Kerr v Sydney Catholic Schools Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kerr v Sydney Catholic Schools Limited [2023] NSWPIC 81
APPLICANT:	Alison Kerr
RESPONDENT:	Sydney Catholic Schools Limited
Member:	Josephine Bamber
DATE OF DECISION:	3 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; pursuant to section 4(b) the applicant sustained a work-related psychological injury with her employment with the respondent being the main contributing factor to the contraction and/or aggravation of the disease; the respondent has not established a defence under s 11A; Held – the lump sum claim is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to assess permanent impairment; after the Medical Assessment Certificate has been issued the matter is to be listed for a further preliminary conference to deal with the weekly compensation claim.
determinations made:	1. Pursuant to s 4(b) 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 contraction and/or aggravation of the disease. 2. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 3. 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: 5 October 2021 Body system: Psychological Documents to be referred: Application to Resolve a Dispute and Reply, and copy of this Certificate of Determination/Statement of Reasons. 4. After the Medical Assessment Certificate has been issued the matter is to be listed for a further preliminary conference to deal with the weekly compensation claim.

STATEMENT OF REASONS

BACKGROUND

Ms Alison Kerr was employed by the respondent, Sydney Catholic Schools Limited, as a secondary school science teacher commencing in 2001 as a casual. She has a background history of an anxiety disorder and social phobia.[1] She obtained a fulltime position with the respondent as a chemistry teacher at Our Lady of Sacred Heart Kensington commencing in 2011. She brought proceedings in the Workers Compensation Commission in matter 6237/18 in relation to a psychological injury she alleged she sustained in the course of that employment. Those proceedings were resolved on 23 January 2019 with a Certificate of Determination-Consent Orders providing for the payment “on a voluntary basis” of weekly compensation from 15 February 2018 to 11 July 2018 and payment of medical expenses together with awards for the respondent for other periods of weekly compensation and medical expenses not included in the voluntary payments.
[1] ARD p 22.
She has now brought the present proceedings alleging she has suffered a psychological injury as a result of the respondent failing to provide her with suitable duties in the period
5 February 2019 to 5 October 2021 and also because they terminated her employment in January 2020 as a result of an administrative error.
The Application to Resolve a Dispute (ARD) was amended as follows:
(a)    the date of injury “29 October 2017” is deleted and “5 October 2021” inserted;
(b)    the description of injury is deleted and the following inserted “Failure by the respondent to provide suitable duties from 5 February 2019 to 5 October 2021 including termination in January 2020 by administrative error”, and
(c)    the commencement date for the claim for weekly compensation of
21 December 2021 is deleted and 3 December 2021 is inserted.
The respondent had placed in dispute whether Ms Kerr suffered psychological injury pursuant to ss 4, 4(b), and 9A of the to the Workers Compensation Act 1987 (the 1987 Act). The respondent also initially relied upon a defence under s 11A of the 1987 Act in relation to promotion/demotion, transfer, employment benefits and dismissal, but the respondent’s counsel submitted this defence was irrelevant.
The claims for compensation in these proceedings are in relation to weekly compensation and lump sum compensation. It was agreed that the liability issues would be dealt with first and if Ms Kerr is successful, then a referral will be made for a Medical Assessor to assess her permanent impairment and thereafter, the claim for weekly compensation can be considered. If Ms Kerr is not successful, then an award for the respondent will be made and the entire proceedings will be at end.

