Gobsill v Point 2 Point Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gobsill v Point 2 Point Pty Ltd [2023] NSWPIC 350
APPLICANT:	Craig Gobsill
RESPONDENT:	Point 2 Point Pty Ltd
Member:	Anne Gracie
DATE OF DECISION:	14 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the respondent can establish (pursuant to section 11A) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury since 31 March 2023; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60; considered Smyth V Charles Sturt University; Hunt v Department of Education and Training; State Transit Authority of New South Wales v Fritzi Chemler; Brady v Commissioner for Police; Irwin v Director-General of Education and Training Compensation Court of NSW; Held – the respondent has failed to establish (pursuant to section 11A) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken in respect of performance appraisal; the applicant remains totally incapacitated for work as a result of the psychological injury from 31 March 2023 to date and continuing for his psychological injury deemed to have occurred on 14 November 2022; award for the applicant pursuant to section 37 from 31 March 2023 to date and continuing as adjusted.
determinations made:	The Commission determines: 1. Award in favour of the applicant against the respondent: (a) pursuant to s 37 of the Workers Compensation Act 1987 in the sum of $1,195.68 per week, as adjusted from 31 March 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Craig Gobsill, (the applicant) is 57-years-old and commenced employment with Point 2 Point Pty Ltd (the respondent) in 2006 as a security coin collector having previously worked in cash transit security with Brinks Australia between 1999 to 2006.
There is no dispute that the applicant has sustained a psychological injury during the course of his employment with the respondent with a deemed date of injury, 14 November 2022. There is also no dispute that his employment was the main contributing factor to the development of the applicant’s psychological condition.
Liability for the injury was initially accepted by the insurer by letter dated 20 February 2023 (see page 35 of the Application to Resolve a Dispute (the ARD)).
On 16 March 2023 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (See page 29 of the ARD). The s 78 notice put into dispute the applicant’s entitlement to compensation benefits relying on s 11A of the Workers Compensation Act 1987 (the 1987 Act). The decision took effect from 31 March 2023.
By an ARD registered in the Personal Injury Commission (Commission) on

5 May 2023, the applicant claims weekly benefits of workers compensation from

31 March 2023 to date and continuing.
The parties agree that the applicant’s pre-injury average weekly earnings were $1,494.60.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was the applicant’s injury caused by reasonable action taken by the respondent with respect to performance appraisal, and
(b) the extent (if any) of the applicant’s capacity for work.

Matters previously notified as disputed

During the arbitration, the respondent advised that it no longer relied on the s 11A defence in relation to discipline or transfer.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on

29 June 2023 by way of Teams platform.
Mr Stephen Hickey, counsel instructed by Ms Melani Muraleetharan solicitor, appeared for the applicant, Craig Gobsill, who was present. Mr Paul Rickard counsel instructed by Mr Michael Lee, solicitor, appeared for the respondent.
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 filed 5 May 2023;
(b)    Reply and attached documents filed 29 May 2023;
(c)    Application to Admit Late Documents (AALD) filed by the applicant on
14 June 2023 admitted by consent;
(d)    AALD filed by the respondent on 16 June 2023 admitted by consent, and
(e)    a Certificate of Capacity from Dr B Dickson dated 28 June 2023 admitted by consent at the Arbitration Hearing.

Oral evidence

There was no oral evidence called at the arbitration. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties.

