Lee v Australian Turf Club Ltd
[2025] NSWPIC 10
•10 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lee v Australian Turf Club Ltd [2025] NSWPIC 10 |
| APPLICANT: | Kathryn Lee |
| RESPONDENT: | Australian Turf Club Limited |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 10 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); the applicant claims weekly compensation, medical or related treatment expenses, and permanent impairment compensation payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with injury, capacity, need for medical or related treatment and permanent impairment placed in issue; Held – the applicant sustained primary psychological injury in the course of her employment with her employment being the main contributing factor to injury; the applicant has suffered an incapacity for work resulting from the injury and has entitlement to weekly compensation payable under section 37; the applicant requires medical or related treatment resulting from the injury and has entitlement to costs payable under section 60; the applicant’s claim for permanent impairment is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment resulting from the injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. By consent, the Application to Resolve a Dispute is amended to reflect the date of injury is the deemed date of 18 September 2022. 2. The applicant sustained primary psychological injury in the course of her employment with the respondent, with deemed date of injury of 18 September 2022, with her employment being the main contributing factor to injury. 3. The parties agree the applicant’s pre-injury average weekly earnings (PIAWE) are $1,345.87 (as indexed). The applicant has suffered an incapacity for work resulting from the injury since (a) between 24 November 2022 to 28 December 2022, on the basis of no current work capacity, at 80% of the applicant’s indexed PIAWE; (b) between 29 December 2022 to 17 January 2024, on the basis of a partial capacity for work, at 95% of the applicant’s indexed PIAWE less $584.60 (being her ability to earn in suitable employment), and (c) from 18 January 2024 ongoing in accordance with the Workers Compensation Act 1987, on the basis of a partial capacity for work, at 80% of the applicant’s indexed PIAWE less $584.60 (being her ability to earn in suitable employment). 4. The applicant requires medical or related treatment for her injury and has entitlement to costs payable under s 60 of the Workers Compensation Act 1987. 5. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 18 September 2022 (deemed) (as agreed). Body system: psychological/psychiatric disorder (as determined). Method of assessment: whole person impairment. 6. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 20 November 2024 and attached documents lodged by the applicant. |
STATEMENT OF REASONS
BACKGROUND
Kathryn Lee (Ms Lee) initially worked with Australian Turf Club Limited (ATC) between 2016 and 2021 on a permanent part-time basis, in business administration. Ms Lee returned to work with ATC on a one year contract full time basis in November 2021, again in business administration. Ms Lee ceased working with ATC on 18 September 2022 and remained off work until she secured alternate casual employment with Dural Irrigation Pty Ltd t/as Think Water Dural (Think Water Dural) on 28 December 2022. Ms Lee ceased working with Think Water Dural in January 2024 and has not returned to work since. Ms Lee is currently 64 years of age.
In these proceedings Ms Lee alleges she sustained primary psychological injury arising out of or in the course of her employment with ATC, with the circumstances of injury described in the following terms:
“The applicant sustained an aggravation, acceleration, exacerbation and/or deterioration of her prior psychological condition as a result of bullying, harassment and lack of support from management in the course of her employment with the respondent. The deemed date of injury noted by the insurer is 13 June 2022.
Further and in the alternative, the applicant sustained a psychological injury in the course of her employment with the respondent as a result of bullying, harassment and lack of support from management.”
Ms Lee claims weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 24 November 2022 consequent on an incapacity for work resulting from her alleged injury. Ms Lee claims medical and related treatment expenses payable under s 60 of the 1987 Act for treatment of her alleged injury. Ms Lee claims permanent impairment compensation payable under s 66 of the 1987 Act for 17% whole person impairment resulting from her injury.
ATC has declined Ms Lees claim for compensation payable under the 1987 Act.
When Ms Lees claim came before me for conciliation/arbitration hearing on
6 December 2024, by consent, the Application to Resolve a Dispute was amended to reflect the date of injury as the deemed date of 18 September 2022.
ISSUES FOR DETERMINATION
The parties agree Ms Lee’s PIAWE is $1,345.87 (as indexed).
The parties agree the following issues remain in dispute:
(a) Whether Ms Lee sustained primary psychological injury arising out of or in the course of her employment with ATC, with deemed date of injury of
18 September 2022, and with her employment being the main contributing factor to injury, and if so:(i)whether Ms Lee suffers an incapacity for work resulting from the injury from 24 November 2022 ongoing and has entitlement to weekly compensation payable under s 37 of the 1987 Act;
(ii)whether Ms Lee requires medical or related treatment for her injury and has entitlement to compensation payable under s 60 of the 1987 Act, and
(iii)percentage whole person impairment sustained by Ms Lee resulting from her injury and entitlement to compensation payable under s 66 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
These proceedings came before me for preliminary conference on 30 October 2024 and with Ms Lee’s claim unresolved, Ms Lee’s claim came before me for conciliation/arbitration hearing on 6 December 2024. Ms Warren of counsel appeared for Ms Lee and Mr Bozinovski of counsel appeared for ATC. Ms Lee was present, and she was supported by her husband.
Following my discussions with counsel 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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to admit additional documents dated 20 November 2024 and attached documents lodged by Ms Lee;
(d) Wages schedule lodged by Ms Lee dated 20 November 2024, and
(e) Wages schedule lodged by ATC dated 28 November 2024 .
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Ms Lee
Ms Lee relies on a number of statements. In her initial statement dated 26 October 2022,
Ms Lee said she had returned to work with ATC in a one year contract role on
16 November 2021, which was due to expire shortly. Ms Lee described her contract role as full time, working 8.00am to 4.00pm each day, working in administration for Rosehill and Canterbury Racecourses, and based at Rosehill. Ms Lee described her duties as providing “all administration support regarding the operation of tracks. It includes purchases, accounts, timesheets, payroll, correspondence, searching for parts, HR enquiries for staff”. Ms Lee said she reported to Shaun Patterson, Track Manager, and worked with him daily.Ms Lee complained that due to a lack of training in payroll, she made errors and when identified both Payroll and “ladies from other tracks” assisted her in learning the system.
Ms Lee described a number of events “leading to injury”. In essence she made specific mention of the following:
(a) In February 2022 Mr Patterson questioned her saying she was sick despite testing negative for COVID-19, and requested he provide her with her COVID-19 test result.
(b) Mr Patterson failed to tell her of his whereabouts which embarrassed her when people were looking for him.
(c) In August 2022 when she wasn’t feeling well she had gone home and asked
Kyle Cassim to let Mr Patterson know because she couldn’t find him to tell him, when she returned to work the following day Mr Patterson gave her “the silent treatment”, which made her feel “on edge, anxious.” Mr Patterson gave her this silent treatment from time to time, even in the company of others, which made her “feel uneasy and disrespected as a co-worker”.(d) Mr Patterson did not keep her informed of what was happening in the business.
(e) Mr Patterson was “aggressively rude” to her when she forwarded an email to Payroll at the request of a staff member regarding extra leave entitlement, which was the subject of EBA negotiations. The staff member at whose request she had sent the email subsequently apologised to her because he heard Ms Lee had “gotten into trouble about this matter.”
(f) Mr Patterson acted in an overpowering, arrogant and controlling manner.
Mr Patteson spoke down to her. Mr Patterson watched her all the time.
Mr Patterson kept Ms Lee isolated from his managers. Ms Lee said of
Mr Patterson, “he progressively got worse with his attitude.”(g) Mr Patterson would yell at the Assistant Track Manager, Mr Cassim, whose office was close to hers, calling him names like “bitch”. This made her “jump”.
Ms Lee said, “it’s really inappropriate”. Ms Lee said this behaviour made her uneasy and upset.(h) In August 2022 when she experienced difficulty with vision in an eye, Ms Lee felt Mr Patterson “clearly didn’t give a hoot about me”, with Ms Lee going home and returning to work the next morning, without Mr Patterson enquiring into her welfare.
(i) Ms Lee recalled being summoned for CPR training on 11 August 2022, which she said she had no prior notice of. Ms Lee said that being the only one to arrive late for training “made me look like an idiot”. She said this was an example of
Mr Patterson excluding her from things.(j) Ms Lee recalled an incident on 12 August 2022 relevant to her sourcing of specific tines, which she said Mr Patterson took credit for. Mr Patterson initially informing Ms Lee that she had not sourced the correct tines, made her feel her work “wasn’t appreciated” and she felt “useless and unvalued”.
