Grace v Aruma Services

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Grace v Aruma Services [2022] NSWPIC 585
APPLICANT:	Kim Grace
RESPONDENT:	Aruma Services
Member:	Gaius Whiffin
DATE OF DECISION:	21 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injury; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the respondent can establish (pursuant to section 11A of the 1987 Act) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to the provision of employment benefits; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K, Hamad v Q Catering Limited and Baker v Southern Metropolitan Cemeteries Trust considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of her psychological injury since 3 November 2021; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act; Held – the respondent has failed to establish its defence under section 11A of the 1987 Act; applicant had no current work capacity until 1 February 2022; applicant’s current weekly earnings since 1 February 2022 are $558; award for the applicant pursuant to sections 36(1), then 37(2), and then 37(3) of the 1987 Act; award that the respondent pay the applicant’s treatment expenses pursuant to section 60 of the 1987 Act.
determinations made:	1. As a result of the nature and conditions of the applicant's employment with the respondent, she has sustained a 'disease injury' pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), being the aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition, in the course of her employment. Her employment with the respondent is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 2. Pursuant to s 16(1)(a)(i) of the 1987 Act, the applicant’s psychological injury will be deemed to have happened on 3 November 2021. 3. The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to the provision of employment benefits. 4. The applicant has been incapacitated for work as a result of the psychological injury since 3 November 2021. 5. The applicant’s pre-injury average weekly earnings (PIAWE) is $1,768.90. 6. Between 3 November 2021 and 31 January 2022, the applicant had no current work capacity. 7. Between 1 February 2022 and 9 June 2022, the applicant’s current weekly earnings were her actual gross earnings of $558 per week. During that period, she worked 20 hours per week. 8. From 10 June 2022, the applicant’s current weekly earnings have been $558 per week, being the amount that she is able to earn in suitable employment. 9. The applicant is entitled to have her reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent. The Commission orders: 10. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 3 November 2021 to 31 January 2022, at the rate of $1,680.46 (as adjusted if necessary to apply relevant indexing) per week. 11. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(2) of the 1987 Act from 1 February 2022 to 9 June 2022, at the rate of $1,122.46 (as adjusted if necessary to apply relevant indexing) per week. 12. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act from 10 June 2022 to date and on a continuing basis, at the rate of $872.12 (as adjusted if necessary to apply relevant indexing) per week. 13. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Kim Grace (the applicant) is 58 years old and commenced employment as a disability support worker with Aruma Services (the respondent) in around 2017. She worked at its Shelly Street Residential Support Home (Shelly Street). She had in fact worked at Shelly Street from May 2011. It seems that the management of Shelly Street and the employment of those who worked there became the responsibility of the respondent in around October 2017.
The applicant alleges that she sustained a psychological injury as a result of interpersonal conflicts during her employment, including verbal abuse, targeted treatment, and hostile comments. She last worked for the respondent on 2 November 2021, although she did attend Shelly Street briefly on 10 November 2021.
Apart from working for Ko Group Home Caring as a casual (20 hours per week) carer between 1 February 2022 and 9 June 2022, the applicant has not worked for the respondent or any other organisation since 10 November 2021.
On 18 February 2022, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to her psychological injury. The applicant has as a result not received any weekly compensation since 3 November 2021, or payment of her medical expenses in relation to her treatment for her psychological injury at all.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 3 November 2021 to date and on a continuing basis pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), as well as payment of her medical expenses in relation to her treatment for her psychological injury pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to the provision of employment benefits;

(b) if the answer to (a) is in the negative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of her psychological injury, since 3 November 2021, and
(c) if the answer to (a) is in the negative, whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
An extensive conciliation conference was held in the dispute on 26 September 2022. On that occasion, Mr Luke Morgan of counsel appeared for the applicant instructed by Mr Joy, and Mr Fraser Doak of counsel appeared for the respondent instructed by Ms Middleton. The applicant was present in person, and a representative from the respondent’s insurer (Mr Brunner-Evans) was also present.
As an agreed resolution of the dispute was not reached during the conciliation conference, the dispute proceeded to an arbitration hearing.
The applicant confirmed that her claim for weekly compensation was pursuant to s 36 of the 1987 Act for 13 weeks from 3 November 2021, and was thereafter a continuing claim pursuant to s 37 of the 1987 Act. The applicant also confirmed that she only sought a ‘general order’ pursuant to s 60 of the 1987 Act.
The respondent confirmed that it did not dispute that the applicant had sustained a psychological injury pursuant to s 4(b)(ii) of the 1987 Act per se, but that it denied liability to compensate her, relying upon s 11A of the 1987 Act. It confirmed that it only pressed the ‘provision of employment benefits’ ground in that section, and no longer relied upon the ‘transfer’ and ‘discipline’ grounds in the section.
The parties agreed that the applicant had earned an average of $558 per week in her employment with Ko Group Home Caring, and that she worked for that organisation between 1 February 2022 and 9 June 2022.
The parties also agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $1,768.90.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents, and
(c)    the applicant’s Application to Admit Late Documents dated 15 August 2022 (applicant’s AALD) and attached documents – admitted without opposition from the respondent.
The applicant objected to the admission of an unsigned statement from Kylie Francis (Francis) found at pages 39-50 of the Reply. I however allowed the admission of that document on the basis that it represented a record of information provided by Francis to an investigator (A Naughton), although I made it clear to both parties that the fact that the statement was unsigned would significantly affect the weight that I would give to to it. The degree of weight in this regard would be a matter for them to make submissions about.
The respondent then sought to admit a statement that Francis apparently had signed on 23 September 2022, and which had only been shown to the applicant’s representatives during the conciliation conference on 26 September 2022. The statement was not simply a signed copy of the unsigned statement found at pages 39-50 of the Reply, but had further information in it, which the applicant said she was unable to meet. She therefore claimed to be prejudiced if the statement was admitted.
I rejected the tender of the statement signed on 23 September 2022. The document had not been lodged or served in accordance with either r 67(1) or r 67(3) of the Personal Injury Commission Rules 2021 (the Commission’s Rules). In exercising the discretion under r 67(4)(b) of the Commission’s Rules and having regard to the Commission’s Procedural Direction PIC3(28), I considered:
(a)    the prejudice claimed by the applicant should the document be admitted;
(b)    the prejudice claimed by the respondent should the document not be admitted;
(c)    the lack of explanation from the respondent for the delay in obtaining the document;
(d)    the objects of the Commission to facilitate the quick, just, and cost-effective resolution of disputes;
(e)    the delay in the resolution of the applicant’s dispute that would be occasioned if the document was admitted, and the applicant then sought an adjournment of the arbitration hearing in order to obtain evidence to meet it;
(f)    the fact that the respondent had been aware since it lodged its Reply on 20 July 2022 that it only had an unsigned statement from Francis, and
(g)    the applicant’s submission that if the signed statement from Francis had been so important to the case brought by the respondent, it should have been obtained well prior to 23 September 2022.
In all the circumstances, I came to the conclusion that the interests of justice were best served by rejecting the tender of the document. The applicant had prepared her case and was ready to proceed with it, and the respondent had had sufficient time to obtain the document in order to provide it to the applicant, so that she could deal with it. I accepted the submission of the applicant that the prejudice claimed by the respondent on the basis that the document was so important to its case needed to be considered having regard to why it was not obtained earlier if it was that important.
Upon the rejection of the tender of the statement apparently signed by Francis on 23 September 2022, the respondent applied for an adjournment of the arbitration hearing. I rejected that application on the basis that I came to the conclusion that the interests of justice were best served by rejecting it. It seemed to me that:
(a)    the applicant had prepared her case and should not be prejudiced by the respondent’s failure to prepare its case – especially in circumstances where she had been significantly financially affected in not receiving weekly compensation since 3 November 2021;
(b)    any prejudice suffered by the respondent in proceeding with the arbitration hearing without the signed statement from Francis would have been apparent to it from at least the date when it lodged its Reply on 20 July 2022 – yet it did not obtain that signed statement until 23 September 2022 and had provided no reason for its delay in this regard, and
(c)    the objects of the Commission to facilitate the quick, just, and cost-effective resolution of disputes were best achieved by rejecting the adjournment application – which would have otherwise caused extra delay and cost, and which would have otherwise in my opinion been more unjust to the applicant than to the respondent.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided three statements.
The first statement was signed on 1 December 2021 and is found at page 1 of the ARD.
The applicant says that she was diagnosed with a post-traumatic stress disorder in 2006 following an assault. From 2010 however, she was able to manage this condition. Her husband then passed away suddenly in 2011, but she explains that:
“Prior to the issues leading to my claim, I was doing well, there were times I would cry, when I would be triggered about my husband, who is my best friend, but I was fine, and felt that work was a good escape for me…. I consider I was in good health and a good state of mind”.
She commenced working at Shelly Street (as well as other group houses) when she was employed by the Department of Family and Community Services from 25 May 2011. She was initially a part-time employee, and then obtained full-time employment. She became an employee of the respondent in 2016/2017, “but with the conditions that I had with FACS”.
At Shelly Street, she supported five clients of the respondent’s, three with behavioural issues, and two confined to wheelchairs. There were about seven or eight other staff members to her who also worked at Shelly Street. She says:
“When Aruma took over the home, I just transferred my employment over…. I work fulltime and I have set shifts, working mornings, afternoons and three night shifts over a month”.
Her team leader at Shelly Street prior to March 2021 was Allison Kelly, who she describes as “absolutely amazing”. She had however had issues with a previous team leader named Mary. She felt targeted and intimidated by Mary, who she alleged made some vexatious complaints against her. She in turn lodged a grievance in relation to Mary’s behaviour towards her, from which there was a “positive outcome”, and “Mary was removed from the service”.
After March 2021, her team leader became Kirstie Bayer (Bayer). She believed that Bayer was close to Mary, and therefore, she was targeted by Bayer. She says:
“When Kirstie first came to the house, she was pleasant initially, and respectful. I noticed though that this began to change, and she was running two houses. She would come to Shelly Street and not speak to us respectfully, and she would be unapproachable, and seemed to have an attitude that she didn’t care”.
And:
“There were times where I would sit and talk with Kirstie and I found her to be funny, but then she would change, becoming very cold with no compassion and she would talk down to us, treating us like naughty children”.
Bayer was not approachable regarding issues raised by the applicant with respect to staff members acting in a way that was triggering client behaviours. Bayer also, as far as the applicant can recall, did not have any “Supervision” sessions with the applicant.
The applicant says that Bayer did not answer telephone calls or text messages, and often did not respond to emails until days later. Bayer also did not follow rostering principles in accordance with “protocols in place”.
The applicant explains that on one occasion when Bayer refused her an additional shift that she alleged that she was entitled to in accordance with those rostering principles, she told Bayer that she would seek union advice, and Bayer then became aggressive.
She also details a heated discussion with Bayer that she had around June 2021, when she “raised my voice and commented about her coming in and adding her own rules”. Bayer then told her to calm down and threatened to send her home.
The applicant says that she put up with this treatment from Bayer until Bayer began “bullying me via the roster”, Bayer made minor changes initially, but eventually, the applicant’s roster changed completely. The applicant complained to her area manager (Colin), and then to Francis (a human resources manager with the respondent). The applicant explains:
“I was losing some of my penalty shifts and I had a set roster, which was important to me with my children in the routine, and I couldn’t work the repeated shifts I was being given as I knew I would burn out, and I had explained this to her (Bayer), but she didn’t care…. I didn’t feel that Kylie cared either as I was crying about the way I was being treated, but she told me that I didn’t own the roster, and I couldn’t have all the weekends. She said, ‘Listen Kim, Kirstie is not going anywhere.’ I do not know why she said this, as this was not the issue, I was not asking for her to be removed at all, I just wanted things to be fair”.
The applicant was then emailed by Ishwori Gaire (Gaire – an area manager of the respondent’s that was covering for Colin during a period of leave taken by him) threatening disciplinary action if she continued to “talk poorly” of Bayer. The applicant was angry and punched a television out of frustration. She took a week off work from 3 November 2021.
The applicant returned to work on 10 November 2021. She says:
“I came back to work and I felt empty, and like I had nothing left to give. I sat down and checked my email and I found a letter from the Acting Area Manager (Gaire). I opened it and I was told that a family member had lodged a complaint about not answering the phone or checking the answering machine and several other allegations that were completely false. It was directed to the entire house, but it detailed that the calls were from the weekend, which related to me and Faye, and I felt that he had already determined that we were guilty, and said thanks to those workers who had done the right thing…. I felt targeted and angry and broke down. I have never cried so loud in my life and I called On Call and said that I could not stay, and couldn’t take being treated like this”.
The applicant says that she consulted with her general practitioner, Dr Issa, on 15 November 2021, and was referred for counselling. She then consulted with him again on 28 November 2021, when her Pristiq medication was increased, and when she was also prescribed Zoloft and Stemetil.