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 in person on 15 December 2022. Mr Collins, solicitor, appeared for Ms Kerr. Mr Halligan of counsel appeared for the respondent instructed by Mr Murray, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) with the consent of the parties and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Oral submissions were made by the parties which were sound recorded and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Ms Kerr’s statements

Ms Kerr sustained a psychological injury whilst in the employ of the respondent at the Our Lady of Sacred Heart Kensington. She brought workers compensation proceedings in relation to that injury, which resolved with her being paid weekly compensation from
15 February 2018 to 11 July 2018. Thereafter, she states she sought suitable with duties with the employer and these were not supplied. Ms Kerr states she instituted proceedings in the Fair Work Commission and Federal Court seeking protection from termination, the provision of suitable duties and compensation. She states that in January 2020 her employer terminated her employment and advertised her position in September 2021 despite assuring her she was still employed. The employer concedes the termination in January 2020 was done due to an “administrative error”. The Federal Court proceedings were resolved on
5 October 2021 and she resigned as part of that settlement.
Ms Kerr states the whole process from February 2019 to October 2021 aggravated her psychological injury and there was an increase in her distress, depression, and anxiety.
In a statement dated 30 August 2022, Ms Kerr says she has suffered from social anxiety ever since she was at university.[2] She states it is “really just a matter of personality types as opposed to a psychological condition”. However, this does not accord with the medical reports available form Dr Chandra and Dr Turnbull who had diagnosed her with a longstanding social anxiety disorder. Ms Kerr makes the point notwithstanding her social anxiety she was able to work as a high school chemistry teacher. She expresses her frustration at not being provided suitable duties after she settled her prior workers compensation claim. She says the process trying to get such a return to work was very stressful and included her employer threatening to sack her and then saying that was a mistake. She says this dispute caused her a further injury to the point where she has lost her self-confidence, have a reduced work capacity and she became depressed.
[2] ARD p 328.
At the time of writing her statement she says she can only do casual fill in work a few days per week. She says she finds that difficult even with a supportive employer at Fort St High School. She is critical of the opinion of Dr Roberts.

Certificate of Determination - Consent Orders

In matter 6237/18 involving the same parties there was a settlement and Senior Arbitrator Capel (as he then was) issued a Certificate of Determination - Consent Orders dated
23 January 2019 which included a notation that “the applicant admits that she has fully recovered from the effects of any work injury”.

