Evans v State of New South Wales (Murrumbidgee Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Evans v State of New South Wales (Murrumbidgee Local Health District) [2023] NSWPIC 245
APPLICANT:	Emma Jane Evans
RESPONDENT:	State of New South Wales (Murrumbidgee Local Health District)
Member:	Rachel Homan
DATE OF DECISION:	26 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and incurred treatment expenses for alleged psychological injury due to bullying and intimidation by supervisors; whether real events; hierarchy of causative events; contribution of applicant’s failure of the final subject of a master’s program; section 11A(1); provision of employment benefits; Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence; orders for payment of weekly compensation and treatment expenses.
determinations made:

The Commission determines:

The applicant sustained a psychological injury arising out of or in the course of her employment to which her employment with the respondent was the main contributing factor pursuant to s 4(b)(i) of the Workers Compensation Act 1987.
The respondent has failed to discharge its onus of establishing that the injury was wholly or predominantly due to reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits pursuant to s 11A(1) of the Workers Compensation Act 1987.
The applicant has had no current work capacity as a result of the injury from
14 December 2022 to date and continuing.

The Commission orders:

The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 14 December 2022 to date and continuing based on a pre-injury average weekly earnings figure of $2,471.30, as periodically indexed in accordance with s 82A of the Workers Compensation Act 1987.
The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses, upon production of accounts, receipts and/or Medicare Notice of Charge, in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Emma Jane Evans (the applicant) was employed by the State of New South Wales (Murrumbidgee Local Health District) (the respondent) as a Transitional Nurse Practitioner (TNP). The applicant claims that she sustained a psychological injury due to the nature and conditions of her employment with the respondent.
Liability for the injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 December 2022.
The applicant sought internal review of that decision and, on 31 January 2023, a further notice was issued maintaining the decision to dispute liability.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) on 22 February 2023.
The applicant seeks weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 14 December 2022 to date and continuing.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a psychological injury due to the nature and conditions of her employment with the respondent pursuant to s 4 of the 1987 Act;
(b) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf the employer with respect to discipline, transfer, demotion, dismissal, or the provision of employment benefits pursuant to s 11A(1) of the 1987 Act, and
(c) the entitlement to weekly compensation during the period from
14 December 2022 to date and continuing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 15 May 2023 via Microsoft Teams. The applicant was represented by Mr Andrew Parker of counsel, instructed by Mr Andrew McQuilkin. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Mr Doyle Myles. Representatives from the employer and insurer were also present.
During the conciliation phase, the parties reached agreement that the claim for weekly compensation commenced in the second entitlement period under s 37 of the 1987 Act. The applicant’s pre-injury average weekly earnings (PIAWE) figure was agreed at $2,471.30 as at 1 October 2022, subject to periodic indexation.
During the arbitration hearing, an application was made by the applicant to amend the ARD to include a claim for incurred s 60 expenses by way of a general order. The application was unopposed and leave was granted to the applicant to make the amendment.
The respondent also made an application to have the Commission’s published determination and statement of reasons de-identified in accordance with r 132(1) of the Personal Injury Commission Rules 2021. As that application was not consented to, a timetable was established for written submissions on the matter.
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)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 3 May 2023, and
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 9 May 2023.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant's evidence is set out in written statements made by her on 18 October 2022 and 24 January 2023.
In her first statement, the applicant gave evidence that she had been employed as a full-time TNP for three years. The applicant reported to the Palliative Care Stream Manager, BDW.
The applicant was also studying toward a Master’s degree, which required her to spend 150 supervised hours with a senior clinician.
The applicant said she had been feeling anxiety and depression over a long period of time which prompted her to see a doctor. The applicant was diagnosed with an adjustment disorder. The applicant attributed the development of her injury to high-pressure and poor leadership in the workplace and a mentally demanding work and study load. In particular, the applicant attributed the injury to a combination of “unprofessional behaviour” from her manager and mentor.
The applicant’s mentor was a nurse practitioner, BFR.
The applicant said she initially found BDW and BFR supportive but, in the last 18 months, issues with them had become more frequent and affected her more and more. The applicant described a number of issues which she said led to a mistrust of
BDW and BFR. These had accumulated and caused the applicant to often feel overwhelmed. The issues included:
(a)    difficulties scheduling supervision hours with BFR due to her schedule already being full;
(b)    having to meet BFR at her home;
(c)    witnessing conversations between BDW and BFR about other staff which the applicant believed should have remained confidential;
(d)    BFR commenting that she had “the power of the pen”, implying she had the power to determine whether the applicant was worth endorsing as a nurse practitioner;
(e)    witnessing a telephone conversation between BDW and BFR about the applicant declining an offer to go to Deniliquin to get her supervised hours up;
(f)    approval for a three-day course the applicant had scheduled in Melbourne being cancelled on the grounds that her priority was getting her supervised hours up;
(g)    witnessing BFR appear stressed or angry and “badmouthing” doctors or other professionals when they did not agree with her;
(h)    BFR appearing aggressive in a car including, speeding, overtaking on double lines and using her phone while driving;
(i)    BFR being late to their meetings or leaving early and being distracted by other tasks, causing the applicant to feel she was not a priority;
(j)    BDW and BFR speaking inappropriately about a colleague who had passed away, in circumstances where that colleague had told the applicant she felt bullied by BDW and BFR;
(k)    BDW rejecting the applicant’s suggestion that a commemoration be held for the anniversary of the colleague’s death, and
(l)    BDW not knowing what to do with the applicant’s role after she failed her final subject, causing the applicant to feel like a chess piece being moved around.
The applicant said the issues accumulated and affected her mental health. The applicant felt she could not say anything as it would create a bigger target on her back. The applicant felt like she was being judged all the time, was crying at work and got to the point where she could not go to work. The applicant said she felt she had not been supported or appreciated.
The applicant said she did not pass the final subject of her Master’s course because she did not complete the required supervision hours with her mentor. The applicant blamed this on BFR not making herself available.
In her supplementary statement, the applicant responded to statement evidence from
BFR and BDW. The applicant said BFR’s mentoring style, mood and manner of communication were inconsistent. BFR would sometimes address the applicant as “Em Em” or “beautiful Em” in front of others but was more frank and impatient when they were alone. The applicant felt, from observing BFR’s body language and the way she spoke to the applicant, that her presence was irritating
BFR.
The applicant said on many occasions she was told by BFR that she did not know what her week looked like or that her children had appointments which made her unavailable. On one occasion, a whole week was ruled out due to the death of a friend or relative in Perth.
The applicant stated,
“Being with and working with BFR was becoming increasingly uncomfortable and increased my anxiety levels to a crippling state. I could not think clearly, I was experiencing panic attacks which resulted in fear. I cried every day, I felt powerless, without direction and was suffering from insomnia. I did not want to become a Nurse Practitioner that was like BFR. BDW conducted a performance appraisal which I recall being a pleasant experience. I did not receive any negative feedback regarding this. When I spoke to BFR about how many performance appraisals I've had her response to that was "Do you know how many performance appraisals I've had in 20 years?". I asked her "How many". She replied "One". This information was distressing as she was my mentor and no one was checking on her best practice. I was unfairly treated. This information fuelled more and more mistrust in the way BFR was mentoring me.”
The applicant said she had previously been awarded a nursing excellence award and received flowers from the Palliative Care Team as thanks for her work. The applicant said her performance in the TNP role was affected by BDW’s poor leadership and mentoring. The applicant’s emotional episodes were often brought about by the way
BDW spoke to her. The applicant found it difficult to engage with BDW due to her unprofessional behaviour and loud emotive character. BDW’s mood was unpredictable.
The applicant said her sick leave record increased due to panic attacks and feeling unsafe in the workplace.
The applicant stated:
“Support was difficult to achieve from BDW. She thought that by processing my travel and accommodation requirements for placement was all that was needed from her. I would have benefited with a structural learning pathway focusing on my development. Instead BDW insisted I seek the most complex patients and focus on them. If my knowledge gap and performance were lacking, why would BDW want me seeing the most vulnerable and complex patient cohort. I did not feel safe practicing in this space due to the inadequate guidance and support.”
The applicant said she had accused BDW of bullying her when her approval to attend the Melbourne course was cancelled. In response, the applicant said BDW became aggressive and said she would require a witness for all of their future conversations.
The applicant said she had received outstanding mentoring and guidance from other palliative care nurse practitioners outside her Local Health District. The more time the applicant spent with BFR and BDW, the more stressed and anxious she became.

