Johnson v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Johnson v Secretary, Department of Education [2023] NSWPIC 187
APPLICANT:	Natalie Johnson
RESPONDENT:	Secretary, Department of Education
principal Member:	Josephine Bamber
DATE OF DECISION:	27 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury claim with dispute as to whether the applicant had discharged her onus of proof to establish injury under section 4(b)(ii); Held – pursuant to section 36, the respondent is to pay the applicant weekly compensation at the rate of $1,350 in the period from 1 February 2020 to 2 May 2020; pursuant to section 37, the respondent is to pay the applicant weekly compensation at the rate of $1,137 in the period from 3 May 2020 to 30 July 2022; the respondent is to pay the applicant’s treatment expenses upon pursuant to section 60 upon production of accounts, receipts and/or Medicare Notice of Charge; the lump sum claim is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess permanent impairment.
determinations made:

The Commission determines:

Pursuant to s 4(b) (ii) of the Workers Compensation Act 1987 the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the aggravation of her disease.
The applicant has given notice of her injury in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998.
The applicant has given notice of her claim in accordance with s 261 of the Workplace Injury Management and Workers Compensation Act 1998.

Pursuant to s 36 of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation at the rate of $1,350 in the period from 1 February 2020 to 2 May 2020.
Pursuant to s 37 of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation at the rate of $1,137 in the period from 3 May 2020 to 30 July 2022.
The respondent is to pay the applicant’s treatment expenses upon pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge.
The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Deemed date of injury:          1 February 2020
Body system:   Psychological
Documents to be referred:     Application to Resolve a Dispute and Reply, Application to Admit Late Documents dated 19 December 2022 and copy of this Certificate of Determination/Statement of Reasons.
STATEMENT OF REASONS

BACKGROUND

Ms Natalie Johnson (the applicant) has been employed by the respondent, Secretary, Department of Education, for approximately 20 year in various roles. In approximately 2015 she commenced working for the respondent as an Aboriginal Community Liaison Officer.
She has now brought the present proceedings alleging she has suffered a psychological injury due to a number of factors such as very heavy workload, over work, lack of support, confronting nature of the work, stressful and overwhelming nature of the work
In these proceedings she claims lump sum and weekly compensation.
The Application to Resolve a Dispute (ARD) is amended as follows:
(a) Delete the date of injury “1 January 2015” and insert “1 February 2020 (deemed)”
(b) The claim for weekly compensation is now as follows:
(i)Section 36 of the Workers Compensation Act 1987 (the 1987 Act) from 1 February 2020 to 2 May 2020 with an agreed pre-injury average weekly earnings (PIAWE) figure of $1,421.25 per week and 95% of that figure is $1,350.
(ii)Section 37 of the 1987 Act from 3 May 2020 to 30 July 2022, being the end of the second entitlement period and 80% of the PIAWE is $1,137.
(c) To make a claim for treatment expenses pursuant to s 60 of the 1987 Act on a general order basis.

Ms Johnson’s counsel confirmed the psychological injury claim is brought pursuant to s 4(b)(ii) of the 1987 Act.
The respondent’s counsel confirms the following issues are in dispute and require determination by the Personal Injury Commission (the Commission):
(a) whether Ms Johnson has made her claim within the times prescribed in ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act);

(b) whether Ms Johnson suffered psychological injury pursuant to ss 4(b)(ii) of the 1987 Act, and
(c) whether Ms Johnson has discharged her onus of proof in relation to establishing her claimed incapacity for employment.

The respondent is not relying on a defence under s 11A of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing via MS Teams on 8 February 2023. Mr Phillip Perry, counsel, instructed by Mr Phillip Bussoletti, solicitor, appeared for Ms Johnson, who is present. Mr John Gaitanis, counsel, appeared for the respondent instructed by Mr Bruce McLean, solicitor, and Ms Truong from the insurer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission with the consent of the parties and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the applicant dated 19 December 2022.

Oral evidence

There was no oral evidence. Oral submissions were made by the parties. I will not refer to the submissions verbatim as they have been sound recorded and a copy of the recording is available to the parties. The main thrust of the parties’ submissions will be referred to later in these reasons where relevant when I am considering my determination.

