Dous v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dous v Blacktown City Council [2025] NSWPIC 24
APPLICANT:	Nagwa Dous
RESPONDENT:	Blacktown City Council
MEMBER:	Michael Moore
DATE OF DECISION:	9 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant was employed by the respondent in a childcare centre working as a cook; applicant alleged a psychological injury as a consequence of being verbally abused and attacked by a parent of children at the childcare centre and as a consequence of her subsequent treatment by the respondent; the respondent denied liability on the basis that no injury was sustained (section 4), that employment was not a substantial contributing factor (section 9A), that if the applicant had sustained a psychological injury it was as a consequence of reasonable action taken or proposed to be taken with respect to transfer (section 11A), that the applicant was not incapacitated as claimed (section 33), and that there was no entitlement to payment of medical and related expenses (section 60); a further issue raised at hearing was that as the applicant ceased work on 15 March 2024 and was being paid weekly compensation in respect of a separate physical injury from that date to the present date, there was an issue as to whether any award of weekly compensation would involve payment of dual benefits and accordingly whether the discretion under section 46 should be exercised to reduce any award of weekly compensation; Held – the applicant had suffered a disease injury within the meaning of section 4(b)(i) being a primary psychological injury; the applicant’s employment was the main contributing factor to the disease; the deemed date of injury was 15 March 2024 (also being the date from which payments of weekly compensation for the separate physical injury were being paid); the applicant has had no current work capacity from the deemed date of injury to the present date as a consequence of the primary psychological injury; the applicant has suffered two injuries resulting in one incapacity; respondent ordered to pay weekly compensation pursuant to section 37 from 26 July 2024 to date and continuing on the basis of the applicant having no current work capacity; pursuant to section 46 the weekly compensation payable to the applicant is to be reduced by the amounts already paid or being paid in respect of the physical injury; respondent ordered to pay the applicant’s section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a primary psychological injury as a result of events in the workplace between 22 January 2024 and 15 March 2024. 2. The applicant’s employment was the main contributing factor to the applicant’s primary psychological injury. 3. The deemed date of injury of the applicant’s primary psychological injury is 15 March 2024 being the date of incapacity. 4. The applicant’s primary psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer within the meaning of s 11A of the Workers Compensation Act 1987. 5. The applicant has no current work capacity as a result of her primary psychological injury and has had no current work capacity as a consequence of her primary psychological injury from 15 March 2024 to date. 6. The applicant is presently in receipt of weekly compensation in respect of a physical injury on the basis that she has no current work capacity as a consequence of that physical injury with the incapacity having commenced for that injury on 15 March 2024. 7. The applicant has suffered two injuries which have resulted in one incapacity. 8. Subject to order 9 below the respondent is to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 on the basis of pre-injury average weekly earnings of $853.28 (as indexed from time to time) from 26 July 2024 to date and continuing. 9. Pursuant to s46 of the Workers Compensation Act 1987 the weekly compensation payable to the applicant pursuant to s 37(1) is reduced by the amounts already paid or being by the respondent to respondent for weekly compensation in respect of the physical injury referred to in order 6. 10. There is an award pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s medical and related treatment expenses in relation to her primary psychological injury. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant Nagwa Dous is a 62 year old worker who was employed by the respondent as a cook, working in a child care centre at Blackett, a suburb near Mount Druitt.
In terms of background the applicant was born in Egypt and migrated to Australia in 1988 at which time the applicant would have been approximately 26 years of age. The applicant was educated to the equivalent of year 12 before completing a bachelor degree in agriculture.
The applicant’s employment history included working in quality control and production coordination before 2007.
The applicant commenced working for the respondent in approximately 2007 with her job requiring her to provide catering for the staff and children at the child care centre.
The applicant worked five days a week with her hours of work being between 7.00am to 2.00pm.
The applicant’s duties included food preparation (which included cutting up of fruits and vegetables), cooking, loading and unloading the dishwasher, unpacking and stocking of orders of food supplies, cleaning and associated lifting. The applicant states that the physical requirements of her role required repetitive use of her hands and arms.
The applicant states, and the assertion is uncontradicted by any evidence from the respondent, that she was a hard worker and committed to her role and had never received any complaints from her employer about her work performance. Indeed the applicant states that she had received many awards for her work performance from the respondent. Again that assertion is uncontradicted by the respondent.
The applicant has apparently made a workers compensation claim for left carpal tunnel syndrome and right De Quervain’s Tenosynovitis which has been accepted by the respondent and for which workers’ compensation benefits are being presently paid with the applicant apparently going off work for those problems on 15 March 2024.
On 22 January 2024 the applicant apparently delivered a trolley into the yard of the child-care centre where she was working.
At the same time her grandson, named Joseph, was riding a bike nearby.
While in the yard the applicant went to introduce herself to a new relief teacher who was standing near a sandpit.
While the applicant was speaking to the relief teacher a dispute broke out between the applicant’s grandson, Joseph, and another child named Lynton about the use of the bike that was being ridden by Joseph (it may be that Joseph had got off the bike to say hello to the applicant).
The applicant attempted to intervene in the dispute advising Lynton that Joseph had been using the bike and offering/suggesting that Lynton use another bike that was in the immediate vicinity.
The applicant states, and that assertion is not contradicted by any other evidence before me, that she spoke very gently to the children while trying to defuse the dispute.
The applicant then apparently started to walk back to the kitchen where she worked when she heard a woman screaming and shouting at a co-worker (who the applicant identifies as Raman but whose name appears to be Ramandeep Kaur).
The woman who was screaming at Ms Kaur was the mother of Lynton whom I will identify (for reasons of privacy) as “Ms C”.
The applicant could hear that Ms C was abusing Ms Kaur about the applicant’s conduct in attempting to mediate the dispute about the bike between Lynton and Joseph.
The applicant returned to where Ms Kaur was being abused by Ms C and tried to explain what had occurred.
The response from Ms C was to shout abuse and swear at both the applicant and Ms Kaur.
The applicant found the event frightening and distressing as did Ms Kaur.[1]
[1] AAAD 1 p.9
Following her abuse of the applicant and Ms Kaur, Ms C took her children home saying “my kids won’t stay in a fucked centre”.[2]
[2] AAAD 1 p 9
It appears that Ms C has a history of confrontational and unreasonable behaviour in her dealings with the respondent.
Ms C had two children in the childcare centre where the applicant worked – Lynton (who was involved in the incident with the applicant’s grandson Joseph) and Logan.
On 1 September 2023 the children of Ms C got into what is described as “a fighting brawl”[3] over a toy at the centre. A staff member, Kirilee intervened, separated the children and confiscated the toy.
[3] AAAD1 p.11
In the dispute or during the separation of the warring parties Lynton had some skin scrapped off a finger which Ms C subsequently described as “Kira-Lee(sic) abusing my child”[4].
[4] AAAD1 P.11
Further on or about 25 January 2024, Ms C alleged that on 17 January 2024 Raman had assaulted one of her children by grabbing his wrist and lifting his chin while a bag was being checked for toys that may have been packed by the child to bring home.
The respondent’s enquiry suggested that no such assault took place.[5]
[5] AAAD1 p12
Ms C in around December 2023 was caught drink driving and had lost her licence. It appears that she was pregnant at the time as she was 17 weeks pregnant as at 25 January 2024.
On 7 February 2024 Ms C arrived to pick up her children from the childcare centre and appears to have unreasonably berated staff about how they dealt with a conflict between her two children who had been fighting with each other during the day. At the time a staff member noted that Ms C was smelling of alcohol or some other drugs.[6]
[6] AAAD1 p6
Ms C rang Gail Gale at 2.35am on 8 February 2024 in what Ms Gale described as an hysterical state demanding an apology from Ms Kaur and the applicant for what had occurred and threatening to go to the Ombudsman or Channel 7[7].
[7] AAAD1 pp5-6
On 8 February 2024 Ms Gale rang the Child Protection Hotline to report her serious concerns as to the welfare of Ms C and her unborn child.
It is not contended by the respondent that the behaviour of Ms C in her dealings with the child-care centre was reasonable and indeed the evidence establishes that Ms C was difficult and unreasonable in her behaviours as exhibited in the incidents referred to above.
After the incident on 22 January 2024 Ms Gale appears to have immediately investigated the event speaking to the applicant, Ramandeep Kaur and Ms C.
Ms Gale in her file note covering that enquiry noted that:
“It appears that Nagwa has been deeply affected by this altercation, she was crying and is very distressed.”[8]
[8] AAAD1 p10
Ms Gale’s file note also records that the applicant’s version of what occurred during the altercation with Ms C included the applicant stating that:
“Nagwa states that she never followed C as she was frozen in terror”.[9]
[9] AAAD p10
On 24 January 2024 Ms Gale also spoke to Ramandeep Kaur about the incident on
22 January 2024 (and at the same time also spoke to her about the incident on 17 January 2024) and recorded in her file note the following:
“Ramandeep is deeply affected by the incident on the 17th of January and again the incident of 22nd of January. She was vigorously crying and stating ‘Why do we have to put up with such behaviour’.”
While it is a little unclear from the material before me it appears that at the same time as Ms Gale spoke to Ms Kaur on 24 January 2024 (as noted at point 36) she also enquired as to how staff were coping and noted:
“Nagwa Dous is having significant health and well being issues after the incident dated 22^nd January 2023(sic). Gail as she described that she was in her car in the shopping centre and a woman approached and she frozen terrified in her car.”[10]
[10] AAAD1 p12
Ms Gale also recorded that:
“Nagwa cried as she told Gail has(sic) this incident has impacted her life and how hard she was finding to move on. Had not experience(sic) any such thing in her 24 years of working. Gail stated that this was a service in a challenging socio-economic area and she could transfer if she wanted. Nagwa state(sic) that this was her home and did not want to leave.”[11]
[11] AAAD1 p12
Ms Gale’s file note also records that:
“Gail has real concerns for Nagwa’s health and well being and informed Nicole F. on 1 February 2024 after the Directors Meeting.”[12]
[12] AAAD1 p13
From the evidence before me it appears that there was a subsequent meeting between Ms C and two supervisor/manager personnel from the respondent, being Pushpa Coulton and Ilva Sarmento on 27 February 2024 where Ms C was advised that inappropriate and disrespectful behaviours and interactions would not be tolerated but where Ms C suggested that while she wanted to apologise to Ms Kaur and the applicant but she wanted them to also apologise to her.[13]
[13] AAAD1 p14
At the same meeting it appears that Pushpa Coulton and Ilva Sarmento agreed with Ms C to facilitate a meeting between Ms C and the applicant and Ms Kaur provided that both Ms Kaur and the applicant agreed to apologise to Ms C.
In a subsequent meeting the applicant and Ms Kaur were advised by Pushpa Coulton and Ilva Sarmento that it would be appropriate to apologise to Ms C in a meeting between all the of them.
The applicant (as did Ms Kaur) expressed the view that she did not see why they needed to apologise but none the less were prevailed upon to attend the meeting despite their reluctance to do so[14].
[14] AAAD1 p15
The applicant’s version of what occurred includes an assertion that when the suggestion of a meeting was raised she stated that she was concerned about a possibility of an ambush by Ms C and said words to the effect “please do not push us, if she speaks to us like that again, this will break us.”[15]
[15] Application p22
The applicant also states that Pushpa Coulton in the same meeting stated that “the child’s mother has requested that you both be transferred.”[16]
[16] Application p23
The applicant states that:
“I felt that there was very little regard for my wellbeing and safety in this situation and that following her discussions with the child’s mother, Pushpa had already taken a side, giving very little consideration to the fact that Raman and I were victims of a verbal attack. I felt demoralised especially noting the mother’s history of repeated abuse. Nonetheless, I agreed to the meeting given my loyalty to the centre and desire to cooperate with management’s wishes.”[17]
[17] Application p23
In her statement dated 5 August 2024 the applicant states further that she felt that “Pushpa has no regard for us/me”[18] and that she wanted the applicant exposed to the meeting rather than deal with the problem properly.
[18] Application p23
The applicant notes that no letter was received by her outlining the basis of the meeting nor was any notice of its agenda given other than what was told to her in the course of a meeting in the kitchen at the child-care centre.
On 28 February 2024 Ms Kaur advised that she would not participate in the proposed meeting with Ms C as she had a medical certificate providing that she should not be communicating with Ms C.
The applicant states that she then felt ;
“increasingly scared that I would be on my own and following Pushpa’s recent aggression towards me, I felt very unsupported. I was demoralised that management was putting me in harm’s way.”[19]
[19] Application p23
The applicant further states that she advised Ilva Sarmento that:
“I cannot attend this meeting after the way the mother attacked us. I am an employee, and I should not be subjected to this kind of behaviour by a mother or anyone from the centre.”[20]
[20] Application p23
The applicant states that after she advised Ms Sarmento that she would not participate in the proposed meeting she was asked to sign a document acknowledging that she had been willing to attend the proposed meeting but now was not willing to do so.
The applicant apparently signed the document but requested that the document be amended to be consistent with the events that had occurred and include the reasons why she was unwilling to attend the meeting.
The applicant states that when Ms Sarmento returned she was advised by Ms Sarmento as follows:
‘If you do not attend this meeting, the only solution is to transfer you from the Centre.’[21]
[21] Application p23
The applicant states that she felt very threatened by the comment about transfer.
The following day the applicant apparently changed her mind and advised Ms Sarmento that she would meet with Ms C in the presence of Ms Gale but not in the presence of Ms Coulton who she felt had behaved aggressively towards her.
On 8 March 2024 (approximately one week after the events detailed in points 40 to 56 above) the applicant was contacted by phone by a person she identifies in her statement as “Nicole”, who appears from other material before me to be Nicole Fitzpatrick, Senior Coordinator, with the respondent.
Ms Fitzpatrick appears to have discussed the incident involving Ms C and the subsequent events with the applicant in the telephone conversation on 8 March 2024 with the applicant advising Ms Fitzpatrick that she was willing to meet with Ms C despite her concerns.
According to the applicant she did request that if Ms Coulton was to attend the meeting, despite the applicant’s concerns about the aggression towards and lack of support for the applicant exhibited by Ms Coulton, that a separate meeting take place with Ms Coulton before any meeting with Ms C.[22]
[22] Application p24
Nothing appears to have been done about arranging any meeting either with Ms Coulton or Ms C following the conversation referred to in points 57 to 59 above.
On or about 14 March 2024 the applicant was asked to attend a meeting with Ms Gale in her office.
The applicant states that she was not given any prior notice of the meeting, no agenda was provided and no support person offered or suggested.
The applicant states that in the course of the meeting she said words to the effect of:
“I am glad you are here so we can set up this meeting with the child’s mother.”[23]
[23] Application p25
According to the applicant’s uncontradicted statement Ms Gale responded as follows:
“This changes everything. I am here today to transfer you to another centre.”[24]
[24] Application p25
The applicant states that she was completely shocked by the statement and explained to Ms Gale she was willing to attend a meeting with Ms C and while she had withdrawn her consent at one stage that decision had been reversed within 24 hours.
The applicant states that she was advised by Ms Gale that “They want to transfer you[25]” and was told by Ms Gale of the identity of two potential centres to which the applicant could be transferred.
[25] Application p25
The applicant describes her reaction to this information as feeling “blindsided”, “ambushed” and “shocked”.[26]
[26] Application p25
The applicant states that:
“Gail observed I was upset and in shock and said words to me words to the effect of ‘Your willingness to meet with the mother changes everything. I will speak to Rob.’ I asked Gail if I could speak to Rob and Gail advised me that she would speak to him and come back to me first.”[27]
[27] Application p26
The applicant states that the following day being 15 March 2024 she emailed “Rob” at approximately 10.00am but received no response.[28]
[28] Application p26
According to the applicant, and again this is uncontradicted in the evidence, she was contacted by Ms Gale at approximately 11.45am and was advised:
“A final decision has been made to transfer you with immediate effect.”[29]
[29] Application p26
The applicant states that she became emotional and upset and concluded her shift in a bad way.[30]
[30] Application p26

