Ichthus Healthcare Pty Ltd v Workers Compensation Nominal Insurer (icare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ichthus Healthcare Pty Ltd v Workers Compensation Nominal Insurer (icare) & Anor [2024] NSWPIC 443
APPLICANT:	Ichthus Healthcare Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Do Hyoung Kim
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	16 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 145; claim made on the applicant; the statutory notice nominated a date of injury being 3 April 2021, which was the date employment ceased; whether statutory notice is defective and the effect of a defective notice; Haddad v The GEO Group Australia Pty Limited; Davis v State Rail Authority (New South Wales); contemporaneous medical material together with lay evidence did not support a finding that the date of injury was correct on the statutory notice; Held – liability to pay the statutory notice was attached to the date of injury; statutory notice is defective; applicant not liable to pay the sum requested in the statutory notice.
DETERMINATIONS MADE:	The Commission determines: 1. The statutory notice dated 20 March 2023 is defective. 2. The applicant is not liable to pay the sum requested in the statutory notice.

STATEMENT OF REASONS

BACKGROUND

Ms Do Hyoung Kim, the second respondent was employed by the applicant who sold massage chairs in various public retail spaces. The second respondent claims that she sustained a psychological injury whilst in the employ of the applicant.
By way of statutory notice dated 20 March 2023, the first respondent sought reimbursement for payments made from the Workers Compensation Insurance Fund. The value of the payments made was in the sum of $119,193.78. The payments relate to medical expenses, weekly benefits and a lump sum payment.
The date of injury nominated on the statutory notice is 3 April 2021. It is not in dispute that the applicant held no policy of workers compensation insurance which would respond to the claim made by the second respondent (on the date of injury identified in the statutory notice).
A claim for whole person impairment was made by the second respondent in the sum of 15% by way of demand dated 12 August 2022.[1] By way of complying agreement, dated
23 November 2022, payment was made for 15% whole person impairment with a date of injury dated 3 April 2021. It appears that the agreement was based upon the opinion of
[1] First respondent’s Reply page 96.
Dr Anand who stated the second respondent had a 15% whole person impairment arising from her employment with the applicant.
The claim is defended on numerous bases, the first issue is that of a defect in the statutory notice relating to the date of injury. The claim is further defended on the issues of injury,
s 11A defence and capacity.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Has the date of injury being 3 April 2021 been correctly identified?
(b)    If the date of injury is incorrect, what is the effect on the Statutory Notice?
(c)    If the date of injury is correct:
(i)did the second respondent sustain a psychological injury with the respondent?
(ii)is there a valid s 11A defence?
(iii)what was the second respondent’s capacity to work?

PROCEDURE BEFORE THE PERSONAL INJURY 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.
At the hearing of this matter I expressed concern about the date of injury nominated on the statutory notice. The parties filed written submissions addressing this issue, following the delivery of Haddad v The GEO Group Australia Pty Limited [2024] NSWCA 135, the parties filed further written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute;
(b)    Replies to the Application to Resolve a Dispute on behalf of the first respondent and the second respondent;
(c)    late documents dated 3 July 2023, 8 December 2023, 12 December 2023, 15 February 2024, 2 April 2024, 11 April 2024, and
(d)    written submissions dated 23 April 2024, 2 May 2024, 12 June 2024 and
20 June 2024.

Oral evidence

There was no application to adduce oral evidence. I will now look at the evidence relied upon in this dispute.

Do Hyoung Kim (second respondent)

