Knezevic v Precision Valve Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Knezevic v Precision Valve Australia Pty Ltd [2021] NSWPIC 405
APPLICANT:	Lucija Knezevic
RESPONDENT:	Precision Valve Australia Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	12 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and section 60 expenses; psychological injury accepted for the purposes of sections 4 and 11A(3) of the Workers Compensation Act 1987; whether injury wholly or predominantly caused by reasonable action with respect to transfer; Canterbury Bankstown Council v Gazi and Manly Pacific International Hotel v Doyle considered; Held - respondent has not demonstrated that actions with respect to duration of the temporary transfer and the applicant’s ability to return to her original role were reasonable in all the circumstances; section 11A(1) defence not made out; respondent to pay weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	1. The respondent has not discharged the onus of establishing a defence pursuant to s 11A(1) of the Workers Compensation Act 1987. 2. From 30 January 2021 to date, the applicant has had no current work capacity as a result of the injury.
ORDERS MADE:	1. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 from 30 January 2021 to date, and continuing in accordance with the Workers Compensation Act 1987, based on the agreed pre-injury average weekly earnings figure of $1,164.15, as periodically indexed. 2. The respondent to pay the applicant’s reasonably necessary incurred s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Ms Lucija Knezevic (the applicant) was employed by Precision Valve Australia Pty Ltd (the respondent) when she sustained a psychological injury.

A claim for compensation was lodged on 1 February 2021 and, on 23 February 2021, a dispute notice was issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).

The respondent’s insurer disputed liability on the basis that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). As a result, the applicant was said to have no entitlement to weekly compensation and medical or related treatment expenses for the claimed injury.

The applicant sought internal review of that decision pursuant to s 287A of the 1998 Act and further dispute notices maintaining the decision to dispute liability were issued on 8 April 2021 and 25 June 2021.

The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 14 July 2021. The applicant seeks weekly compensation from 30 January 2021 on an ongoing basis as well as compensation for her incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer for the purposes of s 11A(1) of the 1987 Act;
(b) the extent and quantification of incapacity resulting from injury; and
(c) the entitlement to s 60 expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing by teleconference on 9 September 2021. The applicant was represented by Mr Greg Horan of counsel, instructed by Ms Michelle Walsh. The respondent was represented by Mr Dewashish Adhikary of counsel, instructed by Mr Robbie Elder. A number of representatives from the insurer and the employer were also present.
During the conciliation conference, the parties agreed that the applicant had received no payments of weekly compensation to date and that the applicable pre-injury average weekly earnings (PIAWE) figure was $1,164.15. The applicant sought a general order in respect of the claim for incurred s 60 expenses.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 28 August 2021;

(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 2 September 2021;

(e) documents attached to an Application to Admit Late Documents lodged by the applicant on 3 September 2021; and

(f) certificates of capacity dated 15 July 2021 and 26 August 2021 lodged by the applicant on 9 September 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 22 February 2021, 24 August 2021 and 3 September 2021.
In her first statement, the applicant, who was then 61 years of age, gave evidence that she commenced employment with the respondent in 1994. After a month, the applicant took a job as a cake maker for approximately three months before returning to employment with the respondent in October 1995.
The applicant was initially employed as a casual and became a permanent employee on
10 January 1996. The applicant’s job title had changed over the years but she was presently employed as a production technician.
In her current role, the applicant was required to check ten machines. The applicant was required to check the parts and do paperwork and computer work. If there were any problems, she would report to a supervisor or process controller.
On 17 July 2020, the applicant was asked to change shifts on a temporary basis from a day shift to an afternoon shift in order to assist the Quality Control department for a short period of time. The applicant was given a letter to this effect on the same date. The applicant agreed to change shifts for a short time. The applicant was told she would receive adequate training.
From July 2020 until November 2020, the applicant felt under consistent stress and pressure as she did not receive adequate training to perform the new role efficiently. The applicant was asked to start her shift two hours earlier for a few days in order to shadow a co-worker. The co-worker trained the applicant for the role in between her normal daily duties.

The applicant did not feel that this training was adequate and this caused a lot of stress and anxiety on a daily basis in performing her tasks. On several occasions, when the applicant would ask questions or request assistance from her co-workers she was told that this had already been shown to her and she should know what she was doing. The applicant felt enormous pressure from her co-workers to pass production in short periods of time to meet specific deadlines. The applicant was not comfortable that the necessary checks had been performed adequately.
Some co-workers assured the applicant that she could take her time to perform her job adequately, whilst others placed pressure on her to fast track the process. Sometimes the applicant felt paralysed in performing her duties.
On a number of occasions, the applicant spoke to her supervisor, Mr Sossio Capasso and the Quality Manager, Mr David Croudace, indicating that she had not received necessary training and requesting to return to her regular role of production technician on a day shift. The applicant advised that she was experiencing difficulties concentrating during the afternoon shift, especially between 9pm and 11pm. This was affecting the applicant’s physical and mental health. The applicant was struggling to stay awake and drive home at the end of the shift. As she had been working on day shift for such a long period of time, she naturally woke up at around 5:30am. The applicant was also struggling with not seeing her family and friends at all during the week.
The applicant began crying on the way to work and during her breaks. The applicant also felt stressed when required to assist labourers on the floor struggling with their workload. The working environment became more stressful with work colleagues collapsing, giving up or resigning due to the stressful atmosphere and lack of support from management. The applicant worried increasingly about her health and how she would push through the shift.