The applicant saw her general practitioner, Dr Akram Moussad, that day in what she describes as a shocked and distressed condition.[31]
[31] Application p27
The applicant was certified unfit for work and she has not returned to any form of work since 15 March 2024.
The applicant subsequently made a claim alleging a psychological injury and seeking workers compensation benefits from the respondent.
By a notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (the s 78 notice) the respondent denied liability for the applicant’s claim in respect of psychological injury under sections 4,9A,11A,33 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
The denial of liability as set out in the s 78 notice essentially relied upon the medical opinion of Dr John Albert Roberts as set out in his medical report dated 7 July 2024.
By letter dated 23 August 2024 the applicant’s solicitor sought a review pursuant to s 287A of the 1998 Act of the respondent’s decision to decline liability attaching to the request for review copies of a medical report by Dr Abdal Khan dated 19 August 2024, a medical report from the applicant’s treating psychiatrist Dr Richa Rastogi dated 20 August 2024, certificates of capacity prepared by the applicants treating general practitioner Dr Moussad and copies of a statement and supplementary statement from the applicant.
By a notice dated 5 September 2024 issued under s 287A of the 1998 Act (s 287A notice) the respondent maintained its decision to decline liability.
The applicant filed an Application to Resolve a Dispute (Application) on 23 September 2024 with the Personal Injury Commission (the Commission).
The respondent filed a Reply with the Commission on 14 October 2024.
On 16 October 2024 the applicant filed an Application to Admit Late Documents (AALD).
On 21 October 2024 a preliminary conference was held before me where the matter was unable to be resolved and was set down for a conciliation/arbitration hearing on
9 December 2024. At the same time the respondent was given leave to issue directions for production addressed to the applicant’s treating practitioners Dr Moussad, general practitioner, Dr Rastogi, psychiatrist and Ms Miriam Boulos, psychologist.
The respondent filed an Application to Admit Additional Documents dated 4 December 2024.
The matter came before me on 9 December 2024 with Mr Luke Morgan of counsel instructed by Ms Azer from Turner Freeman Lawyers appearing on behalf of the applicant and Mr Daniel Stiles of counsel instructed by Ms Palamara of Sparke Helmore Lawyers appearing on behalf of the respondent.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a primary psychological injury arising out of or in the course of her employment being a disease injury within the meaning of
s 4(b)(i) of the 1987 Act;
(b) whether the applicant’s employment was the main contributing factor to any disease contracted by the applicant in the course of her employment within the meaning of s 4(b)(i) of the 1987 Act.
(c)    whether the applicant’s employment was a substantial contributing factor to any such primary psychological injury within the meaning of s 9A of the 1987 Act;
(d) if the applicant suffered a primary psychological injury arising out of or in the course of her employment whether such psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal or the provision of employment benefits within the meaning of s 11A of the 1987 Act;
(e)    whether the applicant suffers from any incapacity for work as a consequence of any such primary psychological injury and if so the extent of any such incapacity;
(f)    whether the applicant has any entitlement to weekly compensation within the meaning of s 33 of the 1987 Act, and
(g) whether the applicant has any entitlement to payment of medical or related treatment expenses within the meaning of s 60 of the 1987 Act.