Do Hyoung Kim has provided a statement dated 2 July 2021.[2] Ms Hyoung Kim was born in South Korea and emigrated to Australia in 2018.
[2] First respondent’s Reply page 5.
Prior to commencing employment with the applicant, Ms Hyoung Kim was employed as a tour leader in South Korea between 2001 and 2017.
In August 2020 she unfortunately experienced an apparently serious buckwheat allergy whilst dining at a restaurant in West Ryde and attended upon the emergency room at Concord Hospital.
Ms Hyoung Kim commenced casual employment with the applicant on 3 September 2020 as a sales manager. She remained in this position until her employment ceased on
3 April 2021.
Ms Hyoung Kim discovered this employment opportunity on a Korean community website. She describes the applicant’s business as one that sells massage chairs and related equipment to retail customers. The sales hub was a retail kiosk in a shopping centre. She worked at Stockland Merrylands shopping centre and also at Chatswood Chase.
Ms Hyoung Kim described her employment as being on a casual basis and she usually worked between 35 to 40 hours per week and worked six to seven hours per day. Her normal hours of work were between 9:30am to 5:00pm and until 6:30pm on a Thursday. She said she did not receive any break per shift and her hourly rate was $16 per hour in the first three weeks and was increased to $18 per hour. As at 1 January 2021 her hourly rate was $19 per hour. She received her weekly wages in cash except for the last payment which was by way of bank transfer.
Ms Hyoung Kim says that she usually worked with Seongae Kim, also known as “Phoebe”, the owner of the applicant business, and her husband.
Ms Hyoung Kim usually arrived at the kiosk at around 9:15am, did general cleaning and preparing for opening of the kiosk. She described there were about five massage chairs in the retail kiosk space which was apparently approximately 5m x 5m. Ms Hyoung Kim would approach shoppers in the shopping centre and ask them to try the massage chairs and would operate for them. If the customer requested to try a calf and foot massage she would need to lift it nearby and place it in front of them. This device weighed about 5kg and she would pick it up and carry it by hand no more than 3 to 4m and she would do this approximately 10 times per day. She provided customer service, took sales orders and payments. She would also phone customers prior to deliveries.
Ms Hyoung Kim says that she would wear semi-casual clothing to work including pants and either sandals or closed shoes.
Ms Hyoung Kim described Ms Seongae Kim as concurrently working at another kiosk at Castle Towers Shopping Centre so that she would sometimes stay at one place for an hour and then leave for the other place. Ms Hyoung Kim said she would speak to Ms Seongae Kim’s husband when she was not around and provide him with updates on the sales of the day.
Ms Hyoung Kim says that she was aware of the requirement to report an incident at work however was not aware of any policies regarding bullying and harassment.
Ms Hyoung Kim says she was told by Ms Seongae Kim not to drink too much water during the shift so she wouldn’t need to use the toilet often. Ms Hyoung Kim said that when she started working at Chatswood Chase in February 2022, this topic was raised constantly as there was some distance between the kiosk and the toilet.
Ms Hyoung Kim says that she told Ms Seongae Kim that this request was unreasonable, however she was told that it was common practice in Australia and other shop owners also had the same rule. She says that she was also told that if she kept having this attitude and kept asking she wouldn’t be able to get a job in Australia. Ms Hyoung Kim said she felt threatened and stopping discussing the water drinking issue thereafter.
Ms Hyoung Kim says she was instructed by Ms Seongae Kim or her husband to run and stop shoppers rather than walk to them. She was told that she needed to be quick in approaching a customer or otherwise an opportunity would be missed.
Ms Hyoung Kim says her sales target was to sell at least four massage chairs per week and she received a cash incentive according to the revenue that was generated by her each week. Ms Hyoung Kim says she always met or exceeded the target except in November 2020 due to COVID-19 when she couldn’t sell a single massage chair in that month.
Ms Hyoung Kim says that Ms Seongae Kim told her that she had been in the business for eight years and was shocked that Ms Hyoung Kim had not sold anything. Ms Hyoung Kim cried as a result of the comments and she said she was later told by Ms Seongae Kim to sell the products to family and friends or even to herself. Ms Hyoung Kim said Ms Seongae Kim said that other employees would send text messages to customers after hours in order to get sales, to which Ms Hyoung Kim replied that it wasn’t nice to send messages late at night and to not compare her to other employees. Ms Hyoung Kim said she felt belittled.
Ms Hyoung Kim recalls on one occasion when she was at the kiosk at Merrylands shopping centre she was resting on a chair during a shift and she looked up to see Ms Kim’s husband looking down at her from the food court. Ms Seongae Kim then asked Ms Hyoung Kim if she had been sitting the whole time. Ms Hyoung Kim replied that she just wanted to have a rest. She said she felt scared and stressed.
Ms Hyoung Kim said she sometimes chatted with other employees in other shops in the shopping centre however was told it was preferred for her not to have any conversations if they weren’t customers.
Ms Hyoung Kim said she would often receive text messages from Ms Seongae Kim late at night, at 10:00pm or even at 1:00am regarding work issues. Sales targets would be mentioned or Ms Hyoung Kim would be asked to watch a video about a new product.
Ms Hyoung Kim said she asked Ms Seongae Kim not to send messages late at night however that situation didn’t change and she would later be contacted in the early morning sometimes at 7:00am before she started working.
Ms Hyoung Kim says that Ms Seongae Kim was a “greedy person” and would get involved in the sales as they were underway. She would then split the revenue with Ms Hyoung Kim so that she earned less incentive. Ms Seongae Kim told her in reply that she shouldn’t challenge her behaviour and if she behaved in this way forthwith she would not get a job in Australia.