(k) Ms Lee recalled an incident on 22 August 2022, when Mr Patterson gave her Sudafed for her allergies, rather than enable her to visit Woolworths to buy them. She said Mr Patterson not letting her leave the office “for my needs” made her feel “anxious and trivialised as a person.”
(l) Ms Lee recalled that on 8 September 2022 it was RU OK Day. Ms Lee said that she was outside of the office weeding the garden when she saw Mr Patterson looking at her. While she wondered at the time where he was going she “thought nothing more of it”. However, on enquiry of a staff member as to why it was the site “seemed quiet” Ms Lee was told everyone was probably at “the morning tea”, and when she went to investigate she saw “all staff were sitting down to a buffet breakfast”. Ms Lee said that just as she was about to enter the room, she received a telephone call from Mr Cassim “to let me know it was on” and when she joined in Mr Patterson came in and “seemed amused that I hadn’t been told”. Mr Lee said “I was left out. This sinking ill feeling came over me, that I was not included in team events.”
(m) Ms Lee recalled that later that same day, Mr Patterson requested she look at the budget. Ms Lee said Mr Patterson said “something was wrong with the spreadsheets, and I was overspending … he said he didn’t know what I was doing but my figures were wrong. He was really rude. He insinuated that the overspending was entirely my fault, my problem…the way he spoke to me was belittling and offensive in tone.” Ms Lee explained she “felt like crap” and “was left feeling from him that it was my problem, and I had to work it out”. Ms Lee said she continued working on the spreadsheets, and would provide Mr Patterson with printouts, which he rejected “saying they were wrong”. Ms Lee said the following day she was “dizzy and sick”. She said “I felt crap that he was blaming me. I was shaking and feeling sick”. When she texted Mr Patterson to inform him she was not going to work as she was unwell “as usual there was no reply from him”. Ms Lee said when she returned to work on 12 September, Mr Patterson made no enquiry as to her welfare. Ms Lee said Mr Patterson told her she had to work through the budgets again, which she did. Ms Lee said this was “a huge amount of work” and when she re-presented the spreadsheets to Mr Patterson, she was again told “it was wrong, and to do it again”, with Mr Patterson telling her “if you can’t do it I’ll find someone else outside of here to do it.” Ms Lee said of Mr Patterson “He was so rude and made me feel so incompetent, useless and belittled… My anxiety was that terrible I was shaking, and I could not stop.” Ms Lee said she felt so sick that she contacted Dr Joseph to make an appointment to see her. Ms Lee said she subsequently told Mr Patterson she was not well and was going to see her doctor “he grunted and walked off. There was no concern for my welfare.”
In her subsequent statement dated 30 September 2024 with log events attached, Ms Lee confirmed her belief that her psychological injury resulted from “many occasions when I felt bullied, harassed, belittled and unsupported by Shaun Patterson” and provided further particulars relevant to the incidents to which she had referred in her earlier statement.
Ms Lee elaborated on her subsequent role with Think Water Dural, being the part time administrative role she commenced on 28 December 2022. Ms Lee said of this role “this is my husband’s employer, and I was told that I would be able to do my administrative tasks at my own pace.” Ms Lee said she did not believe she could cope with increased hours in the position, which are “light administrative tasks”. Ms Lee said:
“Even though I felt like work was a ‘safe’ environment, particularly because my husband was there, I still had difficulty coping due to my condition. I would estimate that once every two weeks my anxiety was so severe that I could not manage to leave the house and had to call in sick…
In January 2024 my employment with Think Water Dural ceased because they did not have any work available for me. I have been totally off work since 16 January 2024.
I believe that I was only able to manage this job with my psychological condition because there were a lot of allowances afforded to me to help me manage my role. I also had the support of my husband and his colleagues. It was a very supportive workplace”.
Ms Lee was apprehensive about her re-employment prospects:
“I am concerned about my employment prospects as a result of my psychological injury particularly because I am unable to concentrate for any length of time. My concentration and attention to detail was very important in my role at the Turf Club and essential to me doing my job effectively.
When I look for jobs online I become extremely anxious, I hyperventilate, start shaking and my mouth becomes dry. I no longer have confidence in myself.
In her most recent statement dated 19 November 2024 Ms Lee essentially responded to statements referred below, with summary “in reading these statements I am very concerned about the contents of the statements which appear to have been prepared to protect
Mr Patterson”.
Statement of Monish Narayan
Mr Narayan provided a statement dated 14 October 2022. Mr Narayan said he had worked with ATC for just over four years and while he was based at Randwick Racecourse, he managed the HR portfolio over a number of racecourses, which he attended from time to time in the course of his duties. Mr Narayan worked in the role of Senior HR Business Partner.
Mr Narayan said he had worked with Ms Lee when she was previously employed with ATC on a part-time basis before she resigned in 2020. Mr Narayan disclosed that while he had expressed reservations about Ms Lee returning to ATC on contract to cover a maternity leave period because of previous performance issues “in the end it was an overall management decision, and she returned”.
Mr Narayan said he was often at Rosehill Racecourse. He said he supported the “tracks groups” and said he worked closely with Ms Lee, Mr Patterson and Mr Cassim. He said of Ms Lee’s claim:
“It is surprising to have these allegations from Kathy so suddenly, with no prior mention of it. She never said she wanted to speak to me about anything before she made her claim.
I never saw any behaviours from Shaun towards Kathy that seemed inappropriate. I have worked with them closely for 4 years, Kathy always seemed bubbly and happy.”
Mr Naryan recalled a telephone conversation he had with Ms Lee on 13 September 2022. He said:
“I think she tried to call me a few times whilst I was in a meeting. She emailed me and sent me her WorkCover certificates. I came out of the meeting and called her. I said I had seen her email but hadn’t looked at the detail. She said she was upset about Shaun. I said her wellbeing was important to us and wished she had spoken to me previously. I don’t remember if she said why she had not done so. She was very emotional and crying during that conversation.
As to the precise issue with Shaun, she said Shaun was controlling, and excluded her from an event at the ATC …
I don’t remember Kathy saying that Shaun had ruined her job and made her feel like nothing, as I believe Kathy now alleges.
Kathy is on a max term contract ending on 25 November 2022. She was hired on parental leave cover, and we are waiting for the employee on leave to come back on a transitional basis. It is strange that September when Kathy called was when we were deciding what was happening with her contract.
I remember Kathy was very distressed in our phone call and I said we would be in touch once she was ok. I said we would touch base re mediation. I don’t think we discussed her making a formal grievance.
We have EAP and I offered her access to that. I said I had the details, and she said she was fine at that stage. She said she was seeing a doctor that day or week.
I think in Kathy’s email to me she said she was bullied by her manager. I remember speaking to her about this in our conversation and she said she felt bullied by Shaun. I asked her what happened, and she gave me the example of being excluded from an event. She was getting emotional, so I didn’t ask for too much detail. I wanted her to calm down.
I didn’t have any other conversation with Kathy after that.”
Statement of Sam Bennetts
Mr Bennetts provided a statement dated 14 October 2022. Mr Bennetts said he had worked with ATC for just under seven years but had only been at Rosehill Racecourse for about five months. Mr Bennetts worked in the role of foreman. Mr Bennetts reported to Mr Patterson and Mr Cassim. Mr Bennetts said he worked out of the same office as Ms Lee, Mr Patterson and Mr Cassim. Mr Bennetts said he had only known Ms Lee since he had been located at Rosehill Racecourse.
Mr Bennetts said he interacted with Ms Lee on a daily basis “about all sorts of things”.
Mr Bennetts described Ms Lee as “the heart of the office” and said, “we all worked closely as a team”. Mr Bennetts said, “it is a real shock that she is upset about work … we were tight knit in the team, and it makes me think now I thought everything was going well when in fact she was there suffering”.Mr Bennetts said he did not witness any conflict between Ms Lee and Mr Patterson and did not notice any behaviour by Mr Patterson towards Ms Lee that “seemed bullying or harassing”. Mr Bennetts said Ms Lee never confided in him that she felt unhappy or that
Mr Patterson was “giving her a hard time”.Mr Bennetts said relevant to Ms Lee’s specific allegation Mr Patterson had excluded her from the RU OK breakfast:
“I remember Kathy being at the RU OK breakfast. She had been putting up signs for it and making lists of people attending. Therefore it would shock me that she didn’t know about it. I don’t know if Shaun specifically told her about it, but I would find it surprising that she wasn’t aware of when it was on.