Matters not previously notified

In addition to the matters in dispute as detailed at point 85 above, which were all raised in the s 78 notice a further issue was raised by the parties at the conciliation/arbitration hearing.
I was advised that it was agreed by the parties that at the time the applicant ceased work on 15 March 2024 she made a claim for payment of workers compensation benefits on the basis that she had suffered a physical orthopaedic/soft tissue injury which was accepted by the respondent.
The parties agree that as at the date of the conciliation/arbitration hearing the applicant was being paid weekly compensation at the maximum rate under s 37 of the 1987 Act for incapacity as a consequence of the physical injury on the basis that she has no current work capacity.
On the basis of the applicant’s statement the physical orthopaedic/ soft tissue injury is left carpal tunnel syndrome and right De Quervain’s tenosynovitis which resulted from her work as a cook with the respondent.
The physical orthopaedic/soft tissue injury is a separate injury to the psychological injury alleged in the current proceedings before me, however the date of incapacity for the physical injury is the same date as the alleged date of incapacity for the psychological injury in the current proceedings.
The issue that was raised by the parties was whether any further weekly compensation is payable to the applicant having regard to the fact that the applicant is in receipt of the maximum payable weekly compensation for her physical injury even if it is found that she suffered a psychological injury and has lost current work capacity as a consequence of that psychological injury.
As this was an issue that was not otherwise raised in the s78 notice and the parties wished the matter to be addressed at the conclusion of the conciliation/arbitration hearing, I set a timetable for the filing of written submissions which has been complied with by the parties.
That issue will be considered separately once the issues identified at point 85 have been considered and dealt with in these reasons.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (Application);
(b)    Respondent’s Reply and attached documents (Reply);
(c)    Applicant’s Application to Admit Late Documents dated 16 October 2024 (AALD);
(d)    Respondent’s Application to Admit Additional Documents dated 4 December 2024 (AAAD1);
(e)    Applicant’s Application to Admit Additional Documents dated 10 December 2024 (AAAD2).
(f)    Applicant’s written submissions dated 16 December 2024 (AWS).
(g)    Respondent’s written submissions undated (RWS).
(h)    Applicant’s written submissions in reply dated 24 December 2024 (AWSR).
In relation to the documents referred to in paragraph 94 sub paragraphs (c) and (d) being AALD and AAAD1 I note that no objection was made by either party to the admission of the documents and as in my view they were relevant to the matters in dispute they were admitted into evidence.
In relation to the documents referred to at point 94(e) I note that at the conciliation/arbitration hearing, I was advised that the applicant had attempted to file an Application to Admit Additional Documents on 4 December 2024 but that the documents had been rejected by the Commission registry. The applicant had however served a copy of the documents on the respondent’s solicitor.
I am unsure as to why the rejection of the documents by the Registry occurred however I was provided with a hard copy of the documents that the applicant had attempted to file and was advised by the respondent that there was no objection to same being admitted into evidence.
While there is some overlap between the contents of the AAAD1 and AAAD2, I consider that the documents are relevant to the matters in dispute and it is in the interests of justice that same be admitted into evidence.
At the conciliation/arbitration hearing Mr Stiles also sought to have admitted into evidence an additional late document being a statement by Nicole Fitzpatrick dated 5 December 2024.
The applicant objected to that document being admitted given that it had not been previously provided to the applicant and that the applicant had not had the opportunity to meet the contents of the statement by way of evidence of its own.
I reviewed the document as part of my consideration as to whether to allow the document into evidence and formed the view that:
(a) much of the material covered by the document was already in evidence; and
(b) of what remained, much of it consisted of hearsay evidence of little or no probative value.
Mr Stiles in response to a query from me suggested that the relevant part of the statement that he would seek to rely upon was directed to establishing the reasonableness of the respondent’s actions for the purposes of its defence relying on s 11A of the 1987 Act.
In response to a query from me Mr Stiles was unable to advise why the statement had not been obtained earlier.
Given the lack of any explanation for the delay in preparation and provision of the statement, the fact that most of the statement referenced material that was already in evidence and that most of what remained in the statement was in the nature of hearsay evidence of little or no probative value I rejected the proposed admission into evidence of Ms Fitzpatrick’s statement.[32]
[32] See Mateus v Zodune Pty Ltd trading as Tempo Cleaning Services {2007} NSWWCCPD 227
I also note that the applicant sought to tender material produced by the respondent in response to a notice to produce which I rejected on the basis that the material that the applicant was seeking to introduce was otherwise already in evidence.