In February 2021 when Ms Hyoung Kim was not working, she was trying a massage chair at DFO at Homebush. Later that afternoon she received photos from Ms Seongae Kim of her and her friend trying the massage chair at Homebush DFO. She attempted to call
Ms Seongae Kim who was unavailable.
Ms Seongae Kim returned Ms Hyoung Kims call about 30 minutes later and asked her why photos were taken. Ms Seongae Kim replied that she was sent those photos by the kiosk owner at DFO and the owner thought that Ms Hyoung Kim and her friend were spying on their products.
Ms Hyoung Kim said that in February 2021 the applicant decided to close down the kiosk at Merrylands Shopping Centre and opened at a new location in Chatswood Chase. She was asked to go and work there. Ms Hyoung Kim understood there was a big Chinese community in Chatswood and the applicant had employed a Chinese speaking salesperson to work for them at Chatswood Chase.
In March 2021, Ms Seongae Kim called Ms Hyoung Kim on her day off and told her that her shifts were now down to four days a week as they had hired a new salesperson. She had formerly worked six to seven days a week at Merrylands. Ms Hyoung Kim said she felt used and said to Ms Seongae Kim that she needed to give her five days a week or she would only work three days at Chatswood. Ms Seongae Kim said she would check and see if she could adjust the number of days. Ms Hyoung Kim then returned to work the following day and despite asking about the shifts the following week she wasn’t given any adequate response.
In March 2021, on an uncertain date, Ms Hyoung Kim was helping Ms Seongae Kim’s husband rearrange the location of massage chairs at around 5:00pm. She says she bent down to lift the massage chairs by hand and carry them not too far. Each of the chairs weighed approximately 100kg. She says as the chair was lifted and placed on the floor it landed on her left big toe. She was wearing open-toed sandals and as a result her toe was bleeding.
Ms Hyoung Kim says she reported her injury to Ms Seongae Kim’s husband and said she was hurt and wanted to see a doctor. Ms Kim’s husband replied that he had seen a serious injury before and that no medical treatment was required. She was then given a band-aid by Ms Seongae Kim and offered hand sanitiser to disinfect the wound.
On 31 March 2021 Ms Soengae Kim drove Ms Hyoung Kim home from work at Chatswood Chase. In the car Ms Seongae Kim told Ms Hyoung Kim that 1 April and 3 April 2021 were to be her last shifts at work. No reason for this decision was provided and Ms Hyoung thought it was inappropriate to discuss this any further in the car. She wasn’t given anything further in writing regarding this change in employment. She says she worked on 1 April and
3 April 2021, felt miserable and received pay via bank transfer for this last shift.
On the last shift on 3 April 2021, Ms Hyoung Kim says Ms Seongae Kim gave her a coffee loyalty card on her last day at work which had already collected five stamps. Ms Hyoung Kim understood that if she was to collect a further five stamps she would have a free coffee.
Ms Hyoung Kim felt it was ridiculous and didn’t need it and felt sad at how she was treated at work.
In May 2021, after making enquiries at Fair Work, Ms Hyoung Kim formed the view that she had been underpaid in respect of incentive payments. She contacted Ms Seongae Kim who appeared kind and apologetic and together they worked out that there was a deficit of some $15,000. No payment was made in respect of that underpayment, and Ms Hyoung Kim reported Ms Seongae Kim to Fair Work in May 2021.
On 14 May 2021 Ms Seongae Kim texted Ms Hyoung Kim and said she had paid $5,756 for tax and $3,096.37 for super to the ATO in respect of non-payments. Ms Hyoung Kim had also had payslips for the seven months that she had worked with the applicant which she felt indicated incorrect amounts were paid. Ms Hyoung Kim then contacted Fair Work again and said that the amount she was paid was wrong and she was still underpaid. She understood she would have to take the case into the Small Claims Court. Ms Hyoung Kim says she was stressed and her mental state was not good. It was suggested to her that she contact iCare as this was becoming a workers compensation issue.
Ms Hyoung Kim says that after she reported her employer to Fair Work in May 2021, all the other employees didn’t respond to her phone messages to speak to her on the phone anymore. She felt she was being bullied and she suspected Ms Kim was behind this and was spreading rumours about her.
Ms Hyoung Kim attended upon her general practitioner Dr Lee on 15 June 2021. She then obtained a certificate of capacity and was referred to a psychologist. She contacted iCare and lodged a claim and was informed that the applicant didn’t have any policy of workers compensation insurance.
The second respondent has prepared a second statement dated 13 February 2024.[3] She describes her ongoing treatment which includes treatment from her general practitioner
[3] Second Respondent’s late documents dated 15 February 2024.
Dr Lee, continuance of panic attacks and aversion to confined spaces.
The second respondent continues to take medication to manage her condition and struggles going to the pool to exercise. She has difficulty attending shopping centres and becomes nervous around a lot of people. She feels fearful of meeting the owner of the applicant’s business.
She also describes attempting to work at a sushi shop and a clothing shop. She was unable to continue to perform either of these jobs because of the effects of her psychological injury. She describes the employment at the sushi shop at Merrylands Stockland for two to three weeks as a casual waitress. She obtained this employment about one month after her employment was terminated with the applicant and she was able to work seven hours per day and two days per week but was stressed and struggled.
The second respondent describes her memory as not very good and finds it difficult to converse with people and she is susceptible to panic attacks.
In relation to working at a clothing store, she had difficulty with following procedures in relation to barcodes and ruminated on her treatment with the applicant.
In relation to her work as a travel guide in Korea, the second respondent describes that she had no difficulties with that work and she felt confident at that stage of her life. She says she wouldn’t be able to do that type of work now as she is hesitant to meet and speak to people and tends to remain at home. She continues to experience panic attacks and feels insecure and overwhelmed with people when she gets instructions.