Correspondence relating to return to work

On 5 February 2019 Ms Kerr’s solicitor wrote to the respondent to request suitable duties be supplied to Ms Kerr in accordance with Dr James’s report dated 29 January 2019.[3]
[3] ARD p 58.
On 21 May 2019 the respondent wrote to Ms Kerr advising they had received Dr Skinner’s report stating it raised concerns about her current ability to perform the requirements of a teacher.[4] They indicated they would like to meet with Ms Kerr to discuss the report.
[4] ARD p 59.
On 17 June 2019 Ms Kerr’s solicitor wrote to the respondent requesting suitable duties be provided to Ms Kerr and her salary be paid in the interim and backdated.[5] He asserted
Dr Skinner’s opinion was incorrect and contrary to Dr Roberts’ opinion and the settlement of the prior proceedings. On 20 June 2019 Ms Kerr’s solicitor served the report of Dr James dated 18 June 2019 and asserted the doctor, contrary to Dr Skinner’s opinion, did not find cognitive impairment. On 27 June 2019 the solicitor served Dr Turnbull’s report dated
[5] ARD p 60
26 June 2019.
On 19 July 2019 the respondent replied that, given Ms Kerr’s position that she could not return to the Kensington school, was contrary to her advising that she had fully recovered from the effects of the earlier injury. The respondent undertook to review all the evidence to ascertain if she was fit to fulfill the inherent requirements of her role as a secondary school teacher and, if so, whether there is a suitable position for her within the system.
On 23 July 2019 Ms Kerr’s solicitor replied that s 49 of the 1998 Act requires an employer to provide suitable duties. On 7 August 2019 the respondent replied that because Ms Kerr had resolved her compensation claim with them, s 49 may not be engaged. On 16 August 2019 the respondent advised that Ms Kerr had not supplied updated certificates of capacity and it was asserted without that a request for suitable duties has not been properly made. Several additional letters were exchanged between the parties.
Michael Graham, acting head teacher administration from Matraville High School provided a reference for Ms Kerr noting she had been employed as a casual at the school since
29 July 2019 teaching year 7 and 8 science, preliminary earth and environmental science and preliminary and HSC chemistry and other classes. He said she was reliable, professional, experienced, fair, open, friendly and showed empathy in her classes. He concludes that she is a valued member of staff. This was served on the respondent.
In letter dated 23 January 2020 the respondent referred to an offer of employment contained in their letter dated 17 December 2019 (which is not before the Commission). It is stated that the offer of suitable employment at St John Bosco Catholic College was to facilitate a return to work and was not designed to permanently reduce Ms Kerr’s hours. It indicated that the plan was for Ms Kerr to work three days per week and then in second term assume a full time load if medically indicated, when such a position became available.
On 3 February 2020 Ms Kerr’s solicitor wrote to the respondent advising this was not suitable employment and asked what payments were to be made to Ms Kerr in the period off work awaiting suitable duties.
On 14 February 2020 the respondent made an offer of a financial settlement to end
[6] Reply p 234.
Ms Kerr’s employment.[6]
On 8 April 2020 the respondent wrote to Ms Kerr seeking she respond to discuss her ongoing employment with the respondent, indicating the respondent must consider whether it can maintain her ongoing employment on the basis she had made no return to work despite their offer of suitable employment.[7]
[7] Reply p 237.
On 14 April 2020 the respondent wrote to Ms Kerr advising that they had made an offer of suitable employment in letters to her solicitor dated 22 November 2019, 17 December 2019, 23 January 2020 and 3 February 2020. They state that the offer was in accordance with the advice from Professor Mattick and Dr Skinner that a graduated return to work under supervision be provided. It was noted that Ms Kerr had rejected this offer and she was required to show cause why her employment should not be terminated in a meeting on
[8] ARD p 19.
22 April 2020.[8]
On 1 March 2022 the respondent’s solicitors served a s 78 notice disputing liability under
ss 4, 9A, 11A, 33, 60 and 66. They also asserted that if Ms Kerr did suffer from a psychological injury she had recovered from it. It was also advised that because the past compensation was paid by it on a voluntary basis therefore the liability disputes previously raised remain. In the prior proceedings 6237/18 while the payment of weekly compensation was done under a “voluntary basis” the parties agreed on the Commission making orders of awards for the respondent for weekly payments and medical expenses beyond those made voluntarily. In these circumstances, it is arguable that the liability disputes previously raised were brought to finality by those consent orders. In any event, Ms Kerr in the present proceedings does not rely on the events giving rise to the prior psychological injury claim.