FINDINGS AND REASONS

I have paid careful attention to the submissions of both counsel and will refer to those submissions when appropriate in these reasons.
As noted I will deal with the issues raised in the respondent’s s 78 notice before undertaking any necessary consideration of the issue referred to at point 91 above.
The Application pleads the applicant’s injury as being a disease injury with a deemed date of injury of 15 March 2024 being the applicant’s last date of work.
As I understand the applicant’s case, she is alleging a disease injury being a psychological injury contracted in the course of her employment within the meaning of section 4(b)(i) of the 1987 Act.
Section 4(b)(i) provides as follows:
“injury”
(a)means personal injury arising out of or in the course of employment.
(b)includes a “disease injury” which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease,”
I note that as the applicant is alleging that she has suffered a disease injury within the meaning of s 4(b) of the 1987 Act she has to establish that the employment was the main contributing factor to the applicant contracting the disease.
As stated by Deputy President Snell in AV v AW the test of “main contributing factor” is a more stringent test than the former test in s 4(b) of the 1987 Act which was subject to s 9A of the 1987 Act which required that the employment be a substantial contributing factor to the contraction of the disease or aggravation acceleration exacerbation or deterioration of the disease.[33]
[33] [2020] NSWWCCPD 9 at para 66
Accordingly, if the applicant is found to have suffered a disease injury within the meaning of
s 4(b) of the 1987 Act the respondent’s denial of liability relying on s 9A of the 1987 Act falls away.

Medical Evidence

The applicant relies on a qualified medical opinion of Dr Abdal Khan, psychiatrist dated
19 August 2024.
Dr Khan took a history of the development of the applicant’s alleged injury that is broadly consistent with the situation that I have outlined under the heading “Background” in these reasons.
Dr Khan did note that he was informed by the applicant that prior to the events of 22 January 2024 she had previously been encouraged by staff at the centre to engage with children and parents and at no stage had she been discouraged from doing so.[34]
[34] Application p41
Dr Khan recorded that as a result of the workplace stressors outlined in the applicant’s history that:
“Mrs Dous experienced gradual deterioration in her mental state characterised by low mood, anxious ruminations, panic attacks, irritability, agitation, flashbacks, hypervigilance, reduced motivation, reduced energy, reduced enjoyment in activities, social withdrawal, sleep disturbance with poor sleep maintenance and reduced appetite with weight loss of approximately 3kg.
Mrs Dous also struggled with impaired attention, impaired concentration, impaired memory, feelings of hopelessness and worthlessness, passive suicidal ideation, loss of self-esteem, loss of self-identity and difficulties with trust in interpersonal relationships. Mrs Dous had developed issues with tension headaches.”[35]
[35] Application pp42-43
In terms of current functioning Dr Khan recorded (inter alia) that:
“Mrs Dous continues to experience pervasive symptoms of depression and anxiety, which have a profoundly negative impact on her social, occupational and other important areas of functioning. Her mood remained depressed and she continued to experience panic attacks, irritability (particularly in crowded places), agitation and anxious ruminations about her workplace traumatic experiences. Feelings of hopelessness and worthlessness persisted and perpetuated passive suicidal ideation. Mrs Dous’ (sic) reduced motivation and reduced energy impacted on her attention to her self-care and personal hygiene as well as her engagement in social and recreational activities.”[36]
[36] Application p43
Dr Khan noted that the applicant had been prescribed anti-depressant medication mirtazapine and anti-insomnia medication temazepam and was being treated by her general practitioner, a psychiatrist and a psychologist.[37]
[37] Application p43
Dr Khan diagnosed the applicant as suffering from a “major depressive disorder with anxious distress.”[38]
[38] Application p45
Dr Khan expressed the view that the applicant’s employment as a cook with the respondent was the main contributing factor to her psychiatric/ psychological injury.[39]
[39] Application p45
Dr Khan noted contributory events to the injury were the interaction with the aggressive parent, the pressure placed on her to attend a meeting with the aggressive parent, being pressured to apologise, being threatened with transfer to another childcare centre if she did not attend the proposed meeting with the parent, being ambushed in a meeting of which she was not given any notice nor provided with an agenda and not offered the chance of a support person, and despite agreeing to attend the proposed meeting being advised she was to be transferred effective immediately.[40]
[40] Application pp45-46
Dr Khan spent some time commenting on the contents of a medical report obtained by the respondent from Dr John Albert Roberts which as noted earlier formed the basis of the respondent’s decision to decline liability. Those comments will be referred to later when dealing with Dr Roberts opinion.
Dr Khan expressed the view that the applicant’s present treatment regime involving her general practitioner, psychologist, psychiatric consultation and prescribed medication was appropriate, reasonably necessary and causally related to the injury he had diagnosed.[41]
[41] Application p51
Dr Khan expressed the view that the applicant had no current capacity for work and had been totally incapacitated for work since 15 March 2024.[42]
[42] Application pp52-53
Dr Khan specifically expressed the view that the applicant does not suffer from post-traumatic stress disorder[43].
[43] Application p51
The applicant’s treating psychiatrist is Dr Richa Rastogi who has provided a medical report dated 20 August 2024.
Dr Rastogi’s record of the applicant’s history[44] is consistent with her statement in these proceedings, the summary provided by me under the heading “Background” and the history recorded by Dr Khan.
[44] Application pp 55-57
In terms of symptoms recorded by Dr Rastogi the doctor noted, inter alia that:
-     “She is not sleeping and is distressed.”[45]
-     “She is having panic attacks and severe anxiety.”[46]
-     “She is traumatised by the way she was treated”[47]
-     “She feels humiliated and emotionally distressed”[48]
-     “She has issues of trust”[49]
-     “She has become socially avoidant”[50]
-     “Her concentration is poor”[51]
-     “She does not sleep much and has middle insomnia”[52]
-     “Her severe anxiety and fear”[53]
[45] Application p57
[46] Application p57
[47] Application p57
[48] Application p57
[49] Application p57
[50] Application p57
[51] Application p57
[52] Application p57
[53] Application p58
Under the heading “Current functioning/ Daily functioning” Dr Rastogi noted as follows:
-      “ADL’s – she is able to shower but needs prompting and struggles with routine, she is usually home bound. There is no desire to do things. Her husband and children needed to push her to attend to her basic self-care. Mrs Dous relied on her husband to complete tasks, including cooking, laundry and cleaning.
-      Driving - she can drive to familiar places only if needed but prefers to be at home.
-      Social – she has lost friendships, isolated, spending time at home, stopped walking and avoids attending any social events due to lack of confidence and has poor self-esteem. There is shame and embarrassment with feeling socially inept.
-      Household and domestic chores – she does not engage in household chores and has let go of things and relying on her husband.
-      She has marked concentration lapses occasionally and struggles watching TV and even making decisions. She struggles to focus on completing even basic tasks around her home and she was easily distracted in conversation.
-      Her relationship with her husband has impacted significantly and she has no sex drive. She has distanced herself from her children and grand children.”[54]
[54] Application p58
Dr Rastogi diagnosed that the applicant was suffering from Major Depressive Disorder with anxiety[55].
[55] Application p59
In terms of causation Dr Rastogi related the diagnosed condition to “hostile and intimidating interaction with mother of a child”, “being coerced for mediation placing her in unsafe environment”, “being subjected to hostility, discrimination and berated constantly feeling belittled”, being “ambushed in an unplanned meeting with a senior manager where she was not given adequate notice or provided an agenda or a support person, being “ advised in the meeting she was going to be transferred to another childcare centre despite the fact that she had agreed to attend the meeting with the aggressive mother” and being told the following day that “she would be transferred effective immediately.”[56]
[56] Application pp59-60
Dr Rastogi specifically rejected the suggestion that the applicant suffered post-traumatic stress disorder as her presentation did not fulfill criterion A for the DSM-5 diagnosis.[57]
[57] Application p65
Dr Rastogi assessed the applicant as being “unfit to work in any capacity”.[58]
[58] Application p66
The history obtained by Dr Rastogi, her diagnosis, her opinion on causation and her assessment of the applicant’s work capacity are all consistent with the views of Dr Khan.