Seongae Kim

Seongae Kim, also known as Phoebe Kim, is the sole director of the applicant business. She describes it as a small family business selling massage chairs and related equipment to retail customers.
Seongae Kim said she wasn’t aware that there was a claim in respect of workers compensation until she was contacted by iCare in June 2021.
Seongae Kim describes her husband, “Joseph” as not an employee of the insured but does help out as it is a family business. She says that she and her husband would arrive at the kiosk around 11:00am and her husband would often help out with deliveries.
Seongae Kim describes the second respondent’s employment as one that was characterised by poor attitude where the second respondent was impolite and would raise her voice.
She also describes the second respondent as taking extra breaks to have breakfast at work in the morning.
Seongae Kim also describes Ms Hyoung Kim as often being late to work at both the Merrylands and Chatswood locations and she would blame traffic. She denies telling the second respondent not to drink too much water when she was working at the Merrylands kiosk. She does however observe that the distance between the kiosk and the toilet was not close and she did tell the second respondent not to drink too much water in the morning.
She also disavows telling the second respondent to run and stop shoppers however did encourage her to be more proactive and speak to the customers and to show them the massage products.
Seongae Kim says she didn’t impose specific targets for employees during COVID-19. She does observe that in November 2020 the second respondent generated a lower return in revenue and she cried because she was upset with her performance. She tried to encourage her to achieve and when asked for tips on increasing and closing sales Seongae Kim shared with the second respondent that another co-worker had built relationships with her customers and she had her own circle of Korean friends.
Seongae Kim also denies spying on the second respondent however when she did observe her she was resting on a chair of the kiosk during her shift.

Seongae Kim does not agree that she texted the second respondent late at night often, maybe just once or twice all related to work. She also agrees that she messaged her on her day off as she wanted her to get familiar with a new product before coming to work.
In relation to the second respondent at the DFO kiosk, Seongae Kim explains that she was advised by Julia (surname unknown), DFO kiosk owner, that the second respondent and her friend had attended their premises and the friend had pretended to be a customer and tried the massage chair and asked about the price. Julia then sent the photos of the second respondent and her friend and accused Seongae Kim of spying on her business. She then forwarded those photos on to the second respondent and there was a subsequent telephone call where the second respondent raised her voice at her.
When the kiosk was moved to Chatswood, the second respondent complained a lot about the extra travel time or that she was really tired. Seongae Kim drove her to work and dropped her home after work from Chatswood to Lidcombe at least once a week in January 2021 and approximately two to three times a week in February 2021. A new salesperson was hired at the kiosk to cater to the Chinese demographic and as such Seongae Kim communicated to the second respondent that her work was going down to four days a week because of the new salesperson. The second respondent then told her that if she didn’t give her five days a week she would quit and as five days a week wasn’t feasible, the last day was going to be
27 March 2021 which was then subsequently amended to 3 April 2021.
In relation to the coffee coupon, on the last day of work Seongae Kim told the second respondent that she had a coffee coupon for a free coffee at Lidcombe and as she wasn’t going to Lidcombe she was welcome to have it. She has no idea if the second respondent interpreted it as a farewell gift.
In relation to the toe injury in March 2021, Seongae Kim says the second respondent didn’t do any lifting on that day but agrees she was wearing open-toe sandals. She also agrees that at some time the plastic leg of the massage chair brushed over her big toe and there was a minor scratch with bleeding. She agrees that the second respondent was given a band-aid and Seongae Kim says she didn’t see the need to attend in any further way.
Sometime after the second respondent finished work with the applicant on 3 April 2021, Seongae Kim says that she called her and expressed she wanted to continue to work and would be amenable to working three days a week. This was rejected and the second respondent then appeared aggressive on the phone and there were accusations made of under-paying and a threat of reporting to Fair Work.
On 14 May 2021, Seongae Kim says she fixed up the proper payslips and repaid all the claimed under-payments and super to the relevant account.
Seongae Kim says that she understands that the second respondent called other employees and asked them to speak with Fair Work to which she understood they did not want to get involved.