Applicant’s evidence

The applicant relies on his statement dated 16 December 2022 (see page 1 of the ARD) and his supplementary statement dated 12 April 2023 (see page 11 of the ARD).
In his statement of 16 December 2022, the applicant states he commenced working with the respondent in 2006. The applicant did not believe the training was adequate to carry out his duties in the last 12 months. He believes the employees should have received more training on standard operating procedures and work health and safety but this was not provided. The applicant advises that the workplace culture was not very positive. His colleagues were friendly however management was not friendly. The applicant did not feel supported by management. The applicant advises that he has never been disciplined while working with the respondent and he has not recently been promoted, demoted or had a performance appraisal.
The applicant advises that he first started experiencing stress at work about 12 months ago, (approximately December 2021) when the standard operating procedures were placed in the after-hours room. The applicant advises that management did not provide any toolbox meetings to discuss the implementation of the standard operating procedures with the staff despite the fact the applicant consistently brought this to management's attention. The applicant also does not recall any training in relation to coin standard operating procedures.
The applicant advises that over the last 12 months he has been regularly questioned by his manager Mr Rod Williams as to why he had not been completing the runs that he had been assigned. He was repeatedly asked by Mr Williams “why is it taking you so long”. The applicant advised Mr Williams that he was following the standard operating procedures that had been placed in the after-hours room.
He was also questioned by the fleet operator, Natasha Stankovic from the control tower as to why he was missing services, not reporting to the tower and questioned why his runs were taking so long.
On occasions, Mr Williams, who he directly reported to, would repeatedly make comments to the applicant asking “Do you think you'll finish your run today?” The applicant found such comments derogatory and he felt humiliated.
The applicant was also repeatedly contacted by Mr Jeane Forget who was the Cash in Transit (CIT) Operations Lead. Mr Forget constantly harassed and belittled the applicant asking him whether or not he would be able to finish the run.
On Wednesday, 9 November 2022 the applicant was called into the office by Mr Williams at short notice. The applicant arranged for Sean, the union delegate to join him as a support person. The meeting also included Mr Forget. During the meeting the applicant was offered a part time position in a role that would entail a one-man crew transporting cash from Rosehill to Newcastle. Following the meeting the union delegate, Sean, advised the applicant that he had been told by Mr Forget that if the applicant declined the Newcastle part time position, management would step in and performance manage him. At this point the applicant felt that his job and livelihood were being threatened.
On 10 November 2022 the applicant declined the part time role at Newcastle as it raised too many safety concerns. The applicant felt that Mr Williams was not happy that he had declined the part time role. Despite the fact that the applicant had declined the part time role, on 11 November 2022 the applicant was sent a contract for the part time position. On the same day the applicant emailed the recruitment officer and advised her that he had declined the role and wished to continue in his current full-time employment. At this time the applicant felt pressured and harassed to take on a part time role. The applicant was concerned that the part time position would result in a reduction of his wages and also put him into an unsafe work environment outside of safety guidelines.
On 14 November 2022 the applicant was again singled out and received a call from
Mr Williams to attend another impromptu meeting that afternoon. The applicant emailed
Mr Williams and advised him that he was unable to attend on such short notice. He received a response from Mr Forget rescheduling the meeting for 15 November 2022. The applicant requested an agenda for the meeting. He was provided with the agenda but felt that most of the agenda items were team related and the item in relation to the part time position had already been dealt with as the applicant had already rejected the part time position. The applicant advised Mr Forget of his concerns by email on 14 November 2022.
The applicant ceased work on 14 November 2022 due to his psychological injury and has not returned to work. The applicant received an email from Mr Forget on 15 November 2022 which confirmed that the impromptu meeting scheduled for 15 November 2022 had been cancelled. The applicant completed a claim form on 23 November 2022 and obtained a certificate of capacity from Dr Lim on 21 November 2022 certifying him unfit for work for three months commencing on 21 November 2022.
In his statement the applicant also provided numerous instances of bullying by employees of the respondent he had experienced prior to November 2022.
In his supplementary statement dated 12 April 2023 the applicant comprehensively addresses the s 78 Notice dated 16 March 2023 and the statements attached to the s 78 Notice from Mr Forget, Mr Williams and Ms Stankovic.
The applicant relies on the medical opinion of Dr Saboor dated 24 March 2023 (see page 51 of the ARD). In that report Dr Saboor takes the following history from the applicant:
“He stated that he has been diagnosed with adjustment disorder.
He reported that it started approximately 12 months ago and he progressively got worse.
He stated that approximately around 9 - 10 months prior to the meeting he started feeling stressed about work and was worried about going to work for fear of being targeted. He stated his sleep was affected. He could not sleep properly. He lost his appetite. He was experiencing frequent headaches due to pressure and stress at work. He stated that he tried to manage these symptoms by himself.
He stated that the following day after the meeting he called in sick and went to see a GP and was given two days off.
He stated that he has been feeling stressed with sleep problems and losing his appetite approximately around nine to ten months prior to this meeting. After the meeting his condition worsened….
In summary, Mr Gosbill [sic] was a 57 year old man who has been off work since November 2022. He reported that he has been subjected to bullying and harassment for the 12 month period prior to leaving work. He reported that he was a union co-delegate and after someone got injured by opening the back of the truck he started raising concern about the safety and standard operating procedures. He reported that he was subjected to negative remarks and sarcastic comments from management repeatedly in front of others. He has been bullied and harassed and been targeted and belittled”
Dr Saboor diagnosed the applicant with an adjustment disorder with depressed and anxious mood.
Dr Saboor confirms that work was the main contributing factor for the development of the applicant’s psychological injury (see page 57 of the ARD). Dr Saboor is also of the opinion that the applicant’s psychological condition was not wholly or predominantly caused by reasonable action taken on behalf of the employer (see page 58 of the ARD).
In relation to capacity, as at 24 March 2023, Dr Saboor opined that the applicant was unfit to attend any form of gainful employment at present. Without treatment the applicant may not be able to return to work.
The applicant also relies on a rehabilitation provider referral completed by his general practitioner, Dr Dickson dated 8 March 2023 (see page 61 of the ARD) and a number of certificates of capacity completed by Dr Dickson (see page 64-7-of the ARD). The applicant also relies on the clinical notes from the Workers Health medical practice and the clinical notes from the Reliance Medical Practice, Wyong (see the AALD dated 14 June 2023).