It was part of Kathy’s job to organise these sorts of events, notifying other staff, keeping track of who was going to attend, so it would be surprising if she felt excluded.”
Statement of Mr Patterson
Mr Patterson provided a statement dated 17 October 2022. Mr Patterson said he had worked with ATC for 15 years and had been in the role of Racecourse Manager at Rosehill Racecourse for four years. Mr Patterson said he became Ms Lee’s manager in about 2018, with Ms Lee working with him for two years prior to her earlier resignation in 2020. Mr Patterson described Ms Lee’s role as supporting him in an “admin capacity.”
Mr Patterson explained he had first managed Ms Lee when she worked in a part-time role. He said when Ms Lee was offered a full-time role “she declined and resigned in 2020.”
Mr Patterson denied his relationship with Ms Lees changed when he became her manager. He described them as “quite close.” He said they had a “really good relationship.” He said after Ms Lee resigned in 2020 and her replacement was going on maternity leave, he said he “would love Kathy to come back, as she knew the role”. He said of Ms Lee “she was like the heart of the business.” Mr Patterson said of Ms Lee “Kathy was the queen to us, she did everything for us, so we would do anything for her in return.” Mr Lee said “we all view Kathy almost like our mother. My kids call her Aunty Kath.” Mr Patterson said he had no idea Ms Lee had “any issues” until she lodged her claim for workers compensation.Mr Patterson said he did not believe he was arrogant and talked down to Ms Lee.
Mr Patterson said he did not ignore Ms Lee and he did not make a point of not speaking to her. Mr Patterson said he never kept Ms Lee isolated. Mr Patterson denied he was controlling and said, “it was never the case that I always look to see where Kathy is.”Mr Patterson said he could not recall an incident occurring in February 2022 when he asked Ms Lee to show him her COVID-19 test result.
Mr Patterson said he never yelled at Mr Cassim and called him “bitch.”
Mr Patterson said he could not recall an incident in August 2022 when Ms Lee had difficulty with her vision in one eye.
Mr Patterson said he could not recall an incident on 11 or 12 August 2023 when Ms Lee went home sick, while he was not in the office, but said “I would not give her the silent treatment because she did not tell me directly”.
Mr Patterson recalled the incident occurring on 10 August when Ms Lee forwarded an email to Payroll regarding the EBA at the request of a staff member, and confirmed as the EBA was currently being negotiated “I said to come to me in future as I could answer any questions or forward to HR as they could answer better”. Mr Patterson said he was not aggressive, bullying, rude or angry towards Ms Lee on that occasion.
Mr Patterson recalled the CPR training on 11 August 2022 and said the training had been organized quite quickly after he had been given late notice of the training by WHS.
Mr Patterson said it was not the case Ms Lee was the last to know and was excluded. He said he had told Ms Lee it was last minute training and said Ms Lee “didn’t seem put out over this training at late notice.”Mr Patterson recalled discussing the purchasing of tines for one of the machines on or about 12 August 2022 and while his preference had been to purchase from an existing supplier, ultimately the decision was made to purchase from a supplier Ms Lee had sourced.
Mr Patterson denied taking credit for the sourcing of the tines and said, “I did credit her for finding them.” Mr Patterson explained:“When George looked at the tines Kathy found and said it might work, I thought it was a great team effort. I always give credit to my team as they do an amazing job. Therefore, I would have given credit to Kathy and George for figuring this out.”
Mr Patterson said he did not recall the conversation on 22 August 2022 during which Ms Lee told him she wanted to leave the office to go to Woolworths to purchase tablets for her allergies. Mr Patterson said “there has never been an issue with her going to Woolies or leaving the office whenever she likes.”
Mr Patterson recalled the RU OK breakfast on 8 September 2022 and said Ms Lee was “definitely notified”. Mr Patterson said:
“I even sent an email to Kathy the day before with the information. She helped put out the posters for the event. I recall that Kathy was there at the time it started. There were about 60 people there. She walked in with George but food had not even been served yet. I had my team from the gardens and the track.”
Mr Patterson elaborated:
“I understand Kathy alleges that I saw her in the garden prior to the event and I did not tell her about it. I remember her being out the front weeding the garden, that morning. She was at work at about 7am that day. She had breakfast on the balcony as normal. We had a normal conversation. We had the toolbox talk at 8am and said we were going to head up for the breakfast for RU OK day. I saw her weeding about half an hour before the event so I did not think it necessary to speak to her specifically about the breakfast as she knew about it. I was not excluding her.”
Mr Patterson canvassed Ms Lee’s difficulties with the budget and said while it was up to him “to do budgets” he worked closely with both Ms Lee and Mr Cassim on the budget.
Mr Patterson said there were no difficulties with the budget prior to August 2022 but accepted at that time there appeared to a quite significant overspend, which required clarification. Mr Patterson said during the morning of 8 September 2022 he worked on the budget spreadsheets with Ms Lee. Mr Patterson said he became quite confused with the various reports Ms Lee was showing him as “they were all completely different.” Mr Patterson said he was not rude to Ms Lee and he did not blame for the overspend. However, Mr Patterson accepted he did highlight lines on the spreadsheet in an effort to understand “where the issues might be” and requested Ms Lee “to go back over things.”Mr Patterson recalled receiving Ms Lee’s text on 9 September 2022 in which she advised him she was unwell. Mr Patterson did not say whether or not he responded to Ms Lee’s text.
Mr Patterson recalled speaking with Ms Lee on 12 September 2022. He said he asked after her wellbeing and he spoke to her about finalizing their budget work. Mr Patterson denied he spoke angrily to Ms Lee about the budget. Mr Patterson said he was out of the office most of the day as he was working at the track and when he returned Ms Lee told him “she didn’t feel good and she was going home.” When Mr Patterson went into the office he saw Ms Lee had packed up all her belongings. Mr Patterson said he was unable to locate the hard copy file relevant to the budget figures, which were still required.
Statement of Kyle Cassim
Mr Cassim provided a statement dated 7 November 2022. Mr Cassim said he had worked with ATC for five and a half years, working in the role of assistant racecourse manager at Rosehill Racecourse. Mr Patterson is Mr Cassim’s manager. Mr Cassim said his work area and Ms Lee’s work area are next to each other, with Mr Patterson’s office “down the way”.
Mr Cassim said he saw Ms Lee each day and said, “we all work closely together”. Mr Cassim said Ms Lee had never said to him she was upset about Mr Patterson’s behaviour towards her.Mr Cassim accepted Mr Patterson yelled at him to get his attention but said “I don’t recall Shaun every yelling out ‘bitch’ to me or calling me ‘bitch’”.
Mr Cassim said he cannot recall Mr Patterson giving Ms Lee “the silent treatment”.
Mr Cassim said he did not see Mr Patterson’s behaviour as “controlling”.
Mr Cassim said he did not see Mr Patterson treat Ms Lee differently to anyone else. Mr Cassim said:
“I never saw any behaviour from Shaun towards Kath which seemed bullying, harassing, controlling, belittling or inappropriate.”
Mr Cassim said he did not understand why Ms Lee did not know about the RU OK breakfast as he recalled calling Ms Lee “to ask her to attend” and said, “from what I knew she was part of all the emails leading up to this, so we assumed she knew about it.” Mr Cassim said when he didn’t see Ms Lee at the breakfast, he telephoned her and she mentioned to him “she didn’t know about it”, which he found hard to believe because she was part of the email chain for the event. Mr Cassim said he did not recall Ms Lee telling him at the breakfast she was upset. Mr Cassim said, “I didn’t perceive any inappropriate behaviour from Shaun at the breakfast towards Kath.”
Relevant to Ms Lee’s allegation she was being blamed for budget difficulties, Mr Cassim said he did not recall having “an exact conversation” with Ms Lee about the budget. Mr Cassim said:
“It seemed she felt overwhelmed with the budget discussions, but I didn’t have the impression that Shaun was putting a lot of pressure on her. They were both working on it. I believe there was something over in the budget and they were working on that, but I was not involved in that discussion … Shaun never said to me that it was Kathy’s fault the budget was over.”
