Doyle v State of New South Wales (Hunter New England Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Doyle v State of New South Wales (Hunter New England Local Health District) [2023] NSWPIC 490
APPLICANT:	Kylie Maree Doyle
RESPONDENT:	State of New South Wales (Hunter New England Local Health District)
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	20 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits for two closed periods as a result of aggravation, acceleration, exacerbation or deterioration of disease, causing psychological/psychiatric injury; respondent disputed injury, including that “real events” occurred; that employment was the main contributing factor to a disease injury; and that the applicant was incapacitated for work; applicant undertook university studies and now employed as a registered nurse; respondent withdrew reliance on a defence to the claim pursuant to section 11A; consideration of Attorney General’s Department v K, AVB v AW, and Wollongong Nursing Home Pty Ltd v Dewar; Held – applicant sustained injury to which employment was the main contributing factor; applicant was not incapacitated for work during periods for which weekly benefits claimed; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Kylie Maree Doyle (Ms Doyle), was employed by the respondent, State of New South Wales (Hunter New England Local Health District) (HNELHD) as a dental assistant.
The applicant claims to have sustained a psychological injury, that is an aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have happened on
19 November 2018.
By letter dated 13 December 2018, the respondent informed the applicant it had been advised by its insurer, QBE Insurance (Australia) Ltd (QBE), that her claim had been approved under provisional liability. She had been assessed as having no current capacity for any employment and weekly payments would commence from 29 November 2018.
On 21 February 2019, QBE issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE advised that liability for the applicant’s claim was disputed as she had not sustained injury. If her alleged condition was more appropriately characterised as a “disease process of gradual onset”, it disputed that her employment was the main contributing factor to the contraction of the disease and/or the aggravation, acceleration, exacerbation or deterioration of a disease.
QBE disputed that the applicant’s alleged condition had resulted in total or partial incapacity, and that medical treatment was reasonably necessary as a consequence of such alleged condition.
Finally, QBE maintained that the respondent had a defence to the claim, pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) as, if the applicant were to be found to have a compensable work injury, it was wholly or predominantly caused by its reasonable action with respect to performance appraisal, discipline, transfer, and provision of employment benefits.
On 27 September 2019, the respondent wrote to the applicant, having arranged for her to be examined by independent medical examiner Dr Glen Smith, with respect to her fitness for work.
The applicant was advised that it was appropriate that the respondent meet her to discuss the support it could provide to assist her in finding alternate position(s) outside that of a dental assistant.
This meeting took place on 10 October 2019.
On 21 October 2019, the applicant signed a Consent to Medical Termination form.
By letter dated 15 November 2019, the respondent advised the applicant that her employment was being terminated on medical grounds and would cease on
13 December 2019.
On 22 July 2021, QBE issued the applicant with a notice pursuant to s 287A of the 1998 Act, in response to a request dated 8 July 2021 (which is not in evidence) that it review its decision.
QBE maintained its decision to dispute liability for the applicant’s claim. It stated that, if she were found to have suffered a compensable work injury, she had recovered from its effects from 31 January 2019.
QBE considered that the “whole or predominant stressors” that led to the applicant lodging her claim related to actions, or proposed actions, taken by the respondent with respect to management of her excessive sick leave; and that its conduct was reasonable.
On 5 November 2021, QBE issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
QBE once again disputed that the applicant had sustained injury, including that her employment was the main contributing factor to a “disease injury”; and that she had any incapacity for work, or that medical treatment was reasonably necessary as a result of injury.
QBE maintained that the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer and provision of employment benefits.
By letter dated 18 October 2022, the applicant’s solicitors requested on her behalf that QBE review its decision to dispute liability.
QBE issued the applicant with a further notice on 2 December 2022. It maintained the decision to dispute liability. In this notice, it advised that it relied on the respondent’s actions with respect to performance appraisal, discipline, transfer, and provision of employment benefits.
By letter dated 6 December 2022, the applicant’s solicitors requested on her behalf a further review of QBE’s decision to dispute liability.
On 20 December 2022, QBE issued the applicant with a notice pursuant to s 287A of the 1998 Act. It advised that it had maintained its decision to dispute liability for the claim.
By letter dated 19 May 2023, the applicant’s solicitors requested on her behalf that QBE once again review its decision.
On 5 June 2023, QBE advised the applicant’s solicitors by email that it maintained its decision to dispute liability for the claim.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 June 2023.
The applicant claimed to have sustained generalised anxiety disorder (GAD), panic disorder and major depressive disorder (MDD) as a result of victimisation, bullying and mistreatment. The deemed date of injury was 19 November 2018, being pleaded as aggravation, acceleration, exacerbation or deterioration of a disease.
The applicant claimed weekly benefits from 21 February 2019 to 28 February 2021.
The respondent lodged its Reply on 11 July 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury arising out of or in the course of employment (including whether “real events” occurred);
(b)    whether employment was the main contributing factor to injury;
(c)    whether the injury, if found, had resolved, and
(d)    capacity for work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference on 19 July 2023. Mr Evers appeared for the applicant, who was present. Mr Marhaba appeared for the respondent, instructed by Ms Walsh of QBE. Ms Tansu and Mr Brand, from HNELHD, also attended.
The Application was amended to claim weekly benefits for the periods from
21 February 2019 to 31 October 2019; and from 5 February 2020 to 5 May 2020.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $834.94 per week.
The matter was listed for conciliation/arbitration hearing on 15 August 2023, by the Teams platform. Mr Hart of counsel, instructed by Mr Evers, appeared for the applicant, who was present (although she was briefly absent to move her car, and consented to the matter proceeding in her absence). Mr Adhikhary of counsel, instructed by Mr Marhaba, appeared for the respondent. Ms Montshiwa of QBE and Ms Holliday of the respondent also attended.
The respondent withdrew its reliance on a defence to the claim pursuant to s 11A of the 1987 Act.
Having made submissions in reliance on the report of Dr Smith dated 30 August 2019, the applicant then objected to the respondent relying on both his report and that of Dr John Albert Roberts, as being in breach of cl 44, Workers Compensation Regulation 2016.
Dr Smith’s report is not a “forensic medical report”, in that it was not “obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute”. It was obtained by the respondent to ascertain the applicant’s fitness to return to work.
The respondent was granted leave to rely on both reports, for reasons given at the hearing, and which have been recorded.
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 and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 15 August 2023 and attached documents, filed by the applicant in accordance with the direction made at the commencement of the hearing.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of applicant, Kylie Maree Doyle