Respondent’s evidence

The respondent relies on the medical opinion of Dr Sherman dated 13 March 2023 (see page 100 of the reply). Dr Sherman provides a diagnosis of an adjustment disorder with mixed depression and anxiety (see page 104 of the reply). Dr Sherman agrees that the applicant’s employment with the respondent has been the main contributing factor to his current symptoms. In relation to capacity, Dr Sherman finds, as at the date of the examination of the applicant on 28 February 2023, that the applicant had no capacity to participate in employment on the open labour market. Dr Sherman does however state that “within three months I would expect him to have capacity to participate on a part time basis, that is, less than 20 hours a week if he receives the psychological treatment I have proposed” (see page 105 of the reply). The psychological treatment proposed by Dr Sherman was that the applicant will require three months of fortnightly sessions with a clinical psychologist for cognitive behaviour therapy (see page 104 of the reply).
The respondent also relies on a factual investigation report from MJM Corporate Risk Services dated 27 January 2023 (see page 1 of the reply). The report contains the following documents:
(a)    a signed statement of the applicant dated 16 December 2022 (see page 11 of the reply). This statement also appears in the ARD at page 1;
(b)    an unsigned statement of Mr Jeane Forget later signed and attached to the AALD dated 16 June 2023 (see page one of the AALD). Mr Forget had been employed by the respondent as a CIT operations lead NSW/ACT for six years and seven months;
(c)    a signed statement of Natasha Stankovic dated 19 December 2022.
Ms Stankovic had been employed by the respondent as a fleet controller for eight months since April 2022 (see page 38 of the reply);
(d)    a signed statement of Mr Rodney Williams dated 20 January 2023. Mr Williams had employed by the respondent for 35 years as a road crew manager (see page 43 of the reply);
(e)    the applicant's personal and employment file, and
(f)    minutes from meetings, file notes, correspondence and emails between the applicant and the respondent including the respondent's offer of full-time employment to the applicant dated 3 October 2017 (see page 51 of the reply) and a chronology of events for the period April 2022 to November 2022 (see page 61 of the reply).