FINDINGS AND REASONS

Ms Johnson’s statements

Ms Johnson has provided statements dated 4 November 2022 and 19 December 2022. Ms Johnson is referred to in many of the medical records as Ms Wightman. I will refer to her as Ms Johnson because that is the name she has used in her application and statements.
In her first statement she describes the situation with her daughter in 2014 and she says she now has a good relationship with her and there are no further issues stemming from the past situation. Her daughter is now 22 and lives in Wagga Wagga and Ms Johnson lives in North Albury.
She explains that in 2015 she commenced in the role of an Aboriginal Community Liaison position and she had a very heavy workload and was overwhelmed, and there was a lack of support. She says the nature of the work was very confronting dealing with families in difficult situations. She states in February 2020 she took leave without pay on the advice of Aunty Julie however, even though she was not working she still had a lot of difficulty sleeping, her confidence was shattered and she lacked motivation. She says she could not contemplate returning to work as she would not be able to function. She sets out details of her symptoms.
Attached to this statement is a document wherein she explains in more detail about her role and the challenges she faced. She sets out details about an incident when she performed a home visit to a family with eight children. She says the visit lasted three hours and when driving home after this she had to pull over and she could not process or take in any information. She says she wrote a resignation letter but Aunty Julie told her not to resign but to take sick and long service leave and to see how she felt after some time off.
In her second statement Ms Johnson explains that she did not lodge her claim form earlier than June 2021 because she had never been advised that she had a right or entitlement to lodge a worker’s compensation claim. She also says she was not aware that there was a time limit to do so.
She states at [4] that she was not employed as a teacher with the respondent and she knew teachers could bring worker’s compensation claims but she thought as an Aboriginal Community Liaison Officer she had no such right.
She refers to her first statement wherein she described the stress building up and that she had become unwell in 2019. She says from about June 2019 she had spoken to Julie the home school liaison officer and told her she was very unwell due to her psychological condition. She says she told her about the difficulties and stress she was feeling at work and she says she was often crying and upset when she spoke to Julie.
She says throughout 2019 she had multiple conversations with Susan Cearns about how she was feeling and not able to cope. She says she recalls being in the Broken Hill office with Susan and Ms Johnson was feeling so overwhelmed and unwell that day that she told Susan she could not continue and she had to go to Broken Hill Hospital for antidepressant medication. She says at no stage did Julie or Susan or anyone at work tell her she could apply for workers compensation. At [8] of this statement she refers to other conversations with named persons at work and they also did not inform her that she could lodge a workers compensation claim.
Ms Johnson states by early 2020 her condition had deteriorated to such an extent she could not continue to work and she gave Julie her resignation letter, in around February 2020 and told her that she had nothing more to give and she was crying and upset. She says Julie told her not to resign and just to take sick leave or long service leave. Ms Johnson said she took this option. She says at [11] with the assistance of her sister they did some internet research of the respondent and discovered she would have an entitlement to workers compensation and so she resolved to make a claim and completed and lodged her claim form with the insurer. She says had she known about her rights in February 2020 she would have made a claim then.

Incident report

In an incident report dated 17 June 2021 there is reference to an incident on 17 May 2021 at 12.00pm referring to a lack of support from her supervisor, Allan. In the description of the incident it is recorded that Ms Johnson went to visit a family to work with parents to put supports in place for their child at school. She found there was a large stress load from managing the matter and when after the three hour visit when she arrived at her home she could not process the information from the home visit. It is noted that Ms Johnson has only seen her supervisor twice in four years. It is also noted that Allan is aware of the lack of support for Ms Johnson as she has raised her concerns with him. It is recorded that Allan was aware she was being used as an Aboriginal Education Officer (AEO) rather than an Aboriginal Community Liaison Officer (ACLO).
It is also stated on this form that Ms Johnson was on leave without pay and she had received an email from Bob Dyson regarding her termination due to the length of time of her leave without pay. It is also stated that she has not sought any medical attention until May 2021 because she would like to return to work, but when she thinks of working in that position she feels trauma from the stress she was in when working in that role. It is noted that Ms Johnson wished to pursue workers compensation.