BFR’s evidence

BFR prepared written statements dated 31 October 2022, 4 May 2023 and
6 May 2023.
BFR said the applicant commenced in her role of transitional palliative care nurse practitioner on or about 15 April 2019. As part of the applicant’s transition into that role, she was required to complete 150 hours of clinical supervision for her final two subjects.
BFR was appointed to provide that supervision after the applicant asked her to be her mentor.
It was up to the applicant to arrange times to complete the supervision and not up to
BFR to chase the applicant. Towards the middle of the year, however, BFR was indicating to the applicant that she needed to step up more and be more active in seeking hours of supervision. The applicant appeared to withdraw or retreat and
BFR had concerns about the applicant being able to meet course requirements.
BFR said she had always been fully supportive of the applicant and her course requirements and made herself available to the applicant, so long as it did not impede on her other commitments. BFR acknowledged that at times communicating with the applicant was difficult and she had questioned her own abilities in this regard. BFR sought mentoring from others to ensure she was supporting the applicant appropriately.
BFR disagreed that there was a negative change in the way that she supported the applicant and described BDW as a professional and talented manager.
BFR did not feel BDW’s manner of communication was unprofessional or threatening.
BFR said it was up to the applicant to make contact to schedule time but she needed to make bookings in advance. Others whom BFR had mentored made bookings months ahead. BFR clearly outlined her expectations of the applicant to the university, who agreed that the applicant needed to drive her own mentoring and supervised clinical practice.
BFR said it was part of her role to have daily conversations about staff in a work context but denied getting involved in discussions about the personal lives of staff.
BFR agreed there may have been a conversation where BDW indicated that the applicant had declined an offer to attend further training in Deniliquin but said this was reasonable communication about the applicant’s continuing mentoring. BFR and BDW had attempted to give the applicant alternatives to get her hours up and her clinical care was not up to standard.
BFR recalled that the applicant was disappointed in not going to Melbourne but said she had explained to the applicant that her time was better spent in New South Wales getting her hours of training up and improving her skills to increase her chances of passing her subject.
BFR said she made it clear to the applicant that she was a priority. The applicant would often arrange things at the last moment and at times when BFR already had other commitments.
BFR said she was aware that the applicant was very close to the worker who passed away but had no idea what the applicant was referencing in her allegation that the worker had been treated inappropriately.
BFR said she had a personal interest in seeing people succeed and did everything possible to help the applicant succeed. BFR provided written and verbal feedback to the applicant and gave her a plan on how to develop. The applicant retreated from the advice that was being given to her and did not display the required interest or ability to move forward.
BFR said she recalled indicating to the applicant that other staff had approached her, indicating that the applicant was struggling. At the time, the applicant reassured
BFR that she was okay and she was receiving the support she required.
BFR agreed that she had offered to meet the applicant at her home on occasions where, due to late planning, there was a lack of available suitable space in the office.
BFR denied using the expression, “the power of the pen”, but agreed that when the applicant’s progress had stagnated she mentioned it in an attempt to refocus the applicant’s efforts.
BFR said she was renowned as being even-tempered and denied taking any bad moods out at work on her colleagues. BFR had been formally recognised by her peers and was nominated for and won numerous awards for her clinical leadership.
BFR categorically denied any allegation of dangerous driving or texting whilst driving and said she had an unblemished driving record. BFR said she could not text and drive because she wore prescription glasses for reading and close-up work but could not wear those glasses while driving.
The applicant often suggested clinical time late. If BFR already had commitments booked in, she would suggest alternative dates or times. BFR would also attempt to squeeze clinical time in around her other personal professional commitments which meant that at times she had to leave early.
BFR agreed that she would routinely address the applicant as “Em Em” or “beautiful Em” as she was genuinely pleased to see her.
BFR annexed to her statements various email communications, records and file notes related to her interactions with the applicant.