Both the specialist psychiatrists whose opinions are relied upon by the applicant reject a diagnosis of post-traumatic stress disorder.
Dr Rastogi’s report, like the report of Dr Khan, provides some criticisms of the opinion of
Dr John Albert Roberts which will be referred to later in these reasons.
A second report from Dr Rastogi is also in evidence.
The second report is dated 25 June 2024 and is addressed to the applicant’s treating general practitioner Dr Akram Moussad. The content of that report is consistent with the more detailed opinion as set out in Dr Rastogi’s report of 20 August 2024 discussed above.
The applicant has been treated by Ms Miram Boulos, psychologist, who has provided a medical report concerning the applicant and her condition dated 28 August 2024.
In her report Ms Boulos diagnosed the applicant as suffering from the following psychological symptoms – anxiety, depression, insomnia, decreased self-esteem, social withdrawal, psychosomatic symptoms, and disruption of routine and stability.[59]
[59] Application p70
Ms Boulos’s report identifies a confrontation with a parent as significantly affecting the applicant’s mental health[60] but then records a history of what occurred subsequently that is consistent with the other histories recorded by Drs Khan and Rastogi.
[60] Application p68
On my reading of the totality of Ms Boulos’ report it is my view that she considers that confrontation with Ms C and the subsequent treatment of the applicant by the respondent as all contributory factors in the development of the applicant’s psychological problems.
The applicant also relies upon the opinion of her treating general practitioner Dr Akram Moussad dated 9 September 2024.
In his report Dr Moussad diagnosed the applicant as suffering from post-traumatic stress disorder, major depressive disorder and generalised anxiety disorder[61].
[61] Application p72
Dr Moussad related those conditions to the aggressive behaviour of the parent, instructing the applicant to apologise to the parent, being subjected to unplanned meetings, and being told that the applicant was to be transferred.[62]
[62] Application p73
Dr Moussad assessed the applicant as being unfit for work.[63]
[63] Application p80
Dr Moussad also commented on the contents of Dr Roberts medical report.
Dr Moussad was the doctor who first treated the applicant in respect of her alleged injury on 15 March 2024 and the certificates of capacity issued by Dr Moussad at that time and for some time thereafter diagnosed the applicant as suffering from post-traumatic stress disorder with anxiety and depression but changing the diagnosis in later certificates of capacity commencing on or about 5 August 2024 to one of major depression.[64]
[64] Application pp84-113; AAAD2 pp127-147
All the certificates of capacity issued by Dr Moussad certify the applicant as having no current work capacity.
The respondent relies upon the medical opinions of Dr John Albert Roberts as set out in his medical report dated 7 July 2024, a supplementary medical report dated 8 September 2024 and a further supplementary report dated 15 November 2024.
As noted earlier in these reasons the opinion of Dr Roberts is the basis for the respondent’s denial of liability.
In his report dated 7 July 2024 Dr Roberts set out a history of events leading up to and including 15 March 2024 that is broadly consistent with the histories obtained by Drs Khan, Rastogi and Moussad and Ms Boulos[65].
[65] Reply pp10-12
Under the heading “Presenting Complaints” Dr Roberts records the following:
“Mrs Nagwa Dous when asked as to in what way she was feeling unwell and as to what problems she had in regard to her current health status was requested to initially respond in regard to her physical health.
In responding to this question Mrs Dous asserted ‘everything is wrong now, I’m not working, I’m at home doing nothing, I’m very nervous doing nothing.’ Mrs Dous stated that her work was her life; that she had nothing to do; that she can’t sleep well; that she may sleep two hours at night and that she may not sleep at all; that this had been the case since 22 January 2024 until 26 March 2024.
COMMENT: The assertion that she had not slept at all for a period 22.1.2024 until 26.3.2024 is incompatible with survival.”[66]
[66] Reply p12
A review of Dr Roberts’s recorded response of the Applicant to the question shows that his “COMMENT” is a misstatement of what the applicant told him and as recorded by him.
Dr Roberts’s recorded response makes no reference to the applicant not having slept for two months, rather she said that she can’t sleep well, that she may sleep two hours at night and that she may not sleep at all.
The mis-characterisation of the applicant’s history is in my view outrageous conduct on the part of Dr Roberts particularly as he relies on that mischaracterisation to underpin his opinion that the applicant does not suffer from a psychiatric/ psychological condition.
When commenting on the “Symptomology Elicited” Dr Roberts referred to “the untenable symptomatology in regard to sleep disturbance, totally untenable, on reasonable medical grounds.”[67]
[67] Reply p17
Under the heading “In summary” Dr Roberts records, inter alia, as follows:
“In regard to my findings in regard to diagnosis, I would consider that the cluster of symptomatology alleged by Mrs Dous cannot be accepted as valid on reasonable psychiatric grounds because certain of her symptomatology is incompatible with survival..”[68].
[68] Reply p21
Later in the concluding paragraph of his report Dr Roberts states:
“Her level of symptomatology since it is incompatible with survival has not satisfied the diagnosis of a psychiatric condition, and I do not consider that there is any explanation or a medical/psychiatric nature to account for her claimed symptomatology.”[69]
[69] Reply p22
I note that the only symptom identified in Dr Roberts medical report dated 7 July 2024 as being “incompatible with survival” is the alleged history of a failure to sleep for a period of two months.
Following service of Dr Roberts report dated 7 July 2024 with the s78 notice the applicant’s solicitors wrote on 23 August 2024 to the respondent seeking a review pursuant to section 287A of the 1998 Act of the decision set out in the s 78 notice (the review application) attaching medical reports from Dr Khan dated 19 August 2024 and Dr Rastogi dated
20 August 2024 (which reports have been discussed above), certificates of capacity from
Dr Moussad and the applicant’s statement and supplementary statement both dated
[70] Application pp5-6
5 August 2024[70].
Importantly the applicant’s supplementary statement dealt with Dr Roberts’s repeated assertion in his report dated 7 July 2024 that the applicant had given a history of not having slept between 22 January 2024 and 26 March 2024 which he described as “incompatible with survival”.
Leaving aside the fact that the doctor’s own record of the applicant’s history is inconsistent with the characterisation subsequently utilised by Dr Roberts (as noted above) the applicant’s supplementary report dealt with Dr Roberts assertions as to her history of insomnia as follows:
“At page 4, Dr Roberts reports that I reported to him that I have not slept at all for the period 22 January 2024 until 26 March 2024. This is incorrect. I recall I reported words to the effect of some nights I will only get a couple of hours of deep sleep and some nights my sleep is disturbed because it is difficult to fall asleep or stay asleep. I did not say that I am completely insomniac every night as suggested by Dr Roberts.”[71]
[71] Application p29
The description by the applicant of her sleep disturbance in her supplementary statement is broadly consistent with the actual history recorded by Dr Roberts before his subsequent mischaracterisation in the balance of his report.
It appears that after receiving the review application the respondent’s solicitors forwarded to Dr Roberts copies of the medical reports of Doctors Khan and Rastogi seeking comments from Dr Roberts in relation to the opinions expressed therein.
It is unclear whether the supplementary statement of the applicant or any part of that statement was provided to Dr Roberts to consider together with the medical opinions of
Drs Khan and Rastogi.
If the supplementary statement of the applicant or its contents was not provided to Dr Roberts that is, to say the very least, unfortunate as that information may have had the effect of Dr Roberts considering his opinion with the benefit of a correct restatement of the applicant’s history of insomnia that he had mischaracterised in his earlier report.
If the supplementary statement of the applicant or its contents were provided to Dr Roberts together with the reports of Drs Khan and Rastogi no mention of the supplementary statement of the applicant or its contents appears in the supplementary report prepared by Dr Roberts dated 8 September 2024.
In the supplementary report of 8 September 2024 Dr Roberts recorded the following concluding comments:
“I consider that the extent of the claims made by the claimant including the assertions that she had not slept at all for a period from 22 January 2024 to 26 June 2024 is incompatible with survival.
In summary therefore, I maintain my opinion, I do not consider that it is tenable on reasonable psychiatric grounds that her complaints could be substantially caused by the events being the subject of this matter.”[72]
[72] Reply p24
Leaving aside the fact that Dr Roberts in the supplementary report extends his alleged history of the applicant being totally insomniac from 22 January 2024 to 26 June 2024 rather than 26 March 2024 as previously stated it is clear that he continues to base his opinion to a very large degree on the total implausibility of the applicant being unable to sleep for months at a time.
If the applicant’s supplementary statement or its contents were provided to Dr Roberts with the reports of Drs Khan and Rastogi his failure to deal with the applicant’s correct history of insomnia when expressing his opinion is outrageous.
One also wonders how much attention Dr Roberts paid to the histories obtained and recorded by Drs Khan and Rastogi in relation to the applicant’s sleep difficulties.
Dr Khan refers to “sleep disturbance and poor sleep maintenance”[73] and Dr Rastogi refers to “She does not sleep much and has middle insomnia and replaying work memories”[74] and neither doctor records a history of total insomnia for months on end which is the characterisation applied by Dr Roberts.
[73] Application p42
[74] Application p57
In his report of 12 July 2024 Dr Roberts also takes issue with the diagnosis of post-traumatic stress disorder which is part of the initial diagnosis of the applicant’s treating general practitioner as recorded in the certificates of capacity.
Given that the specialist psychiatrists who have provided reports in the applicant’s case both specifically state that the applicant does not suffer from post-traumatic stress disorder I accept that the weight of specialist opinion is overwhelmingly to the effect that the applicant does not suffer from that condition.
I also note that Mr Morgan specifically submitted that the applicant does not allege that she suffers from post-traumatic stress disorder.
In his report Dr Roberts records a whole range of reported symptoms from the applicant that he notes, (allowing for some confusing syntax), as being consistent with anxiety of most severe degree[75] but having noted those symptoms which would be consistent with a diagnosis of anxiety discounts same relying on the “basis of the alleged stressors” and “including also the untenable symptomatology in regard to sleep disturbance”[76].
[75] Reply pp16-17
[76] Reply p17
Dr Roberts dismisses a diagnosis of an anxiety disorder despite obtaining a history or symptoms that he states would be consistent with such a diagnosis. In coming to that opinion he appears to rely heavily on his misstated history of the applicant’s sleep disturbance and does not otherwise explain why the alleged stressors could not have triggered an anxiety state - a bare ipse dixit of little or no probative weight.
Dr Roberts also provided one further supplementary report dated 15 November 2024[77] which commented on the medical report of Ms Boulos and a medical report from Dr Moussad.
[77] AAAD1 pp1-3
Dr Roberts criticises Dr Moussad’s diagnosis of post-traumatic stress disorder which he states as being “untenable”[78] and the use by Ms Boulos of the DASS which he suggests is not designed to be used in the way Ms Boulos did.
[78] AAAD1 p2
I note that the clinical records of Dr Rastogi and Dr Moussad together with the records of Ms Boulos are in evidence[79] and which I have read. They do not disclose any pre-existing psychological problems prior to a consultation with Dr Moussad on 15 March 2024.