Claim form

Ms Johnson completed her workers compensation claim form on 21 May 2021 stating the incident visiting the family occurred on 28 May 2019 and she reported the incident that day to Julie Philip, Home School Liaison Officer. Ms Johnson states that her brain went into shutdown mode and she could not process the information nor think of solutions to help the family who was in crisis at the time. She says the stress load she had to carry caused the injury. She says she has no work capacity left and her brain has been affected. She says she cannot think about work, emails, itineraries or reports and she has nothing left of herself to give.
Ms Johnson’s claim form was accompanied by a WorkCover NSW-certificate of capacity from Dr Asaduzzaman dated 17 May 2021 which refers to a date of injury of “2018” and a diagnosis “stress and Flare up of her Depression and anxiety”[1]. The doctor certifies Ms Johnson as having no current capacity for any employment. It is noted she is on anti-depressants and will be referred to a psychologist.
[1] Reply p 1.

Bob Dyson’s statement

Mr Dyson holds the position in the Broken Hill Education Office as “Networked Specialist Facilitator, Delivery Support, Student Support & Specialist Programs Directorate”. He has provided an undated statement in relation to Ms Johnson’s claim.[2] He sets out the duties expected of an ACLO and he states at no time was there any indication that Ms Johnson was overwhelmed with her work or that she was not supported.
[2] Reply p 22.
He states on or prior to 30 May 2019 they were made aware that Ms Johnson would be on sick leave for three weeks. He says in early July Ms Johnson shared a medical certificate and letter from a mental health nurse practitioner. Mr Dyson says at this time they ensured there was a significant amount of support being provided to Ms Johnson as a result of personal information she had shared with staff about her ongoing personal situation. He then states that Ms Johnson had spoken to staff and him at length about the significant stress she was experiencing as a result of being removed from her church and not being able to communicate with her family.
Mr Dyson states no staff have any recollection of Ms Johnson reporting an incident on 28 May or 28 June 2019 and he says he spoke to Julie Philip who had no recollection of an injury being reported to her. He adds that Ms Johnson had not been on duty for all of 2020 and 2021. He said he and Ms Johnson had arranged for her to return to work on 31 January 2020 but she did not attend and he spoke to her and she elected to take blocks of leave without pay throughout 2020. He said during this time she moved to Albury and her level of communication decreased. He states on 1 October 2020 she communicated with Edconnect to apply for additional leave without pay. He said she communicated with staff that she would separate from the respondent. He does not give the names or dates of such conversations. He said she was directed to return to work but she failed to respond and then position abandonment process was initiated and a letter of termination was sent to her on 17 June 2021.[3]
[3] Reply p 29.
An email from Edconnect to Ms Johnson dated 1 March 2021, following up an email of 16 February 2021, asked her to enter her leave or submit a separation request if she did not intend to return[4].
[4] Reply p 24.
Mr Dyson’s email to Ms Johnson dated 8 March 2021 chasing up her paperwork is attached to the reply.[5] On 1 June 2021 the Department wrote to Ms Johnson giving her notice of their intention to terminate her employment and inviting her to provide a written response.[6]
[5] Reply p 24.
[6] Reply pp 26 to 28.

