Green v Secretary, Department of Regional NSW
[2021] NSWPIC 37
•22 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Green v Secretary, Department of Regional NSW [2021] NSWPIC 37 |
| APPLICANT: | Angela Green |
| RESPONDENT: | Secretary, Department of Regional NSW |
| MEMBER: | Ms Jacqueline Snell |
| DATE OF DECISION: | 22 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits and medical and related treatment expenses resulting from psychological injury sustained in the course of employment; respondent raised defence under section 11A of the 1987 Act with respect to transfer and placed incapacity in issue; Held– the applicant sustained psychological injury in the course of employment and the applicant’s employment with the respondent was the main contributing factor to injury; the applicant’s psychological injury was not wholly or predominantly caused by the reasonable action taken by the respondent with respect to transfer; the applicant had no current capacity for work between 28 May 2020 and 6 August 2020 and the respondent is to make payments of weekly benefits under section 36 of the 1987 Act accordingly; the applicant required medical and related treatment as a consequence of the psychological injury she sustained and the respondent is to pay the applicant’s medical and related treatment in the sum of $1,892.50 in accordance with section 59 and section 60 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent with a deemed date of injury of 28 May 2020. The applicant’s employment with the respondent was the main contributing factor to her psychological injury. The applicant’s employment with the respondent was not wholly or predominantly caused by reasonable taken by the respondent with respect to transfer. 2. The applicant had no current capacity for work resulting from the psychological injury she sustained, between 28 May 2020 and 6 August 2020. The applicant has an entitlement to weekly benefits payable under s 36 of the Workers Compensation Act 1987. The applicant’s pre-injury average weekly earnings is agreed at $1,868.30. The respondent is to make payments of weekly benefits to the applicant in accordance with s 36(1)(a) of the Workers Compensation Act 1987 from 28 May 2020 to 6 August 2020 (10 weeks) at the rate of $1,774.89. 3. The applicant requires medical treatment and services as a consequence of the psychological injury she sustained. The respondent is to pay the applicant’s medical and related treatment in the sum of $1,892.50, in accordance with ss 59 and 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Angela Green (the applicant) worked with the Department of Regional NSW (specifically the Department of Planning Industry and Environment) (the respondent) in the role of administrative support officer. The applicant alleged that during the course of her employment with the respondent she was subjected to bullying, unfair treatment, harassment and intimidation resulting in psychological injury. The applicant last worked with the respondent on 28 May 2020.
The claim for compensation in these proceedings involved the following:
(a) weekly benefits payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 28 May 2020 to 8 February 2021, and
(b) medical treatment or related expenses payable under s 60 of the 1987 Act particularised in the sum of $1,892.50.
The respondent issued notice in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 September 2020. Following request for review of the decision to decline the applicant’s claim, the respondent issued notice on 28 September 2020 in which the applicant was advised of the decision to maintain declinature of her claim. Injury was placed in issue, and defence was raised under s 11A of the 1987 Act relevant to transfer. Incapacity for work and also the requirement for medical or related treatment was also placed in issue.
The matter proceeded to Arbitration hearing on 24 February 2021. Greg Schipp of counsel appeared for the applicant instructed by Raymond Blissett, solicitor. James McEnaney of counsel appeared for the respondent, instructed by Danny Koshaba, and Katia Guido, solicitors. The applicant was present.
ISSUES FOR DETERMINATION
The parties agree that the following issues are not disputed:
(a) the applicant’s pre-injury average weekly earnings (PIAWE) was $1,868.30;
(b) the applicant sustained psychological injury arising out of or in the course of her employment with the respondent, and the applicant’s employment with the respondent was the main contributing factor to injury, and
(c) the requirement for medical or related treatment resulting from psychological injury.
The parties agree that the following issues remain in dispute:
(a) whole or predominate cause of the psychological injury the applicant sustained;
(b) defence raised under s 11A of the 1987 Act with respect to transfer, and
(c) incapacity for work resulting from psychological injury.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 10 February 2021 lodged by the applicant and attached documents (AALD 1), and
(d) Application to Admit Late Documents dated 22 January 2021 lodged by the applicant and attached documents (AALD 2).
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows. The background to the applicant’s claim is not without complication and I am grateful to counsel for the assistance provided in navigating the voluminous factual evidence before the Commission.
The applicant’s statements
The applicant provided two statements in support of her claim, the first dated 26 June 2020[1] and the second dated 5 November 2020[2]. Annexed to her initial statement was a document prepared by the applicant that was entitled “Timeline of Events”[3].