Ms Doyle’s first statement, provided to an investigator retained by QBE, is dated
9 January 2019.
She was employed by the respondent as a dental assistant, having started in April 2008. She was employed permanent full-time, but on reduced hours for maternity leave. She had been on maternity leave for both her children for one year. With her first child, she was on reduced hours for two years, and then returned full-time. With her second child, she had been on reduced hours since her return in January 2017.
Her current hours were three days per week, 24 hours per week. She worked Monday, Thursday and Friday, from 8am to 4:30pm.
She worked at Nelson Bay, having been permanently transferred there at the beginning of November 2018. She had been in Newcastle on Monday, and Nelson Bay on Thursday and Friday. She had requested to be permanently transferred to Nelson Bay.
When she had her son, her husband was badly hurt in a car accident in June 2010, the day on which she finished work. Her maternity leave was due to commence in July 2010. She returned to work on 15 August 2011, on reduced hours, which she thought was for three days.
She returned to full-time work “a year or two” after she had her son. She increased her days a few times and then went back full time, five days per week. She was working at Newcastle at the time.
She returned to work full-time in Newcastle on 14 February 2014. She went on maternity leave at Christmas. She returned to work on 30 January 2017, at the Newcastle office, working alternately four days per week and three days per week. She then dropped back to three days.
Her supervisor at Nelson Bay was Karen Buhler, clinic coordinator. Her supervisors at Newcastle were Charmaine Lloyd, clinic coordinator (Monday) and professional team leader (Thursday and Friday); and Casey McDonald, clinic coordinator, who started when Ms Lloyd went on maternity leave.
She had two grievances lodged against her.
In 2014, she was working in Newcastle on a Friday afternoon. They were running late and overlooked cleaning a “tiny bit of blood” on the suction and cleaning out the suction unit.
Kathleen Ross (Brewers) took photos the next day and sent them to her clinic manager, senior dentist, professional team leader, and the operations manager.
She “got pulled into the office” on the Monday and spoken to about it. “Apparently the operations manager was not impressed”. She had explained what happened. A new procedure was put in place. Her direct managers agreed this was out of character for her. She did not receive any disciplinary action.
In March 2015, she “got pulled into the office” by senior dentist Dr Luke Taper and Charmaine. Dr Arabella Lyndsay Walker had made a statement about her and a colleague, saying the applicant hated her, excluded and belittled her, and had requested not to work with her.
She had not done this. She replied in an email that she was upset about the allegations, and it was upsetting that the word “hate” was used. She explained that she did not exclude or belittle staff and had not requested that she not work with Dr Walker. The rostering was done by the clinical coordinators.
She stated she had worked with Dr Walker once at Newcastle, and once at Raymond Terrace, and both times were pleasant. There was no disciplinary action taken.
A further complaint about her was made in October 2018. Deanna Dunlevy complained to Karen that when she relieved at Nelson Bay she was not needed, and the applicant was “sitting on my phone all day”.
That was not the case. They had a day full of voucher patients put in. She and Michelle were “doing patient for patient every ten minutes” and making appointments for them at private dentists. They had only two clinic phones. Michelle was on one, and Karen on the other, so she used her mobile to make the appointment.
Kathleen rang Karen the next day and told her Dee had complained. Karen explained that they were extremely busy and the only time she used her phone was for the patients. She had not heard anything further. Her clinical coordinator told her not to worry about it, “she complains about everyone”.
She had received verbal warnings about her sick leave, and she “had to sign something but they were not warnings”. She had to understand that she had used her leave for the years, and if she took anymore, she needed a certificate. She had had “a couple of those letters”. When her kids were small, they were quite sick for the first few years.
She enjoyed her job when she commenced it. It changed when she realised the dynamic of the clinic. There was a very big divide in people, some did not like Charmaine, others did not like other people, and it was very toxic.
She did not get involved in it. She kept to herself. She had never liked confrontation. She kept to herself a lot. In doing that, she “might have stabbed myself in the foot”. She would walk into clinic rooms and conversations would stop. She did not know why. She took things a little bit to heart and “I guess I thought they were talking about me”.
She noticed that if you were not in the “in” group you were left out and ignored. The group was the older girls who had been there for years. She did not know what they did, it was just how she felt. “It is hard to explain”. She did not talk to them about it. She wanted to go to work, do her job and go home. She had always been polite, said hello, and moved on.
It got a lot better when a lot of the girls transferred out to other clinics, slowly over the years between 2008 and 2010. She confided in Charmaine, and she knew how she felt. She was treated the same way.
She was not spoken to inappropriately or in bad language, “it was just the exclusion”.
Her view did not really change too much from starting and going on maternity leave. They had new girls start and she became friends with them. Her husband had his accident and she finished work in 2010. She was on maternity leave then.
When she returned to work, she had a panic attack in the morning on her first day back. This was her first panic attack, and she did not know what was going on. She started driving. She started to shake the closer she got to the clinic. She started to cry and hyperventilated a bit. She had not spoken to anyone whilst she was on maternity leave and was worried it was going to be the same as when she left.
She rang her husband, who calmed her down. She then went to work, and it was OK. That day was when she first met Kathleen and had her first “run in” with her.
Kathleen was telling her how to do her job. She told her she knew what she was doing, she would get on with her job and Kathleen should get on with hers. Kathleen was fine with that. It stopped for a little while, maybe a year.
Kathleen left a note on her desk explaining how to do the vouchers and came to see if she had got the note. She said she had but did not need instruction on something they did every day. As she does not like conflict, she walked away. Kathleen followed, yelling at her not to walk away whilst she was talking to her. She assumed they had finished. Kathleen told her she was being below the line.
They had “below and above the line behaviours”, and she was below the line in walking away. She again reminded Kathleen that she knew how to do her job, and Kathleen was below the line in how she spoke to her.
She was “really cranky”. She just wanted Kathleen to understand she was not her boss and did not need to explain how to do her job. They had not really gotten along since. That was the last interaction until she made the complaint about the clinic. She had since avoided working with Kathleen.
Kathleen was now the clinic coordinator at Raymond Terrace, where she moved in 2014. She felt she was watching her and waiting for her to fail.
Since their administrative assistant, Kerry Burnett, started at Newcastle, they had not been able to hold a second assistant. They either resigned or transferred because there were always complaints against her and the way she spoke and treated people.
When there was no second assistant, the dental assistants had to work on the desk. Kerry was always doing things that did not need to be done and giving them work she did not want to do. They would do it. It was the manner in which she held onto it and left it for them. She was late almost every day and had been spoken to about it.
After working with her on the desk, Kerry would “whinge and carry on” the next day that she had done all the work. This happened to her on many occasions.
She spoke to her clinical coordinators and raised with Kerry a situation where there was one thing she could not do, as she was alone on the desk with seven chairs, and she had complained about it. Kerry said it was OK.
She had been spoken to quite rudely by Kerry a lot of the time. She would speak aggressively but could be really nice. At other times the way she spoke back was not nice. Her supervisors had talked to Kerry, “but she marches to the beat of her own drum”.
Her cat broke his leg the day before Australia Day in 2018. Friday was the public holiday. The cat had surgery on the Monday, so she had the day off work from Newcastle. On Wednesday night, he reinjured his leg and attacked her. She took him to the vet on the Thursday and called in sick. Because her finger got infected, she also had to have Friday off.
When she returned to work on the Monday, only one person, Louise Ryan, spoke to her. Apparently, while she was off work, they were kicked out of one of their lunchrooms and no one told her. Someone was being too loud, and they were asked not to sit there anymore.
At the end of the day, Casey asked her if everything was OK. She said she had been ignored all day by everyone, and she was going home and could not deal with the rest of the day. Casey spoke with Dr Taper. Before she left, she had a conversation with “Luke” and Casey and said there was no reason for everyone to ignore her, and she did not know what she had done.
By then she was in tears. She thought that they brought up in the clinic meeting “above and below the line behaviour” but nothing was addressed about it.
That day it was quiet, staff was sitting around talking. The dentist she worked with spoke to her “but we were working together, I guess.” She did not hear anyone even say good morning.

She had taken a fair bit of time off with her kids, and herself being sick. She was sometimes not able to get out of bed to go to work, as her anxiety got the better of her. There were always comments from other workers about her time off, such as, “so what is wrong this time?”, “oh you had another sick day”.
She had suffered from anxiety since she returned to work after having her son. She started medication. She had the panic attack the morning she started back after her daughter was born. She had several before work and did not start medication until after she started back after her daughter.
There were no issues at Nelson Bay. Working there was the best thing that had happened to her until she had the breakdown.
She had had a couple of panic attacks when she got to work a few times. Charmaine would ask if everything was OK. She told her she did not want to be there, her anxiety got the best of her, and she wanted to go home to bed. She could not face the day and had several days when she could not get out of bed. She did not like being treated disrespectfully or ignored. Charmaine had seen this happen over the 10 years.
She went to the doctor after she had her daughter and had returned to work, not long after she started back. She went to Dr Shields, who had been her general practitioner (GP) for the three and half years since they moved, at Fern Bay Medical Centre.
She told Dr Shields she felt anxious all the time, and felt she needed to be on medication to help with it. He prescribed Lexapro, 10mg per day. She was currently on 20mg per day. She thought at the time he referred her, but she was not one to talk and did not bother to speak to anyone. The medication helped for a while.
Her son was diagnosed with ADHD (attention deficit hyperactivity disorder) in August 2016-2017. She was relieved, as there was a reason for how he was. They could rectify that with medication, and he had done really well.
It was also positive for her. They made changes in their home life, regarding use of electronics, homework, and a timeline list.
The paediatrician recommended that she see a psychiatrist, as ADHD is hereditary, and her husband could not be tested, as he had a brain injury.
She was referred to Dr Ashwinder Anand. She was diagnosed with ADHD. He increased her Lexapro at their first meeting in August 2018, as her anxiety was getting more frequent. She found this helpful.
The diagnosis explained a lot. It made her realise that her brain going 100 miles an hour was normal for her.
This was around the same time as she was moved to Nelson Bay. It was wonderful, she enjoyed going to work. She had two days off, one because she had an infection, and her daughter had asthma. On 15 November 2018, she drove to work and had a panic attack. Anxiety got the better of her. She started to think she had had two days off, the girls would ignore her, and it would be the same as Newcastle.
When she got to work, she “was a mess”. She was shaking. She thought she could calm herself and got worse as the day went on. At about lunch time she saw the senior dentist, Peter Wong, and said she had to go. He asked if she was OK to drive, and she said she thought she was.
She drove home and they called to make sure she got home, and she felt “so bad”. No one had done that before.
The next day, Dr Shields wrote her a certificate for the week, and referred her to psychologist Bartholomew Henrick. She told him she had a panic attack the previous day and was still shaky. “You could see I was not doing really well.”
She had been seeing “Bart” (Mr Henrick) since then nearly every week, and it was “going really good”.
Since she had been off work, she had started taking Vyvanse for ADHD, doing some work on herself, and going through an anxiety workbook with Bart. She found it very helpful. She had had a great response to Vyvanse.
She was taking Catapres, prescribed by the psychiatrist, as she had had trouble sleeping, and was now able to sleep.
She did not know why she thought the girls at Nelson Bay would say anything. Her “mind went there, and I could not stop that.” She looked back and felt it was stupid “or why I thought”.
When she was at Newcastle, people would comment about her being off sick all the time. She would tell them her child was sick. She never told them it was for her. She guessed she did not want them to know she was struggling within herself “because of everything being work and how I felt about work and the past situations I had been through.”
No one at Nelson Bay had given her any concerns.
She reported to Rochelle Haynes that she had sustained injury at her workplace on
19 November 2018. She had been speaking to Ms Haynes since she was off work.
The statement referred to “Specific Allegations”:
“Victimisation, isolation (being ignored in the clinic by staff)
False accusations (Kathleen and Arabella)
Bullied by Kathleen Brewers”
There is reference to a work appraisal on 26 April 2018, when she said her mental health had improved since working at Nelson Bay, she was happier in herself, more confident, and her colleagues were amazing to work with.
She did not know what had changed. She “guess[ed]” she worried about things too much, and having the time off, her mind went to the dark places of Newcastle, and she could not stop thinking about it.
At Newcastle, if one staff was in “steri” setting up, they would all help. When she was rostered, not one person would help, and she would feel shunned. Charmaine also felt the environment was toxic. Karen Buhler at Nelson Bay had also noticed.
Her safety glasses fell down her nose all the time. Dee complained to Charmaine that she did not like the way she looked at her over her glasses, but that was the way she looked at everyone.
Dee now worked at Raymond Terrace. She believed strongly that Dee had victimised her. “Since working through this and talking with the psychologist, Dee was not happy and would blame anyone for anything”.
Over the years, she had spoken to Charmaine, and her husband, but never brought it up with upper management as she was scared to. She did not like getting people in trouble, or even getting into trouble herself, and tried to work through it by herself.
She had not [sic] been unable to return to work since the incident. She was waiting for the outcome of the factual [investigation] and they would then look at a return to work plan. She did not know if she wanted to go back to work. She did not want to relapse but was not sure what to do.
Apart from the witnesses immediately involved, whom she had mentioned in the statement, others at Newcastle who may be aware of her injury were Dr Taper “and the people listed above”. Dr Taper “would be good to speak to about Arabella, and he received the complaint.”
Prior to this incident, she had [not] experienced any similar injury, “not anxiety”. As a teenager she had depression but took no medication. After her son was born, she had a “tiny bit of post-natal depression”. She was verbally bullied in high school.
Her sister suffered from depression and was going to see if she had ADHD.
She found she was staying indoors a lot more. They had two parties in November not long after she stopped work. She was OK at one, but for the other she was shaking putting on her makeup. They went home early as she could not stand to be there. She was OK in a shopping centre. She got a bit stressed, went in, got what she wanted and got out.
Her husband smoked marijuana for pain. Maybe once a month, or every now and then, she might have one with him.
On 9 February 2021, the applicant stated that her health had improved since she left HNELHD.
She was working towards a nursing degree at the University of Newcastle, entering third year in 2021. She believed it had helped with her recovery. She still had trouble entering a dental clinic without an increase in her anxiety.
She was not receiving any treatment.
The applicant’s final statement is dated 22 December 2022.
She graduated with a Bachelor of Nursing on 26 November 2021. She had completed her graduate year at John Hunter Hospital (JHH) and as of 13 February 2023 would be employed there as a Registered Nurse (RN).
She believed her re-education and obtaining a position had aided her mental health recovery. She still had trouble entering a dental clinic without an increase in her anxiety.
She was not receiving any treatment.