Initial contact
An initial contact form completed by “Maneela” is relevant to Maneela’s contact with Ms Lee on 12 September 2022, with the injury sustained by Ms Lee noted as “situational stress in workplace bullying”.
In response to the question “how did it happen”, Maneela noted:
“Over a period of time – first time – I called in sick thinking she had covid test came back negative, rude, belittle talking, doesn’t talk nicely to people, manager – he is responsible for budget, not invited to R U OK day, he hounded her for 3 days to fix spreadsheet. Not allowed to go out of office.”
In response to “what has your doctor said”, Maneela noted recommended treatment was in the nature of “psychological sessions” and Ms Lee currently had no work capacity.
Workers Injury Claim Form
Ms Lee completed a workers injury claim form on 13 September 2022 in which she confirmed that she worked as an administration assistant with ATC at Rosehill Racecourse, having commenced in her role on 16 November 2021, with her duties being “office administration, purchasing, timesheets, correspondences, staff enquiries, communications with internal/external stakeholders”.
Relevant to her injury the subject of these proceedings, Ms Lee stated that her injury occurred during the morning of 12 September 2022 with Ms Lee describing the circumstances of injury in terms of “psychological trauma through stress.”
Treating medical evidence
Appletree Medical Centre
Ms Lee has come under the general medical care of the doctors practising out of Appletree Medical Centre, with the center’s clinical records demonstrating Ms Lee presented with adjustment disorder on 29 January 2013 and was prescribed Sertraline (brand name Zoloft) with dosage at 150mg. It is apparent with Ms Lee reported as “much better” by 21 March 2013, her dosage was reviewed and on 29 October 2014 her dosage is recorded at “rpt Zoloft 100mg”. Thereafter, with her most recent review on 14 January 2019, Ms Lee’s dosage remained at 100mg.
Dural Medical Centre
Ms Lee has come under the general medical care of Dr Joseph who practises out of Dural Medical Centre.
In his report dated 28 September 2022 Dr Joseph confirmed he had reviewed his clinical notes relevant to Ms Lee in response to questions asked of him of Maneela. Dr Joseph acknowledged Ms Lee had a history of anxiety, which he confirmed “remained stable on medication” and reported:
“Kathryn reports being stressed due to being bullied at her workplace. She states that she is being isolated and not allowed to interact with other staff. She states that she feels she is being constantly monitored, left out of vital information and is hence unable to do her job properly. She states she is being blamed for things that are not her responsibility, feels is talked down to, and states that work is allocated to her without any help or support.
…
Kathryn reports that there has not been one significant major incident in June 2022. She states that it has been a combination of different incidents such as not being able to leave the office, not being allowed to talk to anyone and being monitored all the time. She reports an incident regarding budget related work with no assistance provided, which contributed to worsening of the situation.”
Dr Joseph provided diagnosis of “situational stress”, which he said was consistent with
Ms Lee’s reported history and symptoms. Dr Joseph provided opinion Ms Lee was currently unfit to work at ATC “due to reported ongoing stressors” and relevantly wrote:“Kathryn has been referred to a psychologist for further assessment and management and her anxiety medication dose has been increased.”
The clinical records of Dr Joseph demonstrated that when Ms Lee consulted with him on
18 June 2021, which is before she returned to work with ATC in a contract role, Dr Joseph reviewed her GP Management Plan and relevantly noted “anxiety stable” with Ms Lee’s medication including Sertraline 100mg daily. On review on 1 August 2022, which is while Ms Lee was working with ATC in her contract role, Dr Jospeh reviewed Ms Lee’s GP Management Plan and relevantly noted “anxiety stable” with Ms Lee’s prescribed dosage of Sertraline remaining the same. However, on 13 September 2022 Dr Joseph recorded relevant to Ms Lee’s consultation with him, documented to last “35m 13s”:“Certificate of Capacity – Situational Stress due to Workplace bullying
Works as admin at Race Court f/t 5 dpw
States started there 5 yrs ago, left a yr ago due to workplace stress
States boss is ‘bully’, isolates pt, is extremely controlling, does not want pt to socially interact with other staff without being watched
States is being blamed for things that are his responsibility, feels is talked down to
Is the only female staff at the office
States boss will ignore pt and talk to pt only when something need to be done
Work thrown at patient without help or support
Recently was asked pt to redo work on budget, feels unsupported
Feels on the edge all the time
Feels unable to speak to senior management and HR as they are friends with boss
…
To increase sertraline to 150mg
Consider psychologist sessions”
On review on 16 September 2022 Dr Joseph reissued Ms Lee’s certificate of capacity “on different form as requested by work” and noted “mood stable, continue sertraline 150, consider psychologist sessions”.
On review on 21 September 2022 Dr Joseph referred Ms Lee for psychological review with her Sertraline dosage remaining the same. Dr Joseph relevantly noted:
“continues to feel stressed
Feels unable to go back to work
…
States nil one significant major incident in June 22
Been a combination of different incidents especially not being able to leave the office
States boss does not want pt to talk to anyone, controlling behaviour
Feels is constantly monitored, left out of vital information and is hence unable to do job properly
Incident regarding doing budget related work with no assistance contributed to worsening of situation.”
Ms Lee continues to consult with Dr Joseph regarding her psychological distress, with
Dr Joseph noting occurrence of the workplace investigation into Ms Lee’s allegations, arrangements made for independent medical examinations of Ms Lee, Ms Lee coming under both psychiatric and psychological care, Ms Lee ceasing work in accordance with her contract, his telephone contact with Ms Lee’s case manager, Ms Lee’s eagerness “to trial casual admin work at husband’s workplace for 4 hrs a day x 5 days a week”, and
Dr Manambrakkat’s recommended increase in her Sertraline dosage to 200mg following
Ms Lee’s consultation with him on 23 January 2023.
Debbie Henderson
Dr Joseph referred Ms Lee for psychological review with Ms Henderson, psychologist. At
Ms Lee’s initial consultation on 26 October 2022 Ms Henderson described Ms Lee as presenting with “edginess and high stress after workplace bullying claim”. Ms Henderson described her overall impression of Ms Lee at the time as “agitated, edgy, shaking, fidgeting and at time teary”.Ms Henderson noted Ms Lee “had some psychological help after divorce 40 years ago”.
Ms Henderson noted Ms Lee had previously worked in administration with AJC “and then left as she did not want full time. Ended up going back with mat leave cover as enjoys the work”.
Ms Henderson recorded a history of injury the subject of these proceedings:
“Working in administration for Tracks – Rosehill and Canterbury. On 12 months maternity cover. Roll includes payroll, HR, purchasing etc.
Felt manager used unsuitable language, withheld information, asked for inappropriate things, such as evidence she did not have COVID, excluded from company site social occasions, not allowed to leave the workplace to get medication, lunch etc. Was asked to work on budget and blamed for budgetary issues, when not in job description. Felt sick in the stomach at the thought of not being able to balance budget and being accused of this, when it was not her fault, teary and sick”
On review on 2 November 2022 Ms Henderson described Ms Lee as appearing “better” but “still a bit anxious and worried” and “a bit jittery at times”. On review on 16 November 2022, Ms Henderson recorded that while Ms Lee reported her anger had dissipated “she was confused” and continued with “ongoing anxiety and worry about workplace”.
When last reviewed on 23 November 2022 Ms Henderson described Ms Lee “reportedly felt overwhelmed and anxious at the thought of recounting what happened, said she felt physically sick on the weekend.” Ms Henderson reported Ms Lee continued with “ongoing feelings of being overwhelmed and struggling to concentrate for more than an hour at a time. Feelings of inadequacy when looking for work”.
In her report dated 2 December 2022 to Dr Joseph, Ms Henderson reported that while she had had the opportunity to review Ms Lee on four occasions, no further psychological sessions with her had been approved. However, Ms Henderson said, “if the situation changes in the future and Kathryn can access further psychological treatment I believe this would be helpful for her.” Ms Henderson reported to Dr Joseph:
“The treatment provided to Kathryn included:
Psychoeducation on Anxiety and Depression
Cognitive therapy, and particularly thought challenging
Behavioural activation
Supportive counselling
Sleep hygiene
Kathryn continues to report thought rumination and feelings that she has been unfairly treated. She tells me she is worried about the financial situation and feels like her confidence has been impacted to the point she cannot work at present. She has told me of some improvement in her appetite, sleep and ability to focus or concentrate on things like cross stitch at home. She has also kept busy with housework and gardening.”