Treating medical reports

Dr Yvonne Skarbek is Ms Kerr’s consultant psychiatrist who has provided a report dated
[9] ARD p 22.
16 November 2017 in which she diagnosed that at that time Ms Kerr, secondary to workplace stressors and bullying, had a major depressive illness and exacerbation of her social anxiety disorder.[9]
Dr Vaughan Turnbull, psychiatrist provided a report to Ms Kerr’s general practitioner dated 26 June 2019 in which he confirmed he had treated Ms Kerr since 2007 and before that his colleague Dr Chandra had treated her since 1990 for severe social anxiety and aspects of generalised anxiety disorders.[10] He states that he disagrees with some of Dr Skinner’s findings and he makes the point that the examination by Dr Skinner at the request of the respondent put Ms Kerr in a conflictual situation. Dr Turnbull advised that Ms Kerr is one of a handful of HSC chemistry examiners and she has never suffered cognitive impairments. He did not recommend a neuropsychological assessment. He found Ms Kerr was fit to return to work but not to her previous school. He added that any return to work should be supervised and on a graded return program.
[10] ARD p 45.
Dr Turnbull considered Professor Mattick’s report and advised a factor that had not been considered is that Ms Kerr has competence in abilities she has used every day for years in the classroom and so he reasons that there would be no impairments in her teaching abilities and functions. He adds that the assessment by Professor Mattick was in a novel situation for her and she has for decades performed poorly in novel situations. He is adamant that Ms Kerr does not have cognitive problems.
Dr Turnbull’s earlier report dated 25 May 2016 has also been read by me but not summarised because it does not deal with the situation immediately before the present alleged injury.
Dr Vivienne James is Ms Kerr’s more recent psychiatrist and on 29 January 2019 she advised that Ms Kerr was fit to work in a supportive environment, at duties comparable to her previous duties, at a girls school, teaching chemistry, not at the former school at Kensington and at a school within half an hour of her residence.[11] In a report to the respondent dated
18 June 2019 Dr James advised that she did not agree with Dr Skinner’s report dated
16 May 2019 that Ms Kerr was unfit to work. She attributed Ms Kerr’s presentation to
[11] ARD p 54.
Dr Skinner as due to her anxiety.
Dr James provided a report dated 22 September 2022 in which she agrees that the respondent, post 2018, caused a further injury to Ms Kerr by failing to provide suitable employment after she was deemed fit to work.[12] She states that Ms Kerr’s role of a chemistry teacher, capable of teaching at HSC level including being a senior HSC marker, is intrinsic to her sense of self. The doctor states that the respondent, by denying her capability, caused Ms Kerr to doubt her teaching abilities and to doubt her value as a person leading to feelings of hopelessness and chronic low self-esteem. Dr James states the protracted time led to stress and it was more likely to cause her psychological injury. Dr James also found that the label placed on her that she had cognitive impairment also caused distress and was proved not to be true. Dr James states that Dr Roberts’ diagnoses of psychosis is not correct as she has seen Ms Kerr multiple times and she had never felt Ms Kerr was psychotic.
[12] ARD p 330.
Dr James explains why the medication prescribed in the past for Ms Kerr was not indicative that she suffered from psychosis. Dr James again emphasises that in the years she has treated Ms Kerr she has never seen any sign of this.
Dr James agrees with Dr Teoh that Ms Kerr has suffered a permanent injury and her employment as a casual teacher providing a supervisor role in a selective school is a significant deterioration from working as a year 12 chemistry teacher and a senior HSC marker.

Dr Skinner

Dr Yvonne Skinner, psychiatrist, provided a medico-legal report for the respondent dated
[13] ARD p 40.
3 June 2016.[13] I have read this report but will not summarise it because it deals with the prior psychological injury claim.
Dr Skinner provided a report for the respondent dated 16 May 2019 to assess Ms Kerr’s fitness to return to work as a high school science teacher.[14] Page 4 is missing from this report. Dr Skinner found that she was not fit to return to work in her substantive position as a high school teacher or in any occupation requiring a high degree of intellectual input.
[14] ARD p 29.
Dr Skinner states she needs more information about her present treatment and a further examination in six months’ time to determine if her mental state has improved. It is not entirely clear for the basis of her opinion, given the missing page 4. However, in her subsequent report Dr Skinner said she was concerned about Ms Kerr’s mental health and cognitive ability and high use of benzodiazepine tranquillisers.
In the further report dated 12 November 2019, Dr Skinner noted that a neuropsychological assessment of Ms Kerr had been undertaken by Professor Mattick, who reported on
28 August 2019.[15] Dr Skinner noted that Ms Kerr told Professor Mattick that she did not have any difficulties about returning to work but she could not go back to her former school at Kensington due to the previous problems with the head of department and principal. She advised she had returned to casual teaching at Matraville High School and she wanted to return to full time teaching and resume her role as a chemistry and physics teacher.
[15] ARD p 32.
Dr Skinner recorded that Professor Mattick found Ms Kerr was fit to carry out her work as a teacher with the respondent given she is probably left with the same level of social anxiety disorder that she had previously. However, she noted that Professor Mattick considered she had more emotional disturbance than she revealed. He recommended that she not be returned to the Kensington school and she should be allocated years 11 and 12 chemistry. He recommended a return to work trial with careful supervision in a supportive environment at a different school which he said would be the best way to determine her capabilities in the workplace.
Dr Skinner found that at the time of her assessment Ms Kerr’s was not suffering from depression. She recommended a return to work trial on a casual or part time capacity, three days per week and if successfully full time in the second term.