Evidence of Rochelle Haynes

Ms Haynes is a professional team leader. Her statement was made on 18 January 2019. It is unsigned.
She had known the applicant for the 10 years since Ms Doyle started work in about 2008. She had been the applicant’s supervisor, “however not direct”, for a short period at Newcastle.
The applicant was currently based at Nelson Bay on permanently reduced hours from maternity leave. She moved there when she requested a lateral transfer, as it was closer to home and childcare. Ms Doyle had a temporary base change on 27 November 2017 and in November 2018 she offered her a permanent lateral transfer, which she accepted. That would be for her substantive role of five days per week.
The applicant gave no other reason for her request. She felt she had done her time at the big (seven chairs) clinic to a two chair clinic at Nelson Bay.
When the applicant was at Newcastle, she did not make any formal report. There were days in conversations in the lunchroom “that she was over the day but nothing specific to say that anything had happened. It was run of the mill more to say she had enough”.
The applicant had been issued with warning letters. She had had her sick leave attendance reviewed. In 2010 she spoke to the applicant on numerous occasions, until the present time, about her sick leave. The last conversation they had was at Nelson Bay, and she was happy. She had never mentioned her poor attendance was related to anything at work.
She had asked the applicant if anything had affected her attendance that was related to work, and she did not indicate her sick leave was related to workplace issues.
In 2010, the applicant’s fiancé had a severe motor vehicle accident. The applicant was pregnant with her first child. She took a month off, as he was in Sydney.
The applicant then went off in July 2010 to have her child. She had a very traumatic labour. She talked openly about this and that it had a huge impact on her.
For many years, the applicant had to go back down [to Sydney] with her partner to see specialists. She was caring for a newborn and was also his carer. She came back in August 2011 for three days per week and was “juggling all that still”.
The applicant said how much her partner’s injuries had impacted her, and sourced EAP (Employee Assistance Program) in 2015. She did not know if she had done so before that. She remembered Ms Doyle going in 2015 and encouraged her to do so.
Through that time, the applicant’s partner lost jobs, “and things like that and it was a bit of a strain on her”. She started secondary employment one day a week, for which she had approval.
The applicant’s son was recently diagnosed with ADHD. His diagnosis had been an ongoing issue. The applicant had her second child in 2016. She had time off with her son, who had a lot of ear infections, and her daughter was quite unwell in 2018.
The applicant was struggling personally, as her partner was working away all week. She had to take time off if she could not arrange childcare at short notice.
The applicant was a very open person, “she is definitely not backwards in coming forward expressing what is going on” .
With the amount of sick leave the applicant was having, she could not speak for everyone, “but they would have been concerned”. When they work one on one, “it’s a huge impact in the clinic”.
There had been a lot of staff go through “downstairs (Newcastle Clinic)”. She did not know if the applicant confided in any one person, but she was open, and they knew what was going on with her partner and that she “had a horrific birth” with her daughter.
The applicant was an excellent worker, and she could not question that. She never had any issues with her professionalism. She was a hard worker, did her job, and assisted others. At no time would she question her work ethic.
Over the years there had been a clique at Newcastle, and the applicant was part of it. “Like most things, when one thread loosens it dissolves”. The applicant had strong friendships she formed in the early days and with staff still there.
As Newcastle was the largest clinic, there were a number of changes. The applicant had always been part of a certain clique. Those staff moved off and the dynamics changed, with new people coming in and going out.
The applicant had only recently told her she felt this when she contacted her at home on
19 November 2018. The applicant had contacted her to say she left work that day, everything was getting on top of her, she was seeking help for her mental health, and had been diagnosed with ADHD.
[The applicant told her] as she had had so much time off with the kids, she feared she would walk back into Nelson Bay and “they won’t want her there”. After, they spoke about how she loved Nelson Bay. She said she felt that whilst no one had said anything to her, they treated her differently when she came back from a day off.
The applicant said, “it was not now but a long time ago, no specific time.” Her anxiety and what she was dealing with was “playing with her head”, and she was having thoughts that people would not accept her, as she had not been coming to work.
The applicant said it was nothing in particular, she had just been “off”. She had struggles at home, as her son was “being a bit of a handful”. She did not even want to leave the house. She was given exercises by her GP and psychologist and breathing techniques.
As the applicant worked Monday, Thursday and Friday, her doctor gave her Thursday off. She checked back that week via phone. The applicant said they had given her the next Monday off, and she was due back on Thursday.
The applicant called that week. Her mother-in-law had advised her to put in a claim for her anxiety. She told the applicant if that was what she felt she needed to do, she could forward the documentation to her.
The applicant never reported anything specific that anyone had done. She had checked all her archived documents since 2010. The applicant would previously have dealt with Tammy Howell.
She had tried to “wrack my brain” if there was anything she had missed. The only information she had was about the discussions around sick leave, and Ms Doyle said it was always non-work related.
The applicant had a hysterectomy in August 2017. When she returned home, she offered her the change to Nelson Bay.
When the applicant contacted her on 19 November 2018, she said she was having mental health issues working with Dr Wong. Around midday, her anxiety came over her, and she felt distressed and emotional. She calmed down and drove home. She made no comment that it was work related.
The applicant felt she would be perceived as not part of the team when she came back from sick leave at Nelson Bay. They never made her feel like that there, but she perceived they would if she had more time off.
The applicant had sick leave at Nelson Bay, and she discussed that with her in late 2017- early 2018. She remembered writing on the form in that it was non-work related, she was happy to work at Nelson Bay and it fitted her lifestyle. She had been off sick sporadically before 19 November 2018, for herself and carer’s leave for the children.
She did not recall the applicant saying staff at Newcastle made comments about her sick leave. She was anxious on the night they spoke, distressed and struggling to manage her anxiety.
The applicant said she felt supported by Karen and Michelle, but perceived that if she had more time off, she would not have their support.
Dr Taper had “looked into” the concerns Dr Lyndsay (Walker) had raised about the applicant. He said she was very upset. He did not believe she had done what she was accused of.
It was a personal perception of the environment as toxic. “When they are involved in the clique it is not toxic but when out of it, it is”. The applicant “would verbalise it” when she was not happy.
The applicant was so open with the issues that she previously felt and was now saying they were not “verbalised”, as she was quite open and verbal.
She did not recall the applicant reporting that conversation would stop when she walked into a room. Nelson Bay is an open clinic. There are separate rooms at Newcastle.
She had never seen Kerry Burnett being aggressive and had not been involved in investigations about her behaviour. The applicant did not report to her any issues with
Ms Burnett.
As regards the applicant’s allegations of victimisation, isolation, false accusations and bullying, she “could not say yes or no”. She did not think the applicant had been bullied. She thought she had a lot of perceptions, which came from the reactions from people, as she was “an open book”. She “lays it all out on the line and should expect to get some difference of opinion back.”
She was advised by Luke that the issue with Arabella “cut deep” with the applicant. If you are accused of something you have self-doubt.
As the applicant was so vocal, “and things like that”, she was not receptive to the answers she received, and could interpret that as bullying and isolation. She had never witnessed anyone acting that way and would not tolerate it in her clinics. If she was aware of something she could deal with it, “but with 26 clinics things happen and we are not made aware of it”.
The applicant had had a lot going on in her life and had not dealt with things. They included her partner’s injury; the traumatic birth experience; an “on-off relationship” with her in-laws; problems with a new house build; and the loss of her partner’s job.
That she knew all this was a reflection of how open the applicant was with anyone. She had gained this information from lunch conversations.
In relation to the allegations that the applicant was victimised, isolated, and had false accusations made against her by Kathleen Brewers and Arabella, and had been bullied by Kathleen, she would say in relation to Arabella that was definitely false from what she had heard from credible people. The way she (Kathleen) dealt with the “suction issue” was not appropriate. Instead of going to the applicant, she took photos and sent them to management, which was not fair.
She was not aware if Kathleen had victimised the applicant when they worked together before. Kathleen had moved to Raymond Terrace when that opened in about 2012. She had no knowledge of whether it did or did not happen.
The applicant was an excellent worker and had a great work ethic when she was at work. She believed that due to circumstances outside the workplace it may cause her to have the perception in the way that she felt.