Tristar Medical Group

Nola Cupper, mental health nurse practitioner wrote a letter dated 27 May 2019 noting that Ms Johnson (known as Wighton) accessed counselling support via their service intermittently since 2015.[7] It is stated that Ms Johnson currently has a diagnosis of mixed anxiety and depression and is being treated with psychotropic medications. There was a query whether her symptoms may be related to pre-menopause and she was going to follow this up with her general practitioner.
[7] Reply p 17.
Ms Cupper advises that as a result of Ms Johnson’s mental health issues she at times has difficulties with day to day functioning and she refers to symptoms of anhedonia, lack of motivation, poor concentration, low mood, overthinking and ruminating. It is noted that the difficult cohort that Ms Johnson works with in supporting students and their families can become emotionally overwhelming and potentially lead to a state of burnout.
There are a number of non-workcover medical certificates in the Reply from this medical practice and Mallee District Aboriginal Services certifying unfitness to work on various dates in 2017, 2018 and 2019, the reasons for illness are not stated.
Clinical notes are available from the Tristar Medical Group covering the period from 16 February 2015 to 6 September 2021.[8] There are several entries about Ms Johnson’s issues with her daughter. It is noted she presented with an adjustment disorder on 20 April 2015 and she was to commence cognitive behaviour therapy counselling. The entries continue throughout 2015. On 16 November 2017 an entry states she still has issues with her daughter. Her symptoms are recorded such as poor sleep, early morning wakening, depressed mood but normal self-esteem. A mental health plan was completed and anxiety was noted.
[8] ARD p 79.
On 28 February 2018 a nurse practitioner recorded in the clinical notes that Ms Johnson had symptoms consistent with high level anxiety near OCD levels and moderate depression however it was also noted she was currently in a stable relationship and has a good high functioning job.[9] On 1 March 2018 aspects of Ms Johnson’s early life are recorded and it is noted she ruminates, has high anxiety and perfectionist traits and she needs to be in control of everything and she “has high powered job and taking on her student’s issues as her own; wants ‘to fix then all’; wants to ‘protect them all’.” On 18 April 2018 it is recorded she has a major depressive disorder and has symptoms of major depression and she was teary with flat affect, with high level anxieties and struggles with upbringing with religious issues. She was prescribed Pristiq MR tablets. On 26 April 2018 it was noted she had much improvement already with the Pristiq, her mood has improved. On 10 August 2018 it is recorded that she has mild depressive symptoms and remains with anxiety. On 31 October 2018 Ms Johnson spoke about events in her life. Work stresses are not mentioned.[10] On 14 November 2018 it is noted she has improved on Pristiq 75mg. In some of the consultations there are references to symptoms being consistent with menopause.
[9] ARD p 87.
[10] ARD p 92.
There were several non-attendances at the practice in 2019. On 24 May 2019 Ms Cupper reported Ms Johnson attended with a flat mood and lack of motivation, she felt exhausted and unable to focus on work tasks. It is recorded:
“Challenges with work include isolation from supports which are located in Broken Hill. Natalie finding she is in position of providing supervision and advise to other staff in Sunraysia area however receiving little supervision or support for herself. Working with families where children have behavioural issues and extensive family issues causes significant stress and burnout. She has limited time off during the year which further exacerbates her burnout”.[11]
[11] ARD p 95.

It was recorded that she would be referred to another counselling service for ongoing support.

Mallee District Aboriginal Services

On 28 May 2019 Ms Johnson presented with anxiety and depression to Dr Mou Rashid Bose, general practitioner, and said she was very tired mentally and can’t cope with her job and daily life and she needs time off to recover. The doctor notes she works as an Aboriginal Liaison officer for seven schools and she is very stressed out with the load of the work and the type of the work she has to deal with every day. He also records she has some relationship issues at home but he stated they are now somewhat stable. She has been seeing a counsellor intermittently since 2015 and was seeing a nurse practitioner at Tristar practice and she is on Venlafexn 50mg per day. The doctor wrote that it is understandable that she is in a responsible job and with this mental state she cannot continue work. He gave her two weeks leave and he said this may need extension.

On 21 June 2019 Ms Johnson consulted Dr Mou Rashid Bose for review of her anxiety with depression. It is recorded that she is in educational projects in seven different schools with Aboriginal children and she is constantly dealing with them and no project ever finishes. Her early history is recorded. It is stated that her past flashes up during her work. It is also noted at this moment she thinks she is mentally ready to go back to work. However it is also noted that she wants to take six months off from work and make herself busy in something different to recover herself but she wants to return to work after that. The doctor has added that she is happy to consult with Centrelink about the process of leave and to go ahead with a mental health care plan (MHCP) and to continue her counselling.[12]
[12] ARD p 154.
On 13 August 2019 Ms Johnson saw Dr Mou Rashid Bose for a review of her anxiety. It is noted that she was in a very strict discipline in Jehovah’s Witness religion and “probably she was applying very strict pattern of discipline at work, at family which was not her way”. It is recorded she is feeling a bit better while she could figure it out and she has the confidence to go back to work after a month and she is doing a course on Conservation of Land in TAFE now.[13]
[13] ARD p 152.
On 16 August 2019 Dr Mou Rashid Bose prescribed Desvenlafaxine 50mg.[14]
[14] ARD p 152.
On 27 August 2019 it is noted that Ms Johnson has a discussion with her boss at work about her ongoing leave and will be starting to work towards return to work.
On 24 September 2019 it is recorded that she still believes she will go back to work but just not getting enough confidence. She was advised to get into counselling as soon as possible.
On 25 November 2019 it is noted that Ms Johnson came to discuss about her return to work and that she had started work for a month now but she was feeling the same as before. She had started counselling with a psychologist.[15]
[15] ARD p 149.