Dr Teoh

Dr Teoh, psychiatrist, provided a medico-legal report for Ms Kerr dated 5 May 2018 at which time he diagnosed the presence of a major depressive disorder. He also found a social anxiety disorder which he found was pre-existing. He found the depression was caused by bullying and harassment at work.[16]
[16] ARD p 26.

Dr Teoh provided a medico-legal report for Ms Kerr dated 3 December 2021.[17] He made a diagnosis of a major depressive disorder which he said was caused by bullying and harassment while she was working for the respondent. However, the history that Dr Teoh relates in this report does not mention the respondent denying Ms Kerr suitable duties, nor does the doctor mention the termination by administrative error in 2020.
[17] ARD p 8.
Dr Teoh examined Ms Kerr and provided report dated 8 June 2022.[18] He diagnosed that
[18] ARD p 303.
Ms Kerr had a major depressive disorder consistent with the injuries she had reported. The history taken by the doctor was that following the settlement of her prior claim her employer had not provided her with suitable duties and this had made her feel worse. Dr Teoh notes that she is working three to four days per week in a casual teaching position. He advises that she has lost her capacity to work and has suffered financial and reputational harm as a result of her depression related to her work injury.

Dr Roberts

Dr Roberts, psychiatrist, has provided several medico-legal reports for the respondent dated 29 January 2018, 4 November 2018, 2 January 2019 and 14 August 2022. In his first report Dr Roberts states he examined Ms Kerr on 27 November 2017.[19] This report deals with her prior workers compensation claim and Dr Roberts found she presented as an unwell person and diagnosed a major depression with anxiety and did not consider her at that time fit for work. He anticipated with appropriate treatment she could return to pre-injury employment within three to six months. He added having regard to her previous functionality, he predicted a treatment induced remission with a return to normal function in another employment location.
[19] Reply p 1.
Dr Roberts re-examined Ms Kerr and provided a further report dated 4 November 2018.[20] He expressed the view that at that time she was not fit for work but he anticipated her prognosis was a return to employment. He considered her mental state was due to her pre-existing psychopathy not the incidents at work.
[20] Reply p 15.
Dr Roberts provided a report dated 2 January 2019 based on documents sent to him by the respondent’s solicitor. These were mainly statements from colleagues in relation to the earlier compensation claim.
Dr Roberts examined Ms Kerr again and provided a report dated 14 August 2022.[21]
Dr Roberts places considerable emphasis on Ms Kerr’s treating psychiatrist considering whether she was psychotic. However, the presence of psychosis was considered by
Dr Chandra in 1990 when he advised the general practitioner she might have paranoid schizophrenia and to rule out that possibility he prescribed Ms Kerr a trial of Muralax.[22] However, there is no evidence that a diagnosis of psychosis was ultimately confirmed and
Dr Turnbull who has treated her since 2007 did not make such a diagnosis. In 2007
Dr Turnbull found she has a panic disorder with agoraphobia. In February 2008 Dr Turnbull noted her only medication was Oxazepam.[23] In his report dated 1 December 2015 he dealt with her past history and advised that her presentation is quite complex with a relatively well controlled social anxiety disorder.[24] In his report to the respondent on 25 May 2016
[21] Reply p 36.
[22] ARD p 162.
[23] ARD p 139.
[24] ARD p 153.
Dr Turnbull advises that in the time he has been treating Ms Kerr there have been no psychotic symptoms.
I consider that more weight should be afforded to the opinions of Dr Turnbull and Dr James because they have been involved in Ms Kerr’s care over many years and assessing her frequently.
Furthermore, Dr Roberts states he is not able to undertake an assessment of any alleged injury for the period January 2019 to October 2021 as he does not consider that any injury has occurred.[25]
[25] Reply p 48.