BDW’s evidence

BDW has provided written evidence in statements dated 19 October 2022,
5 May 2023 and 9 May 2023.
BDW gave evidence that the applicant commenced in her role as a TNP in April 2019. Prior to this, the applicant was a palliative care Clinical Nurse Consultant (CNC). The applicant’s role as a TNP was conditional upon her providing evidence of registration as a nurse practitioner within three years of commencement of the contract. This required the applicant to complete additional study and 150 hours of clinical supervision.
BDW described the applicant’s aptitude for the TNP role as “below average to average” and said she was “emotional and unreliable”. BDW found the applicant’s attitude “concerning and confusing” and noted that her sick leave record had deteriorated over the past two years to “poor”.
Previously the applicant had been highly regarded as a palliative care nurse and there had been no problems with her performance until she started in the TNP role.
The TNP role required a high level of accountability and involved the prescription of medication and consultations with doctors. BDW said it was apparent that the applicant had a knowledge gap and she and BFR sought to address this with the applicant and implement various strategies to improve her knowledge.
BDW said she sought to communicate with the applicant and document her concerns over the applicant’s performance. When it became apparent that the applicant was not going to achieve her 150 hours of mentoring, BDW offered support and guidance. Examples of the applicant’s poor performance included her not attending mentoring meetings due to family obligations or sick leave.
BDW denied ever acting unprofessionally towards, or in the company of, the applicant and said she had never witnessed BFR behaving unprofessionally.

BDW said it was up to the applicant to arrange clinical hours with BFR. The applicant was required to be proactive and it was not BDW’s role to arrange access with BFR. If BFR’s schedule was full, which it usually was, it was up to the applicant to attend meetings with her. There were many opportunities which the applicant did not take. The applicant seemed unwilling to participate in the process.
BDW denied speaking about the performance or professional private lives of other staff in front of the applicant.
BDW agreed that there was an occasion when she called BFR about the applicant going to Deniliquin but the applicant was unable to attend. BDW said the call was intended to provide support to the applicant in reaching her 150 hours and improve her palliative care skills.
BDW denied cancelling a course in Melbourne which the applicant had requested to attend. BDW said she proposed that the course be deferred until the applicant had achieved her 150 hours. BDW recalled the applicant was upset but said she explained her reasoning for not approving the trip. The applicant accused BDW of being a bully and trying to push the applicant out of the palliative care team.
BDW said the applicant had asked to do hours outside the Local Health District and she was finding it too difficult to maintain professional relationships. BDW did not support the request due to the need to supervise the applicant and the need for her to build relationships within the Local Health District.
BDW denied speaking inappropriately about or bullying the colleague who had passed away and said she did not wish to comment on the death.
BDW said the applicant had failed her final subject and she had discussed this matter with the applicant on 22 June 2022. The applicant was emotional and asked to take the rest of the year off to study. BDW offered the applicant leave and asked her to remain at work in her CNC role. This did not involve a pay cut.
BDW said she was not aware of the applicant being performance managed or the subject of disciplinary proceedings. The proposed change in the applicant’s role from TNP to CNC did not alter the applicant’s hours or pay. This proposal had not yet been communicated to the applicant.

Other witness evidence

The applicant also relies on witness statements prepared by BGO and
BHM, both dated 2 May 2023.
BGO’s gave evidence that she was a speech pathologist and met the applicant through work. BGO stated:
“I recall Emma discussing with me some stress she had relating to her difficulties in performing her substantive role as a Palliative Care Nurse and also the course work. This was due to the fact that I believe there was not sufficient staffing provided to assist her in covering both positions.
I recall Emma coming to me and discussing issues she was having with her employment, having to attend remote locations to deal with complex patients and having a very heavy workload. She would express to me that she was finding some difficulty in managing it and I observed her to be somewhat stressed in her speech and in her body language whilst discussing this with me.
I recall that in around about April 2021 Emma approaching me and discussed issues she was having with BFR. She expressed to me that she was having difficulty arranging mentoring times for her to complete her course work.
I recall on numerous occasions Emma coming to me and confiding in me that she was having difficulties with BFR, in that BFR was difficult to get in contact with and she would have arranged appointments to meet with BFR which would be cancelled at the last minute.”
BGO also recalled an incident in around April 2022 when the applicant confided she had a meeting with BFR and BDW who had informed her that she was failing everything and was not performing. The applicant was in tears and appeared absolutely devastated.
BGO gave evidence that the applicant had been very excited to attend a three-day course in Melbourne but was later informed her that the trip had been cancelled as she had been told by BDW that she should be getting her mentoring hours up. The applicant was devastated.
BGO gave evidence that the applicant had told her that she had asked BDW to have a memorial for a colleague who died in 2020. The applicant appeared shocked that this request had been declined.
BGO said that on her observations, BDW had “an overbearing personality that is very expressive but insincere”. BGO said she could see how the applicant would get mixed messages from the way in which BDW interacted with people.
BGO stated:
“In my opinion I believe the added stress that Emma was dealing with BDW and BFR was making it difficult for her to complete her course work. It appeared from my observation and discussions with Emma that there appeared to be no clear plan to help Emma, the mentoring seemed to be haphazard and inconsistent, and it appeared to me that she was really struggling with this and this affected every aspect of her life including her ability to complete the course work.”
BHM gave evidence that he was a nurse practitioner and had previously worked as a registered nurse in the same local health district as the applicant. BHM said that when going through the nurse practitioner candidacy himself, he was always granted protected time by his mentors to enable further education and allow the candidate to take the lead in clinical consultations in consultation with an experienced nurse practitioner.
BHM said he had been contacted by the applicant who said she was having difficulty gaining the necessary time with her mentor to succeed in her candidacy. BHM agreed to take the applicant on for a week-long placement under his supervision.
BHM said he had worked with BFR in the past and regarded her as a competent nurse practitioner but commented that she did, in his view, have difficulties collaborating with colleagues and other staff members.