On 19 January 2021, the applicant was told by Mr Capasso that her original position on day shift had been filled by someone else and was no longer available for the applicant to return to as promised. This caused the applicant a lot of stress due to the struggles she had faced in the new role.
The applicant had worked for the respondent for 25 years and always showed loyalty to the company, her fellow workmates and supervisors, helping whenever she could. There had been a lot of changes in the processes and procedures at work in the last year resulting in the applicant struggling to complete her work within the required time frames. Despite raising these issues with management, nothing had been actioned. As a result, the applicant’s physical and mental health had suffered. The applicant found herself crying throughout the day, as well as during work, thinking and stressing about work, her shift, her job performance and the extra pressures and growing negative atmosphere in the work environment.
The applicant said she reported her difficulties on a number of occasions between October and November 2020. On 19 January 2021 and 21 January 2021, the applicant obtained a general medical certificate due to stress related from work. A WorkCover certificate of capacity was issued on 21 January 2021.
On 27 January 2021, the applicant was told she was not able to continue work until she received a medical clearance.
The applicant had been referred to see clinical and forensic psychologist, Zoran Protulipac, whom she saw weekly. The applicant had been prescribed medication. The applicant expressed the view that she had no capacity to work.
In her supplementary statements, the applicant responded specifically to evidence set out in statements prepared by the respondent’s witnesses.
In the statement of 24 August 2021, the applicant agreed that she was provided with some training but the training was not adequate for the duties required of her. The applicant disagreed that the afternoon shift was essentially the same as her morning shift. The applicant was a production technician grade 3 on the day shift. On the afternoon shift, the applicant was required to perform a quality control role. The applicant’s previous role was to monitor production and maintain quality. In the Quality Control department the applicant had more specific procedures and responsibilities compared to her previous role. The tasks required in the Quality department involved more complicated production approval processes. There was more paperwork and paperwork of a kind the applicant had not dealt with before. The applicant’s duties included, handling lots of small parts, reading through complex manuals and PC databases, comparing measurements of individual parts for specifications, weighing machine parts and entering information into a computer. The applicant was uncomfortable with performing certain duties and felt that she required a lot more training. Every day there was something new for her to learn.
The applicant said she did ask Mr Croudace and her supervisor Yasmin for help. Yasmin would help as much as she could but wasn’t able to assist with using the computer. There were many occasions where the applicant would become upset and cry. The applicant said she saw Mr Capasso multiple times when she was upset and crying. The applicant said she made multiple complaints during her employment and Mr Capasso said she was the only one complaining.
The applicant said she would ask other people for help but they could not provide proper assistance because they were doing their own jobs.
The applicant said she was told by Mr Capasso that her day shift position was filled on 19 January 2021 and that she was not going back to the day shift. The applicant said she would ask about the unfair dismissal case but was not told anything until she found out from her supervisor Yasmin that the employee had lost the case. The applicant asked Mr Capasso what this meant for her job and he advised her that the day shift had been filled.
In her statement of 3 September 2021, the applicant agreed that she had worked in a quality control position on a few occasions but was doing simple start-up duties. There had been no paperwork involved. It was nothing like what she experienced when she moved to the afternoon shift.
Attached to the ARD is an undated letter, described elsewhere as having been given to the Mr Croudace, on 25 January 2021. The letter states:
“● On the 17 of July 2020 I was asked to change shifts on a temporary basis from day shift to afternoon shift in order to assist the QC department for a short period of time (see letter dated 17^th July 2020). I agreed to it as it was mentioned that it would be for a few months only but now I am seeing that it is not the case.
·After 3 month of working on the afternoon shift I have asked management several times for a clear answer as to how much longer the company is thinking of having me working the A/S as I experience difficulties concentrating during the duration of the shift. This is affecting my physical and mental health. In addition the family is struggling to cope with me no longer being part of any activities during the week.
I think I am on the verge of having a mental breakdown in which I am seeing a medical professional (Please see doctors certificate).
·Last week I was told that my position on D/S is filled by someone else and is no longer available for me to return to as promised (As per agreement written up by PVA). Nothing could be done, and I was asked to come up with some suggestions.
·I am very disappointed with the way things are turning now. I always showed my loyalty to the company, fellow workmates and colleague's in-charge and I have been with PVA for 25 years. I have helped whenever I can and even changed shifts to help the company out but now am very disappointed in you guys that you cannot see how much of a toll this is taking on me.
…
If the company is not able to revert me back to my previous roster dayshift I would consider voluntary redundancy.”

Mr Capasso

The respondent relies on written statements made by Mr Sossio Capasso, dated 23 February 2021 and 1 September 2021.
Mr Capasso said he was employed by the respondent as a production and toolroom manager.
Mr Capasso stated that the applicant’s job in the afternoon shift was essentially the same as the morning shift and involved quality assurance. The applicant had to perform some additional tasks, however, these were under supervision. If the applicant had any questions, she had a specialist quality assurance person to ask and had the contact details for the quality assurance managers. At no point did the applicant raise concerns about her job tasks.
Mr Capasso said the change in shifts was operationally necessary. An employee had been dismissed and was undergoing an unfair dismissal case. Her position could not be filled until the matter was determined. The case was resolved in January 2021 and the applicant was kept informed of the progress. The applicant would have been transferred back to her day shift once training was complete for the new employee.
Mr Capasso said the applicant never reported her concerns until 25 January 2021 when she provided a letter describing her mental state. The applicant did continually ask when she could return back to her dayshift and was always informed of the process of the unfair dismissal case. Mr Capasso said the applicant never reported that she was struggling and he never saw her cry at work.
Mr Capasso disagreed that other staff had left due to a stressful working environment. The company had a number of long serving employees with over 30 years’ experience.
Mr Capasso denied that the applicant was told her position on the day shift had been filled by someone else. The applicant gave the company an ultimatum verbally to be returned to the day shift in her letter on 25 January 2021.

Mr Capasso denied there had been changes in processes since 2010. He said he had received no complaints about anyone else struggling with timelines and he spoke regularly to staff on the floor.
In his further statement, Mr Capasso said the applicant was chosen to fill the temporary transfer role because she had the skills to perform the role. The applicant was one of the respondent’s most experienced staff members and knew all the operational requirements of the two roles. The applicant had stepped up into the shift several times during her employment, as and when required, and had backfilled the role in the absence of other staff without any issues.
The applicant’s enterprise agreement allowed the company to transfer employees across shifts with notice. Another staff member had filled the temporary position in the applicant’s absence and was able to perform the role without any concerns despite not having the extensive knowledge, experience and skill set possessed by the applicant.
Although the applicant was asked to complete a few added duties, the applicant was provided with additional training when she commenced the transfer. Ongoing support was provided by Mr Croudace and several other staff.
The applicant’s duties remained the same as in her day shift with some added duties. At no time had the applicant been asked to carry out tasks she was unsure of or uncertain about. The respondent had been happy with the applicant’s performance.
Mr Capasso said he reassured the applicant on several occasions that once the unfair dismissal matter was finalised, she would be transferred back to dayshift. The previous employee was seeking reinstatement so the position could not be recruited for and was only backfilled temporarily.
Mr Capasso denied stating that the applicant’s position on day shift was not available to her or that she was not returning to her day shift.

Ms Leonardi

The respondent relies on written statements made by Ms Lilianne Leonardi, dated 23 February 2021 and 2 September 2021.
Ms Leonardi said she was employed by the respondent in the role of HR business partner.
Ms Leonardi said she became aware of the applicant’s injury on 25 January 2021 when she received an email from David Croudace indicating that the applicant had provided a letter in which she mentioned she was on the verge of suffering a mental breakdown. A general medical certificate was provided on 28 January 2021. A WorkCover certificate of capacity was provided on 30 January 2021.
Ms Leonardi confirmed that the applicant was asked to work afternoon shifts due to operational requirements for an unspecified period of time. The applicant was due to return to her day shift in about March 2021.
Ms Leonardi said that the transfer letter issued to the applicant on 17 July 2020 stated that the applicant could see her with any questions regarding the matter. The applicant did not complain or raise any concerns to her about being transferred to the afternoon shift.