Jihee Park

Jihee Park has prepared a statement dated 17 December 2021.[4] Ms Park worked for the applicant as a sales manager from August 2020 until May 2021. She worked with the second respondent for about a week and describes her as being difficult to work with because she did not follow the workplace rules very well and refused to follow directions from the company director.
[4] Applicant’s late documents dated 8 December 2023, page 1.
She observed that the second respondent was often late for work causing more workload on other staff to get the business ready to open. She also observed that the second respondent drank a lot of water and had to visit the bathroom very often and the attendance in the bathroom seemed excessive to her.
Ms Park said she heard negative comments and complaints from other sales staff however doesn’t have direct notice observation of this. She did observe the applicant talking to the second respondent and says it was always a warm and pleasant working environment.

Eun Kyoung Kim

Eun Kim commenced working with the applicant as a salesperson on 28 February 2021. She only worked with the second respondent for a few days. She said that the second respondent would often call her up and told her that she had found a full-time cash job at a clothing store called Kanzi in Cabramatta and that she had worked there for a month however she couldn’t find a proper job. She also says that the second respondent kept calling her too frequently so she ended up blocking her number

Medical evidence

Dr Olivia Lee

Dr Lee, psychiatrist, has prepared a report dated 25 October 2021 at the request of the first respondent.
The second respondent provided a history of working with the applicant selling massage chairs. Her employment was terminated in April 2021 and she had worked in alternative locations part-time since May 2021 and had not returned to work since.
The second respondent denied any psychiatric or psychological interventions until 2019.
She stated that her psychological injury began one or two weeks after beginning with the applicant and that her employer placed stress on her. She related that she was told not to drink too much water so she would go to the toilet less often. Her employer would also text her outside work hours and she felt anxious if she did not meet sales targets.
The second respondent also related an occasion when she went to DFO shopping and also feelings of being constantly surveilled from her employer. The second respondent also outlined that in March 2021 she injured her toe and was provided with hand sanitiser and a band-aid. Shortly thereafter she was told her work hours would be cut down which she was not happy with.
In relation to her current condition, the second respondent said that her marital relationship was strained. Her sleeping was severely disrupted and she felt amotivated. She reported that she once came across her ex-employer at a shopping centre and she froze and had a urinary accident. She attends her psychologist’s appointments every three weeks.
Dr Lee opined that the second respondent’s condition suggested an adjustment disorder with low mood and anxiety features. She disavowed a description of the second respondent as displaying abnormal illness behaviours or malingering.
In relation to her capacity, she thought that her current certificate of capacity was not accurate as she completed some part-time employment since termination. Not working at the present time was due to a lack of opportunity rather than not being able to work from a psychological point of view. Dr Lee thought the second respondent was able to return to the same line of work elsewhere with an alternative employer and demonstrated she was able to do so.

Dr Abdul Khan (psychiatrist)

Dr Khan has prepared a report dated 3 July 2022[5] at the request of the second respondent’s solicitors as they then were.
[5] First respondent’s Reply page 87.
The history provided to Dr Khan was consistent with the second respondent’s statement which included managers surveilling staff, limited use of the bathroom, sales pressure and other matters. The second respondent described she felt humiliated in front of her colleagues and overworked, mistreated, ignored and unsupported.
Dr Khan opined that the second respondent’s mental state was stable before her employment and after a mental state examination opined that the second respondent had a major depressive disorder with anxious distress. This psychological illness had been caused by employment as a store manager when she was subjected to protracted work-related stressors whereby she was micromanaged, overworked, bullied, harassed, subject to surveillance, unsupported, ignored and dismissed.
In relation to capacity, Dr Khan opined the second respondent has been totally incapacitated to work as a salesperson from 3 April 2021 to date. He stated she is unlikely to return to any form of employment in any capacity in the foreseeable future.
It should be observed that Dr Khan does not have a history in relation to the second respondent’s attempt to return to work in May 2021. He opined that the second respondent had a 19% whole person impairment.