FACTUAL EVIDENCE.

[79] AAAD1 pp21-148

The relevant factual material has already been referenced under the heading “Background” and includes both the applicant’s statement and supplementary statement and a series of file notes from the respondent’s records and two copy emails.
There are no statements from any witnesses contradicting the applicant’s version of events and the file notes from the respondent’s records are generally consistent with the applicant’s version of events.
To the extent that the file notes of Ms C’s version of what occurred in relation to the dispute over the bike on 22 January 2024 differs from the applicant’s versions as reproduced in her statement evidence, histories to doctors and the file notes themselves I prefer the evidence of the applicant given that it is otherwise supported by fellow workers and given the clear evidence of irrational and unreasonable behaviour of Ms C in other interactions at the childcare centre referred to earlier in these reasons.

Consideration and Findings

I find the applicant’s evidence to be credible and I accept her version of what occurred on the 22 January 2024 and what occurred thereafter in terms of her treatment by the employer.
I find the medical evidence and opinions of Dr Khan and Dr Rastogi to be consistent and credible and based on a correct history as provided by the applicant.
In my view the opinions of Dr Roberts are of little weight being essentially based on an incorrect history that the doctor created himself by misrepresenting the history given to him by the applicant of being totally unable to sleep for months. There is clearly no “fair climate”[80] provided to enable acceptance of Dr Roberts opinion – the “facts” asserted by Dr Roberts bear no relationship to the “established facts” and his opinion is clearly untenable given that deficiency.
[80] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
I note the criticisms of the opinion of Dr Roberts in the reports of Dr Khan and Dr Rastogi and am of the view that those criticisms have real weight and provide a further basis for discounting the opinions of Dr Roberts.
Both Dr Khan and Dr Rastogi diagnose the applicant as suffering from a major depressive disorder with anxious distress or anxiety. Both doctors dismiss the suggestion that the applicant suffers from post-traumatic stress disorder.
On the balance of probabilities I accept the diagnosis of Drs Khan and Rastogi and find that the applicant suffers from a major depressive disorder with anxiety or anxious distress.
That diagnosis is also support to some degree by the opinions of Dr Moussad and Ms Boulos although I find the opinions of Dr Rastogi and Dr Khan to be the most convincing medical evidence in the case.
In terms of causation of the applicant’s condition both Dr Rastogi and Dr Khan identify the initial incident with Ms C, the subsequent request to participate in a mediation, the requirement to provide an apology under threat of a transfer and the subsequent decision to transfer the applicant with immediate effect as all contributing to the applicant’s condition.
There is no evidence before me that the applicant’s condition of major depressive disorder and anxiety was caused by any other event or condition.
I find on the balance of probabilities that the applicant suffered a primary psychological injury being a major depressive disorder with anxiety or anxious distress.
I further find on the balance of probabilities that the said primary psychological injury arose out of and also in the course of the applicant’s employment and to which her employment was the main contributing factor to the injury.
I further find on the balance of probabilities that the said primary psychological injury is a disease injury within the meaning of s 4(b)(i) of the 1987 Act with a deemed date of injury of 15 March 2024 being the date of incapacity.
The respondent’s denial of liability on the basis that the applicant did not suffer an injury within the meaning of section 4(b)(i) fails.
As the test under s 4(b)(I) of main contributing factor is a more stringent test than substantial contributing factor under section 9A of the 1987 Act[81] the respondent’s denial of liability relying on section 9A of the 1987 Act fails.
[81] Per Deputy President Snell in AV v AW [2020] NSWWCCPD 9 at para 66
The respondent also relies on section 11A of the 1987 Act to deny liability for payment of compensation.
The s 78 notice and the s 287A notice issued by the respondent both express the defence under s 11A in fairly general terms as follows:
“Section 11A(1) of the 1987 Act provides that, in respect of a psychological injury, a worker is not entitled to compensation if his or her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer. The employer’s reasonable action must be due to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers, or the provision or employment benefits. Council considers that it has acted reasonably in respect of the circumstances alleged by you as being causative of your alleged condition, such that if you have sustained an injury (which is denied), you are not entitled to any compensation.”[82]
[82] Reply p3; Reply p7
The above paragraph appears under the heading “Reason(s) Council disputes liability” in the s 78 notice and under the heading “Reason(s) for the decision” in the s 287A notice.
It is readily apparent that the stated reason for the decision does not identify which action, within the meaning of the section, is alleged to be wholly or predominantly the cause of the applicant’s condition – it does not specify whether the action is with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal, or the provision of employment benefits.
The only hint from either document as to what relevant action by the employer is alleged to be the whole or predominant cause of the psychological injury that falls within s 11A of the 1987 Act is the following statement in the section 78 notice:
“Dr Roberts considered that the actions taken by Council had arisen due to an intention to transfer you following your conduct in relation to the incident involving the bikes and a parent on 22 January 2024”[83]
[83] Reply p2
Mr Stiles in his submissions for the respondent clarified that the whole or predominant cause of any psychological injury is alleged to be what occurred about the proposed transfer of the applicant.
I understand from that submission and from the contents of the s 78 notice and the
s 287A notice that no other action identified in s 11A (such as discipline, performance appraisal or demotion) is relied upon by the respondent for the purposes of its denial of liability.
Accordingly as a first step in establishing its defence under s 11A of the 1987 Act the respondent needs to establish that the actions taken by the respondent with respect to transfer of the applicant was the whole or predominant cause of the applicant’s psychological condition.
The s 78 Notice relied upon the opinion of Dr Roberts to support its defence under s 78.