Evidence of Karen Buhler

Ms Buhler is the clinic coordinator at Nelson Bay. Her statement is dated 18 January 2019.
She had known the applicant for approximately 10 years, since she started at Newcastle. She had been her supervisor for the past 12 months.
The applicant transferred to Nelson Bay 12 months ago, following an expression of interest for a lateral transfer. She wanted to work “with us as she felt a bit uncomfortable” working at Newcastle.
The applicant mentioned “nothing really”. She preferred to work at Nelson Bay, “we are a small team and friendly”. They rostered everybody equally, and she liked that. She just said she did not like it at Newcastle. Her transfer to Nelson Bay was initially a contract but became permanent.
The applicant had many occasions of sick leave. She had a lot of carer’s leave or was not feeling well herself. She had migraines or was just feeling sick in the stomach.
The applicant’s aptitude was excellent, her attitude was good, and her sick leave below average. Overall, she was regarded as an excellent worker.

She was not at work on 19 November 2018. She became aware that the applicant was making a claim after she did not return to work. At another time in the week, she “may have text[ed] to ask if she was OK”. She said she could not come into work at the moment, she was nervous and shaky. She did not know what was causing this.
The applicant said she could not be there and just left. She was not there to know what happened, as she did not work on Mondays.
She kept in contact with the applicant, who said she felt she could not come to work, she had to see her doctor. “Pretty much later on”, she said things had come up from the past with working at Newcastle. She had previously mentioned incidents at work that had upset her. She said she had flashbacks.
The applicant said she had an incident with Arabella, who did not want to work with her. She did not know why because she felt she had not done anything wrong. The applicant felt that when she left Newcastle, she did not get a goodbye cake or any acknowledgment. She was not sure if that normally happened.
The applicant mentioned a complaint to Tammie Howell, their supervisor, about blood being left on some equipment. She felt that a new process was implemented because of the complaint.
The applicant did not mention anything else. She spoke about working at Newcastle. She had not witnessed anything, and the applicant had told her previously about these two things she was reporting for the claim, and after it was lodged.
The applicant’s working relationship was “great at Nelson Bay, I am not sure about Newcastle”. They were very small and most of the time there were three, up to five. They were usually short staffed when staff was on leave. The applicant got along well with everyone at Nelson Bay. She had not reported that staff was ignoring or isolating her.
The applicant did not tell her that staff stopped talking when she walked into the room. She did not recall her saying that staff made comments about the amount of time she had off work at Nelson Bay. She had heard her comment how she felt when she returned to Newcastle after having time off, worried about what they may think.
The applicant had told her she did not want to relieve at Raymond Terrace, as the clinical coordinator, Kathleen Brewers, made the complaint about the blood incident. She never reported that she felt victimised or isolated in the workplace.
The applicant’s husband was working away from home a little bit, and she felt overwhelmed, busy with the kids. She had to see her doctor, and it was more to do with anxiety. She said she was diagnosed with ADHD and anxiety disorder. Her son had been diagnosed with ADHD and she was worried about him not eating at school.
The applicant did not mention how long she had suffered from anxiety. She only mentioned her headaches, migraines, and anxiety. She said she took medication, but not what it was for. She was not sure of anything to do with the applicant’s family, as she was a private person.
In relation to the allegations that the applicant was victimised, isolated, had false accusations made against her by a co-worker and had been bullied by a co-worker whilst working at Newcastle, she had not witnessed anything. She knew only what the applicant had told her.

Medical evidence

Fern Bay Medical Centre

I do not intend to refer to the entirety of the records.
On 6 June 2016, Dr Stewart Shields recorded that the applicant was becoming tearful and depressed. Her daughter was having difficulty feeding, but to some extent this was a reactivation of an older problem. The applicant was not having suicidal thoughts but said she had fleeting thoughts of what it would be like to drive her car into an oncoming vehicle “and the like”.
The applicant was diagnosed with postnatal depression and started on Lexapro.
On 14 July 2016, Dr Shields recorded that the applicant’s anxiety and depression had improved greatly with Lexapro.
On 14 March 2018, Dr Shields recorded that the applicant took her son to the paediatrician – “ADD” (attention deficit disorder). She wondered if she was ADD.” The applicant also had migraine.
Dr Shields referred the applicant to Dr Anand, to explore the possibility of ADD. She had related a history of “ants in the pants and always doing something”. More recently, she had had depressive and anxiety symptoms with some episodes of panic.
On 12 June 2018, Dr Shields recorded “note to indicate she has had a mood disorder”.
On 20 November 2018, Dr Shields recorded anxiety disorder. A medical certificate from
20 November 2018 to 23 November 2018 was issued. A letter regarding a mental health plan was written.
On 23 November 2018, Dr Shields recorded that the applicant had met with Bart and got some useful suggestions. The reason for her visit was recorded as anxiety disorder.
On 29 November 2018, Dr Shields recorded that the applicant was to start Vyvanse in the next few days. They spent some time putting in the paperwork for workers compensation. A certificate of capacity (COC) was issued.
Dr Shields reported on 5 December 2018 that he had seen the applicant over the last couple of years. Recently they had wondered about a diagnosis of ADHD and she had had psychiatric findings compatible with that diagnosis.
More recently, the applicant had been “challenged by symptoms of anxiety”. Dr Shields wondered if it would be classified as an adjustment disorder, due to the major impact the workplace seemed to have had in the formation of these symptoms.
Given the magnitude of the symptoms, Dr Shields felt the applicant’s condition would be better classified as GAD complicated by episodes of panic disorder. Therefore, she had GAD with panic disorder and ADHD.
Dr Shields reported to the respondent’s acting general manager, Mr Nathan Mulley, on
6 December 2018.
Dr Shields opined that the applicant was unfit to work. He estimated that this would be the case for 6 to 12 weeks, depending on her response to treatment. He believed her prognosis was very good and anticipated that with some support she could return to normal functioning.
Dr Shields also reported to QBE on 6 December 2018.
The applicant had described events that had led to significant episodes of apprehension and worry, particularly focused around the workplace. This had resulted in decreased efficiency and functioning.
The applicant had noted memory problems, and her mind going blank while she went about her activities. There were intrusive and overwhelming symptoms of worry. She had episodes that would be classified as panic attacks.
Dr Shields had found no evidence for an underlying medical problem, or of misuse of substances.
Dr Shields considered that the applicant’s symptoms were beyond what would ordinarily be experienced if she had an adjustment disorder. The main reason for considering adjustment disorder was the seemingly important role that her relationships at work seemed to have played in her experiencing such significant anxiety.
Given the magnitude of the applicant’s symptoms, Dr Shields believed her anxiety was better classified as GAD. It was associated with punctuated episodes of panic disorder.
Dr Shields reported that the applicant had never presented with anxiety to the degree she displayed beginning in approximately October 2018.
“To be clear”, Dr Shields opined that while the applicant had been challenged with psychological distress in the past, he had not seen her display the magnitude of symptoms presented recently. This had led him to conclude that the difficulties she described in the workplace had probably had a significant role in her experiencing such significant symptoms of anxiety.
Dr Shields opined that there may have been factors beyond what the applicant was experiencing in the workplace that coloured her response to those factors. “To be equally clear”, were it not for the exposures in the workforce, she would not have come to experience the depth and degree of anxiety symptoms she had come to be challenged with.
Dr Shields was asked for details of specific incident/s that resulted in the applicant’s diagnosis. He responded that the question “would be better directed to Kylie herself”. She had related a number of situations and events that would in general terms be described as bullying type behaviour and intentional social ostracisation.
It appears that QBE attempted to ask Dr Shields his opinion as to whether the applicant’s employment was the main contributing factor to her condition (the words used were “may contribute in factor”, which suggests a transcription error) to her condition.
Dr Shields responded that it was exceedingly difficult to simplistically explain the experience of complex emotions such as anxiety. The causation of such a problem was exceedingly complex.
Dr Shields opined, however, that were it not for the workforce exposures the applicant described, it was unlikely that she would have experienced the degree of anxiety she currently experienced. Her reactions were approaching the levels of phobia with respect to her workplace, and there were many triggers within it that provoked significant anxiety. In his opinion, her workplace was a very significant factor in her experiencing anxiety.
Dr Shields estimated that it would be from 6 to 12 weeks before the applicant returned to work. Being moved to a different location “will certainly help”.
On 24 January 2019, Dr Shields recorded an increase in anxiety. The applicant thought it was from thinking of return [ing] and the pressure to go back. It revolved around the factual investigation. She could not picture going back to work, even though the person starting the stress did not work there. She was thinking of not returning and going to university.
Dr Shields again reported to QBE on 19 February 2019.
Dr Shields agreed (with Mr Henrick) that the applicant’s anxiety seemed to have markedly improved until a few days ago. She was seen for an unrelated problem a few weeks ago and “she certainly had no stigmata” of the anxiety that had been clearly displayed during their last few visits.
“In casual conversation”, Dr Shields understood that the applicant planned to stop work and undertake university. This was in keeping with his impression that the cause of her anxiety was the workplace. When she made the decision not to go back, it seemed her anxiety “lifted a great deal”.
Dr Shields had seen the applicant in the last few days, to discuss her anxiety symptoms in the workforce. Once again, many non-verbal markers of anxiety were displayed. The applicant told him she was not certain if she was going to university but may need to return to the workforce.
The applicant alluded to the involvement of a lawyer. She was anxious about the investigation and its outcome. She was particularly nervous about the possibility of returning to work.
It was unclear to Dr Shields whether the applicant was planning to return to work or would end up pursuing a degree. It seemed clear that the thought of returning to work increased anxiety symptoms.
In his last fitness for work report, Dr Shields indicated that sharing the results of the investigation would remove that as a potential barrier to the applicant moving forward in dealing with her anxieties. Once this was “out of the way”, it would be reasonable to reintroduce her to the workforce carefully and slowly, under the guidance of her psychologist.
The applicant’s anxiety symptoms were said to be driven by the unknown contents of the investigation, and simply returning to work. Dr Shields opined that the improvement in her mental state that seemed to manifest recently correlated with the time when she felt she was going to pursue university and not have to return to the workforce. She may need ongoing treatment once the results of the investigation were shared and she tried to return to work, if that was her plan.
Dr Shields believed it was time for the applicant to begin a return to work program. She had some symptoms of anxiety that were not insignificant regarding return to work, even at Nelson Bay. The reasons for that were not entirely clear to him.
Dr Shields opined that if the results of the investigation were shared with the applicant and she were encouraged to gradually return to work with the support of the psychologist, she would have the best chance of successfully reintegrating into work.
Dr Shields opined that ADHD played only a minor role in the applicant’s anxiety symptoms. One of the medications used to treat it may increase the symptoms of anxiety. However, it was started well after the claim was established and its role was thought to be minimal. He did not believe the applicant had misinterpreted events based on her ADHD.
On 28 February 2019, Dr Shields recorded that the applicant was “in uni – managing – a bit nervous but sounds appropriate to circumstance”. She was upset that her claim was denied. She still seemed a bit anxious about work – “will report that”.
Dr Shields issued a COC that certified the applicant with no capacity for work from
28 February to 31 March 2019. She maintained a level of anxiety that would be heightened on any mention of return to work. A return to this environment would require a “systematic desensitisation program led by psychology”.
Dr Shields noted that “The return to work seems delayed by claim denial. She has no intention of returning until the issue of the claim itself is dealt with.”
On 28 March 2019, Dr Shields recorded that the applicant had seen her psychiatrist to increase Vyvanse. She was quite stressed about school. Today was supposed to be a day to catch up, but her husband was called away. She seemed to be in some discomfort. She wanted a repeat WorkCover letter despite her claim being denied. This was provided “does remain true that she gets anxiety related problem but seems to be centred on her work”.
Dr Shields did not really see evidence of overt anxiety, “was really a presentation more involving a headache that I suppose we attribute to her increase in medication dose”.
It appears that it was on 28 March 2019, although it is not dated, that Dr Shields issued a COC noting that “not much has significantly changed” and certifying the applicant with no capacity for work from 28 March 2019 to 30 April 2019.
In another undated COC, which appears to have been issued on 26 April 2019, and which is identical, Dr Shields certified the applicant with no capacity for work from 26 April 2019 to
31 May 2019.
On 10 April 2019, Dr Shields recorded that the applicant was afraid of travel and given Valium.
Dr Shields continued to issue the applicant with COC’s, certifying her with no capacity for work, until 31 October 2019.
He again certified the applicant with no capacity for work from 5 February 2020 to
5 May 2020, although the COC is erroneously dated 5 February 2019.