Albury Wodonga Aboriginal Health Service

Clinical notes are before the Commission from the Albury Wodonga Aboriginal Health Service.[16] This is where Dr Asaduzzaman practices. On 2 July 2020 Ms Johnson wished for a prescription of Desvenlafaxine and referral to their psychologist. On 20 July 2020 it is noted she wanted to see their psychologist as she was worried if her mother died she might do self-harm as she cannot think of life without her. It is also noted she was dependent on marijuana and Ms Johnson wanted help for this as well. On 30 September 2020 Ms Johnson had a consultation with a mental health worker but she wanted to see a psychologist. On 9 November 2020 a telehealth consultation was conducted and it is noted she is needing her anti-depressant and three months ago there was an increase in her dosage and she feels a lot better and her mood and anxiety are well controlled. A prescription was given for desvenlafaxine Sandoz extended release tablets 100mg. On 14 December 2020 Ms Johnson contacted the centre as she sought support as a friend had committed suicide. On 5 January 2021 she presented with a low anxious mood and restricted affect. She was suffering from anxiety.[17]
[16] RAD p 198.
[17] ARD p 209.
Thereafter, several non-attendances were recorded and attempts to contact Ms Johnson were unsuccessful. On 5 May 2021 she sought a repeat prescription of her medication. On 17 May 2021 she attended for a workcover certificate. Dr Asaduzzaman recorded that she was stressed from extra work at the respondent without any support and has now decided to go on workcover.
In addition to providing the medical certificate referred to above, Dr Asaduzzaman provided a report to the insurer dated 29 June 2021.[18] The doctor states that Ms Johnson first present for treatment on 2 July 2020 after moving from Mildura. The doctor is a general practitioner at Albury Wodonga Aboriginal Health Service Ltd. He states she presented for treatment of her longstanding depression and anxiety. Treatment had commenced in Mildura. The doctor says Ms Johnson was seen by their psychologist but she missed appointments and the file was closed due to lack of engagement. He says she first mentioned her work stress on 17 May 2021 when she said she wanted to go on workcover and explained “she has been asked to do extra amount of work without proper support”. He recommended she would need anti-depressants and counselling and says there is a need to look at the alleged cause of stress at work which is exacerbating her depression and anxiety.
[18] Reply p 30.

Dr Allan

Dr Allan, psychiatrist, has provided a medico-legal report for Ms Johnson dated 22 February 2022[19] in which he sets out her past history by reference to the clinical notes which I have summarised above. He notes she said she had prepared a resignation letter at the end of 2019 but was talked into taking leave and that she then went on a prolonged period of leave and ultimately did not return to work with the respondent due to her ongoing mental health issues. The doctor records that she trialled a TAFE course but she could not focus or become motivated and did not complete it.
[19] ARD p 44.
Dr Allan records that Ms Johnson described her work role with the respondent as involving a lot of work and that she was overworked and there was a lack of support. She says she was employed as an Aboriginal Community Liaison Officer but she was also expected to work as a learning support officer and it was all too much. She advised Dr Allan that working with families was very stressful and overwhelming and there was no support but relentless pressure.
Dr Allan describes the symptoms that Ms Johnson said she experienced from about 2018 onwards on page 7 of his report. He diagnosed Ms Johnson as having a work-related adjustment disorder with depressed and anxious mood. He noted the contents of the general practitioners’ records about her personal circumstances but says her history to him minimised these as an ongoing issue. Dr Allan says she now meets the criteria of a persistent depressive disorder. He said she requires psychological counselling, to keep taking the anti-depressant medication with consideration of an increase in the dosage and that she has no capacity to work.
Dr Allan found causally her psychological injury was a result of the workplace situation. He found there was some normal distress associated with her family but he did not see evidence to support the notion that she had a previous condition aggravated by her difficulties.
Dr Allan assessed Ms Johnson’s permanent impairment at 22% whole person impairment.