As noted at paragraph 205 there appears to be some purported reliance on the opinion of Dr Roberts for the purposes of the s 11A defence and the relevant part of Dr Roberts report states as follows:
“I would consider that the intention by Mrs Dous’(sic) employer to transfer her would have been an upsetting circumstance. It is my impression that the decision to transfer her was based on her conduct in relation to the incident involving the bikes, as previously mentioned.
I note that you refer to the Decision of Deputy President Snell held in Hamad -v- Q Catering Limited (2017) NSWWCCPD6 that where there are a number of factors which have potentially caused the worker’s injury, medical evidence is required in order to establish the whole or predominant cause.
I do not consider that on the basis of the symptomatology volunteered by Mrs Dous that it would be considered on reasonable psychiatric grounds that the account of symptomatology can be deemed to be true and accurate in the absence by a forensic psychological assessment.
Not only is the level of symptomatology incompatible with survival but if a level of symptomatology of such a degree is assumed, it would be consistent with exposure to the most severe stressors to which previous reference has been made.”[84]
[84] Reply p20
The above statement is a long way for evidence establishing that the whole or predominant cause of the applicant’s psychological condition was reasonable action taken by the respondent with respect to transfer or proposed transfer of the applicant.
To the extent that it could possibly be suggested that Dr Roberts is suggesting that the cause of the applicant’s condition was the proposed transfer of the applicant given my already expressed views as to the weight to be given to Dr Roberts opinion I do not find it persuasive to suggest that Dr Roberts view as to causation should be accepted.
Further there is in my view an illogicality in trying to rely on Dr Roberts opinion on causation in that his opinion is that there is nothing wrong with the applicant to wit:
“In regard to my findings in regard to diagnosis, I would consider that the cluster of symptomatology alleged by Mrs Dous cannot be accepted as valid on reasonable psychiatric grounds.”[85]
[85] Reply p21
If Dr Roberts is of the opinion that there is nothing wrong with the applicant, then it is hard to see how he could express any opinion as to the cause of the applicant’s condition.
Mr Stiles, appreciating the problem posed by his medical case, pointed to the fact that the applicant only sought medical treatment on 15 March 2024 for her psychological problems despite the relevant chain of events commencing on 22 January 2024.
Mr Stiles went on to submit that having regard to all the evidence including how the applicant was able to continue working without loss of time it was clear that it was suggestion or notice of a transfer on 14/15 March 2024 that was the whole or predominant cause of any psychological condition.
I do not accept that submission.
It is clear in my view that the applicant was greatly distressed by the events of 22 January 2024 – indeed the file note of Ms Gale records:
“It appears that Nagwa has been deeply affected by this altercation, she was crying and is very distressed.”[86]
[86] Reply p10
The applicant herself records her distress when it was suggested that she attend a meeting with Ms C as she found the prospect of such a meeting very frightening[87]. She was concerned about her safety and felt demoralised and sad at the prospect of the meeting[88]
[87] Application p21
[88] Application p21
The applicant states that she was distressed by the pressure put on her to attend the meeting and was distressed by a suggestion that she would be transferred if she did not attend.[89]
[89] Application p23
The applicant refers to feeling undervalued and unsupported and pressured to provide an apology.
The applicant’s treating psychiatrist and qualified independent medical expert both express the view that the diagnosed condition of a major depressive disorder and anxiety was caused by a chain of events including the initial incident, the pressure to attend a meeting with Ms C, the pressure to apologise to Ms C, the lack of support, being ambushed in an unscheduled meeting, being threatened with transfer and being told she was to be transferred irrespective of her agreement to attend a meeting[90] .
[90] Application pp6,7,59,60
I accept that being told that she was to be transferred was a significant contributor to the applicant developing her psychological/psychiatric condition however the evidence, on the balance of probabilities, clearly points to a chain of events which were all significant contributors to the applicant’s condition.
The respondent fails to discharge its onus in establishing that the action taken by the respondent with respect to transfer was the whole or predominant cause of the applicant’s injury.
I further note that even if I had accepted that the applicant’s condition was wholly or predominantly caused by action taken by the respondent with respect to transfer the respondent would fail to establish that what was done by it was reasonable.
The applicant was a long term employee with a very good employment record.
She intervened in a dispute between two children arguing about a bike and ensured that each child ended up with a bike to play with.
The applicant was on her way back to the kitchen and heard Ms C verbally abusing another staff member.
The applicant sought to explain what had occurred with the children and was then subjected to aggressive verbal abuse that left her in a distressed state.
The respondent was aware of the distress being experienced by the applicant.
The respondent was also aware that Ms C was an unreasonable and aggressive individual who had been involved in a series of incidents causing distress to members of staff at the child care centre where the applicant worked including calling Ms Gale at 2.35 am.
Despite Ms C history of disruption and unreasonable behaviour, Ms C very aggressive behaviour towards the applicant and others, the innocuous nature of the applicant’s own conduct in relation to the bike incident and despite being aware of the distress being experienced by the applicant the respondent sought to coerce the applicant into a meeting with Ms C and have the applicant apologise to her under threat of a transfer.
In my view there is no way that it could be suggested that the respondent’s actions in relation to transfer or proposed transfer of the applicant were objectively reasonable.[91]
[91] Jeffrey v Lintipal Pty Ltd [2008] NSWCA 138
The respondent fails to establish a defence to the applicant’s claim relying upon s 11A of the 1987 Act.
The applicant’s treating psychiatrist Dr Rastogi and general practitioner Dr Moussad and the qualified independent medical expert Dr Khan all express the view that the applicant has no current work capacity and I accept those opinions noting that the only medical opinion to the contrary is that of Dr Roberts whose opinion I find to be totally unpersuasive.
I find on the balance of probabilities that the applicant has no current work capacity.
Having regard to the findings I have made the applicant is entitled to payment of her medical and related treatment expenses pursuant to s 60 of the 1987 Act and would be entitled to payment of weekly compensation benefits pursuant to ss 36 and 37 of the 1987 Act, however as noted at points 87 to 91 there is an issue that has been raised by the respondent as to the calculation of the applicant’s entitlement to weekly compensation.
The parties agree that the applicant is presently being paid at the maximum weekly rate for weekly compensation for incapacity resulting from a physical orthopaedic /soft tissue injury with the payments having commenced on the 15 March 2024 which is also the deemed date of injury for the applicant’s psychological injury as found by me.
It appears that the date of incapacity for the purposes of the physical injury is also
15 March 2024.
The respondent concedes that the payments of weekly compensation that are being paid to the applicant in respect of her physical injury are on the basis of the applicant having no current work capacity[92].
[92] RWS p1
I have found that the applicant has no current work capacity as a consequence of her primary psychological injury.
Mr Morgan in his written submissions dealing with the issue of entitlement to weekly compensation argues that the applicant is either entitled to be awarded weekly compensation at the maximum rates under ss 36 and 37 of the 1987 Act in addition to the voluntary weekly payments being made by the respondent for the physical injuries[93]or alternatively the benefits payable for the psychological injury should be reduced so that the combination of the amount being paid for the psychological injury and the voluntary payments of weekly compensation do not exceed the applicants pre-injury average weekly earnings (PIAWE).[94]
[93] AWS p5 at point 73
[94] AWS p5 at points 74 to 76
Mr Stiles for the respondent submits that
“The Respondent simply says that the Applicant cannot receive dual benefits such that any award of compensation would result in the Applicant receiving weekly compensation exceeding the rates calculated in accordance with s.36 and s.37 of the 1987 Act.”[95]
[95] RWS p2 at point 5
Mr Stiles further noted that the definitions of “current work capacity” and “no current work capacity” in clause 9 of Schedule 3 of the 1987 Act make it “clear that once it has been found that a worker has no current work capacity from an injury (emphasis added) that is the end of the enquiry into capacity as the worker is not capable of undertaking any work” and that “the assessment of any entitlement to weekly compensation is limited to the amount that can be awarded pursuant to s.36 and/or 37 of the 1987Act to that payable for a worker with no current work capacity”[96].
[96] RWS pp2-3 at point 9
Mr Stiles argued that
“There is no provision in the 1987 Act which provides for a worker to receive weekly compensation at a rate higher than that which can be calculated in accordance with s.36 and s.37. Those rates represent the maximum entitlement the Applicant has to weekly compensation under the 1987 Act. The Applicant’s submission (at paragraphs 75-76) that some adjustment could be made whereby the Applicant would be entitled to a payment not exceeding the full PIAWE is not supported by statutory provision and should be rejected.”[97]
[97] RWS p3 at point 10.
I agree with Mr Stiles submission on the lack of any statutory basis to enable payment of weekly compensation up to an amount but not exceeding the full PIAWE.
Mr Morgan did submit that “there can be no argument a worker can have two separate and distinct incapacities for employment as a result of separate and distinct injuries” and went on to refer to the decision of Deputy President Roche in Cordina Chicken Farms Pty Ltd v Thoa Hong Le[98] (Cordina) where Deputy President Roche considered the circumstances where a worker may recover two concurrent awards of weekly compensation.
[98] [2008] NSWWCCPD 125
While Cordina was dealing with a different statutory regime in relation to calculation of the actual amounts payable to a worker it is in my view still good law in relation to determining whether a worker would have an entitlement to concurrent awards of weekly compensation.
Both counsel have referred to the decision of Member Homan in the matter of Purkiss v Secretary, Department of Education[99] (Purkiss) which was dealing with a similar situation as the present case.
[99] [2022] NSWPIC 269
In that matter the worker had suffered a frank physical injury involving mild brain damage with a secondary psychological injury on 15 November 2019. Ms Purkiss subsequently suffered a second injury being a primary psychological injury with a deemed date of injury of 27 January 2021.
Ms Purkiss was being paid voluntary weekly compensation by the employer on the basis of Ms Purkiss having no current work capacity as a result of the incapacity flowing from the
15 November 2019 incident.
Member Homan found that the applicant had no current work capacity as a consequence of the second injury being the primary psychological injury dated 27 January 2021.
In her reasons Member Homan correctly noted that:
“while the decision in Cordina confirms that it is possible for an applicant to have two separate and distinct incapacities, it is also possible for an applicant to have one incapacity resulting from two injuries.”[100]
[100] [2022]NSWPIC 269 at para 170
Member Homan went on to note that Deputy President Roche in Cordina had found that while the applicant in that case had suffered two separate injuries she had one incapacity.
In Purkiss, Member Homan found that Ms Purkiss had also suffered two injuries resulting in the one incapacity.
In my view the factual situation in this matter is similar to that confronting Member Homan in Purkiss.
The applicant has suffered two injuries one a physical injury and the second a psychological injury with the applicant’s incapacity as a result of either injury commencing on
15 March 2024. The applicant’s incapacity is identical as a result of either injury, namely that the applicant has no current work capacity and is unable to engage in her preinjury work duties.
I accept that to order payment of weekly compensation to the applicant by the respondent pursuant to s 37 of the 1987 Act would involve a payment of dual benefits within the meaning of s 46 of the 1987 Act which provides:
(1)    The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2)    Any such order shall have effect according to its tenor.
(3)    This section does not affect the operation of section 49 or 50.”
Given that the applicant is suffering the one incapacity as a result of two separate injuries it is my view that the incapacity is of the type referred to in s 46(1) and that payment of weekly compensation over and above what has been paid and is being paid by the respondent would involve payment of dual benefits.
In his submissions Mr Morgan did direct me to a decision of Deputy President Snell in Roads and Traffic Authority of New South Wales v Smith and Anor in relation to the operation of
s 46 of the 1987 Act. With the greatest respect to Mr Morgan I think that decision is irrelevant to the present case as it was dealing with the effect of a settlement in the Industrial Relations Commission of NSW on payments of weekly compensation where it was clear that the payment for an alleged unfair dismissal were not payments related to the workers incapacity.
I am satisfied that it is appropriate to exercise my discretion under section 46 of the 1987 Act to order that the weekly payments to which the applicant is entitled as a result of her primary psychological injury are to be reduced to prevent the payment of dual benefits.
I note that the Application only seeks an award under s 37 of the 1987 Act from 26 July 2024 presumably on the basis that liability was only denied with effect from that date.
There will be an award in favour of the applicant for payment of weekly compensation pursuant to s 37 of the 1987 Act on the basis that the applicant has no current work capacity as a consequence of her primary psychological injury with a further order reducing the amount payable by the respondent by the amounts already paid for the periods when the applicant had no current work capacity.
I note that I agree with the submission of the respondent that the above approach will not impact on the applicant’s entitlement to payment of medical and related treatment expenses.