Dr Ashwinder Anand

Dr Anand, psychiatrist, has prepared a report dated 26 October 2021 at the request of the first respondent.[6] Dr Anand took a history of injury which was consistent with the second respondent’s statement. She felt belittled by her employer who had made inappropriate comments about the way she worked, contacted her after hours, spied on her and belittled and challenged her.
[6] First respondent’s Reply page 98.
Dr Anand opined that the second respondent suffered an adjustment disorder with mixed anxiety and depressed mood. Her employment with the applicant was a substantial contributing factor to the development of her psychological condition. He also rejected any abnormal illness behaviour or malingering present.
Dr Anand did opine that the second respondent had a capacity to work 20 hours per week which would not include returning to work with the applicant company. That is, that she could return to work in her pre-injury role with an alternate employer. He thought it would be a good idea to return to work so that she felt she was part of the wider community and provide her with a sense of purpose. Dr Anand opined that the second respondent had a 15% whole person impairment.
Dr Anand has prepared a further report dated 21 August 2023.[7] Dr Anand had been provided by that stage with the records of the general practitioners, Dr Kwon and Concord Repatriation Hospital (where the second respondent attended after her buckwheat allergy event).
[7] First respondent’s late documents dated 12 December 2023, page 4.
Dr Anand confirmed his earlier diagnosis that the second respondent met the criteria for adjustment disorder with mixed anxiety and depressed mood. Dr Anand was unable to comment on the second respondent’s capacity to work as he had not had the opportunity to review her and said he would rely on the opinion of her current treatment providers including her general practitioner and psychologist.
Dr Anand has prepared a further report dated 18 September 2023.[8] He observes when provided with further clinical material including from other general practitioners, that the second respondent had not been entirely forthcoming about the extent of her past psychiatric history and he notes that she was referred to a psychologist in April 2021, Mr Jeong.
[8] First respondent’s late documents dated 12 December 2023, page 10.
Dr Anand however maintained his view that the second respondent’s employment was the main contributing factor to the aggravation of a pre-existing condition. Dr Anand then conducted a whole person impairment assessment and opined that the second respondent has a 13% whole person impairment assessment (after deducting 10% for pre-existing condition).

J Medical Centre- general practitioner clinical notes

General practitioner’s records have been provided which are annexed to the first respondent’s reply.[9]
[9] First respondent’s Reply page 71.
The doctor’s initial notes indicate that the second respondent was receiving stress at work, thought she was unfairly treated and had a wounded toe. She said there was unpaid work for early and late work. There was frequent contact outside work hours and felt that she was unfairly fired and a further history was provided in relation to a photo being taken from outside work and the second respondent felt pressured.
Those entries relate to a consultation on 15 June 2021.
It should be observed that the second respondent attends on her general practitioner on a regular basis, with further consultations taking place on 29 June 2021, 16 July 2021,
28 July 2021, 6 August 2021 and 24 August 2021. Those notes are also consistent with the second respondent’s first consultation with ongoing stress and insomnia.

Dr Hajeong Lee

Dr Lee is the second respondent’s general practitioner. Dr Lee has provided a short report dated 15 June 2021.[10] Dr Lee opines the second respondent has a work-related psychological injury and is referring her for further treatment to Miss Rose Kwon.
[10] First respondent’s Reply page 1
Dr Lee has prepared a further report dated 18 June 2021.[11] The report is by way of a handwritten document in response to questions from the first respondent. The diagnosis in that document is a possible post-traumatic stress disorder. The history provided was of repeated psychological trauma by her employer including not providing basic requirements for work environment, unfair overtime and other humiliating episodes. Dr Lee opined that the second respondent should be able to return to pre-injury duties within four to six months. He also opined that the second respondent’s current fitness for work was fit for suitable duties at some 10 hours per week.
[11] First respondent’s Reply page 2.

94. The first certificate of capacity appears to be dated 5 June 2021 and is signed by Dr Lee. In respect of the injury, Dr Lee writes that there was a psychological injury from unfair treatment from her employer in terms of unfair overtime, basic environment and need for support in humiliating episodes. Dr Lee certifies the second respondent as able to perform less suitable hours or 10 hours a week.

Glory Medical Centre

The treating notes from the Gloria Medical Centre at Lidcombe have been produced.[12] Those treating notes commence in 2019. They provide evidence in relation to the second respondents symptomatology following the buck wheat reaction. Indeed Dr Lee referred
[12] First respondent’s late documents dated 12 December 2023, page 176.
Ms Kim to Jung Sook for psychology counselling as she was experiencing panic attacks in August 2020.
The first relevant entry regarding this dispute is on 7 May 2021, when there was a request for psychology counselling due to “stress at work”.