Dr Ashwinder Anand – psychiatrist

Dr Anand reported first to Dr Shields on 28 August 2018.
Dr Anand recorded that the applicant’s relationship with her partner had been quite difficult over the past 15 years. He had neuropsychiatric sequelae related to traumatic brain injury.
The applicant presented with features suggestive of pervasive mood disorder, with associated features of anxiety. She had been diagnosed with anxiety and depression as a teenager and medicated on Lexapro.
Dr Anand recorded that because of her cognitive issues related to attention and focus, the applicant was surprised she was still employed. She took a lot of time off and had cut down her hours. She was considered quite “scatty” at work and could be distracted very easily.
Dr Anand diagnosed adult ADHD – mixed subtype; and major depression with anxiety features, well controlled on Lexapro.
On 13 November 2018, Dr Anand reported that the applicant had some work-related anxiety when she worked in Newcastle but felt this had dissipated when she was transferred to Nelson Bay.
Dr Anand had enrolled the applicant in the Vysa program and suggested they initiate Vyvanse.
On 3 September 2019, Dr Anand reported that the applicant had maintained her treatment gains and improved mental state, on a combination of medications.
There were no pervasive features of any mood disorder, anxiety disorder or psychotic illness. The applicant was continuing her Bachelor of Nursing studies fulltime, and recently got distinctions in most of her assignments.
As the applicant’s anxiety had been fairly stable for the past two years, she wondered if she could reduce the dosage of Lexapro, and Dr Anand agreed.
On 28 April 2020, Dr Anand reported that the applicant stated that her anxiety levels had escalated. The COVID-19 situation was not helping. She was hoping classes would restart through Zoom next week.
Dr Anand noted that Dr Shields had started the applicant on Endep, and it was possible it had interacted with the Vyvanse to worsen her anxiety, as well as myoclonic jerks.
Dr Anand reported on 24 November 2020 that once the applicant ceased Endep, her myoclonic jerks ceased. The Deralin was extremely helpful in lowering her anxiety.
The applicant’s anxiety levels remained high. She had started a new job yesterday, as an “admin” for a radiologist. Looking after the children could be stressful. Her husband had recently had surgery.
The applicant had completed university and was doing nursing. She did really well and was quite happy with the result.
Dr Anand reported to the applicant’s solicitors on 18 May 2023.
Dr Anand was asked whether he believed the applicant’s employment was the main contributing factor to the cause, aggravation, exacerbation and/or deterioration of disease, “being a psychological condition”.
Dr Anand responded that, from the history provided, and the applicant’s statement, it appeared that workplace difficulties aggravated her depression.
Dr Anand was also asked to opine on the applicant’s incapacity for work. He referred to his report dated 24 November 2020. He was “unable to assist with the period of incapacit”. He agreed with Dr Bench’s observations in his report dated 10 February 2022.

Mr Bartholomew Henrick – psychologist

Mr Henrick reported to the respondent on 23 November 2018, having seen the applicant on 22 November 2018.
The applicant had described symptoms consistent with social anxiety disorder, GAD, and panic disorder, with most in the “extremely severe range”. She appeared to be highly motivated to address these issues. He expected her to respond well to Cognitive Behaviour Therapy (CBT) for anxiety and the problems would become more manageable over the coming weeks.
Mr Henrick again reported to the respondent on 7 December 2018.
The applicant had described a history of anxiety and panic attacks that she claimed started while she was employed in Newcastle, which she described as a “toxic workplace” due to perceived animosity from cliques of staff and some individuals.
The applicant described a couple of specific “critical incidents” that exacerbated her anxiety symptoms, but stated they occurred in the broader context of being regularly rejected and excluded by other staff.
Mr Henrick reported that there appeared to have been some “generalisation of anxiety-inducing cues” to the applicant’s new workplace at Nelson Bay, and concerns about being negatively appraised by her colleagues for her anxiety-related absences. This created “somewhat of a dilemma” as it increased her anxiety about the impact of non-attendance, while increasing the probability of it occurring.
Mr Henrick opined that, should she attend work, the applicant was mentally capable of acquitting her duties competently. However, any episode of acute anxiety could be expected to impair her ability to perform her duties.
In terms of risk management, reducing the applicant’s requirement to assist with dental procedures would appear advisable in the short-term. However, a return to those duties would need to be factored into return-to-work plans, as ongoing avoidance of specific work situations could be expected to exacerbate anxiety, or at the least reduce the effectiveness of treatment.