SUMMARY

I find on the balance of probabilities that the applicant suffered a primary psychological injury both arising out of and in the course of her employment being a disease injury within the meaning of s 4(b)(i) of the 1987 Act with a deemed date of injury of 15 March 2024 .
I find on the balance of probabilities that the applicant’s employment was the main contributing factor to the contraction of the disease.
I find that the respondent fails to establish on the balance of probabilities that the applicant’s 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 within the meaning of s 11A of the 1987 Act.
I find on the balance of probabilities that the applicant has had no current work capacity from 15 March 2024 to date
The applicant is presently being paid weekly compensation on a voluntary basis by the respondent on the basis that she has no current work capacity as a consequence of a physical orthopaedic injury with the incapacity for that injury commencing on 15 March 2024 being the same date as the date of incapacity resulting from the applicant’s primary psychological injury.
I find that the applicant suffers one incapacity resulting from two separate injuries.
The respondent is to pay the applicant weekly compensation pursuant to section 37(1) of the 1987 Act on the basis of a pre-injury average weekly earnings figure of $853.28 as indexed from 26 July 2024 to date and continuing.
Pursuant to s 46 of the 1987 Act the amount of weekly compensation payable by the respondent is to be reduced by the amounts already paid by the respondent in respect of the physical orthopaedic injury.
The respondent is to pay the applicant’s medical and related treatment expenses pursuant to section 60 of the 1987 Act.
Orders will be made accordingly.

[2025] NSWPIC 24

9 January 2025