Treating evidence

Clinical records prepared by general practitioner, Dr Mary Rezkallah, indicate that the applicant presented with psychological symptoms at a consultation on 14 April 2021. The applicant was started on antidepressants and a mental health care plan developed, with the applicant to start counselling.
Psychotherapist, Ms Lisa Buckley, prepared a report for Dr Rezkallah, dated 20 April 2021. Ms Buckley said the applicant had appeared for an initial consultation reporting a number of symptoms including lowered mood, panic symptoms, sleep disturbance and avoidance behaviours. The applicant had agreed to continue with a number of sessions aimed at addressing these issues.
On 7 May 2021, Dr Rezkallah recorded that the applicant was feeling much better.
On 30 September 2021, general practitioner, Dr Jasenthu De Silva, recorded a long consultation as follows:
“long consultaion
mental health r/w
on effexor since April / 2021
workplace issues
now coping well
having couselling
asking whether she can come off
explain , it is better to continue for at least 6-12 months as she is going for surgery shortly agree with the plan
awating B/L opphorectomy in westmed due to postive BRACA”
On 11 August 2022, Dr De Silva recorded a further consultation in relation to reactive depression and “workplace issues”. It was noted that the applicant was having counselling through the workplace.
On 8 September 2022, Dr De Silva recorded a consultation as follows:
“work place issues
emotional
very anxious about the current situation at workplce
experienced work place bullying
not able to sleep and concentrate”
At a further consultation on 9 September 2022, Dr De Silva recorded,
“feels like she was demoralised at work place
not supported by the manager
feels treated differently
overwhelmed with job allocation
lack of confidentiallity at workplace
can not concentrate
insomnia and vivid dreams
sever anxiety and panic attacks
very emotional having counselling through work - but feels not effective
impression
adjustment disorder”
Dr De Silva prepared a report for the insurer on 4 October 2022 in response to a series of questions. Dr De Silva said the applicant’s symptomology was sufficient to constitute a diagnosis of adjustment disorder and said the main cause of her symptoms was workplace issues. Based on the applicant’s description, not one incident led to the situation but it was “a collective of incidences” which had happened over time. The applicant said she was not supported by her manager, felt she was treated differently to others and was overwhelmed with “job allocation”. The applicant had been referred to a psychiatrist and was having counselling sessions with a psychologist.
Ms Buckley prepared a report for the insurer on 7 October 2022. Ms Buckley said the applicant had advised that her main stressor was bullying at her workplace, which she perceived was getting worse. The applicant indicated there were two senior nurses involved in the bullying, being her mentor and her line manager. The applicant reported being on the receiving end of negative and critical comments about her performance and being told she was not meeting the relevant milestones required of her advanced nursing training. The applicant was being prompted to slow down the process and potentially placed on hold. The applicant believed she was meeting the milestones and was perplexed by the comments.
Ms Buckley said she formed the impression that the applicant was under a great deal of strain, with issues at work on top of her responsibilities at home to care for her young children and husband with his own mental health issues.
Ms Buckley reported that at a second consultation on 18 May 2021, the applicant reported that she was trying to go into work with a more positive perspective and more hopeful approach. The applicant had spoken to her mentor about her learning objectives and they had developed a plan to increase their communication as miscommunication or a lack of communication had been identified as a possible influencing factor towards a difference of opinion in relation to the applicant’s progress.
Ms Buckley said the applicant had cancelled a third session in June 2021 and had not made any further contact.
Consultant psychiatrist, Dr Jaspreet Singh, prepared a report for Dr De Silva on 3 December 2022. Following an initial video consultation the same day, Dr Singh took a history as follows:
“She mentioned that she started having problems at work about 18 months ago with her mentor and current manager. She said it was not clear what the guidelines for progression to a nurse practitioner. She had enrolled in a Masters at Flinders University and was supposed to receive 150 hours supervision/mentorship as part of this course. Her mentor was initially supportive but the relationship seemed to deteriorate soon. She could not provide the time to mentor her and she seemed to have other priorities. She has had to delay that to April next year.
Her manager’s relationship with her mentor was also conflictual according to her. She felt she was spoken to rudely and yelled at by her manager at times. She felt this was unprovoked at times and made her job difficult. She has now submitted a complaint to HR about this and awaiting a response to this.”
Dr Singh noted that the applicant had been seeing a psychologist, Julie Hyland, fortnightly in Wagga and found this very useful. Dr Singh noted that the applicant had been prescribed medication and suggested an adjustment to this. Dr Singh diagnosed an adjustment disorder with mixed anxiety and depressive symptoms in the context of work-related difficulties.
Dr De Silva prepared a report for the applicant’s solicitor on 3 January 2023. Dr De Silva diagnosed an adjustment disorder with mixed anxiety and depression and said he had received history from the applicant as follows,
“… she was struggling and her workplace for at least last 18 months due to issues with her manager and her mentor. She had counselling through her workplace, but it didn’t work. In August/2022, she stated she couldn’t go to work and couldn’t concentrate. She was experiencing flash backs and suffered from severe insomnia. She was also experiencing panic attacks with emotional outbreaks as well as extreme fear towards her workplace.”
Certificates of capacity issued by Dr De Silva, covering the period from 9 September 2022 to 8 May 2023, indicate the applicant has had no current capacity for any work.