Respondent’s submissions

The respondent notes that both of the forensic doctors qualified in this matter, Dr Sherman and Dr Saboor, agree with the medical diagnosis of an adjustment disorder with mixed depression and anxiety. The forensic doctors also agree that employment was the main contributing factor to the applicant’s psychological condition.
During oral submissions, the respondent initially advised that they relied on the s 11A defences in relation to transfer and performance appraisal. At a later stage, during submissions, the respondent advised that they only relied on the s 11A defence concerning performance appraisal.
The respondent took me to the report of Dr Sherman dated 13 March 2023 (on page 100 of the reply), and the opinion expressed by Dr Sherman to the following question:
“If Mr Gobsill has sustained a work-related injury, is the whole predominant cause, actions taken or proposed to be taken to deal with the worker’s performance, noting his repeated failures to meet the requirements of the role (missing runs & not contacting ‘the tower’?
These actions include phone calls, email, scheduled meeting, and observation of
Mr Gobsill ‘at work’’’
to which Dr Sherman replied “Yes”.
The respondent then took me to the statement of Mr Forget and summarised Mr Forget’s response to the applicant’s statement in relation to the applicant’s allegations of bullying and harassment in the workplace (on page 23 of the reply and page 1 of the AALD).
In relation to the interpretation of performance appraisal the respondent submits that cumulative events can be characterised as performance appraisal. The respondent concedes that it cannot be said that there was a specific meeting addressing performance appraisal with the applicant.
The respondent took me to the case of Smyth v Charles Sturt University [2007] NSWWCCPD 184 which supports the submission that performance appraisal can involve various steps. The respondent also referred to a decision of Walker J in the matter of Hunt vDept of Education and Training (NSW) (2003) 24 NSWCCR 642. In that matter his Honour found that performance appraisal can involve a general discussion regarding performance of one’s work and did not necessarily need to be punitive, unlike discipline.
In relation to capacity, the respondent relies on the report of Dr Sherman dated
13 March 2023 (on page 105 of the reply). Dr Sherman examined the applicant on
28 February 2023. At that time, Dr Sherman found the applicant was totally unfit for work however Dr Sherman opined that with fortnightly psychological treatment in the form of cognitive behavioural therapy, the applicant should be fit for less than 20 hours work per week within three months.

Applicant’s submissions

On the issue of incapacity, the applicant submits that if I was to find in the applicant’s favour, I should consider the two forensic medical reports from Dr Saboor and Dr Sherman which, in March 2023, opine that the applicant is totally incapacitated for work. This is also supported by the most recent certificate of capacity issued by Dr Dickson dated 28 June 2023 which certifies the applicant unfit for work. In the alternative, the applicant submits that I should consider the certificates of capacity issued by Dr Dickson dated 8 March 2023 (on page 70 of the ARD) and 5 April 2023 (on page 19 of the AALD) which certify the applicant fit for suitable duties two hours per day, two days per week. In this respect the applicant further submits an hourly rate of $25 per hour which would result in a capacity to earn of $100 per week. The pre-injury average weekly earnings (PIAWE) has been agreed at $1,494.60. The applicant has already received compensation for the first 13-week entitlement period. The amount of $100 representing the applicant’s capacity to earn would be deducted from the 80% rate for the second entitlement period ($1,195.68) resulting in an award of $1,095.68 per week from 31 March 2023 to date and continuing, as adjusted.

The applicant then addressed the statements and emails of the applicant, Mr Williams,
Mr Forget and Ms Stankovic. On close examination of this documentation and addressing the issues relied upon by the respondent to support its submission that the respondent was undertaking performance appraisal of the worker, the applicant submits that the actions taken by the respondent were general procedure and not performance appraisal.
The applicant submits that I have to assess if the actions of the respondent in relation to performance appraisal have been reasonable and that the applicant’s injury has been wholly or predominantly caused by that action. The applicant submits that this is just not supported by the evidence.
The applicant repeats the submission that if the respondent is to succeed on the s 11A defence I must find that the applicant’s injury has been wholly or predominantly caused by the performance appraisal and that the performance appraisal was reasonable.
The applicant then referred to the proposed meeting initially scheduled for 14 November 2022 and then rescheduled to 15 November 2022 and took me to the email correspondence exchanged between the applicant and the respondent in relation to that meeting. The applicant noted that it was important to assess the applicant's perception in relation to that meeting. The applicant submits that the meeting was not part of a performance appraisal of the applicant. The applicant submits that the three agenda items for the meeting were either irrelevant, in relation to the applicants transfer to a part time role which the applicant had already formally declined; team based rather than a personal performance appraisal of the applicant in relation to the safety issues on the agenda and equivocal in relation to the expected performance of coin truck operators. It was not clear if this item was directed to the applicant personally or to the team in general.
Upon receipt of the agenda for the meeting from Mr Forget the applicant replied by email to Mr Forget and asked, “Do you have some other agenda in mind?” The applicant submits that this is important and demonstrates the perception of the applicant in relation to the agenda and the meeting taking into consideration the decision of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (Chemler). In the present matter, the meeting was a real event however the applicant perceived it in a different way to the respondent. His question to the respondent, “Do you have another agenda in mind?” demonstrates that the applicant perceived that something sinister or untoward is happening or is likely to happen increasing his level of anxiety. In his statement the applicant advises that after the meeting was called, he got to a point where he could no longer cope.
The applicant summarised his submissions as follows:
“1.     There was no performance appraisal. The actions of the employer were a mode of operation.
2.     The respondent’s actions were not reasonable. The respondent failed to address the applicant’s concerns in relation to safety that he had brought to their attention over a 12-month period prior to November 2022. As a result of this failure, the applicant was continually questioned by his managers and the fleet control radio operator by email, phone and radio contact whether he was going to miss services and complete his runs. As a result of this he felt victimised and humiliated and developed a psychological injury.
3.     The applicant’s psychological injury was not wholly or predominantly caused by the reasonable action of the employer in terms of performance appraisal.”