Submissions

Mr Collins advised that Ms Kerr’s case was based on a psychological injury having occurred meeting the requirements in ss 4(a) and 9A of the 1987 Act.
Mr Collins submitted that Ms Kerr made formal requests for return to suitable duties but none were supplied. He submitted s 49(1) of 1998 Act imposes a duty to provide suitable duties. Suitable duties are defined in s 32A of the 1987 Act and he submits this applies whether or not duties are available. He says s 49 requires the employer to create a position of suitable duties and ss 43(5) and 45(7) of 1998 Act requires the employer to have plans for return to work. He submits employer has an active duty to get workers back to work. In this case Ms Kerr had been advocating for her return to work on suitable duties. He says as a result of this she suffered injury. Mr Collins submits injury does not arise out of any reasonable action taken by employer. He argues that her injury arises out of her employer’s failure to do anything. Therefore, he submits s 11A of the 1987 Act does not apply.
It was submitted that the respondent’s Dr Roberts describes the applicant as unwell person due to her unrelated psychological condition. It was submitted that Dr Roberts fails to take into account that her social anxiety condition did not prevent her from being successful at university, obtaining a master’s degree in French and that she has been a successful teacher since 2001, as well as an HSC marker in chemistry.
Mr Collins relies on the fact that, following the episode in 2018 of major depression, she recovered and was fully fit to work. She then did casual work at Matraville and Fort Street High Schools. It was submitted that Dr Teoh and Dr James have found that she has suffered a new injury and it was argued that weight should be given to Dr James’ opinion because she is the treating psychologist who has seen her every one or two months. Dr James found Ms Kerr did suffer an injury due to the failure to supply suitable duties and so Ms Kerr felt she had been left on scrap heap. It was submitted that Dr James opinion should be preferred over that of Dr Roberts.
Mr Halligan submitted that Dr Roberts’ opinion should be preferred, that Ms Kerr’s employment had nothing to do with her condition. He argued that the historical bullying allegations, as discussed in the statements by fellow workers, were not supportive of the allegation that Ms Marshall had bullied her. He also submitted that most of the medical reports lack particularity as to the bullying, so he states it is not clear how conditions came about.
Mr Halligan referred to the Certificate of Determination – Consent Orders made on
22 January 2019 in the prior proceedings, which include a number of admissions. He noted that Ms Kerr admitted that she is fully recovered from any work injury, and from July 2018 she has not suffered any loss and agrees from January 2019 has not required any medical treatment. He posed the question “what was the obligation on respondent to do anything, as she had fully recovered?”.
He argued that there is no obligation on respondent in relation to a person who is fit for work and he points to the fact that Ms Kerr has been able to secure employment. Mr Halligan argued that the provisions relied on by Mr Collins ss 41- 47 of the 1998 Act are designed for different circumstances, they rely on a residual liability on respondent from a workplace relationship. He submits the admissions made by Ms Kerr in the prior proceedings have removed that relationship.
In relation to s 11A, Mr Halligan initially submitted they are matters set out in statements of witnesses, a series of behavioural matters such as with students that made her presence in workplace inappropriate. He stated that it was clear that some of the behavioural aspects of her employment had come under the notice of supervising staff for correction. However, then he submitted that s 11A is irrelevant as it is “ancient history because the settlement ended the obligation of respondent to do anything”.
He submitted that the type of psychological injury being claimed should be regarded as a disease process and s 4(b) of the 1987 Act requires the employment to be the main contributing factor to the contraction or aggravation of the disease, which is significantly different to s 9A of the 1987 Act.
Mr Halligan submitted that Dr Teoh in his two reports in 2018 and 2021 diagnoses major depressive disorder and he argues it is relevant that Ms Kerr had the same condition in both periods. It was further submitted that there is really no medical support for the allegation that there is a new injury as Dr James speaks about a “slow deterioration” and Mr Halligan submitted she makes no proper diagnosis.
In reply Mr Collins submitted that Dr James does make diagnosis of a social anxiety disorder and major depressive disorder and agrees with Dr Teoh.