Ms Leonardi said it was not true that the applicant made multiple complaints during her employment. Ms Leonardi said when she commenced employment with the respondent in May 2020, she arranged a mediation session between all quality staff in early June 2020. Staff were afforded with the opportunity to raise concerns, however, no one did. Following the meeting, Ms Leonardi followed up with participants individually to see if there were any concerns they wished to raise outside of that forum, however, no one had any concerns.
Ms Leonardi said that at no point did the applicant approach her or raise any concern about being transferred to the afternoon shift. Ms Leonardi was not aware that the applicant did not want to work the afternoon shift nor was she aware that she was struggling psychologically prior to her letter to David Croudace on 25 January 2021.

Mr Croudace

A letter addressed to the applicant from Mr David Croudace, Quality Manger, dated 17 July 2020 stated:
“This letter is to confirm our discussions had with you on Friday, 17th July 2020 with regards to your temporary transfer to Afternoon shift for an unspecified period in accordance with Clause 14.1 of the Precision Valve Australia Pty Limited Enterprise Agreement 2019.
I am pleased to advise you that effective, Monday, 27th July 2020, your temporary revised hours of work will be 3pm to 11.06pm Mon -Fri. You will be eligible to receive a 15% shift penalty allowance for completing his shift.
On completion of the afternoon arrangement, Precision Valve Australia will provide you with 1 weeks' notice to revert you back to your nominal rostered shift.”
An email from Mr Croudace to Ms Leonardi, dated 25 January 2021, notes that the applicant had been off work in hospital having tests for problems with her stomach but had come into work and given him a letter. Mr Croudace said:
“Lucy said that she is happy with the work that has been assigned to her and has no issue with the treatment or instructions given to her by myself, other managers or supervisors. She said that her issue is that working on A/S is affecting her mental and physical health.
…
Lucy also mentioned a discussion with Management and that her role on D/S is not available to her at the moment. This is not a conversation she had with me, but possibly Sossio.
I said to Lucy that I have had discussions about possible recruiting for her position, but no decision has been made and I can't make any promises about her changing shifts in the future. I also said I will pass the letter on to yourself and if you have any questions you will either come back to Lucy or myself.”
Mr Croudace prepared a written statement dated 2 September 2021. Mr Croudace said the applicant was provided with extra support during her time on afternoon shift duties. The applicant was assured by Mr Croudace on several occasions that she was not expected to undertake any duty she did not feel comfortable with. When the applicant asked questions about the added duties, he would personally provide her with training or appoint a senior quality assurance officer to assist in training her. The applicant was not left alone to undertake her duties and was not expected to perform any duties outside her skill set, qualifications or experience.
Mr Croudace said that at no point did the applicant advise him that the added tasks were causing her stress or affecting her mental well-being. The applicant did say she hated being transferred to the afternoon shift. Mr Croudace did recall a conversation with the applicant saying she was not happy working on the afternoon shift because she wasn’t spending time with her family. Mr Croudace tried to explain he was not sure how long her transfer would be as there were several things happening confidentially that he could not discuss with her at the time. The applicant’s main concern was that her transfer to the afternoon shift was interrupting her social lifestyle. The applicant specifically advised that she had no issues with carrying out the tasks and duties in the quality department.

Evidence from the applicant’s treating practitioners

On 21 January 2021, the applicant’s general practitioner, Dr Naila Shahid, wrote a letter to the applicant’s employer indicating that the applicant was suffering a medical illness:
“…it would be great if she is allowed for day shift if possible as afternoon shift is affecting her psychologically, as a result of that she is not concentrating on her work and also it affecting her relationship with her family and her social life.”
A mental health plan was completed on the same date, which gave a patient history in the same terms. “Stress / work related” was identified as an issue and a referral made to a psychologist.
A WorkCover certificate of capacity was issued by Dr Shahid certifying the applicant as having no work capacity for any employment in relation to a work injury described as follows:
“She was asked to do afternoon shift instead day shift which she has been doing for many years, Since July changing the shift to afternoon that put significant impact on her psychosocial life as a result of that she is not concentrating on her work and also it affecting her relationship with her family and her social life. She was told that it is only temporary change, therefore she accepted at first place but she is unable to continue now for afternoon shift due to stress its causing on her daily routine.”
Dr Shahid has continued to certify the applicant as having no current work capacity until
23 September 2021.
On 2 February 2021, Dr Shahid responded to a questionnaire from the respondent’s insurer. Dr Shahid diagnosed an adjustment disorder with mixed anxiety and depression as per DSM-V criteria. Asked to provide an opinion as to whether the psychological injury was work-related, Dr Shahid responded:
“Changed in her shift and heavy workload causing severe anxiety, depression and insomnia.”
Dr Shahid said the applicant reported feeling stressed, crying and unable to sleep on 21 January 2021. Dr Shahid said that work was “most likely” the main contributor in factor to the applicant’s current presentation given the denial of any other stressors.
Dr Shahid was asked whether the actions of the employer in relation to transfer were the whole or predominant cause of the applicant psychological injury. Dr Shahid responded,
“Yes, also recent changes at workplace affecting other workers as well.”
On 9 February 2021, clinical psychologist, Dr Zoran Protulipac, prepared a report to
Dr Shahid providing a history as follows:
“Mrs Knezevic reported being employed at Precision Valve for 25 years. Her performance was always praised and she seems to be an asset to the company. In the recent times however, the management changed and they shifted the focus of the company, most likely with an aim to close their operations. This placed Mrs. Knezevic in an uncomfortable position given that she is owed certain rights under the employment laws. The management created an unbearable atmosphere for their workers, including Mrs. Knezevic, harassing her and making heavy demands. This caused her to develop a severe psychological reaction marked by the symptoms of stress, anxiety, depression, and insomnia.”
Dr Protulipac diagnosed an adjustment disorder with mixed anxiety and depression as per DSM-V criteria. The applicant was noted to have no previous psychiatric history.
Dr Protulipac recommended that the applicant be placed on stress leave immediately and kept away from her workplace until her symptoms subsided.

Dr Allan

The applicant relies on a medicolegal report prepared by consultant psychiatrist, Dr Martin Allan, dated 10 June 2021.
Dr Allan had before him the applicant’s written statement dated 22 February 2021. Dr Allan reported that the applicant reaffirmed the multiple difficulties she had faced during 2020 when requested to take up a temporary position, which meant working afternoons in a role she was unfamiliar with. The applicant was promised that this would be a temporary basis for several months at most and would be given adequate training. The applicant described not receiving adequate training, repeatedly seeking help and further guidance only to be told that she had been advised about this already. The applicant described feeling out of her depth and overwhelmed. For several years prior to this, the applicant had observed changes in management procedures and number of co-workers leaving or being sacked. The applicant felt the workplace had evolved in a negative fashion during this period.