FINDINGS AND REASONS

In my view, the evidence in this matter does not satisfy the requirement that the applicant's injury has been wholly or predominantly caused by the respondent’s actions or proposed actions with respect to performance appraisal.
In the matter of Irwin v Director-General of Education and Training Compensation Court of NSW, No 14068/97, 18 June 1998, unreported, Geraghty J referred to performance appraisal as being, “somewhat like an examination, not a continuing assessment. Performance appraisal is more like a discrete process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance”.
The statement of Mr Forget confirms that the respondent had a protocol to follow in relation to performance management and states that the applicant had not been performance managed. The continual remarks by Mr Forget, Mr Williams and Ms Stankovic directed at the applicant by email, telephone and the radio as to whether he was going to complete his runs and repeated questioning by them asking the applicant why he had not completed his runs could not be considered a recognised procedure in relation to performance appraisal.
I agree with the opinion expressed by Dr Saboor in his report dated 24 March 2023 that employment was the main contributing factor for the development of the applicant’s adjustment disorder with depressed and anxious mood due to bullying and harassment in the workplace.
I disagree with respondent’s claim that the applicant’s psychological condition was caused by performance appraisal. I do not agree that the actions taken by the respondent constituted performance appraisal nor were the actions taken by the respondent reasonable.
According to the applicant’s statement, which has not been challenged, in the 12 months before he ceased work there had been a reduction in the number of drivers and the number of trucks on the road which added additional work and timeline pressures for the remaining trucks and drivers on the road. The pressure became overwhelming for the applicant. Furthermore, approximately 12 months before the applicant ceased work, the respondent placed details of the Standard Operating Procedures in the afterhours room. The applicant states the respondent provided no training or toolbox meetings in relation to the standard operating procedures. On numerous occasions, the applicant brought this to management's attention but was ignored. Mr Forget confirms that these issues were brought to his attention by the applicant on “multiple occasions” (see page 26 of the reply). The applicant adhered to the standard operating procedures and as a result was often unable to finish his runs. He was constantly harassed by his manager and the fleet control staff in relation to this.
Mr Williams notes in his statement that the applicant’s work ethic had dropped in the last 12 months (see page 46 of the reply). This is consistent with the applicant’s evidence that I have referred to above in relation to the reduction in the number of trucks and the number of drivers and the applicant’s concern that the respondent had not provided training for the safe operating procedures over the last 12 months. If the respondent disputed that there had not been a reduction in the number of drivers or trucks and that training had been provided in relation to the safe operating procedures this evidence would have been readily available to the respondent to support their s 11A defence that the employer’s actions in relation to performance appraisal were reasonable. The repeated questioning of the applicant as to whether he would be able to finish his runs by Mr Williams, Mr Forget and Ms Stankovic could not be considered performance appraisal. The repeated questioning, despite the applicant’s response that he was complying with the safe operating procedures, amounted to bullying and harassment and resulted in the applicant developing a psychological injury. The actions were not reasonable nor were they part of performance appraisal.
In the matter of Brady v Commissioner for Police (2003) NSWCCR 58 the failure to promptly invite a worker to respond to criticism or adverse comments about work performance was not considered to be a reasonable action with respect to performance appraisal. The applicant had advised the respondent that he had been unable to finish his runs on numerous occasions due to the fact he was adhering to the safe operating procedures and there had been a reduction in the number of staff and trucks over the last eight months. Management ignored his concerns. He was not given the opportunity to respond to the comments made by the respondent as the comments were made on an ad hoc basis by radio, telephone calls and emails. The comments were often made publicly causing the applicant further humiliation.
In relation to the events that unfolded in November 2022 I have taken into consideration the submissions made by the applicant and the respondent and concluded that the meeting/s called by the respondent on 14 and 15 November 2022 (that did not proceed) were not in relation to performance appraisal for the following reasons. The agenda for the meeting, which was only provided by the respondent at the request of the applicant, dealt with three topics. The first item on the agenda was the part time position that the applicant had already advised the respondent that he was no longer interested in. The second item on the agenda in relation to safety issues on coin trucks was clearly a topic that was relevant for all coin truck operators, not just the applicant. The third item on the agenda was expected performance on coin trucks and how to address this. Once again, this item appeared to relate to all coin truck operators, not just the applicant. The agenda items were therefore not part of a performance appraisal.