Mr Henrick had made it clear to the applicant that he would like her to return to work by
14 January 2019 at the latest, even if initially on restricted duties and/or reduced hours.
Mr Henrick suggested the applicant return to work on 14 January for four hours and worked four hours on her other two regular shifts that week. The following weeks would see an increase to five hours a day, six hours a day, and a resumption of full days by early
February 2019.
Mr Henrick noted that anxiety disorders generally had a good prognosis following appropriate treatment.
The applicant had noted that her issues originally developed at the Newcastle office. A successful return-to-work would be much more likely if she were able to recommence at Nelson Bay.
Mr Henrick reported to Dr Shields on 1 February 2019.
The applicant had been offered a place at the University of Newcastle to study nursing and had decided to resign to study full-time in 2019, starting late February. She had not mentioned the application, which raised the question of whether she ever planned to return to work.
Mr Henrick had advised the applicant on 23 January 2019 that he could not sign a proposed return to work (RTW) plan, knowing she did not intend to return to work. He would need to advise her RTW coordinator, Frances Johnson. The applicant was agreeable, and he updated Ms Johnson.
The applicant had told Mr Henrick her union representative had advised her not to resign until after the factual investigation was complete. It was nearing completion.
The applicant planned to resign effective 21 February 2019, with her WorkCover certificate covering her to 19 February 2019. She intended to return to work for the last two days, which would provide opportunity for “closure and farewells”. This was a positive in terms of breaking the cycle of avoidance of anxiety-inducing situations.
Mr Henrick advised that unless there were any further developments, the case was closed.

Dr Christopher Bench – psychiatrist

Dr Bench was qualified by the applicant and reported first on 26 June 2019.
Dr Bench recorded that the applicant’s last day of work was 19 November 2018. She had not participated in employment since that date.
The applicant’s first mental health contact occurred in 2016. She developed post-natal depression after her daughter’s birth. Dr Shields commenced her on Lexapro, which she had been on ever since. She was subsequently diagnosed with ADHD.
Dr Bench recorded a history of workplace difficulties soon after the applicant started. The workers had been together for many years, and it was “hard to break in”. She was frequently excluded from conversations or interactions. Individuals would not talk to her. Others would not assist her. She was not provided with appropriate information or resources.
The “bullying and harassment” persisted throughout the period of employment. After her daughter’s birth in 2016, she had been on maternity leave. On the day of her return to work, she had a “panic attack”. She had difficulty getting out of the car – “I froze”. She had tearfulness, hyperventilation, heart racing and sweating. She had to take time off work.
The applicant ultimately returned to work. She had particular difficulties with a colleague who appeared to have constantly overly scrutinised her work. She had filed numerous complaints against the applicant to upper management where other workers would normally have simply pointed out a mistake.
The applicant had reported her concerns to management on a number of occasions. She never made a formal complaint. She noted having been placed on restricted duties working out of both Newcastle and Nelson Bay to remove her from the work site, which was a direct result of her concerns regarding bullying and harassment. She had ongoing difficulties, including persistent panic attacks, such that she ceased work on 19 November 2018.
The applicant described her recent mood as “great”. Since being off work, she had significant attenuation of her symptoms. She was no longer anxious or stressed. Her sleep was intact. Her appetite, energy and libido were within normal limits. Her weight was stable. She denied suicidal ideation.
The applicant had not had a panic attack in two months. Her last panic attack was prompted by contact from her employer trying to organise a RTW. When she was not having an attack, her baseline anxiety was significantly lower than when at work.
The applicant was enrolled in a Bachelor of Nursing, carrying a full subject load. This required a 40 hour per week commitment. She had received three distinctions. She noted she could never return to HNELHD and believed she could not return to work as a dental assistant. She believed she would likely be capable of some administrative work.
Dr Bench diagnosed the applicant with adjustment disorder with depressed and anxious mood, in partial remission. She had had a significant chronic stressor, being the alleged bullying and harassment at HNELHD. There was an absence of other causative stressors. Her husband had all but recovered from a serious motor vehicle accident. She had ADHD that was unrelated to the claim.
Dr Bench considered that the applicant’s prognosis was good. She had had all but a resolution of her symptoms with appropriate care. With further time away from work and the resolution of her claim, she would likely have a remission.
Dr Bench opined that the applicant was unfit to participate in pre-injury employment., including with an alternate employer. She was engaged in full time study. “In this context”, she was not working. She would likely be fit to participate in a graduated RTW plan in a different job, such as administrative duties. She would likely be capable of working 20 hours per week but gain a capacity to work 40 hours per week with appropriate RTW plan allowing her to build her confidence. Dr Bench expected she would be capable of returning to full time employment in administrative duties within six to eight weeks.
Dr Bench assessed whole person impairment of 7%.
Dr Bench again reported on 10 February 2022.
The history previously recorded remained unchanged.
The applicant had been applying her CBT skills. She had a prolonged period of wellness. She had continued to see Dr Anand and had been on Lexapro until February 2020. She ceased it as she felt ready and was concerned about her weight gain.
The applicant had been prescribed Endep for migraines but had severe panic symptoms and it was stopped. She had a number of stressors at the time, including her university placements, the pandemic and its sequelae. She was commenced on Cymbalta in about April 2020. She continued to see Dr Shields for mental health care monitoring but had had no psychotherapy for two years.
The applicant had completed her Bachelor of Nursing on 26 November 2021. She was offered a position to do Honours but was unsure whether she would take it up. She was working on a permanent full-time basis at JHH.
Dr Bench recorded that the applicant described her recent mood as “pretty good…happy”. Her anxiety had resolved.
Dr Bench commented on Dr Roberts’ report, which I discuss below.
Dr Bench opined that the applicant was totally unfit for employment from 19 November 2018 until March 2021. She would never regain capacity to return to employment with HNELHD Oral Health Service. She had regained capacity for employment in March 2021 as an Assistant in Nursing (AIN). She was currently fit for full-time employment as a RN.

Dr Glen Smith – psychiatrist

Dr Smith reported on 30 August 2019.
The respondent informed Dr Smith that the applicant had been certified with no capacity for work for over 11 months. It had not received a substantive response from Dr Shields regarding her return to work.
Dr Smith recorded that the applicant was studying nursing full time, having commenced in February 2019. She was due to start a placement at JHH in September 2019.
The applicant told Dr Smith she first felt “a little bit depressed” after the birth of her son but had not received treatment. She first experienced a panic attack when she returned to work after 12 months maternity leave. There had been “some issues” with colleagues, “being ignored, not being included”. She felt sensitive to those issues and several times went home upset. She had not received any treatment for anxiety at that time.
Dr Smith recorded that the applicant had post-natal depressive symptoms after her daughter’s birth. She was prescribed Lexapro. Her symptoms resolved over some weeks. She continued Lexapro continuously.
The applicant returned to work in January 2017, after nearly 12 months maternity leave. She experienced a further panic attack but managed to continue working.
The applicant continued to feel anxious about issues in her relationships with colleagues. Her supervisors were supportive. In late 2017, she moved to Nelson Bay, which had been positive for her, and she had not suffered from persistent attacks. She denied anxiety outside the workplace.
In August 2018 the applicant was diagnosed with ADHD and treated with Vyvanse.
On 19 November 2018, the applicant had a further panic attack when she was driving to work and had not worked since.
The applicant had not suffered significant depressive symptoms and there was minimal anxiety at home. When she thought of returning to work or received emails regarding work, she felt anxious. She did not believe she would be able to return to work as a dental assistant in the area as she was “scared…it will come back again.” She had been successfully studying with no anxiety or conflict with others.
Dr Smith diagnosed MDD, in remission. There was no reported history consistent with GAD or societal anxiety disorder. The applicant presented as generally stable with no recurrent anxiety or panic.
Dr Smith opined that the applicant’s ability to study full time successfully was indicative of capacity to work. Given her anxiety regarding returning to work in any dental assistant position, it was not likely she would be able to successfully return to her previous position.
The applicant was fit to return to full-time work in an alternative position. She had been studying full time, which was indicative of her ability to work full time in a position outside a dental assistant role.

Dr John Albert Roberts – psychiatrist

Dr Roberts was qualified by the respondent and reported on 14 October 2021.
Dr Roberts recorded that the applicant had been diagnosed with ADHD. She experienced anxiety, which had been “pretty good latterly”. She described her anxiety as nervousness in the stomach, a tendency to shake and be worried.
The applicant had been working at JHH as a graduate AIN since April. She was also in the last year of a three year course in nursing. She had not worked between November 2018 and April 2021.
The applicant was employed for 20 hours per week and her study obligations were in the order of 40 hours per week. Her studies were “really good”, all her placements were at JHH, and she had good relationships with the area nurses. She had had one to two passes, some credits, and some distinctions and high distinctions.
The applicant described her work environment as “very clicky” [sic], comprising tight groups of friends. If you were not their friends, they did not want to talk to or help you. She had made friends during that time and remained friends with one.
The applicant had always worked. She admitted that she had a lot of time off work. Some related to her son having asthma and to her husband having had a bad motor vehicle accident.
The applicant had had an issue with a couple of people after she returned to work from maternity leave. They complained to upper management. She commented that the complaint could have been responded to at a local level. There was no consideration given to her in regard to anything that had happened. It had led "to tension - horrible" and there were days when she would sit in her car and not want to go into work.
Dr Roberts recorded that the applicant had applied for the clinical coordinator position three times but was unsuccessful. She knew the position well. It always went to someone with less experience. She believed she did not interview well.
The applicant wept at the end of the interview when she spoke of her experiences. When she ceased work her mental health improved. She experienced more success and was in a better position. She commented on avoiding dentists and dental clinics.
The applicant described her experience working at the dental clinic as "horrible” and “smart remarks" were made. She had applied for jobs elsewhere without success, and had found work better at Nelson Bay, which she described as an amazing clinic staffed by amazing people.
Dr Roberts opined that at the date of his assessment, there was no evidence beyond the diagnosis of ADHD. The applicant was attending university, performing well, and working for 20 hours per week. Her university commitments were in the order of 40 hours study, which implied she was working 60 hours per week, and was undertaking domestic duties and some gardening activities.
Dr Roberts opined that at the time of her employment with HNELHD, the applicant would have possibly qualified for a circumscribed period of time, as a result of her perceptions of the circumstances and conditions of employment, for a diagnosis of an adjustment disorder with anxiety and depression. He considered it was multifactorial in origin and related to circumstances that were substantially non-work related, including the significant health concerns in regard to her husband.