The applicant repeatedly emphasised to her supervisors, her desire to return to her usual role. The applicant was shocked when told by Mr Capasso that her usual position had been filled and she could not return to it. Mr Capasso had indicated that the applicant should write to the manager, Mr Croudace to see if anything could be done. The applicant’s general practitioner had written a request for the applicant to be returned to the day shift. This was provided to Mr Croudace and sent on to HR. On 27 January 2021, the applicant was told that until she had full clearance to return to work she should not come back.
Dr Allan described the onset of psychological symptoms:
“Ms Knezevic describes how from mid-2020 onwards when she took up the new temporary position, she experienced significant distress. This left her feeling low in mood, anxious, apprehensive en route to work, overwhelmed when there. She would frequently cry. She felt a pervasive sense of distress. She reports that over the time when she had been working in that role, her sleep quality had diminished significantly. She became erratic with her sleep patterns, developing initial and middle insomnia.”
Dr Allan gave a diagnosis an opinion as follows:
“Ms Knezevic displays symptoms consistent with an adjustment disorder with depressed and anxious mood. These symptoms have included anxious distress, ruminative worry, feelings of depression, initial and middle insomnia, dreams that she finds traumatic surrounding her workplace and the interactions with managers there. She describes fluctuant energy and appetite, a level of social withdrawal, feelings of being overwhelmed with a tendency to cry, marked apprehension and continued preoccupation and a level of embitterment at her treatment during the described period.”
The applicant was being treated for her adjustment disorder with psychological treatment and sporadic use of melatonin to assist with sleep. The applicant was not using the diazepam prescribed to her with any frequency.
With regard to the applicant’s capacity for work, Dr Allan gave the opinion:
“From 30 January 2021, Ms Knezevic has been fully incapacitated as a result of her injury. She lacks focus, her concentration is diminished, she is withdrawn, she is easily overwhelmed, she does not possess the capacity at this time to be able to effectively engage in her preinjury workplace or any alternative workplace.”
With regard to causation, Dr Allan stated:
“The circumstances of Ms Knezevic's employment as described were the substantial contributing factor to the development of a psychological injury. She was placed in a position temporarily but immediately overwhelmed. She was promised this would only be for a few months; this did not prove to be an accurate timeframe of how long she was to be in the role. She was told she would have adequate training and reports she was not provided with any. She repeatedly raised her concerns and reports that no adequate amendments to her role had taken place. She was shocked to be told that she would not be returning to her day role and that her old position had been filled. It is a result of these issues which arose in her employment, those being the substantial contributing factors to the development of what is now diagnosed as an adjustment disorder with depressed and anxious mood.”

Dr Ahmed

The respondent relies on a medicolegal report prepared by consultant psychiatrist,
Dr Tanveer Ahmed, dated 11 March 2021.
Under the heading, “Index Event”, Dr Ahmed took a history as follows:
“The key event appears to be that she was rotated to a different shift due to changing business needs from July 2020. She was provided with notice, however she said she was struggling with the changing times and became increasingly distressed.
She said the times did not suit in terms of managing her family life. She struggled with the change of routines. She said there were broader changes in the workplace and described it as ‘toxic’. She said apparently lots of people were leaving. She wanted to change back but according to her, her perception was that she was told not to come back. She interpreted this as a rejection after working for many years. I note from the investigations this did not appear to be the case and she was due to return to her old role in March.”
Dr Ahmed found the applicant satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood.
Asked whether the injury was wholly or prominently caused by the actions of the employer in relation to the transfer to afternoon shifts, Dr Ahmed responded:
“Yes, it is predominantly caused by the actions of the employer in relation to the transfer to afternoon shifts. I cannot say wholly because I note she was suffering some kind of heart palpitations which I expect was a form of anxiety last year.”

Dr Ahmed said the applicant was currently too unwell and too highly anxious to return to work. Dr Ahmed also considered the applicant was not adequately treated and would benefit from a low-dose antidepressant such as mirtazapine. Nonetheless, Dr Ahmed assessed the applicant’s working capacity at the time of interview to be 15 hours a week but with ongoing treatment, this could increase.
Asked whether the applicant was capable of seeking employment on the open labour market, Dr Ahmed responded:
“At this stage, it is unlikely she is capable of seeking other employment. She requires further treatment, and it is unlikely she will settle in the coming months.”
Asked whether the applicant was not working due to choice or due to a psychiatric incapacity to participate employment, Dr Ahmed responded that the applicant was not working due to psychiatric incapacity. Further:
“Non-clinical factors include her perception that the workplace is toxic, there are multiple changes and that she has not been adequately acknowledged for her many years of service.”

Respondent’s submissions

Mr Adhikary submitted that the evidence overwhelmingly indicated that transfer was the whole or predominant cause of the psychological injury.
Mr Adhikary referred to the authorities in Manly Pacific International Hotel v Doyle[1]
and Canterbury Bankstown Council v Gazi[2] with respect to the meaning of “transfer” in
[1] [1999] NSWCA 465.
[2] [2019] NSWWCCPD 14.
s 11A(1) of the 1987 Act.
All three of the respondent’s witnesses indicated that transfer was the cause of the applicant’s injury. The change or transfer was in relation to the shift allocated to the applicant. It was not necessary that there be a change in location.
Mr Adhikary noted that the respondent relied on the medicolegal report of Dr Ahmed. The history taken by Dr Ahmed was consistent with the respondent’s lay evidence. Dr Ahmed gave the opinion that the applicant had sustained a psychological injury but that transfer was the whole or predominant cause.