Dr Smith

Both parties rely on a medicolegal report prepared by psychiatrist, Dr Brendan Smith, dated 10 November 2022, prepared at the request of the insurer.
Dr Smith recorded that the applicant noted a period of approximately 18 months of increasingly difficult and challenging interactions with both her mentor and manager. These fell into two categories, the first being behaviours that the applicant perceived as alleged bullying and intimidation in the workplace. The second issue was the lack of facilitation of supervised hours necessary to complete the applicant’s transitional nurse practitioner program.
With regard to the matters perceived as bullying and intimidation, Dr Smith noted,
“Ms Evans described a number of incidents, including:
• Witnessing BDW and BFR allegedly conversing regarding other staff members and their various issues.
• Alleged intimidation on the part of BFR, allegedly stating to Ms Evans that she “had the power of the pen”, implying that she held power over whether to endorse Ms Evans as a nurse practitioner. Ms Evans noted that this expression was made to her on a number of occasions, and she felt threatened and intimidated by these statements.
• The cancellation of a three-day training course in Melbourne by BDW at short notice.
• Witnessed incidents of BFR allegedly “badmouthing” doctors and other health professionals.
• Ms Evans travelling in a car driven by BFR and Ms Evans noting alleged dangerous behaviours on BFR’s part, including using her phone while driving, speeding and illegal overtaking of cars, leading to Ms Evans having concerns for her safety.”
With regard to the second issue, Dr Smith noted,
“The second issue was apparent to Ms Evans through difficulties experienced in securing time with BFR, as well as Ms Evans alleging that BFR would arrive late and leave early during their scheduled supervision times. Ms Evans also alleged that BFR did not perform adequate and intensive physical examinations in front of her as part of supervision. She noted that this was an important part of supervision, as it was an area of knowledge and expertise expected to be learnt by her as part of her training as a nurse practitioner.”
Dr Smith reported further:
“As a result of falling behind in the completion of her studies, Ms Evans was informed that funding for her TNP position was being withdrawn. She was informed that she would be returning to her substantive position as a CNC. In the course of being in her substantive position, Ms Evans’ already fragile mental health reportedly further deteriorated.”
Dr Smith reported on the applicant’s symptoms, current treatment and her past history.
Dr Smith performed a mental state examination and gave the opinion:
“Ms Evans present with an adjustment disorder with mixed anxious and depressed mood in the context of alleged bullying and harassment within the workplace. A complicating factor has been the stalling of her progress in studies and career progression, secondary at least in part to difficulty securing clinical supervision time with her mentor.”
With regard to causation, Dr Smith gave the opinion,
“Ms Evans attributes equal weight to her alleged bullying and harassment in the workplace and her lack of clinical supervision stalling her studies for the impact on her mental health. The lack of clinical supervision obtained is, by extension, a workplace-related issue in itself. As such, I am of the opinion that the workplace is wholly and predominantly responsible for her psychological injury.”
Asked specifically whether the injury had been predominantly caused by actions taken or proposed to be taken by the employer with respect to possible transfer, provision of employment benefits or discipline, Dr Smith stated:
“This question is complex. I do consider that there was an approximate 50% contribution towards her psychological injury attributable to her lack of clinical supervision hours, eventually leading to the transfer/demotion of Ms Evans. As per Ms Evans’ account, Ms Evans sought further clinical supervision hours external to BFR. She expressed that she did this in the context of being unable to secure enough required hours with BFR on a regular basis. As such, there appears a potential intricate link between actions of fellow employees and the consequences for Ms Evans.
As such, at least 50% of the attributable contribution to Ms Evans’ psychological condition injury is alleged bullying, harassment and treatment within the workplace. The other half, attributable to transfer and demotion, in my opinion is linked to the actions of fellow employees within the workforce, as opposed to a clear process of demotion and disciplinary action related singularly to performance issues.”
Dr Smith gave the opinion that the applicant was totally unfit for work at that time.
In a “clarification report” prepared for the insurer dated 28 November 2022, Dr Smith stated,
“I note that BDW and BFR have essentially denied all allegations of bullying and harassment made against them by Ms Evans.
Ultimately, my opinion formed in my initial report remains unchanged. I am of the opinion that Ms Evans experienced genuine distress in the workplace secondary to her perception of treatment by Ms O'Sullivan and BFR and that this contributed to 50% of her psychological injury.
However, in response to your question, if as a specialist I take on board entirely the version of events in the statements of BDW and BFR, this would change my opinion. If both of their statements were assumed to be 100% accurate, then this clearly would mean that bullying of Ms Evans did not take place. What has taken place is a “she said she said” situation, where different parties have a different perception of the same events. If BDW’s and BFR’s statement of events are deemed entirely accurate (which is strongly refuted by Ms Evans’ statement of events), then this infers that Ms Evans’ psychological injury has arisen in the absence of workplace bullying and harassment.”
Asked to clarify his opinion on the whole or predominant cause of the injury in light of
BDW and BFR’s denial of the bullying allegations, Dr Smith responded:
“Again, if BDW’s and BFR’s evidence was found to be entirely accurate, I would be of the opinion that the equal causes of Ms Evans’ psychological injury were her failure of units and her subsequent resulting demotion and halting of career progression.
I would note at this point that in my assessment of Ms Evans, her presentation of her history appeared genuine, there were no clear concerning features of her presentation indicative of providing false information and, as such, at this time, my opinion remains to be the opinion that I express my original report.”

Applicant’s submissions

The applicant submitted that the psychological injury was caused by a number of real events, which were conceded in the evidence. The injury was one caused by a gradual process and so s 9A of the 1987 Act was not relevant. The applicant referred to the relevant authorities, including comments made in the presidential decision in Mieth v Sydney Trains:[1]
“The “misperception” of real, albeit innocuous, events in the course of employment resulted from the underlying pre-existing psychological condition, but that does not mean the events were delusional or illusory. The appellant’s psychological injury was caused by the events, even though such events would not cause psychological injury to a person who did not have the appellant’s pre-existing psychopathology.”
[1] [2022] NSWPICPD 27.
The relevant events included BFR often being busy; the applicant meeting
BFR at her home; the approval to attend the course in Melbourne being cancelled; various conversations taking place between BFR and BDW; and the applicant being told it was not necessary to commemorate the death of a colleague. The applicant’s evidence was that these events accumulated and added to her injury.

The applicant submitted that the tone and content of BDW’s own statement evidence was consistent with the applicant’s perception of her as uncompromising. Her statement evidence confirmed that the applicant was struggling with her work duties.
BDW confirmed that a number of the events complained of by the applicant were real, and in fact occurred. BDW’s evidence also confirmed that the applicant perceived a number of these events as hostile.
BFR’s evidence suggested that she had tried her best as the applicant’s mentor but there had been a breakdown in her relationship with the applicant. BFR’s evidence confirmed that misperceptions or miscommunications had occurred on both sides.
BFR confirmed her busy schedule; that discussions about other staff took place; the Melbourne trip was cancelled and there was a phone call between her and BDW about that event; and that, due to her other commitments, she was sometimes late or had to leave early from scheduled supervision.
The applicant submitted that the medical evidence clearly established the onset of psychological symptoms in the context of workplace issues. There was no evidence of any cause of the applicant’s psychological symptoms outside of work. Although the clinical records suggest some fluctuation in symptoms, the medical evidence did not suggest a resolution of psychological symptoms in mid-2021. The applicant reported a history of ongoing symptoms over a period of 18 months.
The applicant noted that it was the respondent who bore the onus of establishing that the whole or predominant cause of the injury was reasonable action for the purposes of s 11A(1) of the 1987 Act.
The applicant submitted that the respondent had given the impression during the conciliation phases of the proceedings, that it relied only on reasonable action with respect to the provision of employment benefits, namely the provision of supervision for the applicant’s Master’s degree. To the extent that the respondent now sought to resile from that position, the applicant was prejudiced in the preparation of her case.
The applicant submitted that a number of the causative events could not possibly fall within
s 11A(1), and particularly not the provision of employment benefits.
The respondent’s case was weakened by the report of Dr Smith. Dr Smith did not state that the provision of employment benefits was the whole or predominant cause of injury. The provision of clinical supervision was the employer’s obligation rather than an employment benefit.
Referring to the authority in Cannon v The Healthy Snack People Pty Ltd,[2] what was required was a clear and precise statement of the reasons why liability was disputed. The respondent was obliged to identify exactly which actions were the whole or predominant cause of the injury. The relevant s 11A(1) events had not been clearly stated in the s 78 notice and the applicant was left to try to piece together what the relevant events were.
[2] [2009] NSWWCCPD 32.
The respondent’s defence failed on both the whole or predominant cause and the characterisation of the events.