Determination

Even though Mr Collins in his submissions refers to various sections in the 1998 Act, such as s 49, in these proceedings he has not sought that the Commission make orders in relation to workplace injury management.
The current proceedings brought by Ms Kerr relate to lump sum and weekly compensation claimed for a psychological injury she alleges she sustained in the course of her employment with the respondent. The causative allegation of injury relied upon is failure by the respondent to provide suitable duties from 5 February 2019 to 5 October 2021 including termination in January 2020 by administrative error.
In order to determine if Ms Kerr has sustained a psychological injury it is necessary to have regard to the medical evidence before the Commission, as well as the evidence in her statements, and to consider if that evidence fulfils the definition of injury in s 4 of the 1987 Act.
Mr Collins advised he relied on s 4(a) of the 1987 Act whereas Mr Halligan asserted s 4(b) of the 1987 Act was the applicable legislative provision.
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[26] 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.”
[26] (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.
Ms Kerr has the onus of proof in establishing that she has suffered an injury within the terms of s 4 of the 1987 Act.
Dr James at the beginning of 2019 provided her opinion that Ms Kerr was fit for her employment as a secondary school chemistry teacher, not at her former school at Kensington. Dr Turnbull who had not seen Ms Kerr since 2017 examined her again on
21 June 2019. He states that on that occasion he found her to have had a positive improvement in her anxiety and mood and he found no evidence of cognitive impairments and there was no anxiety or depression evident at that consultation. Dr Turnbull disagreed with Dr Skinner’s assessment and said she has never suffered from cognitive impairment.
Dr Turnbull found her fit to return to work, not at her previous school and the return to work needed to be graded and supervised.
Both Dr James and Dr Turnbull disagreed with Dr Skinner’s assessment that Ms Kerr had cognitive impairment and attributed her presentation to Dr Skinner to Ms Kerr being anxious in such an interview. Both doctors relied on their familiarity with Ms Kerr over a period of time to come to their conclusions.
Therefore, by mid-2019 both treating psychiatrists had come to the same view that Ms Kerr was fit to return to work.
Dr James confirms in her report dated 22 September 2022 that from January 2019 she has seen Ms Kerr every one to two months and she has been a witness to her slow deterioration since then because of the failure for suitable employment to be provided by the respondent, leading to Ms Kerr feeling she is only fit for the scrap heap. I consider that Dr James is in the best position to judge whether Ms Kerr has sustained a psychological injury over the period in question because of the frequency of her consultations with Ms Kerr over that time.
I have indicated above why I have determined that Dr Roberts’ opinion should not be given weight and the opinion of Dr James should be preferred. Dr James is Ms Kerr’s treating psychiatrist and as stated, she has had the advantage to treating her over several years, during the relevant events relied upon in relation to this claim. Dr James also provides reasons why she disagrees with Dr Roberts’ opinion in relation to psychosis, and I have earlier expressed my reasons.
In her report dated 22 September 2022 Dr James advises that a further injury was sustained by Ms Kerr because of the failure to provide suitable employment after Ms Kerr was deemed fit for work. Dr James found that as a result Ms Kerr suffered self-doubt, feelings of hopelessness and chronic low self-esteem. She also opines that the label placed on her of having cognitive impairment caused distress.
The opinion of Dr Teoh in his report dated 8 June 2022 is that Ms Kerr has a major depressive disorder and he finds that her employer failed to provide her with a job and continued to treat her unfairly and she felt as if her harassment had continued and her psychiatric condition was aggravated and perpetuated. Dr James states that she agrees with Dr Teoh that Ms Kerr has suffered a permanent injury and even though she is working as a casual teacher, the role is largely supervisory and represents a significant deterioration from working as a year 12 chemistry teacher and senior HSC marker.
Even though Ms Kerr suffers from a pre-existing and continuing social anxiety disorder, as discussed in K’s case that does not preclude a finding that she has suffered a psychological injury. As quoted in K’s case there is an “egg-shell psyche” principle and an employer has to take a worker as they find them. Furthermore, in K’s case it was found that 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”. In