[1] ARD at page 38.
[2] ARD at page 3.
[3] ARD at page 42.
The applicant explained she was employed on a full time basis by the respondent as an Administrative Support Officer Grade 3/4 within the Customer Operations team. Her direct line of reporting was to the acting Director, Chris Dwyer (Mr Dwyer).
The Timeline of Events outlined that on 18 May 2020 the applicant noticed the position of Customer Service Officer 5/6 within the Operations Manager Unit was no longer listed within the Titles and Customer Operations team organisational chart, this being a role for which the applicant had submitted a Higher Duties Allowance (HDA).
That same day, being 18 May 2020, the applicant sent a lengthy email to both the Executive Director, Stephen Wills (Mr Wills) and Mr Dwyer, entitled “A call for consideration”. In her email, the applicant requested, in part, clarification of her role and her pay in light of the removal of the Grade 5/6 position, pointing out that although she was remunerated as a Grade 3/4 she was performing the tasks of a Grade 5/6 on a day to day basis. She also made the following comment:
“Surely you can see why the thought of coming to Resource Operations filled me with a sense of such stress and anxiety about the treatment I have had and potentially was to receive, and guess what, my fears have been completely realised”.
Later that afternoon Mr Wills acknowledged the applicant’s email with comment “I will consider the range of issues raised and provide a response in the next few days”. There was no acknowledgment of the applicant’s email at that time by Mr Dwyer.
On 25 May 2020 with no response to her email of 18 May 2020 and no response to her HDA submission, the applicant forwarded a further email to Mr Dwyer in which she wrote, in part:
“I further note the email I sent to yourself and Stephen on Monday 18 May 2020. I have not received an acknowledgement from yourself so I can only assume that, although not stated by Stephen, he was acknowledging on behalf of you both.
…
I further note that I am continuing to carry out the duties of the 5/6 customer service officer role that I have done several times in the past (receiving HDAs), and await a fair outcome of submission of my HDA form, noting a discussion on this is still outstanding”.Later that afternoon Mr Dwyer responded to the applicant’s email in which he apologised to her for not having acknowledged her HDA submission, which he now acknowledged together with the further information she had provided relevant to her work experience. He said:
“Your enquiries and requests are being considered and it is certainly not my intention to ignore your messages.”
In his email Mr Dwyer assured the applicant he was hoping that a response would be available to her “soon” and invited her to contact him should she have any queries in the interim.
On 27 May 2020 Mr Wills sent an email to the applicant, into which Mr Dwyer was copied. Mr Wills wrote, in part:
“In regards to your comments about the work you are currently undertaking and have been since returning from secondment in March, I under this was again discussed with Stewart and Melissa, whereby you were advised that you would be required to work to your role description, this was also acknowledged by you in an email of 3 April where you advised that you were in fact working in your role description. This was further unpacked in a meeting between Stewart McLachlan, David Blackmore, Scott Anson and Melissa Kent when your reporting relationship was changed due to Stewart moving roles. From my understanding no conversation has occurred between you and your managers where you have been asked to do any duties above your role description.
In regards to your current role, you will be expected to work to the Grade 3/4 role description, we do not require you to undertake any work that is associated with the 5/6 Customer Service Officer. If you would like to understand the difference in both roles and the work associated on a day to day basis, to ensure there is no misunderstanding, your director Chris Dwyer can revisit this if required.”
The applicant said she was “completely devastated” by Mr Wills’ response to her and subsequently requested a meeting with Mr Dwyer and her leader, Chris Berry, in order to clarify her position description and work moving forward. Such meeting was arranged for 9.30 am on the following day, being 28 May 2020, via Microsoft Teams.
The applicant felt “incredibly stressed and anxious” about what had occurred on 27 May 2020 and she made arrangements to consult with her general practitioner at 12.15 pm on 28 May 2020. The applicant’s meeting with Mr Berry and Mr Dwyer took place as scheduled, and while both Mr Berry and Mr Dwyer video conferenced into the meeting, the applicant was very distressed and only audio dialled into the meeting. Mr Dwyer congratulated the applicant on being proactive about arranging the meeting, but during discussion the applicant said “I began to have an anxiety attack as I felt completely alone with no support and a feeling of hopelessness came over me. I broke down and could not speak”. With the applicant’s distress evident, Mr Dwyer did not wish to continue the meeting in the hope that it could be reconvened at a later time.