Respondent

The respondent sought to correct any misunderstanding as to the scope of the s 11A dispute. The dispute notice alleged that the injury was wholly or predominantly caused by reasonable actions of the employer with respect to discipline, transfer, demotion, dismissal, or the provision of employment benefits to workers under s 11A(1) of the Act.
The respondent conceded that there was no real dispute in the medical evidence as to the occurrence of a psychological injury.
With regard to the causes of that psychological injury, the respondent noted that several of the events claimed by the applicant to have been causative of her injury were denied by the respondent’s witnesses. For example, BFR had provided a statement denying any aggressive or illegal driving.
The applicant had made a litany of complaints regarding matters that were seemingly innocuous. In order to determine what gave rise to the injury, it was appropriate to go to the clinical records.
The clinical records suggested that there was no contact with either the general practitioner or Ms Buckley with respect to psychological symptoms for a long period after 15 June 2021. It was unclear what was actually happening during that time. Although on
30 September 2021, it was suggested that the applicant remain on her medication, it was due to having tested positive to the BRACA gene and a planned oophorectomy. The applicant reported she was coping and feeling well.
The evidence did not reveal any further psychological consultations until 8 September 2022 when the applicant reported bullying in the workplace. That consultation occurred around the time the applicant had failed the final subject of her Master’s course.
As set out in the applicant’s employment agreement, the applicant’s role was conditional upon providing evidence of registration as a nurse practitioner. This required the applicant to do further study including 150 hours of clinical supervision. The provision of clinical supervision was an employment benefit which involved the applicant being provided with feedback. It was the provision of that feedback and the applicant’s failure to complete the requirements of her course that were causative of the applicant’s actual injury.
It was expected that a Master’s student should look after their own mentor/mentee relationship. Other candidates were able to do that. Even if it were accepted that the lack of clinical supervision was a real event, it was either not work-related, being a matter related to the applicant’s university studies; or, alternatively, an employment benefit.
BFR was dealing with a student who was not fulfilling the requirements of her Master’s program by making time for clinical supervision. The applicant was not meeting expectations with respect to her clinical knowledge. It was the applicant’s own failures that were causative of the injury. The applicant was not suffering an injury up until the subject was failed.
The respondent’s position that the relevant causative issue was the failure of the course found support in the reports of Dr Smith. Dr Smith found an approximate 50% contribution attributable to the lack of clinical supervision hours.
The applicant had not satisfied the Commission that employment was the main contributing factor to the injury. In the alternative, the cause of injury fell within the scope of s 11A(1).
The respondent submitted that it should not be considered to have withdrawn any reliance on action with respect to transfer or demotion for the purposes of s 11A(1).