Mr Adhikary said that the treating evidence also suggested that transfer was the whole or predominant cause. Mr Adhikary referred, in particular, to the certificates and reports of
Dr Shahid. Dr Shahid had responded in the affirmative to a question from the insurer as to whether transfer was the whole or predominant cause.
Mr Adhikary submitted that it was sufficient that transfer was the predominant cause of injury.
Dr Allan had not been asked specifically to consider s 11A(1) but his responses were consistent with transfer being the predominant cause. The applicant relied on no medicolegal evidence to suggest that the injury was not predominantly caused by the transfer.
With respect to the reasonableness of the transfer action, Mr Adhikary referred to the authority in Northern New South Wales Local Health Network v Heggie[3]. The Commission was required to balance the rights of the employee with those of the employer and form a view as to whether the action was objectively reasonable. Mr Adhikary submitted that the evidence would persuade the Commission that the respondent’s actions were reasonable.
[3] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
Mr Adhikary submitted that it was reasonable in all the circumstances to ask the applicant to change her shift. Mr Capasso’s evidence was that the applicant was suitable for the job and the job was essentially the same as that which the applicant had been performing. The applicant had performed a similar role in the past. On an objective basis, it was reasonable to ask the applicant transfer for operational reasons.
The applicant was cognisant of the unfair dismissal case and was considered suitable for the role having performed similar duties in the past. The transfer was in accordance with the enterprise agreement. The transfer was also communicated to the applicant in a reasonable way in the letter dated 17 July 2020. The applicant had agreed to the transfer.
Mr Adhikary submitted that training and support were provided to the applicant following the transfer. The applicant had, however, performed similar work in the past and had been provided with training in the past. Mr Capasso’s evidence was that the applicant was provided with supervision and could have sought help from various other people.
Mr Adhikary submitted that the lay evidence established that the applicant had capacity to learn the new job and obtain assistance if required.
Mr Adhikary noted that the evidence established that the applicant had been provided with the opportunity to shadow a worker for a short-term in order to learn the new tasks.
Mr Adhikary said this was objectively reasonable. The applicant was not forced to come in early for this training but had been asked to and agreed.
The applicant was not inexperienced but had been employed by the organisation for many years. The level of training and support provided to the applicant in those circumstances was reasonable.
Mr Croudace’s evidence indicated that he personally provided the applicant with assistance and ongoing support was able to be obtained if required.
With regard to whether it was reasonable to keep the applicant in the afternoon shift,
Mr Adhikary submitted that the respondent had empathised with the applicant and tried to explain to her why she was being kept in the role. Mr Croudace’s evidence was consistent with Mr Capasso’s in indicating that at no time did the applicant inform them of mental health issues although she did communicate that she was not happy because she wasn’t spending time with her family. The more detailed complaints were only made after the applicant ceased work.

Mr Adhikary submitted that the respondent’s evidence ought to be accepted in preference to what the applicant had said. No evidence had been provided from any witness for the applicant to confirm that she ever complained or cried at work or communicated her mental health issues. The applicant described complaining or crying to other people but no evidence from such witnesses or family members to corroborate the applicant’s evidence had been provided.
There was no medical evidence to suggest that the applicant’s issues were raised with her managers. The actions of the respondent were objectively reasonable.
Mr Adhikary submitted that the email from Mr Croudace to Ms Leonardi demonstrated that he was surprised by the information that the applicant was having psychological issues. This evidence supported the contention that the applicant’s psychological symptoms had not previously been disclosed.
Mr Adhikary submitted that the failure to return the applicant to her initial role was reasonable. The applicant was made aware that she was moved to the new role due to the unfair dismissal case. Mr Capasso had given evidence that the applicant was always informed of the progress of the unfair dismissal case. The respondent could not say more or provide a more definitive update because the unfair dismissal case went on longer than expected. Mr Adhikary submitted that it would be unreasonable to expect the respondent to have done more.

Mr Adhikary submitted that the complaints made by the applicant were confined to her concerns about being able to spend time with her family and the impact upon her social life. Those concerns were not of a nature as to render the transfer unreasonable. The initial requirement for the transfer had not changed. The respondent was entitled to give weight to its own operational requirements. The applicant had been compensated adequately for the transfer.

Weighing the rights of the employee with the objectives of the employer it was reasonable not to transfer the applicant back into her initial position.
With regard to the applicant’s claim that the initial position had been filled, this allegation was expressly denied by Mr Capasso. The unfair dismissal case had not yet been finalised. The applicant said she was informed by another employee that the former employee had lost the case. Mr Capasso’s evidence, however, was that the applicant stopped work prior to the unfair dismissal claim being finalised and would have returned to her day shift in a few weeks’ time. The applicant provided the business with an ultimatum in her undated letter that she be returned to the position. In that letter, the applicant did not say who told her the role was filled. The email from Mr Croudace made clear that the day shift role had not been filled. Mr Adhikary submitted that the Commission would not accept the allegation made by the applicant and would not find the respondent’s conduct unreasonable.
With regard to capacity, Mr Adhikary noted that Dr Ahmed had found the applicant to have capacity to work 15 hours per week. Mr Adhikary said this opinion was not an outlier. Support for Dr Ahmed’s view was found in the treating evidence from the general practitioner and the letter written to the respondent by Dr Shahid requesting that the applicant be returned to her morning shift.

Applicant’s submissions

Mr Horan submitted that the applicant was a long-standing employee of the respondent, having worked there for approximately 25 years. On 17 July 2020, the applicant agreed to a change in her role from her long-standing and familiar day shift role to a temporary transfer to an afternoon shift commencing at 3pm and finishing at 11pm. The applicant was required to work in a different role, in quality control, and felt stressed and anxious doing the new role. The applicant felt inadequately qualified and experienced enormous pressure.

Mr Horan noted that Dr Allan’s report referred to the applicant feeling “immediately overwhelmed” in the new role. Dr Allan’s history was said to be consistent with the applicant’s evidence as to her performance of the new role. The applicant’s evidence was that her work in the new role impacted on the quality of her personal life.

The applicant gave evidence that she had a conversation with Mr Capasso regarding a return to her previous role. The undated letter expressing the applicant’s concerns and the email forwarding that letter from Mr Croudace to Ms Leonardi contained contemporaneous evidence reinforcing the applicant’s claim that she had been told her position would be no longer available to her.
Mr Horan submitted that Mr Croudace’s evidence that he told the applicant he “could not make any promises” about returning to her role appeared to fly in the face of the respondent’s submissions that it acted reasonably with respect to the transfer. The respondent’s submission was that the applicant was always going to be transferred back to her old role and was kept fully apprised of the unfair dismissal case and its progress.
Mr Croudace’s evidence as set out in the email dated 25 January 2021, however, confirmed that he had had discussions about possible recruitment for her position but no decision had been made and he could not make any promises about changing shifts in the future. This was an unreasonable response to the applicant’s heartfelt and specific allegations as to the impact of what she was told on 19 January 2021 about her position no longer being available.

Mr Horan submitted that the respondent’s actions on or after 19 January 2021, including the events on 25 January 2021, were not up to standard and were unsatisfactory in the circumstances. The respondent’s actions were unreasonable and unfair. The applicant was entitled to some reassurance that after six long months things were going to get better.
Mr Croudace’s response heightened the applicant’s concerns by saying he couldn’t make any promises.
Mr Horan submitted that Mr Capasso’s account of the meeting on 19 January 2021 was called into question. In his initial statement, Mr Capasso denied telling the applicant that her day shift had been filled but did not specifically deny that he told her that her day shift position was no longer available to her. Mr Capasso had denied only part of what the applicant alleged. Mr Capasso described the applicant giving the company an ultimatum to be returned to the day shift. The applicant had provided a detailed account of her discussion with Mr Capasso in her original statement and in her supplementary statements. The applicant’s account was more complete than the blanket denial made by Mr Capasso in his evidence.
Mr Horan submitted that the difficulties the applicant encountered in her new role were not matters with respect to transfer for the purposes of s 11A(1) of the 1987 Act. At 60 years of age and given her long-standing role, it was understandable that the applicant would find changes to her employment overwhelming. There was nothing unusual about the applicant’s evidence that she felt overwhelmed in the role. The feeling of being overwhelmed and under pressure was reported in the evidence from the applicant’s general practitioner and Dr Allan, both of whom emphasised the causal contribution of those events to the injury.