She made a workers compensation claim upon the respondent, and asked to be transferred to a house other than Shelly Street. She says:
“For me to return to work, I need to be able to get back to work is to be treated with respect, and to be listened to, and feel as though I am being taken into consideration and I want to be treated nicely…. I need to also know that there is somewhere that I can turn to when I do have any issues, but Kylie has made me feel as though I can’t even raise issues…. I really miss the clients, and this is the longest I have been off work”.
The applicant’s second statement was signed on 27 June 2022 and is found at page 19 of the ARD.
She confirms that “prior to my workplace injury, I was an emotionally healthy individual, devoted mother and motivated employee”. Her capacity to work at that time had not been affected by the death of her husband suddenly in July 2011, her son being stabbed in 2020, her half sister passing away in 2021, her 2006 assault, or her diabetic condition.
She then says that “since almost the first day” that Bayer became her team leader, Bayer was rude, severely unapproachable, and “seemed to have an attitude that she didn’t care about the house at all”. Bayer’s attitude then developed into bullying, targeting and harassing behaviour directed towards the applicant, from around May 2021. The applicant could not communicate with Bayer, who “would just turn her back on me”. The applicant was told on one occasion by Bayer that she had no common sense. The applicant says that as a result she felt “incompetent, intimidated, insecure and anxious”.
The applicant raised her concerns with management but was “continuously shut down”. On one occasion, she “begged” for help from Francis.
The applicant also mentions that on one occasion in August 2021, she was working with a colleague and forgot to give medication to a client. As a result, Bayer lodged an incident report against her, but did not bother to lodge an incident report against her colleague. She felt singled out, targeted and bullied.
The applicant then advises as to her psychological treatment since she signed her first statement. She began consulting with Maree Frater in December 2021, and she continues to consult with her. She has been taught breathing and relaxation techniques.
She no longer sees Dr Issa as a general practitioner, and sees Dr Hussain instead. She continues with medication.
She says that her depression and anxiety has deteriorated. She isolates herself in her room at home, and does not wish to leave her home except to attend medical appointments. Her anxiety flares up when she needs to speak to people. She is constantly angry and frustrated, as well as experiencing fatigue, severe mood swings and regular panic attacks. She finds it difficult to sleep due to recurring thoughts of the harassment she endured at work. Her relationships with her children and grandchildren have been affected, and she says that she is miserable, empty, hopeless and helpless. She feels that she has “lost my strength, independence and courage”.
Her statement then provides a list of disabilities, which also includes suicidal ideation, visual flashbacks, headaches, heart palpitations, dizziness, loss of concentration, impaired memory, weight gain, and nausea.
The remainder of the statement essentially provides submissions regarding why the respondent’s denial of liability in its s 78 notice is incorrect. She says that she does not believe that she is fit to work her pre-injury duties due to her ongoing psychological symptoms which restrict her from undertaking daily duties, cause strain on her family, and limit her ability to concentrate and function. She says that she needs ongoing psychological treatment in the forms of consultations with her general practitioner, consultations with her psychologist, medication prescription, and the development of a rehabilitation program. She summarises:
“Throughout the course of my employment, I was subjected to ongoing bullying and harassment from management and team leaders. As outlined above, the team leader, Kirstie, was persistently bullying and harassing me, in the form of speaking to me rudely, ignoring and turning her back on me, excessively monitoring and criticising me and targeting me. I communicated with management on several occasions to raise concerns, and received no support. As a result of these workplace conditions, I began suffering from increase in depressive symptoms and overwhelming symptoms of anxiousness, to the point where I was unable to continue coping with such treatment”.
The applicant’s third statement was signed on 10 August 2022 and is found at page 1 of the applicant’s AALD.
The statement details that from February 2022 to May 2022, the applicant found work for 20 hours per week as a home carer with Ko Group Home Caring. She worked a maximum of four hours per day, basically keeping elderly patients company (without needing to provide them with any medication or other treatment).
She says she forced herself to perform this work despite her ongoing psychological trauma, due to financial necessity. However, by April 2022, she says she was “becoming increasingly anxious when leaving my house and being forced to converse with others”. She was nervous that she would suffer a psychological breakdown at her workplace, and she dreaded speaking to the team leaders there. She says that her daughter left home due to her daughter’s inability to handle her anger and mood swings when she returned from the workplace each day.
She therefore resigned from this employment, following declining to perform a number of work shifts in May 2022, which frustrated her employer.
The applicant relies upon a medico-legal report from Dr Teoh dated 10 June 2022 (page 41 of the ARD).
Dr Teoh takes the following history in relation to the applicant’s employment with the respondent:
(a)    she was bullied and harassed by her team leader;
(b)    her team leader was hostile towards her – she was ignored and constantly watched;
(c)    her team leader did not reply to her messages;
(d)    she was victimised by her team leader because she “had spoken up 18 months years earlier”;
(e)    she was unfairly blamed when she made an error at work, and
(f)    nothing was done in relation to her reports to management.
The doctor is not more specific in his history taking, but does not take any history from the applicant regarding issues with her rostering.
The doctor then performs a mental state examination and obtains reports of significant depressive symptoms, feelings of hopelessness and helplessness, mood swings, loss of confidence, insomnia, negative thoughts, agitation, social withdrawal, and lack of motivation. He finds no evidence of psychotic symptoms or suicidal ideation, and he finds the applicant’s cognitive functions in tact with no evidence of memory impairment.
The doctor diagnoses that the applicant is suffering a chronic adjustment disorder with depressed mood. He notes her history of psychiatric symptoms from her assault in 2006, but also notes that she was asymptomatic prior to her employment with the respondent. He opines that she has suffered an aggravation of her pre-existing psychiatric condition.
When specifically questioned in relation to the relevance of rostering issues to the applicant’s psychological condition, the doctor advises that the applicant did not complain to him about rostering issues, but reported to him that she had reacted to bullying, harassment, and unfair treatment. He therefore agrees that the bullying and harassment was the “direct cause of her current injury”, as well as the main contributing factor.
The doctor opines that the applicant is fit for suitable duties “where she feels supported”. She would need to work limited hours as part of a rehabilitation program initially. Her prognosis is guarded, and she requires ongoing treatment in the forms of medication and visits to a psychologist.