Applicant’s submissions in reply

The applicant submitted that there was no misunderstanding in respect of the s 11A(1) defence. The respondent had indicated that its defence was limited to the provision of employment benefits. The applicant should not be required to reformulate her case.
The applicant submitted that all of the causative events fell within employment. The respondent’s assertion that the applicant’s condition had resolved in mid-2021 was not supported by the clinical notes.
The Master’s course was provided by a university not the employer. The applicant’s failure of the subject could not be characterised as the provision of an employment benefit.
There was no discipline or performance appraisal of the applicant. BDW gave evidence that she was not aware of the applicant being the subject of any transfer, promotion, demotion, retrenchment or changed working arrangement issues.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
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.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In Attorney General's Department v K[3] (K) Roche DP summarised the principles to be applied in determining causation in cases of psychological injury 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 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);
(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 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.”
[3] [2010] NSWWCCPD 76.
It is the applicant who bears the onus of establishing that she has sustained an injury that meets the requirements of ss 4 and 11A(3) of the 1987 Act.[4]
[4] See Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246.
As conceded by the respondent in its submissions, there is no medical evidence to suggest that the applicant does not have a psychological condition. That condition has consistently been diagnosed in accordance with DSM-V criteria by all of the practitioners involved in this case.
There is also no evidence that the applicant was suffering from a psychological condition immediately prior to the events of which she complains. There is no suggestion in any of the evidence or submissions that the alleged injury was caused by a single event or constituted a personal injury for the purposes of s 4(a) of the 1987. Both parties appropriately proceeded on the basis that the relevant provision was s 4(b)(i) of the 1987 Act.
The applicant relies on a series of events occurring in the course of her employment as cumulatively causing the injury. The occurrence of some of those events has been disputed by the respondent’s witnesses.
The factual evidence on both sides does, however, confirm that the majority of the events complained of by the applicant occurred, albeit in circumstances or in a manner which was perceived differently by the applicant and her supervisors.
In particular, I am satisfied that the applicant found it difficult to schedule supervision hours with BFR, at least in part due to BFR’s schedule being busy and her other commitments. I am satisfied that the applicant met BFR at her home on at least one occasion. I accept that the applicant travelled in a car with BFR. I am satisfied that there were conversations between BDW and BFR about other staff and about the applicant which the applicant overheard. In particular, I am satisfied that there was a telephone conversation between BDW and BFR about the applicant declining an offer to go to Deniliquin. I am satisfied that approval for the applicant to attend a three-day course in Melbourne was cancelled. I am satisfied that BFR was, on occasion, late to her meetings with the applicant or left early. I am satisfied that there was a conversation between the applicant and BDW in which the applicant’s suggestion that there be a commemoration of the anniversary of a colleague’s death was declined. I am satisfied that there were questions around the applicant’s ongoing role with the respondent following the failure of her final subjects. I accept that there were a large number of general interactions between the applicant, BFR and BDW in the workplace.
I am not satisfied on the balance of probabilities, weighing all the evidence before me, that some of the events complained of in fact occurred in the way described by the applicant. In particular, the respondent’s witness evidence raises real doubts around whether
BFR repeatedly used the expression “the power of the pen”. I am not satisfied, for example, that BDW and BFR breached any obligations of confidentiality or privacy in their discussions about other staff in front of the applicant. I am not satisfied that BFR ever drove dangerously or in a manner which was illegal while the applicant was in the car with her. I am not satisfied that BDW and BFR spoke inappropriately about or bullied a colleague who later passed away. I am not satisfied that
BFR “badmouthed” doctors or other professionals in the workplace.
The applicant’s case, does not, however, rise or fall on any one of these events. Even excluding these particular events, I remain satisfied that the majority of the workplace events complained of by the applicant were real and actually occurred.
The applicant and the respondent’s witnesses have provided very different perspectives on each of these events. It is important to note that the applicant’s perception of these events is not required to be objectively reasonable or correct. Although the applicant has described some of these events as “bullying” or “intimidation”, the applicant is not required, in these proceedings, to establish fault or demonstrate that those events objectively satisfied some definition of bullying or intimidation.
I accept that the applicant has perceived the relevant events as hostile in so far as she regarded BDW and BFR’s interactions with her as inconsistent, unfair or unreasonable. I accept that the applicant perceived BDW and BFR’s demeanour on occasions as insincere, stressed, frustrated or even aggressive. The applicant’s evidence with regard to her perceptions is corroborated by much of BDW and BFR’s own evidence, as well as the evidence of BGO and BHM. For example, BGO described the applicant as being “devastated” and teary following some of these interactions. BDW and BFR confirmed that the applicant appeared to withdraw or retreat. The applicant’s use of sick leave increased. On one occasion,
BDW confirmed that the applicant had accused her of being a bully when her approval to attend the Melbourne course was revoked.
The medical evidence confirms that psychological symptoms were reported by the applicant to her treating practitioners temporally around the time of these events. Although the initial clinical records made by Dr Rezkallah and Ms Buckley do not reveal the cause of the applicant’s symptoms, the subsequent report prepared by Ms Buckley for the insurer and the evidence from Dr De Silva and Dr Singh confirmed that it was workplace issues including perceptions of bullying by the applicant’s mentor and line manager which were identified by the applicant as her main stressor at the time.
There is suggestion in the treating evidence that other stressors contributed to the onset of the applicant’s condition. In particular, Ms Buckley noted the applicant’s responsibilities at home, including caring for her young children and her husband, had contributed to her being under a great deal of strain.
There is also the issue of the applicant’s studies. The evidence establishes that at the time the applicant sustained the psychological condition, she was undertaking study towards a Master’s degree at Flinders University. The demands of the course and eventually the applicant’s failure of her final subject were clearly major contributing factors to the development of the psychological condition. The respondent has submitted that these matters were external to the applicant’s employment.
I accept that the qualification towards which the applicant was studying was provided by an external tertiary institution, and that stressors relating to the need to balance study with the applicant’s other commitments and ultimately the failure of the final subject could be characterised as external to employment. Completion of the Master’s program was, however, intertwined with the applicant’s employment with the respondent.
Both BFR and BDW have confirmed that it was a requirement of the applicant’s role as a TNP that she provide evidence of accreditation as a nurse practitioner within three years. This necessitated the completion of the Master’s course, which in turn required the completion 150 hours of clinical supervision. The applicant appears therefore to have been authorised, encouraged or induced to complete the clinical supervision component of the program in the course of the applicant’s employment. This is in fact what occurred. The job title itself suggests that it was a requirement of her role that the applicant “transition” to accreditation as a nurse practitioner.
In these circumstances, not only am I satisfied that the clinical supervision took place “in the course of employment”, I am also satisfied that it was arose out of the applicant’s “employment”.
I note the respondent’s submission that the clinical records suggested a resolution of the psychological symptoms reported by the applicant to Dr Rezkallah and Ms Buckley in early 2021. The respondent has submitted that the timing of the claim and the treating evidence suggest that it was the applicant’s failure of her course and associated issues which were causative of the injury which is the subject of this claim.
Whilst I accept that there is a gap in the treating evidence before the Commission between September 2021 and August 2022, I do not accept that the symptoms of which the applicant had complained had resolved. The clinical record made on 30 September 2021 confirms that the applicant was continuing to take medication and that this medication had been successful in alleviating some of the applicant’s symptoms. The applicant was encouraged to continue to take the medication for a further 6 to 12 months. There is also reference to the applicant continuing with counselling or seeing a psychologist through the workplace. It may be that not all of the treating material has been placed before the Commission.
The lay evidence before the Commission is consistent with the applicant’s symptoms continuing and in fact deteriorating. The applicant has described the workplace issues and her psychological symptoms accumulating. The applicant said her anxiety levels increased to a crippling state. The applicant was crying every day, experiencing panic attacks, suffering from insomnia and unable to go to work.
BGO has described witnessing emotional responses from the applicant at work and a change in the applicant’s physical appearance. BDW confirmed that the applicant’s sick leave record had deteriorated over the past two years to “poor”. BDW described the applicant has “emotional and unreliable” and her attitude concerning and confusing.

The respondent’s submission is also inconsistent with the medical opinions before the Commission. Dr De Silva’s report for the applicant’s solicitor confirmed that the applicant was struggling with workplace issues for at least 18 months. By August 2022, the applicant could not go to work, was experiencing flashbacks and suffering from severe insomnia, panic attacks, emotional outbreaks and extreme fear towards the workplace.
Dr Smith has also given the opinion that the applicant’s perception of various workplace events occurring prior to the failure of the subject as bullying and harassment was responsible for at least 50% of the condition.
For these reasons, and considering the evidence as a whole, I am satisfied on the balance of probabilities that the applicant has sustained a psychological injury in the course of or arising out of employment to which her employment with the respondent was the main contributing factor. The requirements of ss 4(b)(i) and 11A(3) are met.