Dr Barrett

Dr Barrett, psychiatrist, provided a medico-legal report for the respondent. She finds based upon Ms Johnson’s presentation that she would have met criteria for an adjustment disorder with anxiety which has become chronic and persistent for a period of more than two years. Therefore, Dr Barrett finds Ms Johnson would now meet the criteria for persistent depressive disorder with anxious distress. The doctor notes Ms Johnson has symptoms of anxiety, previously symptoms of somatic symptoms of anxiety and worrying and now persistent loss of self-esteem and loss of self- confidence which she manages by avoidance, which has impacted mood, appetite and functioning in various roles, at home, socially and at work.
Dr Barrett considers that Ms Johnson did have pre-existing vulnerabilities as a consequence of history of loss of her father at a young age, thereafter frequent relocations as well as childhood trauma, discrimination and bullying at school, a prior relationship with domestic violence. The doctor describes these events in the history she took from Ms Johnson. In answer to question 5 Dr Barret said such issues would have increased her vulnerability to the effects of further trauma, particularly if that trauma reminded her of her own past experiences or the stressor involved the loss of attachment relationships.
Apart from this vulnerability, Dr Barrett notes the evidence that Ms Johnson experienced significant disruption in her relationship with her daughter about eight years ago and these difficulties have persisted.
However, Dr Barrett finds that Ms Johnson was exposed in her work role vicariously with the stories of trauma with families. She found that compounding these effects, was that Ms Johnson alleged a lack of support and clinical supervision in performing her work tasks.
When asked for her opinion about whether work factors were the main contributing factor to the psychological condition of Ms Johnson, Dr Barrett opines that there rarely is one single main contributing factor in psychiatric conditions. In this case she says there are three main factors. Ms Johnson’s vulnerability, the non-work situation with her daughter and the work related stressors. Dr Barrett says each of these factors is highly significant and additive in regard to causation.
Dr Barrett adds that Ms Johnson’s psychological illness commenced well before the respondent made the leave requests and the subsequent actions, which I took to be a reference to her termination. Therefore, Dr Barrett did not regard such matters as the predominant cause of her disorder. I interpret this a question and answer relating to whether there was a s11A defence relating to the actions of the employer.
Dr Barrett regarded Ms Johnson’s presentation as being incompatible with the capacity to perform paid work of any duties or in any work environment. Dr Barrett sets out her recommendations for treatment and says there needs to be a significant reduction in her symptoms and a reduction in her avoidance before rehabilitation could be commenced. The doctor finds that Ms Johnson has significant impairment at present. She did not assess permanent impairment as she considered there was prospect of improvement.