The doctor assesses the applicant’s whole person impairment at 13%, including a rating of “3” for employability.
The applicant also relies upon a report from Dr Issa dated 13 December 2021 (page 49 of the ARD).
The doctor advises:
“Kim presented to me on the 28/10/2021 with difficulties at work and a belief that she was being bullied and not getting paid her annual and sick leave. She had low mood, a feeling of helplessness, poor sleep and appetite and reduced motivation and concentration”.
The doctor comes to a diagnosis of major depressive disorder, to which the applicant’s employment would have played “a big role”. He advises that the applicant did not have any pre-existing condition that pre-disposed her to depression.
The doctor prepared a mental health care plan, which involved referral to a psychologist and medication prescription. He advises that she could not return to work until her mental health function improved, and thought that she may be able to return to suitable duties at reduced hours in 3-6 months; then to return to suitable duties at full hours in 6-12 months; and then to return to pre-injury duties in 12-24 months.
The applicant further relies upon two reports from Maree Frater, who describes herself as a certified forensic trauma specialist, psychotherapist-counsellor, and accredited clinical hypnotherapist. The first report is dated 14 December 2021 and found at page 61 of the ARD. In the report, Ms Frater answers certain questions posed by the respondent’s insurer.
Ms Frater refers to DASS21 testing that she carried out upon the applicant, the results of which were findings of “extremely severe anxiety, extremely severe depression and extremely severe stress”. Ms Frater records symptoms of high arousal, depressed mood, irritability, anger, poor concentration, poor memory, feelings of inadequacy, lost confidence, lowered self-esteem, inability to cope, loss of interest, fatigue, ruminating about the work situation, restlessness, and sleep disturbance. She opines that the applicant’s employment has been the main contributing factor to the applicant’s condition, and she elaborates:
“In my opinion Kim demonstrates significant emotional and behavioural problems in response to ongoing difficulties arising from the work related incidents. She has experienced marked distress with significant impairments in her interpersonal, social and occupational functioning and she is decreasingly active, effective and productive on a day to day basis”.
Ms Frater recommends ongoing consultations with her twice per week, together with meditation and relaxation techniques. She is unable to provide an estimate as to when the applicant might be able to return to work.
The second report from Ms Frater is dated 9 March 2022 and found at page 65 of the ARD. In the report, Ms Frater answers certain questions posed by the applicant’s solicitors. Much of the report repeats findings, opinions, and histories contained in the 14 December 2021 report, but the following are worthy of note:
(a)    the applicant’s symptoms, as described by Ms Frater had not changed since her 14 December 2021 report;
(b)    Ms Frater believes that it would be detrimental to the applicant’s health and well-being if she was to return to her pre-injury duties, and
(c)    Ms Frater believes that the applicant required ongoing psychological intervention – she had consulted with the applicant on 11 occasions to the date of the report.
In the second report, Ms Frater also provides a history provided to her by the applicant of her workplace incidents. There is no mention of any rostering issues, but instead:
(a)    an incident on 17 May 2021 when “a team leader, Kylie” overloaded her with work;
(b)    communication issues with her team leader, who often turned her back on her, leading to her feeling “like she was nothing”;
(c)    excessive monitoring by the team leader, leading to her feeling “incompetent, intimidated, insecure and anxious”;
(d)    an incident in which she was reported for forgetting to give medication to a patient, but her co-worker was not;
(e)    an incident in August 2020 (should be 2021) when she was sent an email by Bayer “asking all staff to read their emails and respond as it’s a part of her job”, but a co-worker of hers was not, and
(f)    “the team leader Kylie wrote in the Common Book that the staff don’t use common sense”.
It seems to me that when Ms Frater refers to “Kylie” above, she is actually referring to Bayer, and has made an error in her history taking.
The other medical evidence relied upon the applicant consists of certificates of capacity (pages 69-101 of the ARD) as well as the clinical notes of Ms Frater (pages 102-110 of the ARD) and Punchbowl Family Health Care (pages 113-148 of the ARD). I have considered all of these records and will refer to them in more detail when directed to their relevance during the parties’ submissions.
It is relevant to note however that the certificates of capacity are consistent in certifying the applicant as having no current work capacity between 15 November 2021 and 11 July 2022. The certificates were initially issued by Dr Issa, then by Dr Scarr from 25 February 2022, and then by Dr Hussain from 19 June 2022.
It is also relevant to note that in the clinical notes from Punchbowl Family Health Care, there are records of consultations on:
(a)    14 July 2014 – new partner “giving hard time” – “feeling better” on 23 July 2014;
(b)    25 August 2014 – script written for Lexapro;
(c)    22 September 2014 – script written for Lexapro;
(d)    22 January 2015 – commenced on Pristiq and advice given to see psychologist due to depressed mood – mood “much better” on 19 February 2015;
(e)    14 May 2015 – script written for Pristiq, but “coping better…. mood much better….sleeping better….not anxious”;
(f)    12 August 2015 – script written for Pristiq, although “going well”;
(g)    9 January 2016 – script written for Pristiq;
(h)    6 June 2016 – script written for Pristiq;
(i)    1 November 2016 – dose of Pristiq increased due to depression (cause unspecified);
(j)    29 May 2017 – script written for Pristiq;
(k)    23 October 2017 – script written for Pristiq;
(l)    8 January 2018 – “very stressed regarding her workplace”;
(m)     22 March 2018 – script written for Pristiq, but “going well”;
(n)    25 July 2018 – script written for Pristiq;
(o)    14 November 2018 – script written for Pristiq;
(p)    10 January 2019 – script written for Pristiq;
(q)    20 February 2019 – anxious at work as other staff member “set her up”;
(r)    2 September 2019 – script written for Pristiq;
(s)    20 September 2019 – low mood due to work stresses with difficulties concentrating and focusing;
(t)    26 September 2019 – work-related depression with a new manager at work making it hard for staff - mental health care plan developed;
(u)    3 October 2019 – stressed as “team leader Tracey is trying to get rid of co-worker Jarieu” – counselling and medical certificate provided;
(v)    20 April 2020 – script written for Pristiq – depressed with decreased concentration and low motivation;
(w)   27 July 2020 – stressed regarding son’s health;
(x)    20 September 2020 – script written for Pristiq – feeling depressed and psychological review suggested;
(y)    15 March 2021 – script written for Pristiq, and depression noted;
(z)    2 September 2021 – script written for Pristiq;
(aa)    28 October 2021 – “stresses at work”;
(bb)    7 November 2021 – experiencing bullying at work;
(cc)     11 November 2021 – would like certificate of capacity for depression, and
(dd)    15 November 2021 – would like to proceed with workers compensation claim for depression.
The applicant also relies upon various financial records and medical expense records. Considering the agreements reached between the parties regarding the applicant’s PIAWE and her post-injury earnings, as well as the applicant’s request for a ‘general order’ pursuant to s 60 of the 1987 Act, I do not intend to refer to those records.