Section 11A(1)

A worker who receives a psychological injury which meets the statutory definitions will not be entitled to compensation if the defence in s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[5]
[5] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[6] (Hamad), Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[6] [2017] NSWWCCPD 6.
The test of reasonableness is an objective one.[7] In Commissioner of Police v Minehan[8] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[9]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[7] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[8] [2003] NSWCA 239.
[9] (unreported 18 June 1998).
In Northern New South Wales Local Health Network v Heggie[10](Heggie) Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
[10] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
There was some debate at the arbitration hearing over the scope of the respondent’s
s 11A(1) defence. My own recollection of the discussions which took place at the preliminary conference and the conciliation conference immediately prior to the arbitration hearing was that indications were given by the respondent’s legal representatives that the respondent relied predominantly action with respect to the provision of employment benefits.
I accept, however, that the dispute notices raised reliance on other actions including actions with respect to discipline, demotion or transfer. I also accept that there was no explicit or formal withdrawal of the disputes by reference to such actions.
In the end, the respondent’s submissions at arbitration focused almost exclusively on action with respect to the provision of employment benefits. As a result, and for the reasons that follow, I do not accept that there has been any denial of procedural fairness to the applicant by the manner in which the respondent has presented its case.
The insurer’s dispute notices indicated that the particular actions on which the respondent relied to establish the s 11A(1) defence were the applicant being notified that funding for the TNP role was likely to cease because the applicant had failed core course components and the decision to cease funding for the role. These were said to constitute reasonable actions by or on behalf of the employer with respect to discipline, demotion, transfer or the provision of employment benefits to workers.
For the reasons given above, I am not satisfied that the lay and medical evidence establishes that the injury was wholly or predominantly caused by the applicant being notified that funding for the TNP role was likely to cease because the applicant had failed core course components and/or the decision to cease funding for the role.
This proposition is inconsistent with the evidence from BDW, at the time of her first statement, that the applicant had not yet been informed of the proposal to change her role from TNP to CNC.
As indicated above, the applicant relies on a cumulative series of events that predated those actions as causative of her injury. I have found that psychological symptoms were reported by the applicant as early as April 2021. Although there was a gap in the treating evidence before the Commission and suggestions that the condition had improved with treatment, I do not accept that the condition resolved. Rather, I accept that it accumulated and deteriorated to the point of causing incapacity for work.
Although I did not accept that all of the events described by the applicant occurred or occurred in the manner described by the applicant, I have accepted that the majority were real events, albeit perceived differently by the applicant and her supervisors.
The position taken in the dispute notices is also not supported by the medical evidence.
Dr Smith does not, in either of his reports give an opinion that actions related to funding of the applicant’s role were “the whole or predominant cause” of the injury. Dr Smith gave the opinion that at least 50% of the injury was due to the various events in the workplace perceived by the applicant as bullying and intimidation. Although Dr Smith was subsequently asked to consider the possibility that such actions did not occur or amount to bullying and intimidation, Dr Smith said that ultimately the view expressed in his previous report remained unchanged.
Asked to assume that those events did not occur, Dr Smith gave the view that the injury would be caused in equal parts due to the failure of units and the subsequent resulting demotion and halting of career progression. Dr Smith made clear, however, that this was not his view, stating.
“I would note at this point that in my assessment of Ms Evans, her presentation of her history appeared genuine, there were no clear concerning features of her presentation indicative of providing false information and, as such, at this time, my opinion remains to be the opinion that I express my original report.”
I have reached the same conclusion, finding that the applicant’s perception of real interactions with Ms O'Sullivan and BFR in the workplace pre-dating the failure of her subject were causative of the applicant’s injury.
In his original report, Dr Smith attributed the other 50% of the injury to the lack of facilitation of supervised hours necessary to complete the applicant’s transitional nurse practitioner program.
In submissions at the arbitration hearing, an argument was developed by the respondent that the facilitation of supervised hours necessary to complete the applicant’s transitional nurse practitioner was itself an employment benefit and the respondent’s reasonable actions in this regard were the whole or predominant cause of the injury.
There is a real question in my mind as to whether the respondent’s dispute notices adequately notified the applicant of a defence relying on those grounds.[11] However, as there was no particular objection by the applicant to the respondent’s submissions in this regard I have considered them.
[11] See, for example, Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13 and Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32.
The primary difficulty for the respondent is that there is no clear medical evidence to support a defence in reliance on this ground. Issues around access to BFR in order to complete her clinical supervision and feedback given to the applicant in relation to her clinical supervision, were on the applicant’s own evidence “a” cause of her psychological injury. There were, however, a large number of other causative events or interactions in the workplace, which did not clearly fall within the category of action with respect to the provision of employment benefits. These included witnessing conversations between BDW and BFR about other staff; the refusal of a request to commemorate the anniversary of the death of a colleague; as well as BDW and BFR’s general demeanour and manner of communicating with the applicant and others in the workplace on a regular basis.
I do not accept that every event occurring in the course of the applicant’s employment can be characterised as action with respect to the provision of employment benefits.
Dr Smith does not weigh the hierarchy of causative events and express an opinion that action with respect to the provision of employment benefits was “the whole or predominant cause” of the injury. Consistently with the observations in Hamad I do not accept that this is a case where the extent of any causal contribution from matters not constituting actions with respect to provisions of employment benefits can be determined in the absence of medical opinion.
Although Dr Smith expressed the view that there was an approximate 50% contribution towards her psychological injury attributable to her lack of clinical supervision hours, the applicant has suggested that many of her interactions with BFR and BDW in relation to her clinical supervision were unreasonable. Neither Dr Smith’s evidence nor the respondent’s oral submissions articulate with sufficient particularity which actions were “the predominant cause” of the injury so as to enable a determination as to whether they were reasonable.
Weighing all of the evidence, I am not satisfied that the respondent has discharged its evidentiary onus of establishing a defence pursuant to s 11A(1) of the 1987 Act.

Orders

In view of the findings above, I am satisfied that the applicant has sustained a compensable psychological injury.
The medical evidence universally indicates that the applicant has had no current work capacity as a result of the injury during the period of weekly compensation claimed.
There will be orders for payments of weekly compensation as claimed at the agreed PIAWE rate as periodically indexed. There will also be a general order for incurred medical and related treatment expenses.

De-identification

The respondent has requested that the Commission’s published decision be de-identified pursuant to r 132(1) of the Personal Injury Commission Rules 2021. That application was opposed by the applicant in written submissions.
The parties’ submissions have been referred to the President for adjudication of the de-identification application.

[2023] NSWPIC 245

26 May 2023