Dr Manambrakkat
Dr Joseph referred Ms Lee for psychiatric review with Dr Manambrakkat. In his report dated 25 January 2023 following his assessment of Ms Lee on 23 January 2023, Dr Manambrakkat noted Ms Lee was working part time at a business where her husband worked. Ms Lee was noted to be working four hours a day for five days a week. Dr Manambrakkat noted Ms Lee had was working in administration and had commenced working in this business “after Christmas 2022”. Dr Manambrakkat described Ms Lee as reporting “her concentration is ok if she isn’t interrupted. She is exhausted by the end of her 4 hours shifts. She has made a few mistakes at work which is out of character for her.”
Dr Manambrakkat recorded a past history of psychological injury:
“Many years ago, in her early 30s, when she was a teacher, she was bullied by the school principal, and she had some mental health issues. She was commenced on Sertraline, and she got better. She has been on Sertraline since then and it kept her well. When she was bullied this time, the dose was increased, but she didn’t feel better.”
Dr Manambrakkat described Ms Lee as having worked with ATC for five years between 2016 and 2021 without problems, before returning to work with ATC in a contract role.
Dr Manambrakkat recorded a history of injury the subject of these proceedings:“Previously, she was working for Australian Turf Club, in an administrative role. She was a contract worker and working full time. She was the PA of the Track manager, Shaun Patterson and he used to bully her. In February 2022, she rang up as she was ill and he wanted proof of her negative covid test. He would address the assistant Track manager Kyle as “bitch/little girl” in her presence. He would talk down to Kathryn, shout at her and she felt that she was walking on egg shell around him. He would watch what she was doing and keep track of her movements. She would be blamed for budgets getting blown out though it was his job to balance the budget. He wouldn’t explain anything to her, and she would not have enough information to do her job. She wasn’t allowed to go out to get lunch. She wouldn’t be kept in the loop about meetings. She wouldn’t be invited to work meals. Shaun would take credit for the tasks she did.
She always felt Shaun was watching her and this made her anxious. She felt that he picked on her. She felt that this was because he doesn’t think well of women and her workplace was a male dominated workplace. She had a lot of examples to talk about, but these weren’t gone into exhaustively.
As a result of the workplace stress, she felt sick 9 months ago…
She had started at the Australian Turf Club in November 2021. Her problems started a couple of months after she started…
The HR people at work were unhelpful as they were friends with Shaun. And she didn’t get any relief by complaining to them.”
Dr Manambrakkat provided diagnosis of adjustment disorder with depressed mood and noted Ms Lee was under psychological care. Dr Manambrakkat noted Ms Lee had been prescribed Sertraline 100mg daily “for many years” and had now been prescribed Sertraline 150mg daily since September 2022. Ms Lee reported “she is unsure if it helps”.
Dr Manambrakkat’s medical management at that time was to “increase Sertraline to 200mg mane and start Mirtazapine mg nocte”, with review on 1 March 2023.
Castle Hill Medical Centre
Ms Lee has come under the general medical care of Dr Mir who practises out of Castle Hill Medical Centre. Dr Mir recorded at Ms Lee’s consultation with him on 30 January 2023 that Ms Lee “was bullied at work” with her claim for compensation being declined in November 2022. Ms Lee consulted with him for the purposes of obtaining a medical certificate. Dr Mir noted Ms Lee did not work until 28 December 2022 when she “started working as an admin since 28.12.2022 for 4h/5 days a week”. As Ms Lee was under the care of a psychiatrist,
Dr Mir recommended Ms Lee bring him a copy of the psychiatrist’s report. Dr Mir noted at that time Ms Lee’s medication included Sertraline 200mg mane and Mirtazapine.On review on 3 March 2023, Dr Mir provided diagnosis of adjustment disorder with depressed mood, and on review on 31 March 2023, Dr Mir provided diagnosis of “anxiety and depression PTSD”.
In the most recent Certificate of Capacity issued by Dr Mir relevant to the period between
18 November 2024 and 6 December 2024, Dr Mir certified Ms Lee with a current work capacity for 20 hours each week.
Independent medical evidence
Dr Roberts
Ms Lee was initially psychiatrically assessed by Dr Roberts on 16 May 2023 in his capacity as independent medical examiner. Dr Roberts is a psychiatrist. Dr Roberts provided a report dated 29 May 2023.
At the time of assessment Ms Lee was working as an administrative assistant for 20 hours each week, which Ms Lee described as “sufficient”. Ms Lee said she had commenced working in this role “after Christmas 2022”. Dr Roberts noted that at the time Ms Lee alleges she sustained injury, she had been on contract with ATC and ceased working before her contract expired.
Dr Roberts reported a past history of psychological injury:
“… Ms Lee stated that she had during her work as a teacher had had an issue with a principal; that she attended a psychologist; that this was in 1990; that she left her position; that she had been a primary school teacher. No other problems of a psychiatric/psychological or nervous nature were volunteered.”
Dr Roberts said of Ms Lee’s current treatment:
“Ms Lee referred to attending a general practitioner Dr Sini Jospeh and also a Dr Mir another general practitioner because he is closer to her place of residence. In addition Ms Lee referred to her attending psychiatrist? Dr Mini Bracken (query spelling) that she had seen him four times, including at the Hills Private Hospital, where he had prescribed Mirtazapine an antidepressant that works on the serotonergic and noradrenergic systems with antidepressant, anxiolytic and sedating properties.
…
Medication at the time of attendance was stated to comprise Mirtazapine 30mgms nocte, Zoloft a selective serotonin reuptake inhibitor with antidepressant and anxiolytic features, Telmisartan and antihypertensive and Rosuvastatin aka Crestor, a hypo-cholesterolaemic agent.”
Dr Roberts reported a rather confused history of injury:
“Mrs Lee referred to having a history of employment with the Australia Turf Club for a period of six years, she described her role as being an administration assistant to the Track Manager.
When questioned as to what she considered had gone wrong in regard to her employment Mrs Lee stated that her boss was very ‘over-bearing’ that he became ‘personally attacking’ and that he wouldn’t tell her when functions would be occurring.
Mrs Lee stated that if she was for some reason not in her office, he would look for her, she referred to him as talking while she was in the room and that he would say in regard to her ‘where is the little bitch’.
Mrs Lee stated that she had indicated that such comments were inappropriate.
Mrs Lee referred to having a certain point been engaged in speaking to a person in a workshop; that she was being watched by her manager; that he had come to ask her what she was talking about, and she replied that she had been talking in regard to matters related to work.
Mrs Lee asserted that on the day that she left work namely when she ceased her employment with the Australian Turf Club, that physically she felt like vomiting; that she was being subjected to screaming, that she was shaking; that she was being blamed in regard to matters relating to the budget and of there being a discussion that the budget was her job not his job.
Mrs Lee asserted that she was subjected to four hours of straight questioning without a break; that she was being questioned as to where the money has gone, she referred to the monies as having been expended in what she referred to a “Budget expenditure”, that she felt that she had done her best.
Mrs Lee stated that her manager Mr Shane Patterson would ignore her.
Mrs Lee stated that there was a function relating to what she described as ‘a mental health RU OK day’, that it was a morning tea/breakfast, she was not informed, Mrs Lee made reference to an investigation from a staff member who was ‘getting it rough’; that she felt confused and watched; that she would be yelled at across the office.”
Following his interview with Ms Lee and review of the documents provided to him, which included Dr Joseph’s clinical records and the factual report prepared by Procare, Dr Roberts said relevant to Ms Lee’s alleged psychological injury:
“There is a remarkable paucity of symptomology of heightened anxiety of inappropriate degree which is simply inconsistent with the development of a mental illness, arising either as a result of the circumstances and conditions of employment or anything else, there is no evidence of a reactive state.”
However, Dr Roberts relevantly said in response to specific questioning:
“I consider that Ms Lee has a longstanding history of anxiety and depression which appears to have been substantially controlled by treatment provided, namely the use of antidepressants.
I would consider that the appropriate diagnosis would be of Major Depressive disorder with anxiety, which has pre-existed the employment of Kathryn Lee with Australian Turf Club by years.
The condition under consideration is a condition that is characterised by spontaneous remissions and exacerbations regardless of circumstances.
