer, retrenchment and/or provision of employment benefits. Dr Vickery responds:
“It is my opinion these work-related issues and actions taken on behalf of the employer were the whole contributing factors to his injury.”
In my view that opinion provided by Dr Vickery is ambiguous, lacks explanation and cannot be relied upon. Firstly, it is not clear as to which of the three categories referred to from s 11A of the 1987 Act that Dr Vickery is referring to. That problem is compounded when the respondent has only relied upon the category of ‘transfer’ when making out its case pursuant to s 11A in its submissions.
Secondly, I agree with the submission made by Ms Goodman in her reply that it is not clear whether Dr Vickery is saying that all those issues and incidents listed by the respondent in its question to Dr Vickery are contributing factors to the applicant’s injury or whether Dr Vickery is endeavouring to address s 11A. The opinion provided by Dr Vickery makes no differentiation between those issues and incidents which are the cause of the applicant’s injury and those that relate to the category of transfer in s 11A.
I therefore agree with the submission made by Ms Goodman that once this particular opinion provided by Dr Vickery is set aside because of its ambiguity, the fundamental opinion on causation provided by Dr Vickery, that the applicant’s “perception of not being paid an adequate income” was the main contributing factor to the applicant’s psychological injury, is similar to that provided by Dr Chow.
I therefore do not consider that the respondent has established a defence pursuant to s 11A of the 1987 Act.

The claim for weekly payments of compensation

The applicant claims that he has had no current work capacity since ceasing work with the respondent on 2 February 2021.
The applicant states in his statement dated 18 October 2021 that he cannot adjust to normal life because of the psychological traumas caused and yet to be resolved from the respondent. He states that he has sleep deprivation, which causes him to be constantly tired. He states that he has been forced to live in a van because he has not received any financial compensation from the respondent.
Certificates of Capacity issued by Dr Mangahis in the first half of 2021 certify the applicant as having no current work capacity, and that the estimated time for a return to employment is unclear and depends on the applicant’s response to treatment, counselling and workplace mediation.
In her report dated 31 October 2021, Ms Talbot opines that the applicant’s current symptoms of disturbed sleep, heightened anxiety and rumination may inhibit his ability to re-enter the workforce. She writes that “we continue to work on these symptoms to improve the likelihood that he can re-enter the workforce.” Ms Talbot had recorded in her notes on 3 August 2021:
“Lockdown has prevented returning to work, despite some willingness, although still finding it difficult to sleep and manage thoughts and mood ups and downs. Considering painting. Will need clearance from GP.”
When Dr Chow saw the applicant in May 2021, he opined that the applicant remained totally unfit for work until he received further treatment and resolution of the industrial issues. He opined that the applicant’s complaints of poor sleep affected his ability to drive for a prolonged period of time.
Dr Vickery opines that the applicant is fit for work for another company.
Mr Jones submits that the applicant’s claim that he lacks capacity for work is entirely at odds with his bank statements during the course of 2021, which records him attending numerous venues on certain days.
There is not much assistance provided by the medical experts on the issue of the applicant’s capacity for work. It does not appear that Dr Chow was aware that the applicant had tertiary qualifications in architecture and computers, which may have allowed for a consideration by Dr Chow as to whether there might at least be some menial clerical or administrative jobs which the applicant could undertake even on a part time basis.
On the other hand, Dr Vickery’s opinion that the applicant is fit for work for another company is also of little assistance. It is not clear if Dr Vickery is referring to work with another courier company. If so, Dr Vickery does not give consideration to the applicant’s complaints made to him of variable memory and concentration due to the applicant’s lack of sleep and level of anxiety. If Dr Vickery is referring employment on the open labour market, then he does not set out what particular jobs the applicant might be capable of doing.
The applicant states that he has a degree in architecture and postgraduate degrees in architecture and computers. However, I accept that the applicant would not be able to undertake work as an architect because he has been doing courier work for almost 25 years. It is perhaps arguable that having tertiary qualifications would allow for the applicant to have a capacity for work in some basic clerical or administrative employment.
The opinions of Ms Talbot and Dr Chow, and the Certificates of Capacity of Dr Mangahis, that the applicant is totally unfit to work are based on the need for the applicant to have further psychological treatment. The Notice of Charge issued by Medicare on 8 March 2022 records that the applicant has had 10 consultations with Ms Talbot, which might be the maximum amount of counselling sessions allowed for by Medicare.
Dr Vickery suggests that six counselling sessions would be sufficient to gauge the progress of the applicant, whereas Dr Chow recommends regular counselling over a 6 to 12 month period.
Despite the deficiencies in the medical evidence on the issue of the applicant’s capacity for work, I prefer the opinions of the applicant’s treating practitioners, and that of Dr Chow, who all consider that the applicant has no capacity for work until he has had further treatment for his psychological condition. Ten consultations with Ms Talbot does not appear to be sufficient, and the applicant has not had the benefit of seeing a psychiatrist for treatment.
The applicant’s treating practitioners have had the benefit of monitoring the applicant’s condition since he ceased work in February 2021, and are in a good position to provide an opinion on the applicant’s capacity for work. The treatment recommended by the applicant’s treating practitioners is supported by Dr Chow.
Mr Jones submits that Dr Chow’s opinion that the applicant is totally unfit to work is based upon a lack of treatment and the resolution of industrial issues, and that in circumstances where the applicant has been away from the workplace where those industrial issues occurred, then it follows that the applicant has a capacity for work. However, the opinion from Dr Chow also includes the need for treatment, and I have already referred to what appears to be inadequate psychological treatment provided to the applicant to date.
I also do not consider that the records of expenditure in the applicant’s bank statements allows for a conclusion to be drawn that the applicant has been sufficiently active for there to be a finding that he has some capacity for work. Apart from the occasional visit to the cinema and the purchase of electronic games, the records of expenses appear to be for daily living expenses including pharmacy needs and commercial food preparation.
That there is the occasional record by treating medical practitioners of a hope or desire to return to at least some part time work has to be matched against the main impediment to a return to work, being the need for further psychological treatment.
The indication from the medical opinion which I have preferred is that the applicant will have some capacity for work once he gets some more psychological treatment. However, at this stage and on the available evidence, I accept that the applicant has no current work capacity.
The parties agreed that PIAWE is $1,428.30. Ninety-five per cent of PIAWE is $1,356.88. Eighty per cent of PIAWE is $1,142.64.
There will be an award of weekly payments of compensation as follows:
(a) $1,356.88 per week from 2 February 2021 to 3 May 2021 pursuant to s 36 (1) of the 1987 Act, and
(b) $1,142.64 per week from 4 May 2021 to date and continuing pursuant to s 37 (1) of the 1987 Act.

The claim for medical expenses

There will be an order that the respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 412

27 July 2022