The applicant consulted with her general practitioner as scheduled, with recommendation the applicant take a week’s sick leave in an attempt to reduce her stress and anxiety. The applicant subsequently dialled into a scheduled meeting with members of the respondent’s HR team and again broke down as she felt no support which “led to an anxiety attack and feeling of complete helplessness”.
The applicant returned to her general practitioner on 4 June 2020, was certified unfit for her pre-injury duties with the respondent, and was referred to Dr Phillips, psychologist, for review.
Chris Dwyer’s statement
In his statement dated 26 June 2020 Mr Dwyer[4] confirmed that while he was currently occupying the role of acting Director of Operations Management within Resource Operations, his substantive role was Manager, Resource Assessment.
[4] ARD at page 149.
In his statement Mr Dwyer relevantly said:
“On the 25th of May, 2020 Angela sent me an email to follow up with me requesting a response to her HDA request and to her emails from the 15th and 18th of May, 2020. She asserted that she was till performing the Grade 5/6 duties. Angela was unaware that advice was being sought from Melissa by Stephen who was going to respond to Angela. I sent a response to Angela this same date to advise her that her requests were being considered and she should expect a response shortly”.
Param Dogra’s statement
In his statement dated 29 June 2020 Mr Dogra[5] confirmed that while he was currently occupying the role of Director TMS Service Delivery Executive within Resource Operations, his substantive position was that of Director Operations Management, being the position Mr Dwyer was acting in. He relevantly said that when the applicant returned from secondment in March 2019 he placed her into the then vacant Grade 5/6 Customer Service Office position, which was substantively held by an employee on long term secondment. He said he was more than happy to place the applicant in this role and noted she had returned from working in a Grade 7/8 role. He said he wanted to continue to support her so she could actively apply for Grade 7/8 and 9/10 roles “and be competitive”.
[5] ARD at page 136.
Scott Anson’s statement
In his statement dated 30 June 2020 Mr Anson[6] confirmed he was employed in the capacity as Manager Assessment Coordination within Resource Operations. He said he had met with the applicant as early as 22 April 2020 relevant to the frustration she experienced in returning from a Grade 7/8 secondment role to her substantive Grade 3/4 role, and recalled “some conversation” about the timing of the person in the substantive Grade 5/6 role returning from long term secondment, which he accepted did not ultimately eventuate. Mr Anson confirmed he was aware of the applicant’s request for consideration for the vacated Grade 5/6 role and provided his “suggested approach for Angela if HDA was available in this instance” to Mr Dwyer and Stewart McLachlan. He did not disclose the substance of this “suggested approach”.
David Blackmore’s statement
[6] ARD at page 155.
In his statement dated 1 July 2020 Mr Blackmore[7] confirmed his statement pertained to a period between February 2018 and August 2019, being a period when he was initially Director Titles Services and subsequently acting Executive Director of Resource Operations. The content of his statement confirmed merely that Mr Blackmore was aware that sometime between February 2018 and August 2019 the applicant acted in a Grade 5/6 Customer Service Officer role for a period.
Chris Berry’s statement
[7] ARD at page 130.
In his statemen dated 1 July 2020 Mr Berry[8] confirmed he was employed as Senior Project Officer attached to Operations Management in Resource Operations.
[8] ARD at page 109.
Mr Berry confirmed the applicant was employed as a Grade 3/4 Administrative Support Officer attached to the Titles and Customer Operations Team within Resource Operations. He recalled that in May 2018 the applicant acted in the Grade 5/6 Customer Service Officer role for six months when Renee Brown (Ms Brown) went on long term secondment.
Mr Berry said that when the applicant returned to her Grade 3/4 role following secondment to Water NSW the work she was assigned to complete was largely simple data entry work, which was not outside the scope of her Grade 3/4 role. He said that within a few days of Ms Brown’s resignation he was made aware of issues being discussed between the applicant and the Executive so as to enable him to be “mindful of the duties he was allocating to Angela”.
Stewart McLachlan’s statement
In his statement dated 26 June 2020 Mr McLachlan[9] confirmed he was employed in the capacity as Director, Office of the Deputy Secretary but had previously been acting as Director Operations Management while the substantive officer, Mr Dogra, was acting in another role.
[9] Reply at page 37.