Respondent’s evidence

The respondent essentially relies upon a factual report from Procare dated 21 December 2021 (from page 5 of the Reply) as well as medical reports from Dr Saboor.
I have considered the report from Procare, but give little weight to the actual report. The comments and opinions in the report are essentially matters for the Commission to determine. They provide little more than a summary of the evidence (15 attachments) collected by Procare. The 15 attachments include various policy documents of the respondent’s, an unsigned and unaddressed position description for a support worker in the employ of the respondent, a training transcript for the applicant, and some payroll details for the applicant. I have considered these documents and will refer to them in more detail when directed to their relevance during the parties’ submissions.
The attachments to the report also contain the applicant’s statement dated 1 December 2021 (see paragraph 22 above and following), as well as the following relevant documents:
(a)    a letter dated 6 August 2018 (signed by Colin Brophy on 7 August 2018 and accepted by the applicant’s signature on 7 August 2018) referring to a change of employment for the applicant from 20 August 2018, on terms and conditions of employment that are not in evidence – the letter is from House with No Steps/The Tipping Foundation but there is no explanation as to the relationship between those organisations and the respondent – the letter refers to the applicant working “increased contractual hours” on a full-time basis, being 152 hours over a four week cycle;
(b)    a letter from the respondent to the applicant dated 12 May 2020 in relation to a grievance complaint that she had made against Mary Savidis and Tracey Sammut over alleged bullying and harassment – the letter advises that the complaint was not substantiated, but that “the process did identify areas for service improvement and where further training and support for staff and operations management is required” – the letter also advises that Allison Kelly had been appointed to Shelly Street to “work proactively with staff in changing the culture and addressing operational and customer support issues”;
(c)    email correspondence between the applicant and Kathryn Williams from the respondent in May 2021 in which the applicant raises an “abrupt” email from Bayer, who she alleges is making “new rules” – the applicant’s email is not particularly specific, but it does advise that the actions of Bayer are “taking a toll on staff”;
(d)    an email from the applicant to Kathryn Williams on 1 June 2021, in which she attaches an email chain between herself and Bayer regarding Bayer alleging “abusive interactions” by her with Bayer and other staff (which she disputes) – she advises Williams that “I cannot take this anymore from Kirsty”;
(e)    an email from the applicant to Kathryn Williams on 31 May 2021, in which she attaches an email chain between herself and Bayer regarding Bayer (in an email to various staff) only accepting overtime requests by email due to past hostile interactions with staff – she then emails Bayer alleging that the email was directed to her and advising that she found the email “very stressful and a lie”, to which Bayer emails her back advising that she could not come to the conclusion that the email was directed to her – she advises Williams,
“I find this email so stressing and a lie….She is not a nice lady….Anyone will tell you that I have worked with that I’m not abusive in anyway and form….I get quite emotional and be very sensitive but not abusive….And I know she is talking about me and Bish….Out right lie”;
(f)    emails from the applicant to Gaire on 27 October 2021 and 28 October 2021, in which she attaches an email chain between herself and Bayer regarding rostering in which she advises Bayer,
“Hi Kirsty….No this roster will not do….You have made me so stressed because of this….You had no reason to change my roster cause I was doing all the required work….Not to mention this roster will destroy me financially….I know that you do not care that I’m a widow with dependant children….I am asking you to give me back my original shifts….U will not let you do this to me….You are destroying my health right now by making me so stressed. I will seek advice on the matter….Again I will ask you to give my shifts back that you have taken away from me….And stop doing this because you don’t like me and other staff.”
– she advises Gaire that she “can’t take this anymore” and that Bayer does not discuss roster changes with staff despite changing the roster regularly – then, as requested by Gaire, she provides him with a copy of her original roster and advises, “This is the roster that I have been doing for so long”;
(g)    internal email correspondence of the respondent’s on 11 November 2021 reporting the applicant as crying and being upset over the email sent on 10 November 2021 in relation to staff not answering the phone, and
(h)    internal email correspondence of the respondent’s relating to a complaint made to it about the applicant on 18 February 2021, which it found to be “vexatious”.