Prior to this meeting, the applicant had provided the respondent with photographic evidence that some of the coin truck operators were not complying with the standard operating procedures. The agenda item was equivocal and it was not clear whose performance was being considered. The applicant advised the respondent of his concerns by email dated 14 November 2023. Following receipt of this email the respondent advised the applicant the meeting had been cancelled and that the respondent would discuss the issues with the union delegate directly. The meeting did not proceed however at this point the applicant felt he could no longer cope and went off work and sought medical treatment for his psychological injury. In my opinion, the meeting agenda demonstrated that the meetings that were called were administrative in nature addressing work practices in general and not specific to the applicant’s performance. The respondent’s own managers agree with this and record in their statements that the applicant has never been the subject of a performance appraisal.
I also agree with the applicant’s submission that the applicant’s perception in relation to the meeting to be held on 14 November 2022 is important to consider. The applicant perceived that the respondent had an alternative agenda for the meeting and directly asked the respondent this by email dated 14 November 2022.
The respondents submits that the comments made over the radio and by email by management and fleet control to the applicant in relation to him finishing his runs was part of performance appraisal. I disagree with this. I agree with Dr Saboor that these comments formed part of the bullying and harassment the applicant had been subjected to in the last 12 months of his employment.
In support of this both Mr Forget and Mr Williams advise in their statements that the applicant had never been subject to a performance appraisal. The applicant himself did not consider that he had been disciplined or the subject of performance appraisal by management, see paragraph 31 and 32 his statement (page 14 of the reply).
Mr Forget, at paragraph 14 of his statement, notes his conversations with the applicant in relation to the difficulties he was experiencing in finishing his runs were informal (see page 26 of the reply).
Mr Forget also states at paragraph 17 of his statement (page 29 of the reply) that “performance management of a staff member follows set protocol. If I was to performance manage a staff member, I would follow these protocols”.
Mr Forget had advised the applicant by email dated 9 September 2022 that he had no problems with the applicant keeping to the safe operating procedures.
Mr Forget also advised that the applicant had the full ability to perform his role. He confirmed the applicant had a clean employee record in relation to conduct and behaviour and no known formal matters on file (see page 24 of the reply).
Mr Williams advises that the applicant has not been disciplined during his employment with the respondent. He notes he had discussions with the applicant about workloads but notes that he has not been disciplined about this (see paragraph 13 at page 45 of the reply).
Mr Williams confirms that the applicant had not recently been promoted, demoted or had a performance appraisal (see paragraph 14 at page 45 of the reply).
In light of this evidence I fail to see how the respondent can suggest that its interactions with the applicant either by way of telephone calls, radio contacts, emails, face to face conversations or informal meetings could in any way be considered performance appraisal bearing in mind the applicant’s two managers have stated that the applicant had not been the subject of performance appraisal and the applicant did not believe he had been performance appraised.
The respondent bears the onus in relation to the s 11A defence. I do not believe the respondent have discharged this onus.
I do not believe the respondent’s actions amount to performance appraisal let alone reasonable action in relation to performance appraisal.
In so finding, I do not believe the applicant’s psychological injury has been wholly or predominantly caused by the respondent’s reasonable actions with regard to performance appraisal of the applicant.
I do not need to make a finding as to whether or not the performance appraisal was reasonable, however, in this regard, the difficulties that the applicant had in carrying out his duties in line with the safe operating procedures in the 12 months prior to him ceasing work as a result of his psychological injury in November 2022 lead me to the conclusion that the respondent’s actions were not reasonable. The applicant had been regularly lodging complaints and making recommendations to the respondent in the 12 months prior to him ceasing work due to his psychological injury informing the respondent that it had not provided proper training or toolbox meetings in relation to the safe operating procedures. The respondent had ignored the applicant’s requests in this regard. As a result of this failure by the respondent to address the applicant’s concerns, the applicant had difficulty finishing his runs due to the fact he was following the standard operating procedures and as a result he was victimised and humiliated by his managers and fleet control by email, telephone and over the fleet radio. This caused the applicant to suffer from further stress and anxiety.
The manner in which the meetings in November 2022 were scheduled was also not reasonable. The applicant was only given several hours’ notice of the meetings and was not provided with an agenda until the applicant requested an agenda. I do however note in this respect the respondent’s own witnesses state that the applicant was not being performance managed or disciplined at any time.
It follows therefore that I do not believe the respondent have discharged the onus of proof to establish that the applicant's injury was wholly or predominantly caused by reasonable action on its part in relation to performance appraisal.