A Major Depressive Disorder with anxiety is defined as a primary disorder of mood characterised by periodicity.
The terminology ‘Primary disorder of mood’ indicates that the underlying disturbance is of a mood disorder, which distinguishes this condition from other conditions when depression is present, it is not the primary disorder.
The term periodicity implies that there is an inherent tendency for the condition to be subjected to remissions and exacerbations regardless of the circumstances.
In addition the condition is characterised by the tendency to misinterpret one’s environment in a manner that is negative which is a feature of the depressive mood.
I would consider that the longstanding pre-existing condition is as is demonstrated by current activities, and interactions with others, in substantial treatment induced remission.
In regard to her current condition, which is well treated, I do not consider that her current psychological condition is related to the circumstances and conditions of employment but there are longstanding pre-existing conditions that predated her employment with Australia Turf Club by years and had manifested already when she was a primary school teacher, based on her history.
I have commented on the condition which is characterised by depression and anxiety. The absence of any anxiety symptoms is reflective of the control of her longstanding pre-existing condition by means of pharamaco-therapy.”
Dr Roberts provided comment:
“Mrs Lee’s condition is unrelated to the circumstances and conditions of employment – she has a history of identical symptomology and identical difficulties with previous employers, namely when she was a primary school teacher.”
In response to specific questioning as to whether Ms Lee’s “condition” is an aggravation is an aggravation of a pre-existing condition, Dr Roberts said:
“No, since Mrs Lee’s condition spontaneously undergoes exacerbations and remissions regardless of circumstances she will continue indefinitely to have fluctuating moods and fluctuating anxiety levels. Prognostically the severity of her moods in the direction of depression will on statistical probability, increase in severity with age.”
In response to specific questioning regarding Ms Lee’s treatment, Dr Roberts said:
“I consider that her current management with antidepressants is satisfactory – I note that in the context of her taking Zoloft 200 mgms and Mirtazapine 30 mgms, this constitutes an appropriate combination of antidepressant medication together with medication that sedates. Minor modification in doses may be required, such as an increase in the Mirtazapine and possibly an increase in Zoloft, although 200 mgms of Zoloft is the usual maximum dose prescribed.”
Dr Roberts further said, “I do not consider that Mrs Kathryn Lee’s work capacity is currently impeded by her well managed condition.”
In his report dated 30 May 2023, while Dr Roberts provides no assessment of whole person impairment, he provides opinion regarding psychiatric impairment rating scales, and relevant I think to the issue of Ms Lee’s capacity for work is Dr Roberts’ reasoning for electing class 2 for the categories of travel, class 1 for concentration, persistence and pace, and class 3 for employability. Dr Roberts relevantly said:
“Travel – in this context Mrs Lee stated that she limits her driving.
Concentration, persistence and pace – I note that she is gainfully employed undertaking 20 hours per week.
Employability – I note that Mrs Lee is working 20 hours per week; that she is not working in the same position.”
On this occasion Dr Robert said:
“In summary therefore Mrs Kathryn Lee has a longstanding history of psychopathology which is characterised by remissions and exacerbations and misperceptions, and difficulty with perception, she has had certain perceptions in regard to her employment with Australian Turf Club, Racing NSW.
These perceptions are denied.
In terms of current functioning she displays a level of impairment no different from the normal variation in the general population.
I reiterate that her prognosis is not impacted upon by her employment but will continue to cause fluctuations in performance as is the case due to the natural history of her condition.”
Ms Lee was psychiatrically re-assessed by Dr Roberts on 3 June 2024. Dr Roberts provided a report dated 8 July 2024. On this occasion Dr Roberts reported Ms Lee was symptomatic and relevant to the events allegedly occurring while she was working with ATC, he reported:
“Ms Lee asserted that she felt sick while talking about that situation; that she is not improving; that she was not getting the help she needed to move on, she referred to experiencing panic attacks; that she was not eating properly nor was she sleeping properly.”
Dr Roberts took an updated history of Ms Lee having worked for 12 months in part time administrative work but having ceased working in January 2024. He said of Ms Lee when questioned about her future plans:
“Mrs Lee stated that she would like to get a part-time job, she commented that she would prefer a job in administration, similar to that which she had previously had, namely working four hours per day, five days per week. I note Ms Lee indicated that she was still looking for work.”
Dr Roberts provided opinion that Ms Lee was fit to work 20 hours a week, and said:
“I consider eventually that with appropriate treatment she would be capable of undertaking fulltime employment, of having regard to her perceptions of her employment with the Australian Turf Club, I would consider that it would be uncomfortable for both parties if she returned to work there.”
Dr Roberts noted that while Ms Lee reported she had taken Sertraline at a dose of 100mg each day for the last 10 years (which Dr Roberts said clearly indicated a longstanding pre-existing history of mental illness for at least 10 years) now Ms Lee “was taking Sertraline 200 mgms per day, this being a selective serotonin reuptake inhibitor with antidepressant and anxiolytic features” and her sleep issues were managed by “the use of Temazepam 1 nocte as required, this being a benzodiazepine central nervous system depressant and anxiolytic used as a night sedative”. Dr Roberts listed Ms Lee’s medication at the time of assessment:
· Sertraline 200mgms per day, an antidepressant;
· Macarids 20mgms per day antihypertensive;
· Rosuvastatin, a hypolipidemic agent, and
· Temazepam, a night sedative.
Dr Roberts recalled that on last occasion he had assessed Ms Lee he reported “there was a significant absence of symptomology of heightened anxiety of inappropriate degree” and provided comment “there is no evidence of a reactive state.” In essence Dr Roberts had on that occasion formed the view Ms Lee’s pre-existing psychopathology “had been controlled by treatment to the extent that there were no manifestations of autonomic system dysfunction and at that time no manifestations of a current condition either chronic or acute.” However, while on this occasion Dr Roberts accepted if Ms Lee’s account of symptoms “is true and accurate” there had been a relapse in her Mood Disorder “of significant degree,” he said:
“I consider that such psychopathology is unrelated to the circumstances and conditions of employment but is a constitutional condition which is characterized by remissions and exacerbations and which when present, would impact upon her capacity to work.”
Dr Roberts considered that consequent on Ms Lee’s current symptomology, her treatment required reassessment by a psychiatrist.
In summary, while Dr Roberts provided opinion Ms Lee was currently suffering recurrent major depressive disorder, he did not consider Ms Lee’s injury was an injury “arising out of the course of her employment with the insured” and said:
“In my opinion Mrs Lee’s symptom complex and her perceptions of the workplace even assuming that certain of the behaviors at the Turf Club were inappropriate, that the substantial cause of her psychopathology is the manifestation of the underlying condition of her recurrent Major Depressive Disorder, manifesting itself.”
Dr Nagesh
Ms Lee was psychiatrically assessed by Dr Nagesh on 10 January 2024 in his capacity as independent medical examiner. Dr Nagesh is a psychiatrist. Dr Nagesh provided a report dated 10 January 2024.
At the time of assessment, Dr Nagesh noted Ms Lee was still working as an administrative assistant with Think Water Dural, for 20 hours each week. Ms Lee had been working in this role for the past year.
Dr Nagesh recorded Ms Lee had previously been working in an administrative role with ATC for six years. Dr Nagesh recorded Ms Lee “was working full time” which I accept is not correct in that Ms Lee had only been working full time for a period of about 10 months before she ceased working with ATC. Dr Nagesh recorded Ms Lee had last worked with ATC in September 2022.
Dr Nagesh reported Ms Lee had told him that while working with ATC “her manager bullied her on a regular basis”. Dr Nagesh reported:
“He made her uncomfortable on multiple occasions, he followed her wherever she went, she was excluded from team meetings. There was lack of communication from the manager. He was rude in his behaviour towards her. In front of Ms Lee he verbally abused her colleagues with derogatory names. He prevented Ms Lee from going to her lunch break, she was not allowed to leave the office space, she was blamed for little things which she did not do. On occasions she was not allowed to take her medications.
Turf Club had an RU OK day, there was a morning tea which Ms Lee was not aware of; when she went in, she saw the whole staff having a buffet breakfast which she was excluded from.
The alleged bullying and harassment commenced in February 2022. Ms Lee alleged on multiple occasions she was told to fix multiple things for which she never received any clear directions from her manager. She was micro-managed, she could not move out of her office chair without the manager knowing.