Mr McLachlan confirmed the applicant was employed as a Grade 3/4 Administrative Support Officer role with the Titles and Customer Operations team within Resource Operations and that he had interviewed her for the Grade 7/8 position of Project Officer. He said he contacted her on two occasions prior to her return to her substantive role, and he described such contact as being short but positive discussions. Mr McLachlan also said that although the applicant had told him of an offer of a short term secondment, he was unable to support it. He pointed out that the email sent by the applicant on 3 April 2020 in which she said “I am currently conducting my PD duties as instructed by my team leader in a diligent way in this very difficult time for everyone” was “a positive comment as it reiterates that she is completing her Grade 3/4 role. The Position Description that had been provided on the 20th of March, 2020 via email was in relation to the Grade 3/4 Administrative Support Officer position”.
Stephen Wills statement
In his statement dated 29 June 202 Mr Wills[10] confirmed he was employed in the capacity of Executive Director of Resource Operations and was aware the applicant was employed as a Grade 3/4 Administrative Support Officer with the Titles and Customer Operations Team within Resource Operations. He said that in April/May 2020 he had some email exchange with the applicant which he described as being “positive interactions in relation to contributions she had made for the business”. He confirmed on 18 May 2020 he received the lengthy email from the applicant in which she outlined a number of concerns she had and confirmed he responded that same day with a short reply in which he acknowledged he “would consider the issues and provide a response within the coming days”.
[10] ARD at page 144.
Mr Wills said he then spoke with Mr McLachlan, Mr Dwyer and the HR Business Partner, Melissa Ken regarding the issues raised by the applicant. He said Daniel Rumbold, the HR Director was included in some of the email exchange. Mr Willis said that with the assistance of HR he compiled a reply email and forwarded to the applicant on 27 May 2020. He accepted this email “was of a more formal tone due to the nature and content of the email sent from Angela”. Mr Wills was aware of the applicant’s meeting with Mr Berry and Mr Dwyer on 28 May 2020 in which she was quite distressed. He was also aware the applicant had consequently sought medical assistance and not returned to work.
Treating medical evidence
Dr Macklinshaw, general practitioner
The applicant was under the general medical care of Dr Macklinshaw. Her clinical notes relevant to the applicant record the consultation on 28 May 2020 and made reference to the job the applicant “has been doing now, she has done before in a higher grade and she has been continuing to do this for the last 10 weeks”. Dr Macklinshaw made reference to the applicant having sent an email requesting whether she should be paid for the higher duties as the person who “owned” the role she was working had formally resigned. She also made reference to the applicant having detailed in the email that she was unhappy with how she had been treated. Dr Macklinshaw noted the applicant had received a response to her email “stating that they wont pay her, stating that she shouldn’t have been doing the higher role”. Dr Macklinshaw provided the applicant with a medical certificate up to 4 June 2020.
Dr Macklinshaw subsequently provided the applicant with an WorkCover NSW – certificate of capacity on 4 June 2020[11] in which she provided diagnosis in terms of “Anxiety Disorder, Panic Disorder”. Confirmation was provided that the applicant first consulted with the practice on 28 May 2020 relevant to her psychological injury. Dr Macklinshaw indicated the applicant’s psychological injury was related to her work with the respondent in that she stated “[H]as had bullying in the workplace, unfair treatment, intimidation causing anxiety disorder”. She certified the applicant as having no current capacity for work from 4 June 2020 up until 22 June 2020.
[11] ARD at page 209.
Dr Macklinshaw continued to provide the applicant with WorkCover NSW – certificates of capacity, with the most recent one before the Commission issued on 4 February 2021[12], in which Dr Macklinshaw again certified the applicant as having no current capacity for any employment, with the factors delaying recovery described in terms of “difficulty going back into the same workplace due to anxiety”. Dr Macklinshaw’s comment regarding the applicant’s capacity was however as follows:
“Angela has capacity to return to work provided that this is not in her current position in the resource operations business unity of Mining, exploration and Geoscience division. This is where she received her workplace injury from management and is unable to return to work in this unit in any capacity”.
Dr Phillips, psychologist
[12] AALD 2 at page 3.
The applicant was referred for psychological review with Dr Phillips and in her report dated 20 July 2020[13], Dr Phillips confirmed she initially consulted with the applicant on 24 June 2020 with follow up consultation on 10 July 2020. Dr Phillips relevantly wrote:
[13] ARD at page 214.
“Following this initial assessment it was determined that Angela is experiencing difficulties coping with significant work related stress including interpersonal issues and the reassignment of her work (lower grade pay for higher qualified position/job)”.
Independent medical evidence
Dr Chow
Dr Chow provided an independent medical examiner’s report dated 6 August 2020[14] and a supplementary report dated 25 August 2020[15].