Dr Kwon, psychologist

Dr Kwon is a treating psychologist. The clinical notes of Dr Kwon have been produced in the first respondent’s late documents dated 3 July 2023.[13] She has also prepared a report dated 31 October 2022.[14] There were further consultations on 16 April 2019, 1 May 2019,
5 November 2019, 16 December 2019, 20 December 2019, 23 December 2019,
27 December 2019, 14 February 2020, 21 October 2020, 27 October 2020,
4 November 2020, 3 February 2021, 22 March 2021, 23 April 2021, 1 June 2021 and
[13] First respondent’s late documents, page 115.
[14] First respondent’s late documents 3 July 2023, page 44.
15 June 2021. Why these notes are relatively important is they traverse a period before the second respondent says she has an injury with the applicant.
What is evident in those notes, particularly in 2019, was the second respondent was having significant stress in relation to financial issues, her relationship with her husband and also her child. For instance, on 21 October 2020.[15] The second respondent has described as feeling suffocated, victimised and experiencing anxiety and anger. This is also a time when the second respondent experienced the food allergy response when she had a buckwheat allergy.
[15] First respondent’s late documents dated 3 July 2023, page 104.
On 23 March 2021 there is history given that the second respondent started commencing selling massage chairs at a shopping centre. The consultation again appears to focus on anxiety about the perception of others in relation to the buck wheat incident and any associated claim. There is no history of adverse treatment or anxiety regarding her work with the applicant. There is merely a note that says “selling massage chair at a shopping centre lately”.
On 23 April 2021 the second respondent is experiencing social phobia which was getting worse. She felt that people were talking about her behind her back and said she understood why celebrities kill themselves. She was experiencing hospital flashbacks when passing West Ryde. At that stage she said she didn’t want to do massage chair work and was” taking a break”. It should be observed that there is no history of any negative work experience.
On 1 June 2021 there is an entry[16] where the second respondent describes doing a massage chair job in Chatswood but they had hired a Chinese worker and reduced her shift from six to seven days to three to four days. She told them that she would quit if there was only three to four days of work and they said that they would look for five days but talked about quitting all of a sudden in the car. The second respondent then quit. She said they didn’t let her drink water saying that it would make her go to the toilet too often. In relation to her foot injury she said they only gave her plaster when she asked for antiseptic and ointment. The second respondent still has a scar. She complained that she had to go to work 15 minutes early for which she wasn’t paid and on the last day of work they gave her a café loyalty card. The second respondent said that she felt pissed and rang Fair Trading and told them the business did not pay public holidays properly and didn’t comply minimum wage rules. The second respondent then approached Fair Work. The second respondent also complained about when she attended DFO on her day off and when she lay on the massage chair. She said she felt disrespected and disgusted about what she perceived to be spying and felt that they had apologised to her insincerely.
[16] First respondent’s late documents dated 3 July 2023, page 111.
It should be observed that this thorough history is provided some time after the applicant ceased work on 3 April 2021.

Commonwealth Bank records

Banking records have been produced in respect of Sae Joon Park and Do Hyoung Kim. They appear to be from what is a working bank card where day to day purchases are listed together with payments made in respect of workers compensation payments.
It is observed from the account that payments were made from Mr Joon Park to this account. For instance, on 12 September 2023 there is an entry for a credit for $790, and on
5 October 2023 there is a credit for $870. There are other credits from the same name appearing regularly in that account. Mr Joon Park is the second respondent’s husband.

SUBMISSIONS AND FINDINGS

I now move to the submissions and findings in this matter.

Date of injury

I raised at the hearing of this matter that I had concerns in relation to the date of injury and as such, submissions were directed in relation to it. Following the decision of Haddad, the parties were given the option to make further submissions.
By way of correspondence dated 20 March 2023, the applicant was given a notice pursuant to s 145(1) of the Workers Compensation Act 1987 seeking reimbursement for payments made by the Nominal Insurer. The sum paid to the second respondent at that time was $119,193.78. The statutory notice has a date of injury as 3 April 2021.
The applicant submits that the Statutory Notice is defective as it has not identified a valid date of injury. The claim made by the worker is one of psychological injury, or aggravation of a psychological injury caused by the cumulative poor treatment by her employer.
The date of injury is fixed by the operation of s 15 of the 1987 Act.
Section 15 of the 1987 Act relevantly provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Incapacity is defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998 as including “a disfigurement that is sufficient to effect the earning capacity of a worker or a worker’s opportunities for employment”.