Ms Kerr’s case her perception of the events surrounding her request to return to work from 2019 was that she developed feelings of hopelessness, chronic low self-esteem and that her employer doubted her teaching capabilities. Dr James speaks of the delay in the process to return Ms Kerr to work, including being advised it was thought she had a cognitive impairment even though her two treating psychiatrists did not agree with this diagnosis, as well as the requirement to undergo neuropsychological assessment. Dr James refers to the protracted time as being immensely stressful for Ms Kerr making it more likely to cause her psychological injury.
It is evident from the treating psychiatrists’ reports that her mental state deteriorated from the beginning of 2019 leading to the diagnosis of major depressive disorder being added to her underlying pre-existing and continuing social anxiety disorder.
Accordingly, for the above reasons, I find that Ms Kerr has established that she has suffered a psychological injury as a result of the process of responding to her request to return to work.
Because of her injury occurring over time, I consider the matter is more appropriately categorised as an injury under s 4(b) rather than s 4(a) of the 1987 Act. Section 4(b) requires the employment to be the main contributing factor to the contraction or to the aggravation etc of the disease, in this case the major depressive disorder. Given Dr Turnbull in June 2019 found no signs of depression and he and Dr James found she was fit for employment and there was no diagnosis by either of them of a major depressive disorder at that time, s 4(b)(i) may arguably be the most relevant part of s 4. However, as the respondent submitted,
Dr Teoh in 2018 had diagnosed the presence of a major depressive disorder and I note
Dr Skarbek in 2017 had also found at that time a major depressive disorder. The re-emergence of a major depressive disorder could also support a finding that s 4(b)(ii) is the relevant legislative provision, that there has been an aggravation of disease.
I find in this case the distinction does not matter because on any view that it was the employment that was the main contributing factor to the contraction or aggravation etc of this disease. No other cause has been postulated. Dr James clearly attributes the slow deterioration to the employment, as does Dr Teoh. I have preferred the opinion of Dr James to Dr Roberts because she has explained why psychosis is not present and Dr Roberts’ opinion was so heavily based on that theory that I cannot give weight to his opinion.
In the event that others may categorise the injury as falling within s 4(a), I would consider that the requirement under s 9A of the 1987 Act has been fulfilled because as I have stated no other cause has been postulated for Ms Kerr’s change in her psyche from the start of 2019, from a teacher who was considered by her treating psychiatrists as fit to return to work, to one who developed over the time thereafter a psychological injury in the form of a major depressive disorder. Therefore, her employment is a substantial contributing factor to her psychological injury.
The respondent put s 11A in issue but its counsel submitted it is irrelevant as it is “ancient history because the settlement ended the obligation of respondent to do anything”. I do not consider that the settlement of the prior proceedings ended the obligation of the respondent to do anything. Ms Kerr was still employed by them. Clearly by virtue of the correspondence from the employer they did not consider the employment relationship was at an end. In response to the request for a return to work by Ms Kerr, they arranged a medical examination with Dr Skinner, assessment by Professor Mattick and devised a draft return to work plan, (a copy of which had only been signed by them). As s 11A is a defence concerning which the respondent has the onus of proof, I find that they have not made out that defence. Not only were no submissions developed to support a defence, Dr Roberts’ opinion did not provide a basis for the defence.

In relation to the lump sum compensation claim I remit the matter to the President for referral to a Medical Assessor to assess Ms Kerr’s permanent impairment. In psychological injury cases symptoms can wax and wane, and the Medical Assessor will form his or her own diagnosis at the time of examination and the resultant whole person impairment assessment.
Following the issue by the Commission of the Medical Assessment Certificate, the matter is to be listed for a further preliminary conference in order to deal with the claim for weekly compensation, unless the parties file consent orders in relation to the same.

[2023] NSWPIC 81

3 March 2023