CAPACITY

In relation to the applicant’s capacity for work since liability was declined by the respondent by the s 78 Notice dated 16 March 2023, effective from 31 March 2023, I note the respondent submits that I should accept Dr Sherman's opinion that within three months of his appointment with the applicant on 28 February 2023 if he undertakes psychological treatment in the form of cognitive behavioural therapy, the applicant would be fit to return to work for 20 hours per week.
I disagree with this submission. Liability for the applicant's injury was declined on
16 March 2023. Dr Sherman saw the applicant on 28 February 2023.
The applicant had already been seeing a psychologist, Mr Carl Nielsen, who he first saw on 9 January 2023. Mr Nielsen recommended extensive treatment including cognitive behavioural therapy. Mr Nielsen’s report is dated 9 January 2023 (see page 63 of the AALD).
The applicant’s psychologist practised out of the same rooms as his nominated treating doctor at Workers Health. According to the clinical notes attached to the AALD dated
14 June 2023, the applicant consulted with his psychologist on 9 January 2023, 16 January 2023, 30 January 2023, 13 February 2023, 27 February 2023 and 13 March 2023 prior to liability being declined for medical treatment by the respondent on 27 March 2023. This date of cessation of liability for medical treatment is confirmed by the email from Natalie T from EML to the Workers Doctors dated 16 March 2023 (see page 17 of the AALD filed on
14 June 2023).
The applicant discussed continuing to see a psychologist with his nominated trading doctor by way of a Medicare Mental Health Care Plan (MHCP) on 5 April 2023 (see page 131 of the AALD). This appointment was after liability had been declined by the respondent. There is no evidence to suggest that the applicant continued with psychological treatment after liability was declined recorded in the clinical notes after 27 March 2023. At his last recorded session with his psychologist Michael Simpson on 27 March 2023, Mr Simpson records in his clinical notes “sessions to close following insurer ceasing service” (see page 131 of the AALD dated 14 June 2023).
Therefore, on the basis of the clinical notes and no further evidence provided by the respondent to confirm the applicant continued with psychological treatment after his last visit with Mr Simpson on 27 March 2023, it is apparent that the applicant has not undertaken the treatment recommended by Dr Sherman in his report of 13 March 2023.
The applicant submits that it is open to me to find that the applicant was totally incapacitated for work on the basis of the two forensic medical reports before me. In the alternative the applicant submits that the applicant is fit for two hours per day, two days per week earning $25 per hour.
The two forensic reports from Dr Sherman and Dr Saboor opine that as at March 2023 the applicant was totally unfit for work. The certificates of capacity from Dr Dickson certified the applicant unfit for work up until 8 March 2023. Dr Dickson produced a further certificate of capacity dated 8 March 2023 (see page 70 of the ARD). In that certificate Dr Dickson certifies the applicant fit for two hours per day, two days per week from 8 March 2023 to 19 April 2023. In this certificate, Dr Dickson includes in the section of the certificate dealing with capacity that the two hours per day, two days per week are not to be with the applicant’s previous employer. In this section of the certificate, Dr Dickson also includes the words “Trial rehab assistance” and in his comments notes a consideration of “psychosocial rehabilitation”.
Unfortunately, it is not clear from the certificate of capacity whether or not the two hours per day, two days per week that Dr Dickson has included in the certificate dated 8 March 2023 is in respect of the applicant’s capacity to undertake rehabilitation assistance or the applicant’s capacity to undertake work, two hours per day, two days per week.
I note further in the clinical notes, on the same day Dr Dickson issued the certificate of capacity dated 8 March 2023, Dr Dickson also completed a referral to a rehabilitation company known as My Social Support Network (MSSN) (see page 61 of the AALD dated
14 June 2023). In the referral, Dr Dickson advises My Social Support Network that the applicant would benefit from the rehabilitation programme.