SUBMISSIONS

The submissions have been recorded. I will summarise the main points.

Applicant

The applicant submitted that her statement provided the factual matrix. There was a “toxic dynamic” with Kerry Burnett.
The applicant submitted there was no evidence from Dr Taper, and a Jones v Dunkel[1] inference should be drawn. She had not been cross-examined on her comprehensive statement.
[1] [1959] HCA 8, (1959) 101 CLR 298.
The applicant referred to her GP’s evidence and that of Mr Henrick. She submitted I would be satisfied that there was a “toxic environment”, and her employment was the main contributing factor to the injury.
The applicant submitted she had discharged her onus with respect to causation. She submitted she was entitled to compensation for the closed periods when she was unable to work for her previous employer.
The applicant submitted that the respondent accepted she was incapacitated. It medically terminated her on 18 October 2019 [sic]. Dr Smith’s evidence would satisfy me that she was entitled to benefits for the closed periods.
In reply to the respondent, the applicant submitted that her experiences were “real” and she put people “in the frame”. There was no evidence from Kerry Burnett, Dr Taper, or Charmaine Lloyd.
The applicant accepted that she bore the onus of establishing that employment was the main contributing factor to injury. She referred to State Transit Authority of New South Wales v El-Achi.[2]
[2] [2015] NSWWCCPD 71.
The applicant submitted I would find that the factual matrix was established, and the doctors say her incapacity was caused by her work. Dr Roberts accepted the possibility of an aggravation.
The applicant referred to “plenty of cases” about what work was reasonably open to her on the open labour market. It triggered panic attacks when she went to a dental clinic. Even the respondent’s doctor said she should not go back. The fact that she became a student should not be held against her.
The applicant submitted that she had been totally incapacitated for work, as there was no work she could do without triggering. Her capacity to be a student did not mean she had the capacity to do the work she did before.

Respondent

The respondent referred to the applicant’s evidence that she had no issues at Nelson Bay, where she moved in about November 2017. The issues are what she alleges transpired at Newcastle.
The respondent relied on its lay evidence and submitted I would not be satisfied the events occurred. There was no mention in the GP’s records of work until the applicant went off work in November 2018.
It referred to Mason v Demasi[3] but submitted it was not a question of one or two entries, but of consistent attendance over a lengthy period. There was no mention of issues at Newcastle or contribution to a psychological state.
[3] [2009] NSWCA 227.
The respondent submitted I would not be satisfied that “real” events occurred. If I were satisfied of this, employment was not the main contributing factor to a “section 4(b)(ii) injury”. It referred to Dr Roberts’ opinion that while it was possible the applicant had an anxiety disorder, it was multifactorial.
The respondent referred to the decision in AV v AW[4] and its summary regarding “main contributing factor”.
[4] [2020] NSWWCCPD 9.
The respondent submitted that Dr Shields had addressed “main contributing factor”, but I would not accept that it was satisfied. The issues surfaced after the applicant left work. On 15 November 2018, she had been at Nelson Bay about a year. She was working there when she left work.
The respondent referred to what Deputy President Snell said in AV v AW in that “main contributing factor” is not purely a medical question. I am required to consider all the evidence.
The respondent submitted that Dr Anand’s evidence also did not satisfy that “main contributing factor” was met. He did not record a history of aggravation by the work until after the claim was made, although he was treating the applicant. His opinion was based on her reporting. I would not be satisfied on the balance of probabilities.
The respondent submitted that Mr Henrick’s opinion was also based on the applicant’s history, and I would not accept it. I would not accept Dr Bench’s opinion for the same reasons.
The respondent submitted that the history obtained by Dr Bench that the applicant was placed on restricted duties and removed from Newcastle as a result of difficulties there was inconsistent with other evidence. There was no evidence that she moved to Nelson Bay due to difficulty at Newcastle.
The respondent submitted that if I found the applicant had sustained injury, I would find that the injury had resolved, and there was no entitlement to compensation. It referred to s 32A of the 1987 Act and its application in Wollongong Nursing Home Pty Ltd v Dewar.[5] Suitable employment was not only pre-injury employment. The test is capacity, and the real jobs the applicant could perform.
[5] [2014] NSWWCCPD 55 (Dewar).
The respondent submitted that, on any view, the applicant had capacity from the time she left its employ to undertake suitable employment. It referred to Dr Smith’s opinion and that of
Dr Roberts.
The respondent referred to the applicant’s university records, which were consistent with the history that she had done very well. It submitted that she had had the capacity for full time work in an alternate role such as AIN.
The respondent referred to Dr Shields’ evidence in February 2019 that it was time to begin a RTW program, which it submitted supported the applicant performing alternate duties.
Dr Anand’s evidence also supported this.
The respondent submitted that this was not a case where the applicant had not been provided with RTW services. Her employment was not terminated without consultation with her treating doctors. She had decided to resign, which she was free to do, because she wanted to commence university.
The respondent submitted that, even on the evidence of Dr Bench, the applicant had been fit for administrative duties. I would not be satisfied that she was totally incapacitated for work, even on her evidence. Dr Bench had “backtracked” and opined she was totally unfit for employment from 19 November 2018 until March 2021. The respondent submitted I would not accept that on any view of the evidence.
The respondent submitted I would not accept the COCs at face value, without considering the rest of the evidence. That the applicant had “no intention” of returning to work did not mean she had incapacity for work. She had capacity for work from the time she ceased employment.

SUMMARY

Did the applicant sustain injury arising out of or in the course of employment?

Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’

(cf former s 6 (1))
In this Act--

‘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, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

The applicant claims to have sustained injury as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to s 4(b)(ii) of the 1987 Act. For convenience, I will refer in these reasons to “aggravation”. Ms Doyle must establish that employment was the main contributing factor to the aggravation.
The applicant has a history of psychological symptoms, dating from at least the birth of her son. She was diagnosed with post-natal depression in 2016, after the birth of her daughter.
The applicant’s evidence is that her workplace problems occurred when she worked at Newcastle, and she had no issues at Nelson Bay, where working was “the best thing that had happened”. It was nonetheless while she was working at Nelson Bay that she had what she described as a “breakdown”. She ceased work at Nelson Bay on 19 November 2018, and never returned to work there.
In order to understand why the applicant had what appears to have been a panic attack at Nelson Bay, it is necessary to examine what happened at Newcastle.
The applicant claims to have had a panic attack on the morning of her return to work after taking maternity leave for the birth of her son. This was in August 2011. It does not appear that she reported this or sought medical attention. She stated that her husband calmed her down, and she went to work.
The applicant has given evidence about events that occurred at Newcastle that made her feel, among other things, excluded and ignored. There were also some instances where she was at least counselled about her performance and the amount of sick leave she took.
The respondent has referred to the issue of whether these were “real events”, which I take to be a reference to the decision of Roche DP in Attorney General’s Department v K.[6]
[6] [2010] NSWWCCPD 76; (2010) 8 DDCR 120.
In that matter, Roche DP discussed authorities relating to claims for psychological injury. He said (at [52]):
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler[7] at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan[8]);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand[9] at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[7] State Transit Authority of New South Wales v Chemler [2007] NSWCA 249.
[8] Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13.
[9] Wiegand v Comcare Australia [2002] FCA 1464.
That some of the events of which the applicant has given evidence did occur has been confirmed by Ms Haynes and Ms Buhler.
Ms Haynes, who appears to have been supportive of the applicant, gave evidence thaMs Doyle could have interpreted some answers she received as bullying and isolation. The applicant’s perception need not have been “reasonable”, and her reaction need not have been “rational, reasonable and proportionate”. Ms Haynes “could not say yes or no” about the applicant’s allegations.
Ms Buhler, who also appears to have been supportive of the applicant, confirmed that Ms Doyle felt uncomfortable working at Newcastle. The applicant had told her about incidents at Newcastle that had upset her.
The applicant obviously had a lot of time off work when she worked at Newcastle, and also at Nelson Bay. Some of that leave was to care for her children, and she was in a position where her husband often worked away from home, so the burden of childcare fell on her.
The applicant has given evidence about comments made to her when she returned to work after taking time off. I have no reason not to accept that evidence. It may be that her underlying anxiety caused her to take such remarks to heart, but the respondent took her as it found her.
The applicant suggested that evidence be obtained from Dr Taper, and she also referred to Ms Brewers and Dr Walker, but there is no evidence from any of those people, and the absence of evidence is not explained. There is also no evidence from Ms Burnett, and its absence is also unexplained.
The applicant was happy working at Nelson Bay. However, it appears that, when she had to take time off, she became anxious that what had happened at Newcastle would again occur. That led to what she described as a panic attack when she returned to work.
The respondent submitted that I would not be satisfied that the events of which the applicant gave evidence occurred. It referred to her GP’s records.
It is the case that Dr Shields’ records do not refer to work-related issues before November 2018. However, he has recorded the “major impact” the workplace seemed to have had in the formation of the applicant’s symptoms; and “the seemingly important role” her relationships at work had played in her experiencing such significant anxiety.
Dr Shields said unequivocally that he had not previously seen the applicant display the same magnitude of symptoms. While it may have been of greater assistance had he provided details of the incidents of which she complained, he reported that they would in general be described as bullying behaviour and ostracisation.
In view of the opinion expressed by Dr Shields, I do not believe that the absence of a reference to workplace events in his clinical notes means that I should not accept that the applicant has sustained an injury. The injury consisted in the aggravation of her pre-existing psychological condition.
Dr Anand recorded a history that the applicant had had work-related anxiety at Newcastle, but she felt it had dissipated at Nelson Bay. That is consistent with her evidence. She had issues at Newcastle, but was happy at Nelson Bay, until she became fearful that, on her return to work after an absence, the same issues would recur.
Mr Henrick also recorded that there had been specific “critical incidents” at Newcastle, which exacerbated the applicant’s symptoms, but this was in the context of rejection and exclusion by other staff.
Dr Roberts, who was qualified by the respondent, accepted that the applicant may have qualified for a diagnosis of adjustment disorder for a period, as a result of her perceptions of the circumstances of her employment, but he considered that it was related to substantially non-work related circumstances.
I am satisfied, considering the applicant’s evidence and the medical evidence, that the applicant sustained injury, that is, the aggravation of a disease, arising out of or in the course of her employment with the respondent.