The final straw was Ms Lee was blamed for the financial bungle which was the manager’s fault and her symptoms were becoming progressively worse to the point she could not continue to function.
Ms Lee first noticed symptoms in April 2022 where she was anxious and was having recurrent panic attacks. The bullying continued. Her symptoms progressively became worse to the point she could not continue to function beyond September 2022.”
Dr Nagesh reported Ms Lee sought medical treatment from her general practitioner for her symptoms in September 2022 and was ultimately referred for psychological and psychiatric review. Dr Nagesh reported Ms Lee received eight sessions of psychological treatment, but ceased treatment because she could not afford it. Dr Nagesh incorrectly noted Ms Lee commenced antidepressant medication, Sertraline. Dr Nagesh reported Ms Lee said there had been no significant improvement in her symptoms.
Dr Nagesh recorded as past history of psychological injury:
“Ms Lee was previously diagnosed with an episode of adjustment disorder many years ago when she was working as a teacher. She completely recovered from this episode, and she was asymptomatic at the time of her current psychological injury.”
Following mental state examination, during which Dr Nagesh described Ms Lee as “highly anxious” Dr Nagesh provided diagnosis of major depression of moderate degree and anxious distress. Dr Nagesh further provided opinion, with Ms Lee’s history of pre-existing psychological injury, Ms Lee’s major depression and anxious distress was in the nature of an aggravation, acceleration, exacerbation or deterioration of her pre-existing condition, with her employment being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
Dr Nagesh noted Ms Lee was working 20 hours each week and provided opinion she was not able to work any more hours than this. Dr Nagesh cautioned that while Ms Lee could continue to work in administrative work, her attendance “might be erratic”. Dr Nagesh provided opinion Ms Lee was not able to return to her pre-injury employment with ATC.
Dr Nagesh assessed Ms Lee with 17% WPI with no deduction. Dr Nagesh said:
“Ms Lee has a past history of depression and anxiety which was in remission at the time of her psychological injury. Hence there is no impairment from her pre-existing condition. I have not deducted a portion of the whole person impairment as there is 0% impairment for her pre-existing condition and there is no subsequent conditions.
I have not added the treatment effect as her symptoms have not improved with the treatment received so far.”
Relevant I think to the issue of Ms Lee’s capacity for work is Dr Nagesh’s reasoning for electing class 3 for the categories of travel, concentration, persistence and pace, and employability. Dr Nagesh relevantly said:
“Travel – My rationale is Ms Lee cannot leave the house without her husband. She commutes to work with her husband. She finds it helpful that her husband is also working the same place as her. She cannot travel to local and familiar places even without her husband. She cannot travel to faraway and unfamiliar places without her husband.
Concentration, persistence and pace – Ms Lee’s attention/concentration is poor… She can barely concentrate for five to 10 minutes … Her memory is patchy where she has been forgetting things and misplacing things and she has to keep a reminder for everything.
Employability – My rationale is Ms Lee cannot return to her pre-injury job. She is working in an alternative position less than 20 hours per week.”
Submissions
Mr Boznovski and Ms Warren made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance afforded to me by counsel in this matter. As recording of counsel’s submissions is available to the parties on request I have not reproduced them here.
Determination
I am required to determine a number of issues in dispute.
Has Ms Lee sustained primary psychological injury arising out of or in the course of her employment with ATC, with deemed date of injury of 19 September 2022, and with her employment being the main contributing factor to injury?
ATC disputes Ms Lee has sustained psychological injury arising out of or in the course of her employment with ATC, with deemed date of injury of 19 September 2022, and with her employment being the main contributing factor to injury.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease injury where the worker’s employment is the main contributing factor to injury. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[1] with comment that the test of “main contributing factor” is one of causation that involves consideration of the evidence overall.
[1] [2020] NSWWCCPD 9.
Relevant to the issue of causation, in Kooragang v Cement Pty Ltd v Bates[2] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[2] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Relevant too in this particular matter, when considering the issue of establishing psychological injury in circumstances of a worker’s perception of real events occurring at work, is that in Attorney General’s Department v K[3] Deputy President Roche usefully summarised the principles to be applied at [52]:
“(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’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (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);
(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 (Leigh Sheridan v Q-Comp [2009] QIC 12);
(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 v Comcare Australia [2002] FAC at 1464 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.”
[3] [2010] NSWWCCPD 76.
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ …”
ATC has placed injury in issue, and Ms Lee has the onus of proving she sustained primary psychological injury arising out of or during the course of his employment with ATC with her employment with ATC being the main contributing factor to injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[4] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246 (Nguyen).
I consider it is also helpful to note that in Malec v JC Hutton Pty Limited[5] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[5] (1990) 169 CLR 638.
Ms Lee has detailed a number of incidents during her most recent period of employment with ATC, which she said caused her mental health to deteriorate to the point where she sought medical treatment and ceased working with ATC and it is evident Ms Lee’s concerns essentially lie with behaviours exhibited by her manager, Mr Patterson, with who she worked on a daily basis. Ms Lee described Mr Patterson’s behaviour at times to be rude, overpowering, arrogant, controlling and dismissive. Ms Lee provided a number of examples of Mr Patterson’s concerning behaviours, which included his response to her communication with payroll at the request of a staff member while EBA negotiations were occurring, his lack of concern for her welfare when she was or had been too unwell to attend work, his loud communications with Mr Cassim within their working environment, and his taking of credit for the sourcing of machinery in circumstances where she had sourced the machinery. Ms Lee said too Mr Patterson excluded her from work events and referred specifically to her late notice of CPR training on 11 August 2022 and the RU OK Day event on 8 September 2022. Ms Lee also described in some detail the manner in which Mr Patterson interacted with her regarding budget overspend, which ultimately resulted in Ms Lee seeking medical treatment and ceasing work with ATC.
In the initial contact form completed by ATC on 12 September 2022 while Ms Lee reportedly identified the first time she found Mr Patterson’s behaviour concerning was when she was required to provide him with her COVID-19 test result, Ms Lee also referred to Mr Patterson’s behaviour as rude and belittling, to her not being invited to the RU OK event, and to her being required to work on the budget spreadsheet which she referred terms of being “hounded”.
While it is apparent Ms Lee made no complaint of workplace difficulties to Dr Joseph while working with ATC in her fulltime contract role until 13 September 2022, on 13 September 2022 Dr Joseph noted a lengthy consultation of some 35 minutes with complaint by
Ms Lee of Mr Patterson’s bullying behaviours with specific reference to being asked to “redo work on budget”. On this occasion Dr Joseph increased Ms Lee’s Sertraline dosage and considered referral of Ms Lee for psychological counselling. About six weeks later during Ms Lee’s psychological consultation with Ms Henderson on 26 October 2022, Ms Henderson noted complaint by Ms Lee of Mr Patterson’s bullying behaviours, again with specific reference to working on the budget with comment “felt sick in the stomach at the thought of not being able to balance budget and being accused of this, when it was not her fault teary and sick.” Some three months later during psychiatric consultation with Dr Manambrakkat on 23 January 2023, Dr Manambrakkat noted complaint by Ms Lee of Mr Patterson’s bullying behaviours, again with specific reference to working on the budget with comment “she would get blamed for budgets getting blown out though it was his job to balance the budget.” On this occasion Dr Manambrakkat increased Ms Lee’s Sertraline dosage further and recommended psychiatric review in six weeks. Some four months later when Ms Lee was psychiatrically assessed by Dr Roberts on 16 May 2023, Dr Roberts noted complaint by Ms Lee of Mr Patterson’s bullying behaviours, and made specific reference to various incidents, which included working on the budget with comment:“… on the day that she left work namely when she ceased her employment with the Australian Turf Club, that physically she felt like vomiting; that she was being subjected to screaming, that she was shaking, that she was being blamed in regard to matters relating to the budget and there being a discussion that the budget was her job not his job.”
Just over seven months later when Ms Lee was psychiatrically assessed by Dr Nagesh on 10 January 2024, Dr Nagesh noted complaint by Ms Lee of Mr Patterson’s bullying behaviours, and again made specific reference to various incidents, which included working on the budget with comment:
“… the final straw was Ms Lee was blamed for the financial bungle which was the manager’s fault, and her symptoms were becoming progressively worse to the point she could not continue to function.”