Dr Shahid identified the events which led to the applicant’s condition as the change in the applicant’s shift and heavy workload causing severe anxiety, depression and insomnia.
Mr Horan submitted that the reference to “heavy workload” was a reference to work in the quality-control role. That was a new and different role. Clearly Dr Shahid saw that work and the change in shift as significant.
Mr Horan submitted that Dr Allan had given a fuller opinion on causation. The placement in a temporary position and feeling immediately overwhelmed, not having been provided with adequate training and then being shocked to be told that she would not be returning to her original role and that her position had been filled were all identified by Dr Allan as causative of the injury.
These events could and should have been handled more reassuringly and in a more reasonable manner. The applicant could have been assured that she was being heard and that a decision on the unfair dismissal case was outstanding. There would be no breach of confidentiality in such a disclosure. Instead, the applicant’s anxiety was exacerbated rather than calmed by her discussions with Mr Croudace.
Mr Horan noted that Dr Allan’s report and the WorkCover certificates of capacity all certified the applicant as having no current capacity for employment. Although Dr Ahmed said the applicant had capacity to work 15 hours per week, his opinion was qualified by saying that it was unlikely the applicant was capable of seeking further employment. Mr Horan submitted that the Commission would not accept that the applicant was otherwise than totally incapacitated.

Respondent’s submissions in reply

Mr Adhikary noted the respondent’s witness evidence that the applicant had already gone off work due to stomach issues when she handed Mr Croudace her letter on 25 January 2021.
Mr Adhikary submitted that the Commission would not accept that either the applicant or
Mr Capasso’s statement contained more detail. Mr Capasso’s evidence was clear that he had not told the applicant that her role was filled.
To the extent that the applicant made submissions that her experience of her duties after transfer were not part of the transfer, Mr Adhikary submitted that this was inconsistent with the authorities in Canterbury Bankstown Council v Gazi[4] and Manly Pacific International Hotel v Doyle[5].
[4] [2019] NSWWCCPD 14.
[5] [1999] NSWCA 465.
The applicant’s role was not in fact filled. The Commission would not expect the respondent to have done any more than it did. The email from Mr Croudace confirmed that the role was not filled. Nowhere in that email did Mr Croudace say the role was filled or that the applicant would not be returning back to her original role. Mr Croudace simply said he could not make any promises and this was a reasonable response. Noting the timeline of the unfair dismissal matter, Mr Croudace was not in a position to say anything more. The respondent’s actions were reasonable.

FINDINGS AND REASONS

Whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer

There is no dispute in this case that the applicant sustained a psychological injury in the course of her employment with the respondent for the purposes of ss 4 and 11A(3) of the 1987 Act.
A worker who receives a psychological injury which satisfies ss 4 and 11A(3) will not, however, be entitled to compensation if a defence in s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence[6].
[6] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In considering the question of causation, Snell DP in Hamad v Q Catering Ltd[7] found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[7] [2017] NSWWCCPD 6; BC201701872.

Expert medical opinions have been provided by both the applicant and the respondent with respect to the cause of the applicant psychological condition.
The opinion provided by the respondent’s expert, Dr Ahmed, described as “the key event” the applicant being rotated to a different shift due to changing business needs from July 2020. Dr Ahmed noted that the applicant struggled with the change in shift time. The new shift did not suit her in terms of managing her family life and she struggled with the change of routines. the applicant wanted to return to her old shift but perceived that she was told not to come back. The applicant interpreted this as a rejection after working for the respondent for many years.
Dr Ahmed gave a clear opinion that the actions of the employer in relation to the transfer to afternoon shifts were the predominant cause of the injury.
The applicant’s expert, Dr Allan, has not given a direct opinion with respect to s 11A(1) but has described the causative events in a similar way. Dr Allan took a history of multiple difficulties during 2020 when requested to take up the temporary position. These included the timing of the new shift and the applicant’s unfamiliarity with the new role. The applicant described feeling immediately overwhelmed and reported that the training provided to her was inadequate. The applicant was initially told the new role would be for a few months but this did not prove to be the case. The applicant raised her concerns but no amendments to the role had taken place. The applicant was shocked to be told that her old position had been filled and she would not be returning to her day role.
The expert medical opinions on causation are broadly consistent with the opinions given by the applicant’s general practitioner.
Given that the medical opinions on causation identify a number of causative events, a careful analysis is required in order to discern whether the respondent has established that reasonable action or proposed action taken by or on behalf of the employer with respect to transfer was at least the predominant cause of the injury.
The respondent has referred in this regard to a number of authorities on what constitutes action with respect to “transfer” for the purposes of s 11A(1).
In Manly Pacific International Hotel v Doyle[8] (Doyle), the worker had been employed as a chef throughout his working life. The applicant had been employed in a role in the cold larder and was subsequently asked to work in the sauce section. The applicant expressed concern as he had not done that work in nine years. The applicant was reassured that he would get back to his previous role. When the applicant started work as a sauciere, he found the work very different to what he had been doing. The applicant had some assistance but had trouble with the quantities and found himself forgetting things. The applicant described an onset of psychological symptoms and was diagnosed with a psychological injury.
[8] [1999] NSWCA 465 at [6]-[9].
The Compensation Court found the applicant’s work as a sauciere was the prevailing cause of the applicant’s injury. The issue on appeal was whether the injury was wholly or predominantly caused by reasonable action with respect to transfer. Fitzgerald JA (with whom Mason P agreed) stated:
“In my opinion, the act of transfer of a worker by an employer, i.e., the communication of a decision to transfer (or a proposal to transfer) the worker, is an "action taken or proposed to be taken by or on behalf of the employer with respect to transfer ..." of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.
Davies AJA has stated (at [28]) that the Compensation Court ‘held that the circumstances under which Mr Doyle worked [after his transfer] were the predominant cause of his breakdown’ and expressed the opinion (at [27]) that, for the purpose of s 11A(1), the consequences of actions ‘taken or proposed to be taken by or on behalf of the employer with respect to transfer’ do not include ‘the worker's response to employment conditions encountered after a transfer ...’. In my opinion, that proposition is too broadly stated.
It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in ‘the circumstances ... which ... were the predominant cause of his breakdown’. That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of Mr Doyle's psychological injury. Whether or not the appellant's transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle's condition.”
In Canterbury Bankstown Council v Gazi[9], President Phillips found that the arbitrator erred in relying on the minority judgement of Davies AJA in Doyle and considering only the worker’s response to the employment conditions encountered after the transfer:
“The Court of Appeal in Heggie was dealing with the category of “discipline” in s 11A of the 1987 Act and was of the view that a broad approach should be taken to “action with respect to discipline”. While the decision in Heggie is factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There is no warrant to depart from the approach taken in Heggie with respect to the category of “transfer” or the other categories in s 11A. As was said by the majority in Doyle, it is a “question of fact and degree” as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1).
Therefore, the Arbitrator was required to consider all of the relevant actions or proposed actions taken by the employer with respect to transfer in determining whether those actions were the whole or predominant cause of the psychological injury. That required the Arbitrator to engage in an analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act. The Arbitrator failed to properly undertake this exercise in determining the defence under s 11A, because of his reliance on the minority decision, instead of the majority decision, in Doyle.”
[9] [2019] NSWWCCPD 14.
In Northern New South Wales Local Health Network v Heggie[10] Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
[10] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.