[14] ARD at page 174.
[15] ARD at page 183.
In his substantive report Dr Chow reported he assessed the applicant by video conference and had available to him significant factual material, including the statements provided by Mr Dwyer, Mr Wills, Mr Dogma, Mr Anson, Mr Blackmore and Mr McLachlan, and copies of a number of emails.
Dr Chow noted the applicant last worked on 28 May 2020. Dr Chow took a history of the applicant having been seconded to a Grade 7/8 role in September 2018, returning to her substantive Grade 3/4 role in March 2018 but undertaking higher duties pending the return of a colleague on leave. When her colleague failed to return to work and the applicant continued undertaking the higher duties for a further two months, she sent an email to management about the arrangement but “nothing was done about it”. Dr Chow relevantly. reported:
“She said she received an email from management which pushed her over the edge. There was no support. She said she received an email on 27 May 2020 from the Director that she was never told to do the higher duties. She subsequently went off work.
She said on a daily basis her team leader told her to do those higher duties but then at the end, she was told by the director she was never told to do the higher duties”.
Relevant to his summary and assessment, Dr Chow provided opinion the applicant reported experiencing sufficient symptomatology to warrant diagnosis of adjustment disorder. He also said from assessment and the documents with which he had been provided, the applicant “appears to have been trying to seek higher duty roles opportunities however, toward the end there appeared to be a dispute in relation to continuing to do higher duties and a pay dispute leading to perceived unfair treatments from management”. As regards her capacity for work he said “[S]he is fit to return to work with adjustments working in a different division if this can be accommodated. She is currently unable to return back to the same division due to the perceived conflict with management”.
In response to specific questioning Dr Chow confirmed opinion the applicant suffered adjustment disorder, with her employment with the respondent having been the main contributing factor to injury. He considered the applicant had full capacity for work with restrictions.
In his supplementary report Dr Chow confirmed he had reviewed the statement prepared by Ms Green dated 26 June 2020 and in response to specific questioning said he considered the predominant cause of the applicant’s psychological injury related to “a dispute regarding her doing higher duties roles and the associated pay that Ms Green believed she deserved to get during the period after she moved back to her substantive role as a 3/4 clerk”.
Submissions
Both counsel made oral submissions, which I have considered. As a copy of the recording is available to the parties I merely set below a brief summary of the submissions.
Respondent’s submissions
Through Mr McEnney of counsel, the respondent confirmed the respondent’s case was limited to defence raised under s 11A of the 1987 Act and the applicant’s capacity work.
The respondent described the respondent’s defence raised under s 11A of the 1987 Act as relatively straight forward. Of particular import however was the cause of the applicant’s injury, and the respondent referred to the matters of Department of Corrective Services v Bowditch[16], Thazin-Aye v WorkCover Authority (NSW)[17], and Hamad v Q Catering Limited[18]. The respondent reiterated that while injury was not in issue, the whole or predominant cause of the applicant’s injury was in issue.
[16] [2007] NSWWCCPD 244 (Bowditch).
[17] (1995) 12 NSWCCR 340 (Thazin-Aye).
[18] [2017] NSWWCCPD 6 (Hamad).
The respondent noted Dr Chow was the only independent medical examiner who had provided opinion in this matter and he was the only psychiatrist who had provided opinion in this matter. Dr Chow provided opinion the applicant had a diagnosis of adjustment disorder and “appeared to have been trying to seek higher duty roles opportunities however, toward the end there appeared to be a dispute in relation to continuing to do higher duties and a pay dispute leading to perceived unfair treatments from management”. Dr Chow confined the issue of causation of injury to a finite period of time around 27 May 2020 and although Dr Chow does not specifically use the word “transfer”, the respondent submitted the concept of “transfer” should include discussion around pay and roles relevant to a transfer. Relevant to the transfer that occurred in this particular matter was that while the applicant was not keen to return to her substantive role, the respondent was entitled to request she come back to the job she was actually employed to do. The heart of the respondent’s case was said to be the escalation of the applicant’s symptoms relevant to a required return to her substantive role, with particular reference to the emails of 27 May 2020 and the meeting on 28 May 2020, the consequence of which left the applicant feeling incredibly stressed and seeking medical assistance.
Relevant to reasonableness, it was the respondent’s case that real efforts were taken by each of the managers of the applicant to try and have her accept that all secondments were at their discretion and that once completed, the applicant would be required to return to her substantive role and undertake the duties required of a Grade 3/4 role.