Was the applicant’s employment the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease?

The definition of “main contributing factor” was discussed in AV v AW by Snell DP. After referring to the authorities, he summarised the discussion as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (at [77]-[78]).
The applicant was certainly subject to stressors other than those related to her employment. They included her husband’s health (although his accident occurred in 2010, and he appears to have recovered to the extent that he was able to return to work), her son’s ADHD (although she stated she was relieved that he was diagnosed and could be treated), and her own ADHD, which was successfully treated with medication.
According to Ms Haynes’ evidence, the applicant had a traumatic experience when her daughter was born; her husband had lost some jobs; she had an “on-off” relationship with her in-laws; and there were problems with a house build.
I refer again to the evidence of Dr Shields discussed above. He accepted that there may have been factors outside the workplace that coloured the applicant’s response but were it not for the exposures in the workforce, she would not have experienced the degree of anxiety that she had experienced.
Dr Anand did not opine on whether the applicant’s employment was the main contributing factor to the aggravation of her condition. He said it appeared that workplace difficulties aggravated her depression.
Dr Smith also did not opine specifically on whether the applicant’s employment was the main contributing factor to the aggravation of her condition. However, he recorded a detailed psychological history, and concluded that she was likely to have a recurrence of anxiety if she were to return to work as a dental assistant.
Dr Bench opined that the applicant had a significant chronic stressor, that is the alleged “bullying and harassment” at HNELHD. Her husband had all but recovered. She had ADHD that was unrelated to the claim.
Dr Roberts considered that the applicant’s condition was substantially non-work related.
As Snell DP held in AV v AW, the test of “main contributing factor” is one of causation and is not purely a medical question.
Having considered the factual matrix and the medical evidence, I do not accept Dr Roberts’ opinion. The applicant’s evidence and that of the other medical practitioners is in my view, sufficient to establish that the applicant’s employment with the respondent was the main contributing factor to the aggravation of her disease.
The applicant has met her onus of establishing “injury”.

Was the applicant incapacitated for work during the periods in respect of which she has claimed weekly benefits?

Section 32A of the 1987 Act defines “suitable employment” provides:
"suitable employment”, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
The applicant did not return to work for the respondent after November 2018, and her employment was terminated on medical grounds, ceasing on 13 December 2019. At the time she ceased work, she was working for 24 hours per week.
The applicant claims weekly benefits in respect of two closed periods, that is from
21 February 2019 to 31 October 2019; and from 5 February 2020 to 5 May 2020.
The applicant has given no evidence about when she commenced studying for her degree in nursing, and her evidence about her studies and employment is cursory and of little assistance. I have endeavoured to piece together the history and timeline from the medical and other evidence.
It appears, from particulars provided by the applicant’s solicitors to the respondent’s solicitors, that the applicant was employed as an AIN for a period prior to the [COVID-19] “lockdown”, and that is the reason why no claim for weekly benefits is made for the period from 1 November 2019 to 4 February 2020.
I will deal with the periods in respect of which compensation is claimed in turn.
The applicant’s university course transcript, which is attached to the Application, confirms that she commenced the course in Semester 1, in 2019.
Mr Henrick had suggested that the applicant return to work, with some restrictions, on 14 January 2019. He obviously believed that she had capacity for work at that stage. He suggested a resumption of full days at work by early February 2019.
Mr Henrick has reported that the applicant was to start university in late February 2019. She had intended to resign, with her resignation effective on 21 February 2019, as her COC covered her to 19 February 2019.
Dr Shields recorded in January 2019 that the applicant was thinking of not returning to work but going to university. He reported on 19 February 2019 that it was time for her to begin a return to work program.
However, by 28 February 2019, the applicant had commenced the university course. Despite this, Dr Shields certified her with no capacity for work from 28 February 2019 to
31 March 2019. The reason appears to have been that she had no intention of returning to work until the claim had been dealt with. The fact that she had no intention of returning to work, and in fact had apparently decided to pursue her studies, does not mean that she had an incapacity for work.
I do not accept that the COCs issued by Dr Shields accurately reflected the applicant’s capacity for work during the period from 21 February 2019 to 31 October 2019.
The applicant was obviously engaged in full time study from at least the end of February 2019 to 31 October 2019, which is the first period in which she claims to have been incapacitated for work.
Dr Bench recorded in June 2019 that the applicant had a full subject load, requiring a 40 hour per week commitment. He nonetheless opined that she would be capable of working only 20 hours per week, with a return to full time employment in administrative duties within six to eight weeks. I will comment further on Dr Bench’s evidence below, but I reiterate that the applicant was only working for 24 hours per week before the injury.
Dr Smith opined in August 2019 that the applicant was fit for full time work, in a position other than that of dental assistant. She was to start a placement at JHH in September 2019.
In Dewar, Roche DP considered the meaning of “no current work capacity”, “current work capacity” and “suitable employment”.
Roche DP said (at [51]):
“… the Arbitrator said that, to be viewed as ‘suitable employment’, there must be a capacity that is at least ‘potentially able to be realised for financial reward on the labour market’.
If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not ‘generally available in the employment market’, I agree.”
And (at [56]):
“…employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees[10] and Woods[11] remain relevant in determining whether a worker is ‘suited’ for suitable employment.”
And (at [58]):
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that “suitable employment” must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited.’” (Emphasis in original).
[10] Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206.
[11] Moran Health Care Services v Ivy Alice Woods [1997] NSWSC 147.
The medical evidence supports the conclusion that the applicant had capacity for work in suitable employment at least from the time she commenced her university course, which required a 40 hour per week commitment.
Mr Henrick was of the opinion that the applicant should have been capable of a full day’s work by mid-February 2019. His intention was that she return to her pre-injury employment.
Even accepting that the applicant may not have been able to return to work as a dental assistant, there does not appear to be any reason why she could not have done from February 2019 the type of work she later performed from November 2019 to February 2020, as an AIN, or indeed virtually any administrative occupation that did not involve working in a dental clinic. The fact that she chose in February 2019 to study full time, rather than return to the workforce, does not mean that she had no capacity for work.
I also do not accept that the applicant had no capacity for work from 5 February 2020 to
5 May 2020, as certified by Dr Shields.
I do not accept Dr Bench’s evidence. In his second report, he opined that the applicant was totally unfit for employment from 19 November 2018 until March 2021. Apart from the fact that it contradicted his earlier evidence, it ignored the fact that the applicant was engaged in employment from (it would appear) November 2019 to February 2020; and that Dr Smith recorded a history in August 2019 that she was to start a placement at JHH in September 2019.

Dr Bench’s evidence is also contradicted by the applicant’s own resumé, which is attached to the Application, and which describes her as an under-graduate AIN. It recorded that she had clinical placements at JHH from February-March 2020; at Calvary Mater Newcastle in March 2020; and again at JHH in July 2020 and August and December 2020.
I will not repeat all the duties the applicant performed in these placements, but they included general nursing care; recording, documenting, and administering medication; monitoring vital signs and ECG; pre-and post-operative care; and escorting patients.
The applicant obviously had capacity for work during the period from February 2020 to
May 2020. During this period, she not only kept up with her studies, but performed well, and was offered the opportunity to do an Honours degree.
The applicant has not established on the balance of probabilities that she had an incapacity for work during the periods in respect of which she has claimed weekly benefits. There will accordingly be an award for the respondent.
I determine as follows:
(a)    the applicant sustained psychological injury, deemed to have happened on
19 November 2018, arising out of or in the course of her employment with the respondent;
(b)    the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, and
(c)    the applicant was not incapacitated for work from 21 February 2019 to
31 October 2019, or from 5 February 2020 to 5 May 2020.
The order is set out in the Certificate of Determination.

[2023] NSWPIC 490

20 September 2023