“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.

(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”

I am satisfied in the circumstances of this case that a transfer of the applicant from her day shift as a production technician to an afternoon shift in the quality control department was notified to the applicant on 17 July 2020 and took effect from 27 July 2020. Although the evidence of Mr Capasso is that the job was essentially the same, I am satisfied that the different shift and the change in job title and role were appropriately characterised as a “transfer”.
Dr Ahmed has described the transfer to an afternoon shift as “the key event”. None of the lay evidence or other medical evidence before me, however, suggests that the decision to transfer the applicant itself, or the manner in which that decision was communicated to her, were causative of the psychological injury.
The applicant gives no indication that she was aggrieved by the decision to transfer her in the first place or the manner in which that decision was communicated to her. Rather the applicant has indicated that she agreed to it. This is consistent with Ms Leonardi’s evidence that the applicant did not complain or raise any concerns to her about being transferred to the afternoon shift. The applicant’s own evidence is that she had always showed loyalty to the company and helped out whenever she could. The applicant had agreed to backfill a similar role previously.
The onset of psychological symptoms in this case occurred after the applicant commenced in the new role.
The respondent has made submissions suggesting that the applicant’s experience of her duties in the new role to which she had been transferred was part of the “transfer” for the purposes of s 11A(1). Although, consistently with Gazi, I accept that a broad approach should be taken to what constitutes transfer, I do not accept that this approach demands that every event experienced by a worker in the workplace following a transfer is appropriately characterised as action taken with respect to transfer.
I do accept that some actions taken or proposed to be taken by or on behalf of the employer following the transfer decision may still appropriately be categorised as action with respect to transfer. For example, I accept that the arrangements made for the applicant to be trained in the new role are appropriately described as action with respect to transfer. I also accept that communications from management with regard to the transfer arrangement including the return of the applicant to her original role can be described as action taken or proposed to be taken with respect to transfer.
For this reason, I accept that some of the events described by the medical practitioners in this case as causative of the applicant’s psychological condition were actions taken or proposed to be taken by or on behalf of the respondent with respect to transfer.
On my reading of the evidence as a whole, however, the “key events” (to use Dr Ahmed’s terminology) giving rise to the applicant’s psychological condition were the longer than anticipated duration of the transfer and the alleged communications to the applicant indicating she might not be able to return to her previous role.
There can be no doubt that the applicant was unhappy in the new role and that the nature of the new duties contributed to the applicant’s condition. The applicant has described difficulties in the performance of her new role and her perception that the tasks were more complex than those she was previously performing. The applicant’s perception was that although training had been provided to her and she availed herself of those opportunities, they were inadequate to assist her to comfortably perform her new duties. The applicant reported feeling overwhelmed and finding the workload “heavy”.
The hours of the new shift, and their impact on the applicant’s sleep, physical health, family life and social relationships also appear to have been a particular source of stress and unhappiness.
There is also support in the evidence for the view that the work environment in general was contributing to the applicant experiencing psychological symptoms. The applicant’s evidence referred to colleagues collapsing, giving up or resigning due to the stressful atmosphere and lack of support from management. The applicant said this caused her to worry increasingly about her own health and how she would push through her shifts. Although the applicant’s evidence as to the general work environment is refuted by the respondent’s witnesses, the evidence from Dr Protulipac does refer to the applicant’s perception of the general work environment as causative of the applicant psychological condition. Dr Protulipac referred to a change in management and shift in focus at the company. The applicant reported feeling that management created an unbearable atmosphere for the workers. The applicant felt harassed and as though heavy demands were being made of her. Events of this nature were also described in Dr Allan’s and Dr Ahmed’s reports. Such events could not, in my view, be categorised as action with respect to transfer.
Whilst the applicant reports experiencing psychological symptoms during the period in which she worked in the new role, it is significant that the timing of the applicant’s cessation of work and her first presentation to Dr Shahid for treatment, coincide with the applicant’s allegation that she was told by a staff member that the previous holder of the position that she was filling had lost the unfair dismissal case. The applicant said that she was told on 19 January 2021 by Mr Capasso that her original position on day shift had been filled and was no longer available for the applicant to return to as promised.
The applicant’s evidence is that on the same day she obtained a general medical certificate due to stress related to work. On 21 January 2021, Dr Shahid issued a WorkCover certificate of capacity and prepared a mental health plan. Dr Shahid also wrote to the respondent requesting that the applicant be permitted to return to her day shift.
Mr Capasso has denied telling the applicant that her position on the day shift had been filled by someone else. Mr Capasso has also denied stating that the dayshift was not available to the applicant or that she was not returning to the day shift.
There is, however, support in the respondent’s witness evidence and the contemporaneous documents for the applicant’s claim that there were discussions around the applicant’s previous role and the duration for which she would remain in the new role around this time.
In her letter handed to Mr Croudace on 25 January 2021, the applicant indicated that she had agreed to the transfer as she had been told it would be for a few months only. After three months, the applicant had asked management on several occasions for a clear answer as to how much longer she would be working in the role. The applicant said she had been told the previous week that her position on the day shift was filled by someone else and was no longer available to her, nothing could be done and she should come up with some suggestions. The applicant described her disappointment at this course of events given the length of her service and her willingness to help whenever she could.
Mr Croudace’s email to Ms Leonardi on 25 January 2021 confirms that the applicant had mentioned to him that she had a discussion with management in which it had been indicated to her that her role on the day shift was not available to her at the moment. Mr Croudace confirmed that there had been discussions about possible recruiting for her position and that he could not make any promises about her changing shifts in the future. Mr Capasso’s evidence also confirms that the unfair dismissal case had resolved in January 2021.
That there were discussions with management staff indicating that the applicant’s original position had been filled and was unavailable to her has been consistently reported to all of the doctors involved in the case. I am satisfied, in all the circumstances, that real events of this nature occurred.
The impact of these events from 19 January 2021 to 25 January 2021 on the applicant’s psychological condition is described in the report of Dr Allan. Amongst the events described by Dr Allan as the substantial contributing factors to the development of the applicant’s diagnosed condition were the applicant being promised that the temporary placement would only be for a few months. This did not prove to be an accurate timeframe of how long the applicant was to be in the role. The applicant was shocked to be told that she would not be returning to her day role and that her old position had been filled.
The respondent has submitted that the duration of the transfer was reasonable having regard to the duration of the unfair dismissal case and the suitability of the applicant for the position. The respondent has submitted that the applicant was kept informed of the progress of the unfair dismissal case and was unable, due to reasons of confidentiality, to be given more details of the case.
The respondent’s evidence does not, however, refute the applicant’s claim that she was originally told that the transfer would only be for a period of a couple of months. Although the letter dated 17 July 2020 refers to a transfer for an unspecified period of time, Mr Capasso’s evidence that the applicant continually asked when she would be transferred back to her day shift does, however, suggest that the applicant had been led to believe that the transfer would be of a relatively short duration. Mr Capasso has given evidence that he reassured the applicant on several occasions that once the unfair dismissal matter was finalised, she would be transferred back to her day shift.
The applicant’s continual asking about when she would be returned to her day shift should have indicated to the respondent that the applicant was anxious to return to that role.
Mr Croudace has given evidence that the applicant specifically told him that she was not happy working on the afternoon shift because she wasn’t spending time with her family and hated being transferred to carry out duties on the afternoon shift. Whilst the applicant may not have been observed crying or maty not have disclosed specifically that she was experiencing psychological symptoms her unhappiness in the new role and strong desire to return to her old role was disclosed.
It is significant that the applicant, at age 61, had been in her previous role for some 25 years.
There is no detail in the respondent’s evidence as to what steps were taken to communicate to the applicant the likely duration of the transfer when the unfair dismissal case was not resolved after a few months. In circumstances where the applicant had clearly recorded her unhappiness with the new shift and desire to return to her previous role, there is no evidence of any attempts by management to respond to, address or mitigate the applicant’s concerns, other than to indicate that the unfair dismissal case was ongoing. The evidence suggests that the unfair dismissal case resolved in January 2021 without there being a clear discussion or formal communication with the applicant about this fact, what this meant for her and how much longer the transfer would last. I am satisfied that it was mentioned to the applicant that the unfair dismissal case had resolved. I am also satisfied that there was a discussion with a manager on 19 January 2021 perceived by the applicant to mean that her day shift position had been filled and she could not return to it, whether or not this perception was accurate. Mr Croudace’s indication to the applicant that there had been discussions about possible recruiting for her position and that he could not make any promises about her changing shifts in the future would have compounded or reinforced this perception.
In the context of the apparent representations to the applicant that the transfer would be for a few months only; multiple reassurances to the applicant that she would return to her previous day shift; clear indications from the applicant about her unhappiness in the new role; and the duration of the applicant’s service in her previous role, I am not satisfied that the actions taken by or on behalf of the respondent with respect to the ongoing transfer, particularly on and around 19 January 2021 and 25 January 2021, were objectively reasonable.
In summary, whilst I accept that the decision to transfer the applicant was reasonable and was communicated to the applicant in a reasonable way, I do not accept that those events of themselves gave rise to psychological symptoms or were causative of the injury.
A number of events following the transfer contributed to and laid the foundation for the applicant’s psychological condition. Although some of these events could potentially be characterised as reasonable action with respect to transfer, others would not.
Reading the lay and medical evidence as a whole, I find that the predominant causes of the applicant’s diagnosed psychological condition were the longer than anticipated duration of the transfer and the respondent’s communications on or around 19 and 25 January 2021 suggesting that the applicant might not be able to return to her previous role. I am not satisfied that the respondent’s actions in these regards were objectively reasonable.
As a result, I am not satisfied on the lay and medical evidence presented by the respondent, that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer.
I am not satisfied that the defence in s 11A(1) is made out.
The psychological injury is compensable.