The report from Procare further contains a signed (on 16 December 2021) statement from Gaire (at page 33 of the Reply) as well as an unsigned statement from Francis (at page 39 of the Reply).
In his statement, Gaire advises that he has never met the applicant and was only acting as her area manager in October/November 2021 while Colin Brophy was on leave.
She rang him crying on the evening of 27 October 2021, upset about her roster changes and alleging that Bayer had maliciously made these changes. He asked her to email him the details. It would appear that that email correspondence is the correspondence discussed at paragraph 73(f) above. Gaire advises that “I felt that the wording that Kim had used towards Kirstie was very strong”.
The following day, he says that he explained to the applicant that there were rostering principles which needed to be followed and changes could not be made just to meet the applicant’s needs. There was a roster review underway, focusing upon meeting the budgets of the clients and meeting the enterprise agreements of staff. He says:
“The reality was though that we could not meet her demands in this instance, as we had other needs to meet as well….I did listen to her, and I tried to support her as best as I could and explained to her why we could not accommodate her this time….I had felt she was being very demanding and was being completely inflexible. Despite this, I worked with Kirstie to meet her requests, but she was not satisfied, and she began to take time off work”.
Gaire then refers to the email which he sent on 10 November 2021 (there is clearly a typographical error in the statement which says that the email was sent on 10 October 2021). He recites the email. It reminds “all staff” to answer and return calls from family members of clients in a timely manner, and it advises that a complaint was recently lodged in this regard. It then says:
“Please note any staff found to be negligible in their duty of care by NDIS QSC you may be charged of negligence which may also mean your employment be terminated as well as you run the risk of not able to work in the industry. There are very severe consequences for any cases of Mistreatment, Exploitation, Abuse and Neglect so please be more vigilant of these issues when you are on shift and report any breaches to quality standards and Aruma policy as promptly as you can”.
Gaire says that he was not accusing anyone in the email, and “if this triggered Kim, then there are bigger issues”.
In her statement, Francis confirms that the applicant’s employment was transferred to the respondent from the Department of Family and Community Services on 5 October 2017. She however remained employed under her previous enterprise bargaining agreement and retained higher penalty rates pursuant to that agreement.
She has never met the applicant, but volunteers:
“I am aware of an extensive back catalogue of complaints Kim has raised about other Team Leaders that have worked at Shelly Street. I have however not reviewed her file, nor looked into any of these complaints….A comment has been made that Kim making complaints about Team Leaders and ‘getting rid of them’ was something of a ‘sport’ for her….Anecdotally, I have been told that there have been other issues with Kim in the past, relating to her conduct when being told things that she has not agreed with, or had decisions made she didn’t like, but again, this pre-dates my time, and I have not confirmed this”.
She also volunteers that in October 2021, she became aware of the applicant “rallying” other staff against roster changes. She says:
“I have heard that this is a pattern of behaviour that Kim has demonstrated in the past, with other Team Leaders and there have been other Team Leaders who have left Shelly Street, citing that Kim was the reason they had left. No one, to my knowledge has raised a grievance over this”.
She then refers to a telephone conversation that she had with the applicant on 21 October 2021. The applicant complained that Bayer was rude and treated staff “like slaves”. Bayer did not communicate and delayed replies. Bayer did not discuss roster changes in advance.
In relation to the rostering issues, Francis says:
“Kim had worked these shifts for a long time, and she was speaking as if she owned those shifts, and that it was unacceptable that she was not rostered for them, like she had always been….She wanted the roster to be changed and set to suit her, and she didn’t seem to care about anyone else’s roster or the clients. She made it very clear that she needed to work these shifts for personal and financial reasons are nothing less than this was acceptable”.
Francis says that the applicant became upset during the telephone conversation, advising that she was at “breaking point”. Francis explained to her the grievance process, but otherwise advised that most of the matters that she was raising were operational matters which she needed to raise with others.
Francis spoke with the applicant again on 28 October 2021. By that date, some of the applicant’s roster had been restored, but not as the applicant had expected. Francis said that she was going to be blunt, and she told the applicant to be reasonable and to compromise, as the roster was set by clients are not the applicant. She said that some flexibility had been shown, but the roster could not be changed to suit the applicant and her financial commitments. She then said that she did not accept that Bayer was targeting the applicant, and advised the applicant that she could look at options for her to work elsewhere.
She says that during this conversation, the applicant was yelling at her, and was hysterical and crying. The applicant “was like a child crying when they didn’t get what they wanted”.
After the conversation, Francis received an email from the applicant requesting a transfer to a particular house. That email is not in evidence.
The applicant took a week off work pursuant to a medical certificate received by the respondent on 1 November 2021. She had exhausted her sick leave entitlements prior to that date, and Francis emailed her to advise that she would receive unpaid leave rather than annual leave, due to the medical certificate. Francis says that the applicant was not happy being told this.
Francis then says that the applicant returned to work on 10 November 2021, prior to which, changes had been made to her roster to suit her, although not “completely as she had expected, and demanded”.
Francis then refers to the email that Gaire sent on 10 November 2021, and explains that the reason for the email was:
“A customer missed an appointment because no one answered the phone, and this had led to a complaint, as no one could raise the customer, or anyone in the house. What had happened was that when no one could be raised, a neighbour went to house, and it was noted that Kim had locked herself in office”.
Francis also advises that she has been made aware that two other staff at Shelly Street had lodged complaints about rostering.
Francis summarises:
“Kim hasn’t helped herself in this situation. I understand how she feels, but she must be reasonable in her expectations and understand that it isn’t all about Kim, as a support worker, she needs to work a rotating roster and this calls for availability 24 hours a day, 7 days a week….Rosters change, and we may not always like the changes, but the changes were not malicious or unreasonable. Kim needed to speak with her manager and work out a compromise.”
The applicant was examined on behalf the respondent by Dr Saboor on 15 December 2021. The doctor’s first report is dated 30 December 2021 and found at page 131 of the Reply.
The doctor takes a history from the applicant that “the way she had been treated by the team leader for a very long time was causing her distress”. She mentions her roster being changed frequently and without discussion, despite the fact that she previously “had a set roster”. She also mentions:
(a)    an episode when she had worked seven days straight, then four night shifts, and was still expected to return to work the next morning;
(b)    problems with her team leader for five months as the team leader did not communicate with her;
(c)    targeting – an episode where a medication error had occurred and she received an incident report, but her co-worker did not;
(d)    an email which she received from her area manager advising that she would get a warning letter if she continued to talk about her team leader, and
(e)    rudeness and disrespect shown to her by the respondent’s human resources section.
She advises the doctor that “she could not take it anymore” when she received an email (which I take to be the email which she received from Gaire on 10 November 2021) about a complaint made by a family member of a client, that was false.
The doctor records that the applicant told him that she was feeling depressed, feeling drained, crying all the time, feeling lethargic, having sleep disturbance, getting angry frequently, and feeling anxious. Her appetite was fluctuating, and she had lost interest in her recreational activities, such as working on crystal bracelets and reading books.
The doctor notes the applicant’s psychiatric history of the assault in 2006 and her husband passing away in 2011. He also notes that she had been prescribed Pristiq for a long time.
On examination, the doctor finds her mood to be depressed and anxious, and her affect to be sad. She was distressed and crying during the assessment.
The doctor diagnoses a major depressive illness, being an exacerbation of her pre-existing psychological condition due to work-related matters. Her employment was the main contributing factor in this regard. He concludes:
“Based on the provided history, her depression got worse since dealing with the issues with the team leader. She claims that the team leader was changing her roster and causing her distress. These issues started causing her distress and relapse of her condition. Subsequently, the emails that she received, affected her emotionally and left work. Based on these issues, work was the contributing factor for a relapse of her pre-existing condition. She denied any non—work related issues that could have contributed to her current presentation”.
The doctor advises that the applicant needed ongoing treatment in the forms of appointments with a psychologist, appointments with a psychiatrist, and medication. He also advises that she was unfit to return to pre-injury duties and suggested a mediation program between herself and the respondent. With adequate treatment, he believed that she may be able to return to suitable duties employment in three months, and he opined that “she should recover within three to six months’ time”.
In answer to a specific question raised by the respondent’s insurer (“is the psychological injury wholly or predominantly caused by performance action taken by the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers, or provision of employment benefits to workers?”), the doctor opines:
“Based on the provided history, he psychological condition was not predominately caused by the performance action proposed to be taken by the employer. She reported ongoing issues and bullying with her team leader that caused her a psychological injury”.
The doctor was then asked to provide a supplementary report by the respondent’s insurer, and this report dated 9 February 2022 is found at page 141 of the Reply. It seems that the doctor was provided with the report (and presumably its attachments) from Procare dated 21 December 2021 in order to provide his supplementary report.
The doctor notes the following from the Procare report:
(a)    Francis advises that the applicant’s allegations of bullying were never formalised;
(b)    Francis advises that Bayer was within her right to make rostering changes;
(c)    both Gaire and Francis describe the applicant as “inflexible, uncooperative, and insistent that nothing short of restoring her desired shifts would be suitable”;
(d)    the fact that the applicant had to take unpaid sick leave from 1 November 2021 caused her stress, and
(e)    Gaire insists that his 10 November 2021 email was not targeted at the applicant.
The doctor then opines following a further specific question raised by the respondent’s insurer (“do you consider the failure of the employer to provide shifts and changing Kim’s roster were the predominant cause of her psychological condition?”):
“Based on the above noted points, the issue with Ms Grace’s roster was the predominant cause of her psychological condition. She claimed that the team leader was changing her roster and causing her distress. These issues starting causing her distress and relapse of her condition”.

Respondent’s submissions

The respondent’s submissions have been recorded. I will not go through them in detail.
In essence, the respondent submitted that the predominant causative factor leading to the applicant’s psychological condition was the rostering issues which she experienced and complained about.
The respondent relied upon the opinions expressed by Dr Saboor and submitted that those opinions should be accepted. The doctor had only obtained a “truncated” history when he provided his first report, essentially just reporting the history provided to him by the applicant. The submission is made that the report largely provides a history, rather than an opinion.
However, the doctor then received the benefit of perusing the Procare report before providing his second report, and was as a result able to provide the opinion referred to at paragraph 104 above, in that report. That opinion is the main opinion on causation that the respondent relied upon.
The respondent submitted that in relation to the report of Dr Teoh, the history taken by the doctor is “fairly vague”. However importantly, the doctor stated that the applicant did not complain to him of any issues in relation to rostering. It is not clear whether the doctor had access to the applicant’s statements, which clearly referred to rostering issues. In any case, his failure to take a history of rostering issues reflected on the ability of the Commission to accept his opinions.
The respondent submitted that the report of Dr Issa is not helpful as it referred to the applicant not getting paid her leave entitlements. It then submitted that the reports from Ms Frater could only be relied upon in relation to the histories taken in them, as it could not be demonstrated that she had the expertise and qualifications to express opinion evidence. She appeared to be a counsellor.
The respondent referred to the clinical notes from Punchbowl Family Health Care (see paragraph 69 above) and pointed out that the applicant complained of depression to her general practitioner on 20 April 2020 and on 20 September 2020, but did not complain to her general practitioner about the multiple factors referred to in her statements in relation to her issues with Bayer in 2021, until 28 October 2021 (a time when according to the statements from Gaire and Francis, she was complaining about rostering issues).
The statement from Gaire made it clear that rostering was “front and centre” in issues as far as the applicant was concerned. The statement from Francis, while acknowledging other complaints that the applicant had made against Bayer, also made it clear that her complaints after 21 October 2021 centred on rostering issues.
The respondent submitted that having regard to the lack of contemporaneous medical evidence of any psychological reaction of the applicant’s prior to 28 October 2021, the interaction between this lack of evidence and the factual material in the witness statements would allow the Commission to be comfortably satisfied that rostering issues were the predominant issue for the applicant.
The respondent then submitted that the respondent acted reasonably in relation to the applicant’s rostering changes. Rostering was a matter for the respondent and the respondent was entitled to change rosters to suit its operational requirements.
When questioned by the Commission, the respondent conceded that the evidence was vague in relation to the applicant’s contractual terms. The applicant’s original contractual terms with the Department of Family and Community Services were not in evidence, nor was there any evidence in relation to the terms and conditions of her employment with the respondent. When questioned as to how the Commission could be satisfied without reference to the applicant’s contractual terms as to whether the rostering changes instituted by Bayer were reasonable, the respondent submitted that it could be inferred that Francis had knowledge of those terms and yet still insisted that the respondent was able to make the relevant rostering changes.
In relation to the level of the applicant’s incapacity, the respondent submitted that the Commission should find that she is able to earn $558 per week. It relied upon:
(a)    the fact that the applicant earned that amount between 1 February 2022 and 9 June 2022;
(b)    the opinion of Dr Teoh that the applicant was fit for suitable duties with support, working limited hours as part of a rehabilitation program, and
(c)    the opinion of Dr Saboor – see paragraph 100 above.