The Act prescribes that if there is a psychological injury then the deemed date of injury would either be the first period of incapacity or the date of the claim.
The Court of Appeal appeals provided guidance in reaction to fixing the date of injury in a decision Haddad v The GEO Group Australia Pty Limited.[17] Haddad relates to circumstances where a worker had submitted a claim for weekly compensation but later withdrew the claim and sought to argue that the date of injury was the date of claim of compensation rather than the date of first incapacity.
[17] Haddad v The GEO Group Australia Pty Limited [2024] NSWCA 135.
In that decision, Griffiths AJA indicated that the determination of the date of incapacity “is a question of fact to be determined by reference to all the relevant evidence”[18].
[18] Paragraph 67.
Griffiths AJA at paragraph 80 stated:
“80. As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.”
The first respondent referred to a decision of Davis v State Rail Authority of New South Wales[19] where it was determined that injury within the ss of 15 and 16 of the Act means an inability to engage in pre-injury work either partially or totally. It was submitted by the first respondent that whilst the first certificate of capacity was not issued to the second respondent until after 3 April 2021, the second respondent ceased work on 3 April 2021 and as a result of a psychological injury. The cessation of work in effect demonstrated an inability to engage in pre-injury work either partially or totally.
[19] Davis v State Rail Authority (New South Wales) 2001 21 NSWCCR 322 at 329-339.
It was submitted that the inability of the second respondent to engage in pre-injury work either partially or totally and also a ‘disfigurement’ that was sufficient to affect her earning capacity or opportunities for employment. The cessation of work led to a complete reduction in earning capacity and at the same time gave rise to an entitlement to claim weekly compensation. The first respondent submitted that the second respondent’s entitlement to lump sum compensation is not unrelated to the incapacity and it follows that the second limb of s 15(1)(a) and s 16(1)(a) is not engaged such the date of claim for lump sum compensation should be the date of injury. The first respondent relied on the comments by Griffiths AJA, having discussed a decision in Alto Ford[20] noting that:
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
[20] Paragraph 105.
Looking at the evidence before me I cannot except that the date of injury is as nominated
23 April 2021. It is not in dispute that this however is the second respondent’s last day of employment.
What is clear on the evidence before me is that the first certificate of capacity was dated 15 June 2021.[21] That certificate indicates that there was a period of incapacity flowing from 15 June 2021. An analysis of the contemporaneous and statement evidence does not lead me to find that there was any incapacity on 3 April 2021 as submitted by the first respondent.
[21] First respondent’s Reply, page 112.
The following pieces of contemporaneous medical evidence militate against a date of injury of 3 April 2021;
(a)    on 5 April 2021 there is a referral from Dr Lee to Dr Yung relating to treating the patient for relationship problems with counselling[22] but no mention of workplace difficulties;
(b)    on 23 April 2021, there is a history in relation to anxiety involving the buck wheat allergy reaction and associated social perception, but no mention of workplace difficulties, and
(c)    on 1 June 2021 there is a history of reduction in hours at the massage chair job because they hired a Chinese worker, but no mention of workplace difficulties
[22] Late documents dated 30 June 2024 page 66.
If the there was an incapacity, then one would expect there would have been a complaint made by the worker on at least one of these occasions, if not all of them.
The lay evidence adduced also suggest that it is in the conversation about reducing shifts in the car that the employment relationship was terminated. The break down in the arrangement seems to be predicated on the reduction of shifts. There is no evidence that it was in response to workplace difficulties. There is no credible evidence that there was any incapacity at that time.
This is also supported by the unchallenged evidence from Ms Songae Kim that the second respondent contacted her sometime after 3 April 2024 seeking to continue to work even if it was only three shifts per week. This is not consistent with a finding of incapacity at that time.
It should be observed that in relation to capacity, Dr Khan opined the second respondent has been totally incapacitated to work as a salesperson from 3 April 2021 to date. Whilst Dr Khan has provided a detailed opinion in this dispute, his attention was not directed to the discrete period after the work ceased nor has he considered the relevant contemporaneous evidence that I have outlined above. I therefore give his opinion little weight in relation to this discrete issue.
After considering all the evidence, I cannot find that the second respondent became incapacitated as at the date she ceased work. The lay evidence before me is quite clear. That is, that the second respondent in a conversation in the car quit her job and the reason she is not working at that stage, was unrelated to an incapacity. Indeed, the second respondent wanted to continue to work five or six days, and it when the reduction in the hours offered that the employment ceased.
It is difficult for me to identify the date of injury without hearing from the parties in this respect and as such I make no discreet finding, but observe that there is clear evidence of it with the issuing of the first certificate of incapacity.

The effect of the defect in the Statutory Notice

The first respondent submits that if the date of injury identified in the statutory notice is found to be incorrect this is not a relevant consideration to the liability of the applicant to reimburse the insurance fund. That is, if it is accepted that the second respondent suffered an injury within the meaning of s 4 of the 1987 Act, and is not precluded from receiving compensation by reason of the operation of s 11A(1) of the 1987 Act, then the first respondent submitted the date of injury is not relevant to the finding that the applicant is required to reimburse the insurance fund in accordance with the s 145 notice.
I can’t agree with such a submission. The statutory notice identifies a date of injury to which the liability attaches. It is an assertion that on that particular day the applicant did not have a policy of insurance and as such is liable to pay the funds paid by the first respondent.
If there is a defect on the Notice in this regard, it holds no strength.
In those circumstances the s 145 notice is defective in that the correct date of injury has not been identified. Looking at the evidence before me it is not until the second respondent sees her general practitioner where there is an incapacity that can be found. In those circumstances, there should be an award for the applicant in respect of the statutory notice or the statutory notice is a nullity.

Additional issues

I am acutely aware of the resources that have been spent in this dispute. Given the nature of my findings, and having heard submissions on other issues in dispute, if a further s145 notice is issued I am happy to have any dispute referred back to me to be determined. It is anticipated that in that event the submissions that have already been made on these other issues can be easily reventilated.

[2024] NSWPIC 443

16 August 2024