In the clinical notes from Workers Health, Dr Dickson records the following in respect of the applicant’s attendance on 8 March 2023 (see page 134 of the AALD dated 14 June 2023), “discussed capacity and MSSN referral 2h 2d, highly anxious about engaging in psychosocial rehab, resistant but agrees need to trial additional support”.
The fact that Dr Dickson's clinical notes for the applicant’s attendance on 8 March 2023 record two hours per day, two days per week in relation to the referral to My Social Support Network the same day he issued the certificate of capacity, in my opinion, support the finding that the reference to two hours per day, two days per week in the certificate of capacity dated 8 March 2023 is in relation to the applicant’s capacity to engage in a rehabilitation programme and are not indicative of a capacity to work.
In further support of this I note at the same consultation on 8 March 2023 Dr Dickson notes that the applicant is still having difficulty sleeping, he has ongoing anxiety, he lacks motivation, he doesn't shower every day and he can only manage to get out of the home a couple of times a week with prompting from his wife.
It should also be noted that the appointment on 8 March 2023 with Dr Dickson was only one week before the respondent sent the s 78 Notice to the applicant denying liability for the applicant’s claim.
In light of this evidence, I am satisfied that the applicant remains totally unfit for work since 31 March 2023.
I have considered the respondent’s submission that it would be fatal if I was to find the applicant was totally unfit for work on the basis of the certificate of capacity issued by
Dr Dickson which was tendered during the arbitration hearing. That certificate is dated
28 June 2023. The certificate states that the applicant is unfit for work. The respondent has submitted that the certificate should not be relied on by me as Dr Dickson has not provided any reason on the certificate for the downturn in the applicant’s capacity.
I have not based my decision in relation to the applicant’s capacity on this certificate but rather on a close consideration of the forensic reports in this matter from Dr Sherman and
Dr Saboor together with my analysis of the certificate of capacity issued by Dr Dickson dated 8 March 2023. The certificate of capacity dated 28 June 2023 further supports a finding of total incapacity. This certificate is also the only evidence before me in relation to the applicant's capacity for work after liability was declined by the respondent. It is helpful but not the only evidence I have before me supporting my finding of the applicant’s continuing total incapacity for work.
I note the PIAWE has been agreed at $1,494.60. The applicant has already been paid workers compensation benefits by the respondent for the first entitlement period of 13 weeks. The claim before me is in relation to the applicant’s entitlements to weekly benefits of workers compensation from 31 March 2023, during the second entitlement period. These benefits are calculated at the rate of 80% of the applicant’s PIAWE, that being $1,195.68. In light of my findings on injury and incapacity and my rejection of the respondent’s s 11A defence, it is appropriate that the following order is made.

ORDER

Award in favour of the applicant against the respondent in the sum of $1,195.68 per week from 31 March 2023 as adjusted pursuant to s 37 of the 1987 Act.

[2023] NSWPIC 350

14 July 2023