Applicant’s submissions

The applicant’s submissions have also been recorded. I will not go through them in detail.
The applicant submitted that the “real weakness” in the respondent’s case was its need to prove that its rostering changes were reasonable in the circumstances. It had failed to address the evidence in the applicant’s statements (see paragraphs 24 and 25 above) that she had worked at Shelly Street without issue for many years pursuant to set shifts. Then, her roster is “completely” changed, in circumstances where she knew that she would not be able to handle the new roster and where she explained as such to Bayer (see paragraph 32 above).
The applicant submitted that the rostering changes needed to be consistent with the applicant’s employment contract, yet the respondent had not put before the Commission any details of that contract or indeed any background as to why the rostering changes were reasonable in the circumstances. The respondent should have provided evidence as to why the changes were needed and why the applicant was not consulted about the changes.
The applicant then submitted that in any case, the evidence supported that much broader issues, rather than the October 2021 rostering issues, were wholly or predominantly causative of the applicant’s psychological injury. There was clear evidence of a long-term problem, involving interpersonal conflict and dysfunction at play between the applicant and Bayer as well as previous managers of hers, which also drew in various other managers of the respondent’s. The applicant gave this evidence in her largely unchallenged (especially in relation to the period prior to October 2021) statements, and her evidence was consistent with:
(a) the clinical notes from Punchbowl Family Health Care (see paragraph 69 above) in 2019, which identify workplace stresses of hers as a result of a new manager at work, and
(b) the email correspondence in May 2021 and in June 2021 (see paragraph 73 above), in which she described to Kathryn Williams and others the “toxic” nature of her workplace, as created by Bayer.
The applicant submitted that she was “worn down over time” and eventually “had nothing left to give” (see paragraph 34 above). The rostering issues became “the straw that broke the camel’s back”.
The applicant’s evidence in in her statements is submitted to be unchallenged, as to the interpersonal difficulties experienced by her firstly with Mary, and then with Bayer. The respondent had not provided any statement from Mary or Bayer, or indeed anyone other than Gaire and Francis (both of whom never met the applicant and only dealt with her from October 2021).

In relation to the statement from Francis, the applicant noted that it did support that there were long-standing issues between herself and Bayer (see paragraph 82 above).
Otherwise, the applicant submitted that the weight to be given to the statement was affected by it being unsigned. The weight to be given to it was also affected by unsubstantiated comments made in it (see paragraphs 80-81 above) that could have only been included to “attack and denigrate” the applicant without any factual basis. The comments were made despite the fact that Francis had not reviewed the applicant’s file or confirmed their accuracy. The comments coloured the attitude of Francis towards the applicant.
The applicant then made submissions regarding the medical evidence presented:
(a)    Dr Issa broadly identified workplace interpersonal conflict as being the cause of the applicant’s incapacity when she ceased work in November 2021;
(b)    it was accepted that Ms Frater’s qualifications were uncertain, but her reports did provide a history of consistent and long-running interpersonal conflicts experienced by the applicant;
(c)    it was accepted that Dr Teoh recorded the applicant’s history with “some brevity”, but nevertheless, the history was consistent with the applicant’s statements and did record her difficulties with Bayer, in relation to hostility, being ignored, being watched, being harassed, and being “picked on”, and
(d)    the opinions of Dr Saboor in his first report were based on a history consistent with the history provided in the applicant’s statements – those opinions supported the applicant’s argument that her rostering issues were not the whole or predominant cause of her psychological injury – the doctor only altered his opinions when he was “poisoned” by information and documentation provided to him by the respondent’s insurer, specifically the statements from Gaire and Francis (which have issues with them, as identified earlier in the submissions).
In relation to the level of her capacity, the applicant submitted that in accordance with the opinions of both Drs Teoh and Saboor, she requires support in order to return to work. She attempted to return to work between 1 February 2022 and 9 June 2022, but could not continue with that work (see paragraph 49 above). The attempted return to work demonstrated that without support, she will not have any success in returning to work.
She therefore had work capacity between 1 February 2022 and 9 June 2022, but presently has no current work capacity. Absent support, the applicant should be found to be totally incapacitated.

Respondent’s submissions in reply

These submissions have also been recorded. I will not go through them in detail.
The respondent submitted that the applicant’s reliance upon workplace issues which occurred in 2019 as demonstrating long-standing interpersonal conflicts in the workplace, ignored the opinions of Dr Teoh and Ms Frater who only obtained histories of interpersonal conflicts from May 2021. Further, if the applicant’s statements are read carefully, her account in relation to her issues with Mary is outlined only in order to provide context to how her issues with Bayer developed, as the applicant believed that Bayer was close to Mary.
The respondent also submitted that in relation to the applicant’s submission that she has been totally incapacitated since 9 June 2022:
(a)Dr Teoh examined the applicant after this date and found that she was fit for suitable duties employment;
(b)    there is no corroboration from the applicant’s general practitioner as to her difficulties with the employment that she undertook between 1 February 2022 and 9 June 2022;
(c)    Dr Saboor examined the applicant in late 2021 prior to her attempting the employment that she undertook between 1 February 2022 and 9 June 2022 – his opinion as to the applicant’s capacity needs to be viewed in that context, and
(d)    when Dr Teoh’s report is fully considered, it should be found that he does not really support the proposition that the applicant is unfit for work unless her return to work is pursuant to a rehabilitation program.

FINDINGS AND REASONS

Whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to the provision of employment benefits