Determination

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
In Attorney General v K[20] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[20] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Even though K’s case was decided before the 2012 amendments to the definition of injury, the principles set out are still relevant to determining the issue of causation in a psychological injury case. The additional consideration that needs to be undertaken is whether the employment was the main contributing factor to the contracting of the disease, if s 4(b)(i) is being relied upon. If the case comes within s 4(b)(ii) then the employment needs to be the main contributing factor to the aggravation etc of the disease not to the underlying condition.
In AV v AW[21] Snell DP dealt with the concept of “main contributing factor”. At [78] he summarised relevant principles:
“The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[21] [2020] NSWWCCPD 9.
Ms Johnson has the onus of proof in establishing that she has suffered an injury within the terms of s 4(b)(ii) of the 1987 Act. Her counsel submits there is ample evidence that the requirements of Ms Johnson’s role were significant. He drew attention to the contents of Ms Johnson’s statements including the annexed statement to illustrate the stressful situations she experienced on a day to day basis over a number of years including the incident with the home visit to the family.
He relied upon the passage cited above from AV v AW and submitted that Dr Barrett did not seem to appreciate that the employment only has to be the main contributing factor to the aggravation of the psychological condition. Mr Perry submitted that Dr Barrett answered the question posed to her, which does not exactly reflect the terms in s 4(b)(ii) of the 1987 Act. I accept this submission because it is evident from Dr Barrett’s conclusion about causation that she regarded Ms Johnson’s vulnerability as one of the contributing factors to her psychological condition. As set out above in K’s case, there is an egg-shell psyche principle, so the fact that someone has a vulnerability because of past experiences does not mean that a psychological injury under s 4(b)(ii) is caused by that vulnerability. There is a need to consider if the psychological injury has been caused by the aggravation etc of the past psychological condition as a result of the work place events.
Dr Barrett also identified Ms Johnson’s relationship with her daughter as being one of the contributing factors to her psychological condition. However, the evidence contained in the various treating medical practices’ notes confirms Ms Johnson’s evidence that the deterioration of her relationship with her daughter commenced in 2014 when her daughter was 14. Her daughter is now 22 and it does seem that the problems in the relationship have settled down. I consider that this relationship also contributed to Ms Johnson’s vulnerability and also is relevant because following the relationship issues Ms Johnson commenced on anti-depressants and sought counselling. Because of the past events in her life and the fact she was receiving ongoing treatment for her psychological symptoms, her workers compensation claim is framed as falling with s 4(b)(ii) of the 1987 Act.
As discussed in AV v AW there is need for the Commission to consider not only the medical opinion, but all of the evidence when coming to a conclusion as to what was the main contributing factor to the aggravation of the earlier disease, being the psychological symptoms suffered by Ms Johnson. I accept her counsel’s submissions that it was the build up of pressure over time from Ms Johnson performing the very difficult role of Aboriginal Community Liaison Officer. There is no real factual dispute as to the nature of the work she performed as involving stressful interactions with families and children. Also there is no real factual dispute that such work was demanding and the volume of work, as well as the nature of the work, could be overwhelming. Ms Johnson has also spoken about she felt there was a lack of support, the respondent has not called evidence to counter such an allegation.
Mr Dyson’s evidence does not challenge the nature of Ms Johnson’s work and the volume of her work. He says none of the records he has considered refer to Ms Johnson suffer from work injury. He refers to a discussion with Julie Philip’s but there is no statement from her to counter the detailed evidence given by Ms Johnson about her conversation with “Aunty Julie” about Ms Johnson wanting to resign.
Mr Dyson does acknowledge that he had the letter from the mental health nurse practitioner, which I infer is the letter from Ms Cupper dated 27 May 2019. In that letter it is stated that when her
“mood becomes low she often feels overwhelmed with the responsibility of her work and has limited support available locally…the difficult cohort that Ms Wighton works with in supporting students and families can become emotionally overwhelming and potentially lead to a state of ‘burn out’…she is concerned the impact her mental health is having on herself but also her capacity to perform her job to the best of her abilities.”
I regard this letter as significant because it provides a fairly contemporaneous account about Ms Johnson’s work experience and echoes the history she has given to Dr Allan and Dr Barrett and to her evidence in her statements. Ms Cupper in this letter confirms that Ms Johnson has accessed counselling support from their service intermittently since 2015 and at the time of writing the letter she had a diagnosis of mixed anxiety and depression. Ms Cupper mentions that Ms Johnson’s doctor will consider if her symptoms may also be related to pre-menopause. I note that such a suggestion has not been borne out by the opinions of either Dr Allan or Dr Barrett.
Ms Cupper concluded this letter by advising the respondent that there is a need for regular supervision to manage work load and work stressors and during periods of depressed mood and increased anxiety it may be useful for her to remove herself from the stressful situations before returning to her usual position of employment. While Ms Cupper is not a doctor, her advices in this letter to my mind do suggest that Ms Johnson’s work was stressful and capable of aggravating her psychological condition.
In addition the clinical entry made on 24 May 2019 by Ms Cupper reported Ms Johnson attended with a flat mood and lack of motivation, she felt exhausted and unable to focus on work tasks. It is recorded:
“Challenges with work include isolation from supports which are located in Broken Hill. Natalie finding she is in position of providing supervision and advise to other staff in Sunraysia area however receiving little supervision or support for herself. Working with families where children have behavioural issues and extensive family issues causes significant stress and burnout. She has limited time off during the year which further exacerbates her burnout”.[22]
[22] ARD p 95.
The respondent’s argument is that Ms Johnson has not discharged her onus of proof that she has a psychological injury coming within s 4(b)(ii) of the 1987 Act. The respondent relies heavily on how Dr Barrett has expressed her opinion that there are multiple causes for her psychological presentation. However, as found above, Dr Barrett was answering the question put to her. In any event, it is ultimately an evaluative process that I need to undertake and I consider, and find, that Dr Barrett’s opinion does not preclude a finding that Ms Johnson’s employment with the respondent over time has aggravated her underlying psychological condition with her employment being the main contributing factor to that aggravation.