Extent and quantification of incapacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include a weekly payment during the incapacity.
Section 36 of the 1987 Act provides:
“36   Weekly payments during first entitlement period (first 13 weeks)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)  95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.”

Section 37 of the 1987 Act provides:

“37 Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”

The expressions “current work capacity” and “no current work capacity” are defined in cl 9 of Sch 3 of the 1987 Act as:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

The parties are in agreement that the applicant has received no payments of weekly compensation to date. The PIAWE figure for the purposes of ss 36 and 37 has been agreed at $1,164.15. What requires determination is whether the applicant has “current work capacity” or “no current work capacity”.
The only evidence before me which indicates a capacity to work is the opinion set out in the report of Dr Ahmed that the applicant’s work capacity at the time of his interview in March 2021 was 15 hours per week.
The reliability of this opinion from Dr Ahmed is, however, called into question given
Dr Ahmed’s comments elsewhere in the same report that the applicant was currently too unwell and too highly anxious to return to work. Dr Ahmed also said the applicant was unlikely to be capable of seeking other employment and required further treatment.
Despite writing to the respondent in January 2021 requesting that the applicant be allowed to return to her day shift, Dr Shahid, has continued to issue WorkCover certificates of capacity certifying the applicant as having no current work capacity as a result of the injury from 21 January 2021 until shortly before the date of this decision. Dr Shahid’s certifications are consistent with the recommendation from Dr Protulipac that the applicant be placed on stress leave immediately and kept away from her workplace. Dr Allan’s report of 10 June 2021 contained a clear opinion that since 30 January 2021, the applicant had been fully incapacitated as a result of the injury. The applicant did not possess the capacity at the time of Dr Allan’s report to effectively engage in her pre-injury workplace or any alternative workplace.
I am satisfied, therefore, that the weight of evidence demonstrates that the applicant has had no current capacity to engage in suitable employment or her pre-injury employment from
30 January 2021 to date.

The applicant is therefore entitled to weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act from 30 January 2021 to date, and continuing in accordance with the 1987 Act, based on the agreed PIAWE figure of $1,164.15, as periodically indexed.

Entitlement to s 60 expenses

Having found above that the applicant has sustained a compensable injury, the applicant will be entitled to compensation for any reasonably necessary medical and related expenses resulting from that injury pursuant to s 60 of the 1987 Act.

There will be a general order for the respondent to pay the applicant’s reasonably necessary incurred s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

SUMMARY

The respondent has not discharged the onus of establishing a defence pursuant to s 11A(1) of the 1987 Act.
From 30 January 2021 to date, the applicant has had no current work capacity.
The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act from 30 January 2021 to date, and continuing in accordance with the 1987 Act, based on the agreed PIAWE figure of $1,164.15, as periodically indexed.
The respondent to pay the applicant’s reasonably necessary incurred s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

[2021] NSWPIC 405

12 October 2021