Section 11A of the 1987 Act reads as follows:
“(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 essentially essentially 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.”
The respondent bears the onus of proof in establishing its defence under s 11A: Pirie v Franklins Limited [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
In Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 (Doyle), Fitzgerald JA said:
“4 Before this Court, it was not disputed that Mr Doyle's employment was a substantial cause of his psychological injury. That being so, the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle's psychological injury was the appellant's action with respect to Mr Doyle's transfer from one position to another, and, (ii) if so, whether the appellant's action with respect to Mr Doyle's transfer was reasonable.”
The respondent’s defence to the applicant’s claim is that the actions that it took regarding the rostering of the applicant were the whole or predominant cause of her psychological injury, and that those actions were reasonable. They were actions taken by it with respect to the provision of employment benefits.
My interpretation of the reasoning in Doyle is that I need to determine the first issue raised by Fitzgerald JA before determining the reasonableness of the respondent’s actions. I believe that this interpretation is consistent with the decision of Wood DP in Insurance Australia Group Services Pty Limited v Outram [2019] NSWWCCPD 44 (Outram). For the reasons that follow, I do not intend to determine the reasonableness of the respondent’s actions regarding the rostering of the applicant as I will be determining the first issue raised by Fitzgerald JA in favour of the applicant.
In relation to whether the whole cause of the applicant’s psychological injury was the respondent’s actions with regard to rostering, there seems to be no doubt to me that there were a number of causes involved, dating back to at least the issues that the applicant had with Mary in 2019. Dr Teoh, Dr Saboor, and Ms Frater all take histories from the applicant of her interpersonal conflicts with Bayer, and Dr Saboor also mentions the 10 November 2021 email from Gaire.
The applicant’s statement evidence is clear that she had interpersonal issues with Bayer almost from the date when Bayer commenced in March 2021. In contrast, there is no statement from Bayer in evidence, nor in fact any statement from any of the respondent’s representatives except Gaire and Francis (who only dealt with issues involving the applicant from October 2021). The applicant’s statement evidence regarding events prior to October 2021 is therefore essentially unchallenged and I accept that evidence. There is a potential discrepancy in the evidence regarding the result of the grievance lodged by the applicant against Mary, which she claims had a “positive outcome”, although the respondent’s 12 May 2020 letter advises that the grievance was unsubstantiated but areas for service improvement and further training for staff and management had been identified, and that Allison Kelly had been appointed to Shelly Street in this regard. I can see how this would be viewed as a “positive outcome” to the applicant (Mary having been replaced), even though she failed to mention in her statement that her grievance was unsubstantiated by the respondent.
In relation to whether the predominant cause of the applicant’s psychological injury was the respondent’s actions with regard to rostering, in Ponnan v George Weston Foods Limited [2007] NSWWCCPD 92, Handley ADP considered the phrase ‘predominantly caused’ and interpreted it according to its dictionary meaning of ‘mainly or principally caused’. That interpretation has been approved on multiple occasions since: see Temelkov v Kemblawarra Portugese Sports and Social Club Limited [2008] NSWWCCPD 96 and Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In Outram, Wood DP said:
“The fact that there were other incidents that contributed to the injury is not sufficient to negate the possibility that certain actions, described by the Arbitrator as having made a ‘major’ contribution to the injury, could not be the predominant cause. Whether an action is a predominant cause must be ascertained by weighing the evidence of the effect of each of those incidents on the respondent’s psyche and the consequences that flowed from the incident. In many cases, medical evidence in respect of causation is required. As observed by Candy ADP in ISS Property Services Pty Ltd v Milovanovic, what is required is a comparison between all of the employment related contributions to the injury and those contributions that resulted from reasonable actions by the employer in respect of discipline, transfer, or other actions specified in s 11A(1).”
A comparison is therefore required between the applicant’s rostering issues in October and November 2021, as against the various examples of interpersonal conflicts with Bayer (and earlier with Mary) referred to in her statements (which I have accepted occurred), and the effect upon her of the email on 10 November 2021 from Gaire. Importantly in this regard, the applicant herself considered (see paragraph 32 above) that the rostering issues were manifestations and examples of bullying perpetrated by Bayer.
The applicant records that Bayer was rude, uncaring, unapproachable, uncommunicative, and disrespectful. She did not provide guidance and she treated her staff as “naughty children”. She made the applicant feel “incompetent, intimidated, insecure and anxious”. The applicant gave specific examples of conflicts with Bayer which occurred in June 2021 (see paragraph 31 above) and in August 2021 (see paragraph 41 above). The applicant expressed her issues with Bayer in emails to Kathryn Williams in May 2021 and in June 2021 (see paragraph 73 above).
In addition to the interpersonal conflicts, the applicant identifies her receipt of Gaire’s 10 November 2021 email as a significant contributor to her psychological injury (see paragraph 34 above). After reading the email, she says that she broke down and cried more loudly than she had ever cried before. She ceased working and has not worked since. She told Dr Saboor that after she received the email, “she could not take it anymore”.
Although Gaire denies that the email was targeted at the applicant, the applicant certainly perceived that it was targeted at her. The receipt of the email was therefore a “real event” which was perceived by the applicant as creating an offensive or hostile working environment. It was in my opinion causative of her psychological injury: see State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 and the summary in Attorney General’s Department v K [2010] NSWWCCPD 76.
In comparison, the rostering issues also clearly had a significant effect upon the applicant’s psyche. The degree to which they had an effect however is interwoven with the interpersonal conflicts already being experienced by the applicant. Whether they would have had the same effect had it not been for the interpersonal conflicts is a matter of conjecture.
The applicant though clearly views the interpersonal conflict issues (and her lack of support regarding these issues from management) as the main causative factor to her psychological injury - see her summary of her statement evidence at paragraph 46 above.
The significance of the rostering issues also needs to be considered in the context of the only witnesses providing statement evidence on behalf of the respondent (Gaire and Francis) being witnesses who only dealt with the applicant in relation to those rostering issues (from late October 2021) and not in relation to any previous interpersonal conflict issues. As a result, that statement evidence therefore necessarily concentrates on the rostering issues to the exclusion of other issues.
In my opinion, the statement of Gaire is of limited value. He only dealt with the applicant on a handful of days, when he tried to resolve the applicant’s rostering issues. He does not seem to have much insight at all into the extent of the previous interpersonal conflicts between the applicant and Bayer. He says that the applicant cried to him, and was “demanding” and “inflexible”, but otherwise the statement provides little further regarding the significance of the rostering issues to the applicant.
In relation to the statement from Francis, while she had more detailed dealings with the applicant than Gaire did, she also entered the interpersonal conflict issues between the applicant and Bayer at a time when those issues were long-established and at a time when she was only required to deal with the rostering issues that the applicant believed had developed from the interpersonal conflict issues.
Similarly to Gaire, Francis reports that the applicant cried to her, and she also reports that the applicant yelled at her.
Her statement is otherwise however of limited value as it concentrates on rostering issues to the exclusion of other issues. Indeed, she concedes in the statement (see paragraph 80 above) that she had not reviewed the applicant’s file. This seems to me to be extraordinary in the context of both the applicant’s complaints to her when the applicant first spoke to her on 21 October 2021 (see paragraph 82 above) of Bayer’s rudeness and lack of communication, as well as her reliance upon anecdotal evidence about the applicant’s past behaviours (see paragraphs 80-81 above).
The anecdotal evidence is unsubstantiated, and in my opinion colours the entirety of the statement, which also includes a comment that the applicant cried “like a child”. The statement is also unsigned, and although I admitted it into evidence, I do not intend to give significant weight to it. I accept the applicant’s submissions at paragraph 124 above in this regard.
In now considering the medical evidence presented by the parties, I have considered Hamad v Q Catering Limited [2017] NSWWCCPD 6, in which Snell DP said:
“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.”
The respondent relies upon medical evidence from Dr Saboor. The doctor’s first report was based on a consultation that he had with the applicant, when she provided him with a history consistent (although briefly recorded – see paragraphs 94-95 above) with her statement evidence which I have accepted. She mentions treatment from her team leader causing her stress for a very long time, and she also mentions the rostering changes being forced upon her. She further mentions the email which she received from Gaire on 10 November 2021. The doctor’s conclusion as to causation of her psychological condition (see paragraph 99 above) refers to all three of these factors.
The doctor was specifically asked by the respondent (see paragraph 101 above) to comment in relation to whether “performance action” in relation to the provision of benefits was the predominant cause of the applicant’s condition, and he advised in the negative, referring to her ongoing issues and bullying from her team leader.
The doctor seems to have changed his opinion in this regard in his second report (see paragraph 104 above) after perusing and referring to the statement evidence from Gaire and Francis.
Considering my view as to the limited value of that statement evidence (as it essentially only dealt with the interpersonal conflict issues between the applicant and Bayer from late October 2021, when rostering issues were the main manifestation of those interpersonal conflict issues) as well as my view regarding the reliability of and the weight to be given to Francis’ statement, I find the basis of Dr Saboor’s opinion in his second report to be unreliable. I prefer the opinions in his first report, which were based upon the history provided to him by the applicant (including her rostering issues).
Importantly, in his second report, one of the “points” that he bases his opinion on was that Gaire said that he had not targeted the applicant with the 10 November 2021 email. However, I have accepted that the applicant perceived that the email was targeted at her and that the receipt of the email was therefore a “real event” for her, and thus a causative factor in her psychological condition. In his first report, the doctor had taken a history from the applicant that when she received the email, “she could not take it anymore”, and I am not sure from the context of his second report whether he may have erroneously discounted the receipt of the email as a causative factor based upon Gaire’s statement.
In relation to Dr Teoh’s report, I accept the submissions from both parties as to the brief or vague history contained in it, which of course affects the weight that I give to it. If the applicant bore the onus of proving that the rostering issues were not the whole or predominant cause of her psychological injury, I am not sure that she would satisfy this onus by relying solely on the report of Dr Teoh. However, she does not bear this onus.
The history contained in the report is however generally consistent with the applicant’s statement evidence as to her interpersonal conflicts with Bayer (see paragraph 52 above), although it does not mention any rostering issues, nor the email which she received from Gaire on 10 November 2021. It is important to note though that the report was prepared in June 2022, and the history provided by the applicant to the doctor therefore reflects both the aspects of her employment that she then (looking back after six months) considered influential in causing her psychological injury, as well as her view that the rostering issues were a manifestation of her interpersonal conflict issues with Bayer.
In relation to the reports from Ms Frater, I also accept the submissions from both parties as to the weight to be given to them, considering the uncertainty surrounding her expert qualifications. I do however accept that the reports record histories obtained from the applicant that are consistent with her complaints as to long-running interpersonal conflicts with Bayer dating back to May 2021 (see paragraph 66 above). While Ms Frater may have inaccurately recorded some dates and names in these histories, the histories do not refer to rostering issues.