Relevant to the question of capacity, Dr Chow made an assessment of capacity. He provided opinion in July 2020 the applicant had full capacity for work with restrictions. The questions raised by s 32A of the 1987 Act are somewhat vexed in the circumstances of this matter. It is known the applicant has now obtained full time employment, but we do not know where she is working or in what capacity. The respondent is prejudiced because the respondent does not know when it was the applicant considered herself fit to go back to work. It was evident the applicant regarded herself as a successful worker and it was noted she prepared a sophisticated response to the s 78 notice and did not appear to be someone who had limited capacity at the time she did that. The evidence is that the applicant could work anywhere other than with the respondent and if it were the case the applicant had been engaged in job seeking without interruption since she sustained injury, the Commission ought to find she had no entitlement to weekly benefits during the period of her claim.
Applicant’s submissions
Through Mr Schipp of counsel, the applicant said that relevant to the respondent’s submissions as to the cause of the applicant’s injury, the applicant did not quibble with Dr Chow’s opinion, which in essence was that her injury resulted from the higher duties work she was undertaking and her pay.
The applicant submitted however that this is clearly not a matter of “transfer” in that it was the applicant’s case she had been told not to continue to do duties at a higher level, but even if it was a matter of “transfer”, the Commission would be comfortable to find the respondent’s action relevant to transfer had not been reasonable in all of the circumstances. Mr Schipp drew attention to a number of cases relevant to the question of “reasonable action”, all of which he said he had extracted from Mills, and reminded me that whether an employer’s action was “reasonable” was to be determined by an objective test.
Mr Schipp pointed out that when the applicant sent her email of 15 May 2020, she received no response from Mr Dwyer until 25 May 2020, and in that email he apologised to her for the delay in his response. It is not reasonable action on the part of the respondent he said, to allow 10 days to go by without any response to the applicant by Mr Dwyer. He also pointed out that in the interim the applicant realised there had been a change in organisation structure of which she knew nothing. He noted too that when the applicant was told not to undertake work of a 5/6 role and requested a meeting to seek clarification, which occurred, she became psychologically unwell and sought medical treatment.
Mr Schipp noted that proof of defence raised under s 11A of the 1987 Act rested with the respondent and submitted the respondent had failed to prove either “connection” or “reasonableness”. He pointed out that the statements provided by Messrs Blackmore, Dogra, Wills, Dwyer, Anson, McLachlan and Berry (who was aware of the issue that had arisen regarding role clarification) did not assist the respondent’s defence at all.
Relevant to incapacity, Mr Schipp conceded that Dr Chow referred to the applicant as having sustained a mild to moderate disability, and the latest certification by the applicant’s treating general practitioner did not suggest she was unfit to look for and obtain work in an area other than with the respondent.
DETERMINATION
Defence raised under s 11A of the 1987 Act
Whole of predominant cause of injury
The respondent accepted the applicant sustained psychological injury arising out of or in the course of her employment with the respondent and that her employment with the respondent was the main contributing factor to injury. The respondent has however raised defence under s 11A of the 1987 Act and the respondent has the onus of establishing such defence raised in accordance with s 11A of the 1987 Act. Pirie v Franklins Ltd[19] and Department of Education and Training v Sinclair[20].
[19] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[20] [2005] NSWCA 465.
An aspect relevant to defence raised under s 11A of the 1987 Act is that injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1) and in the applicant’s case the respondent relies on “transfer”. Principles were discussed by the Commission as regards the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act in Hamad v Q Catering Limited[21] with suggestion medical evidence is required to determine the causation issue. In Smith v Roads and Traffic Authority of NSW[22] Snell ADP accepted “wholly” and “predominately” are different concepts. The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused” with the test of causation to be applied is that described in Kooragang Cement Ltd v Bates[23]; Ponnan v George Weston Foods Ltd[24]; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[25].
[21] [2017] NSWWCCPD 6.
[22] [2008] NSWWCCPD 130.
[23] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[24] [2007] NSWWCCPD 92.
[25] [2008] NSWWCCPD 96 (Temelkov).
In circumstances where Dr Chow in his capacity as independent medical examiner essentially provided diagnosis of adjustment disorder with the predominant cause being dispute arising regarding the higher duties the applicant was doing after her return to her substantive Grade 3/4 role and her remuneration, the applicant’s treating psychologist has provided opinion on assessment that the applicant was experiencing difficulties coping with significant work-related stress relevant to “lower grade pay for higher qualified position/job”, I accept the psychological injury the applicant has sustained was wholly or predominantly caused by the situation she found herself in following her return from secondment with Water NSW to her Grade 3/4 substantive role.