The respondent’s counsel argued that there is no real corroborative evidence to support Ms Johnson’s claim about her work place experiences but submits there is evidence to support her vulnerability and the effect her relationship with her daughter had on her psyche. I have explained why I consider the work with the respondent has aggravated her underlying psychological condition. The underlying psychological condition had arisen because of these other non-work factors. Earlier in these reasons I have referred to corroboration contained in Ms Cupper’s letter which was written in May 2019. In addition, on 28 May 2019 Dr Bose from the Mallee District Aboriginal Service notes she works as an Aboriginal Liaison officer for seven schools and she is very stressed out with the load of the work and the type of the work she has to deal with every day. He also records she has some relationship issues at home but he stated they are now somewhat stable. I consider this is further contemporaneous evidence supporting Ms Johnson’s evidence and claim.
The respondent’s counsel submitted that May 2019 was the first time that Ms Johnson had mentioned about issues at work but before that her consultations do not mention work issues. I have summarised this evidence about non-work issues from the clinical notes earlier in these reasons. I find this evidence does not diminish Ms Johnson’s case. The claim is made pursuant to s 4(b)(ii) and what is relevant is whether the employment has aggravated the existing psychological disease. I find it clearly has aggravated or exacerbated her condition because the added impost of the type of work she was doing, as Dr Bose recorded, caused her to become “very stressed” and Ms Cupper refers to “burnout” from the work she undertook for the respondent. It was after May 2019 she was unable to work and she continued to be unable to deal with a return to work in 2020 and 2021.
I accept the evidence of Ms Johnson as a witness of truth. I accept she had a demanding role with the respondent and I accept she did develop psychological symptoms as a result of that work, superimposed on her existing psychological state and aggravating that disease. The respondent submits that Mr Dyson disputes Ms Johnson’s allegations. I do not accept this submission. Just because Mr Dyson did not seem to be aware of the effect the work was having on Ms Johnson does not mean that this did not occur. Furthermore, the respondent has not relied on direct evidence from Julie. In circumstances where Ms Johnson gave a detailed account of her conversation with Julie, I do not regard Mr Dyson’s evidence is sufficient to refute Ms Johnson’s assertions. I accept the conversation with Julie about Ms Johnson’s wish to resign occurred.
I reject the submission made by the respondent’s counsel that Ms Johnson has not discharged her onus of proof that her employment was the main contributing factor to the aggravation of her disease for all of the foregoing reasons.

Weekly compensation

Mr Perry submitted that Dr Allan and Dr Barrett are both strongly of the view that Ms Johnson had no capacity for any employment in the period claimed. He submitted that there are some medical certificates which cover in part some of the period claimed to 30 July 2022. He submitted that there should be an award in favour of the applicant on the basis that she has no current capacity for employment. I accept that submission. I agree the evidence from the psychiatrists is overwhelming in support of this conclusion.
Accordingly, I find pursuant to s 36 of the 1987 Act from 1 February 2020 to 2 May 2020 Ms Johnson is entitled to an award in her favour of $1,350 per week. Pursuant to s 37 of the 1987 Act from 3 May 2020 to 30 July 2022 I find the applicant is entitled to an award of $1,137 per week.
I note that Mr Perry also relied on the decision in Guettaf v Spotless Services Australia[23] that the s 78 notice did not raise capacity as an issue and so the respondent could not put capacity in issue. I do not need to deal with this further because as I have found the overwhelming evidence is that in the period claimed Ms Johnson had no capacity for any employment.
[23] [2020] NSWWCCPD 13.

Section 60

The respondent agreed to a general order being made for s 60 expenses should Ms Johnson otherwise succeed on the issue of injury and I so find.

Notice provisions

The respondent has also placed in issue whether Ms Johnson has notified her injury and made her claim within the times prescribed in ss 254 and 261 of the 1998 Act.
I find that Ms Johnson has given notice of her injury in accordance with s 254 of the 1998 Act because she has established special circumstances set out in sub-paragraph 3(a) because the respondent has not been prejudiced in respect of these proceedings by the failure to give notice as soon as possible after the injury occurred. Also s 254(1) refers to the need to give notice of injury before a worker has voluntarily left the employment. In Ms Johnson’s case she was terminated by the respondent and so this aspect of the section is not fulfilled.
I find that Ms Johnson has given notice of her claim in accordance with s 261(4) of the 1998 Act because I accept her explanation in her second statement that she was ignorant of her ability to make a workers compensation claim. I reject the respondent’s submission that Ms Johnson did not make a claim earlier because she herself did not regard her psychological condition as being related to her employment. I have accepted Ms Johnson as a witness of truth. Mr Perry also submitted another reason for the delay was because she was not thinking as she might due to the effects of the injury on her psyche. This may also have been a factor.

[2023] NSWPIC 187

27 April 2023