In relation to the respondent’s submission (see paragraph 111 above) as to there being no contemporaneous records in the clinical notes from the applicant’s general practitioner regarding her interpersonal conflict issues with Bayer prior to 28 October 2021, I need to consider Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 (Baker), in which Roche DP made it clear that the absence of complaints to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.    However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.    Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83.    The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84.    Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
The applicant notes that there were records in the clinical notes from the applicant’s general practitioner regarding “work-related depression” in 2019. However, I accept the respondent’s submission (see paragraph 129 above) that neither Dr Saboor nor Dr Teoh nor Ms Frater take a history of issues in 2019 prior to providing their opinions as to the causation of the applicant’s psychological injury.
I accept that the 2019 issues are a factor to consider when comparing the applicant’s rostering issues with all other work-related causative factors to her psychological injury, in order to determine whether the rostering issues were the predominant cause of that injury, but I find those issues to be a minor factor in this regard.
While the lack of contemporaneous records in the clinical notes from the applicant’s general practitioner regarding her complaints of interpersonal conflicts between herself and Bayer prior to 28 October 2021 is surprising, I have accepted her statement evidence that those interpersonal conflicts occurred. I find that the lack of contemporaneous records in this regard is not enough for the respondent to satisfy me that the applicant’s rostering issues were the main or principal cause of her psychological injury.
Relying upon the opinions in Dr Saboor’s first report, the opinions in Dr Teoh’s report, the histories contained in Ms Frater’s reports, the unchallenged statement evidence of the applicant regarding her interpersonal conflict issues with Bayer from May 2021 (supported by emails from herself to Kathryn Williams in May 2021 and in June 2021), the statement evidence of the applicant regarding the effect that Gaire’s 10 November 2021 email had upon her, as well as the clearly identified issues that she had with Mary in 2019; I find that the respondent has failed to discharge its onus of proof regarding its defence to the applicant’s claim pursuant to s 11A of the 1987 Act. In conducting a comparison between the applicant’s rostering issues in October and November 2021 against all other work-related factors which contributed to her psychological injury, I find that the rostering issues were not the main, principal, or predominant cause of the injury.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of her psychological injury, since 3 November 2021

The respondent did not submit that the applicant has not been incapacitated for work as a result of her psychological injury since 3 November 2021. Indeed, the medical evidence as a whole is in agreement as to there being incapacity.
Dr Saboor (in December 2021) opined that the applicant was then unfit to return to pre-injury duties (see paragraph 100 above). With adequate treatment and mediation, he opined that it may take her six months to recover.
Dr Teoh (in June 2022) opined that the applicant was then fit for suitable duties, working limited hours as part of a rehabilitation program (see paragraph 56 above).
Ms Frater (in December 2021) advised that she was unable to provide an estimate as to when the applicant might be able to return to work (see paragraph 64 above). Then (in March 2022) she advised that it would be detrimental for the applicant to return to her pre-injury duties (see paragraph 65 above).
The applicant’s certificates of capacity certify her as having no work capacity during the period between 15 November 2021 and 11 July 2022. There are no certificates before me dealing with her capacity after 11 July 2022.
Nevertheless, the applicant was able to find employment between 1 February 2022 and 9 June 2022, working 20 hours per week for Ko Group Home Caring in employment that involved her in basically keeping elderly patients of her employer’s company. She advises in her statement (see paragraphs 49-50 above) that she had to cease that employment as she was anxious when leaving her house, was nervous at her workplace, dreaded speaking to her team leaders, and had to decline an increasing number of work shifts.
The applicant is entitled to weekly benefits compensation between 3 November 2021 and 31 January 2022 (a period of 13 weeks) pursuant to s 36 of the 1987 Act. She is then entitled to weekly benefits compensation from 1 February 2022 pursuant to s 37 of the 1987 Act.
Section 36 provides as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
Section 37 provides as follows:
“(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
It is therefore important to determine the extent of the applicant’s current work capacity from 3 November 2021.
Clause 9(1) of Schedule 3 to the 1987 Act provides:
“An injured worker has ‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“‘suitable employment’ in relation to a worker, means employment in work for which the worker is currently suited--
(a)    having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
It seems to me that between 3 November 2021 and 31 January 2022, the applicant had no current work capacity. That is consistent with her certificates of capacity and the opinions of Dr Saboor and Ms Frater. She is entitled to an award pursuant to s 36(1) of the 1987 Act in this regard.
It also seems to me that between 1 February 2022 and 9 June 2022, the applicant had current work capacity to the extent of the earnings (agreed between the parties at $558 per week) that she made during that period. She worked 20 hours per week during the period with significant difficulties, and I do not believe that she had any greater work capacity in this regard. My finding here is consistent with the opinion of Dr Saboor in December 2021 as well as the opinion of Ms Frater in March 2022. She is entitled therefore to an award pursuant to s 37(2) of the 1987 Act in this regard as she worked over 15 hours per week, with her current weekly earnings being $558.
The more difficult question arises as to the level (if any) of the applicant’s current work capacity since 9 June 2022.
The applicant submits that she has had no current work capacity since that date, and the respondent submits that she has had current work capacity and her current weekly earnings since that date should be calculated at $558 per week (consistent with the earnings that she made per week between 1 February 2022 and 9 June 2022).
I accept the submissions of the respondent in this regard on the following bases:
(a)    there is no medical evidence that the applicant has no current work capacity after 11 July 2022, when the last certificate of capacity that is before me expired;
(b)    Dr Saboor’s opinion in December 2021 was that the applicant should recover within six months;
(c)    there are no contemporaneous records regarding discussions between the applicant and her general practitioner with respect to the difficulties that she was experiencing in her employment between 1 February 2022 and 9 June 2022 – admittedly however the records from that general practitioner that are before me expire on 21 March 2022;
(d)    I find the opinion of Dr Teoh to be important as he was the last specialist to examine the applicant on 10 June 2022 – the applicant did not provide him with a history of her employment between 1 February 2022 and 9 June 2022 or of any of her difficulties with that employment, in order for him to consider whether she had no current work capacity following the cessation of the employment – instead, he opined that when he examined her, she was fit for suitable duties employment with “support”, and
(e)    although I accept that the applicant had significant difficulties in her employment between 1 February 2022 and 9 June 2022, I do not accept the proposition (see paragraphs 126-127 above) that because she requires ”support” to return to work she has no current work capacity – the need for support renders her in my opinion unfit for her pre-injury duties, but it is a vague requirement, and without further evidence from the applicant as to the support needed in order to provide her with current work capacity, I do not accept that the applicant has established on the balance of probabilities that she has no current work capacity without that support.
In summary, I note that the amount of $558 per week represents around 69% of the current full-time minimum weekly wage (set pursuant to Part 2-6 of the Fair Work Act 2009 (Cth)), which as at 1 July 2022 was $812.60 per week. Having regard to the factors to be considered under s 32A of the 1987 Act, I find that the applicant has current work capacity to earn this amount, having regard to the weight of the medical evidence (particularly from June 2022) as well as to the extent of the applicant’s skills and work experience in the care industry (she obtained significant skills and experience while working at Shelly Street for over 10 years, and her skills and experience allowed her to obtain her employment with Ko Group Home Caring within three months of her ceasing employment with the respondent).
In relation to the period from 10 June 2022, the applicant is entitled to an award pursuant to s 37(3) of the 1987 Act as she has not worked – I find the level of her current weekly earnings in this regard to be $558.

Whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act

The respondent has conceded that the applicant sustained a psychological injury as a result of her employment with the respondent. The respondent has failed in its defence to the applicant’s claim pursuant to s 11A of the 1987 Act. The applicant only seeks a ‘general’ order pursuant to s 60 of the 1987 Act, and considering my findings, she is entitled to such an order.

SUMMARY

I find that as a result of the nature and conditions of the applicant's employment with the respondent, she has sustained a 'disease injury' pursuant to s 4(b)(ii) of the1987 Act, being the aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition, in the course of her employment. Her employment with the respondent is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
I find that pursuant to s 16(1)(a)(i) of the 1987 Act, the applicant’s psychological injury will be deemed to have happened on 3 November 2021.
I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to the provision of employment benefits.
I find that the applicant has been incapacitated for work as a result of the psychological injury since 3 November 2021.
I find that the applicant’s PIAWE is $1,768.90.
I find that between 3 November 2021 and 31 January 2022, the applicant had no current work capacity.
I find that between 1 February 2022 and 9 June 2022, the applicant’s current weekly earnings were her actual gross earnings of $558 per week. During that period, she worked 20 hours per week.
I find that from 10 June 2022, the applicant’s current weekly earnings have been $558 per week, being the amount that she is able to earn in suitable employment.
I find that the applicant is entitled to have her reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 3 November 2021 to 31 January 2022, at the rate of $1,680.46 (as adjusted if necessary to apply relevant indexing) per week.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(2) of the 1987 Act from 1 February 2022 to 9 June 2022, at the rate of $1,122.46 (as adjusted if necessary to apply relevant indexing) per week.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act from 10 June 2022 to date and on a continuing basis, at the rate of $872.12 (as adjusted if necessary to apply relevant indexing) per week.
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 585

21 October 2022