Transfer
It is not disputed that when the applicant ceased her secondment with Water NSW in the role of Grade 7/8 she returned to the respondent in her substantive role of Grade 3/4. In Manly Pacific International Hotel Pty Ltd v Doyle[26] “transfer” was interpreted in the following terms:
“The word is used in the employment context. As such, it encompasses a move from one position to another whether or not there is any change in location. In determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than a change in the place where the work is carried out”.
[26] [1999] NSWCA 465 at [31] (Doyle).
In considering Doyle I accept the cessation of the applicant’s secondment with Water NSW and her return to her substantive position with the respondent is a “transfer” within the meaning of s 11A of the 1987 Act.
I also accept the sequelae of events which occurred as a result of higher duties the applicant subsequently undertook without corresponding remuneration following the return to her substantive position is a “transfer” within the meaning of s 11A of the 1987 Act even though these events occurred sometime after the applicant returned to her substantive role of Grade 3/4. I draw comfort in such conclusion from comment provided by Fitzgerald JA (with which Mason P agreed) in Doyle at [7] and [8] relevant to s 11A of the 1987:
“Davies AJA has stated that the Compensation Court “held that the circumstances under which Mr Doyle worked [after his transfer] were the predominant cause of his breakdown” Para 28. and expressed the opinion that, for the purpose of subs 11A(1), the consequences of actions “taken or proposed to be taken by or on behalf of the employer with respect to transfer” do not include “the worker’s response to employment conditions encountered after a transfer …”. Para 27. In my opinion, that proposition is too broadly stated.
It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in “the circumstances … which … were the predominant cause of his breakdown”. That being so, the appellant’s material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle’s psychological injury. Whether or not the appellant’s transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle’s condition”.
A further aspect relevant to defence raised under s 11A of the 1987 Act is that if it is accepted the applicant’s psychological injury was “wholly or predominately” caused by the respondent’s actions regarding transfer, as is the case here, then the respondent is required to establish the respondent’s actions were “reasonable”. The respondent has the onus relevant to the reasonableness of its actions.
In Northern New South Wales Local Health Network v Heggie[27] Sackville AJA set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[27] [2013] NSWCA 225; 12 DDCR 95.
While it may be that certain steps taken by the respondent relevant to the applicant’s transfer may be “reasonable” (by way of example, the requirement that the applicant move back to her substantive position with the respondent following conclusion of her secondment with Water NSW), it is evident the respondent was acutely aware the applicant was disquieted by the prospect of her transfer back from her secondment Grade 7/8 role to her substantive Grade 3/4 role and yet very limited attempt appears to have been made by the respondent to relieve her disquiet either before or after she returned to her Grade 3/4 role. Of particular note is that when “in frustration” the applicant sent an email on 18 May 2020 to Mr Wills (into which Mr Dwyer was copied) no acknowledgement of the email was made by Mr Dwyer. When the applicant again wrote to Mr Dwyer on 25 May 2020 regarding this lack of acknowledgement and also his lack of response to her earlier submission for HDA relevant to the work she undertaking during Ms Brown’s absence, although Mr Dwyer responded to the applicant’s chase up email that same afternoon with an apology for his tardiness in acknowledging her earlier submission for HDA, he provided no substantive response to the applicant’s enquiries. It was not until 27 May 2020, being some nine days after the applicant had sent her email of 18 May 2020 that Mr Wills sent a substantive reply to the applicant, into which Mr Dwyer was copied, that “completely devastated” the applicant, caused her to feel “incredibly stressed and anxious” and prompted her to seek medical assistance from her general practitioner.
I accept that in all of the circumstances known to the respondent at the relevant time, the initial lack of acknowledgement by Mr Dwyer to the applicant’s email of 18 May 2020 coupled with the quite substantial delay in Mr Wills’ substantive response to the applicant’s email of 18 May 2020 was not “reasonable” action taken by the respondent with respect to the applicant’s transfer back to the respondent from Water NSW.
For reasons discussed above I am not satisfied the respondent has discharged the onus of proof required and the respondent cannot rely on the defence raised under s 11A(1) of the 1987 Act.
Capacity
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity”.
As I accept the applicant’s psychological injury was wholly or predominately caused by action taken by the respondent with respect to transfer but do not accept the respondent’s action in this regard was “reasonable” it follows the applicant may have an entitlement to weekly benefits payable under the 1987 Act.
Section 32A of the 1987 Act provides multiple definitions that are crucial to the interpretation of the weekly benefit provisions in the Act, including definition of the first and second entitlement periods governed by ss 36 and 37 of the 1987 Act. The provisions of ss 36 and 37 of the 1987 Act require consideration as to whether a worker does or does not have ‘current work capacity’, which is also defined in s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”.
While the applicant has been provided with medical certification by Dr Macklinshaw with no current work capacity since 28 May 2020, such certification is however incongruous where Dr Macklinshaw has also provided opinion the applicant has capacity to return to work in roles other than in her previous role with the respondent. Dr Chow accepted the applicant was unable to return to work with the respondent in the division she had been working in when she sustained psychological injury but provided opinion the applicant had current capacity to work with restrictions in a different division. In such circumstances I accept the applicant had an inability to return to her pre-injury role with the respondent but was able to return to work in ‘suitable employment’ since she was issued with capacity certification by Dr Macklinshaw on 28 May 2020. Dr Chow is a psychiatrist and I prefer his opinion relevant to the applicant’s capacity to work over that of Dr Macklinshaw who is a general practitioner.
‘Suitable employment’ is relevantly defined in s 32A of the 1987 Act:
“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 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 or resident.”
While I understand the applicant has now secured employment, commencing on 8 February 2021, for which she is to be commended, there is no evidence before the Commission particularising the nature of the applicant’s current employment or her current remuneration. Neither is there any evidence before the Commission particularising the period of time in which she engaged in job seeking prior to securing her current employment.
The documents prepared by the applicant in support of her claim before the Commission as early as 26 June 2020 demonstrated sophistication and I am mindful the applicant’s diagnosis of adjustment disorder is generally a self-limiting disorder with symptoms tending to abate within a relatively short time after the occurrence of a stressful event. Dr Chow assessed the applicant on 6 August 2020, provided diagnosis of anxiety disorder “mild to moderate disability” and provided opinion the applicant “has full capacity for work but requires restrictions”. Having considered the applicant’s reported inability to undertake her pre-injury role but her reported ability to undertake suitable employment irrespective of its availability[28], on the balance of probabilities I accept that between 28 May 2020 and 6 August 2020 (when the applicant was assessed by Dr Chow) the applicant suffered no current work capacity and thereafter she had current work capacity in suitable employment on a full time basis.
[28] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
Quantification of entitlement to weekly benefits
The applicant’s PIAWE is agreed to be $1,868.30.
In accordance with s 36(1)(a) of the 1987 Act the applicant’s entitlement to weekly benefits is:
$1,868.30 x 95% - $0.00 = $1,774.89.
The applicant has no entitlement to weekly benefits under s 37 of the 1987 Act.
Treatment
The respondent does not dispute medical and related treatment costs claimed by the applicant in the sum of $1,892.50 were reasonably necessary treatment for the injury the applicant sustained with a deemed date of injury of 28 May 2020.
It is agreed the applicant sustained psychological injury during in the course of her employment with a deemed date of injury of 28 May 2020 and it agreed the applicant’s employment with the respondent was the main contributing factor to injury. As I accept that the applicant’s psychological injury was wholly or predominately caused by action taken by the respondent with respect to transfer but do not accept the respondent’s action in this regard was “reasonable” it follows the applicant has an entitlement to compensation for the cost of medical or related treatment payable under ss 59 and 60 of the 1987 Act for that injury.
SUMMARY
The applicant sustained psychological injury arising out of or in the course of her employment with the respondent with a deemed date of injury of 28 May 2020. The applicant’s employment with the respondent was the main contributing factor to her psychological injury. The applicant’s employment with the respondent was not wholly or predominately caused by reasonable action taken by the respondent with respect to transfer.
The applicant had no current capacity for work resulting from the psychological injury she sustained between 28 May 2020 and 6 August 2020. The applicant has an entitlement to weekly benefits payable under s 36 of the 1987 Act, but no entitlement to weekly benefits payable under s 37 of the 1987 Act. The respondent is to pay weekly benefits to the applicant in accordance with s 36(1)(a) of the 1987 Act. The applicant’s PIAWE is agreed at $1,868.30.
The applicant required medical treatment and services as a consequence of her psychological injury. The respondent is to pay the applicant’s medical and related treatment in the sum of $1,892.50, in accordance with ss 59 and 60 of the 1987 Act.
Jacqueline Snell
MEMBER
22 March 2021
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