With Mr Necovski having raised the credit of Ms Lee I consider it essential to carefully revisit the statements of Mr Narayan, Mr Bennetts, Mr Cassim and Mr Patterson, on which ATC rely:
(a) Mr Narayan said he worked closely with Ms Lee and Mr Patterson for four years and said he never saw any behaviours exhibited by Mr Patterson to Ms Lee that “seemed inappropriate”. Mr Narayan said when he spoke on the telephone with Ms Lee on 13 September 2022, she told him she was “upset about Shaun” who she said had bullied her. By way of example, Ms Lee told Mr Narayan Mr Patterson was controlling and had excluded her from a work event.
(b) Mr Bennetts said he worked with Ms Lee and Mr Patterson for about five months and interacted with Ms Lee on a daily basis. Mr Bennetts said he never saw any behaviours exhibited by Mr Patterson to Ms Lee that “seemed bullying or harassing”. Mr Bennetts recalled Ms Lee putting up signs for the RU OK Day event and making lists of people attending.
(c) Mr Cassim said he worked with Ms Lee and Mr Patterson “closely” and saw
Ms Lee each day. Mr Cassim said he never saw any behaviours exhibited by
Mr Patterson to Ms Lee that “seemed bullying, harassing, controlling, belittling or inappropriate”. Mr Cassim accepted Mr Patterson yelled out to him in the workplace. Mr Cassim recalled telephoning Ms Lee when he did not see her at the RU OK Day event and she told him “she didn’t know about it”. Mr Cassim accepted Ms Lee and Mr Patterson were involved in budget discussions but said he didn’t have the impression Mr Patterson was “putting a lot of pressure on her” about the budget overspend.(d) Mr Patterson said he had become Ms Lee’s manager in 2018 when she first worked with ATC on a part time basis, and in essence supported her return to full time work with ATC on a contract basis. Mr Patterson said he and Ms Lee had a “really good relationship”. Mr Patterson denied he was arrogant, controlling and isolating in his behaviour towards Ms Lee. Mr Patterson denied yelling to Mr Cassim (although Mr Cassim accepted Mr Patterson did yell to him). Mr Patterson denied excluding Ms Lee from the RU OK event. Mr Patterson said he could not recall the specified incidents involving Ms Lee’s welfare and/or inability to attend work, save for the text he received from her on 9 September 2022 (although he was silent as to whether he responded to the text), and her subsequent return to work on 12 September 2022 when they resumed working on the budget. Mr Patterson could not recall denying Ms Lee the opportunity to leave the office to purchase medication for her allergies. Mr Patterson did recall telling Ms Lee against a backdrop of EBA negotiations to come to him rather than email Payroll regarding staff pay enquiries. Mr Patterson did recall his late notification to Ms Lee of CPR training. Mr Patterson did recall discussing the sourcing of tines with Ms Lee but denied taking credit for the ultimate sourcing. Mr Patterson did recall working with Ms Lee on the budget overspend and accepted he became quite confused with the conflicting reports Ms Lee presented him with and requested she “go back over things”.
While anomaly has arisen between Ms Lee’s recollections of Mr Patterson’s behaviours and specific events occurring and the recollections of Mr Narayan, Mr Bennetts, Mr Cassim and also Mr Patterson, I am mindful of Ms Warren’s caution an inability of a person to recall an event is not the same as the denial by a person of an occurrence of an event, and I am of the view Ms Lee has provided a credible history as to the circumstances resulting in injury, with particular reference to Mr Patterson’s requirement of Ms Lee to work with him on the budget overspend, which is when, according to Dr Nagesh, Ms Lee’s psychological symptoms intensified “to the point she could not continue to function”. Dr Nagesh referred these budget discussions as “the final straw”.
Mr Patterson first asked Ms Lee to work with him on the budget overspend on Thursday 8 September 2022, which was a concerning task. Ms Lee texted in unwell on Friday 9 September 2022, being a text that was probably not responded to by Mr Patterson. Mr Patterson again required Ms Lee to work on the budget overspend when she returned to work on Monday 12 September 2022 and on this occasion Mr Patterson was for the most part absent from the office, which left Ms Lee working alone on this concerning task. With her task incomplete, Ms Lee left work unwell halfway through the day and sought medical assistance. Mr Cassim accepted Ms Lee appeared “overwhelmed with budget discussions” and Mr Patterson accepted he became quite confused with the various budget reports Ms Lee was showing with him and he had requested Ms Lee revisit her budget workings. While Mr Cassim said he did not have the impression Mr Patterson was putting a lot of pressure on Ms Lee regarding the budget and Mr Patterson had not blamed Ms Lee for the overspend, and Mr Patterson said he was neither rude nor angry when speaking with Ms Lee about the budget and did not blame her for the overspend, there is no doubt Mr Patterson required Ms Lee to work on the budget overspend, which was a concerning task on which she was ultimately working alone. I accept Mr Patterson’s request Ms Lee working on the budget overspend over a period of time was an actual event perceived by Ms Lee “as creating an offensive or hostile working environment”, which resulted in her sustaining injury for which she sought medical assistance.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Ms Lee sustained psychological injury, in the nature of an aggravation acceleration, exacerbation or deterioration of her pre-existing condition, with her employment being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration, with deemed date of injury of 18 September 2022. I am not persuaded by opinion provided by Dr Roberts that Ms Lee’s psychological condition is longstanding and predates her most recent employment with ATC, because it does not appear to me that
Dr Roberts has considered the fact that when Ms Lee consulted with Dr Joseph on
12 September 2022 Dr Joseph increased her Sertraline dosage from 100mg to 150mg and considered referring Ms Lee for psychological counselling nor the fact that when Ms Lee consulted with Dr Manambrakkat on 23 January 2023 Dr Manambrakkat had further increased her Sertraline dosage to 200mg with review in six weeks. While Dr Nagesh likewise did not consider the increases in Ms Lee’s antidepressant medication when she consulted with Dr Joseph on 12 September 2022 and subsequently with Dr Manambrakkat (and in fact made erroneous reference to Ms Lee having commenced antidepressant medication) in circumstances where Dr Nagesh had recorded an alteration in Ms Lee’s medical management and accepted that with Ms Lee’s pre-existing psychological injury the injury, Ms Lee’s current psychological condition was in the nature of an aggravation, acceleration, exacerbation or deterioration of her pre-existing condition, with her employment being the main contributing factor to injury, I do not consider such anomaly to be fatal to
Dr Nagesh’s opinion and I find his opinion to be persuasive.
Does Ms Lee suffers an incapacity for work resulting from the injury from
24 November 2022 ongoing?
As I have determined Ms Lee sustained injury arising out of or in the course of her employment with ATC, with her employment being the main contributing factor to injury, it follows Ms Lee may have an entitlement to weekly compensation payable under s 37 of the 1987 Act from 24 November 2022 in accordance with the 1987 Act.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 37 of the 1987 Act relevantly provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“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.
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.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place or resident.”
Assessment of Ms Lee’s capacity for work from 24 November 2022 involves consideration as to whether since that time Ms Lee has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act.
This requires consideration of Ms Lee’s capacity to undertake not only her pre-injury employment with ATC but also her capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing home Pty Ltd v Dewar.[6] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[6] [2014] NSWWCCPD 55 (Dewar).
Just over one month after Ms Lee’s contract with ATC expired, Ms Lee commenced working in a part time administrative role with Think Water Dural. Although Ms Lee described her working environment with Think Water Dural as “safe” in that her husband also worked there and her colleagues were supportive of her, she said from time to time her anxiety got the better of her and she would “call in sick”. Ms Lee said since her role with Think Water Dural ceased in January 2024, she had not returned to work and was apprehensive about her ability to find alternate employment.
Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Ms Lee has had no current work capacity between 24 November 2022 to 28 December 2022 because (a) in her report dated 2 December 2022 Ms Henderson reported Ms Lee felt her confidence had been impacted to the point she could not work and Ms Henderson considered Ms Lee remained psychologically symptomatic and would benefit from further counselling, (b) Dr Joseph certified Ms Lee totally incapacitated for work during this period pending psychiatric review by Dr Manambrakkat in January 2023, and (c) Dr Mir also certified Ms Lee totally incapacitated for work during 14 December 2022 and 27 December 2022 (albeit backdated certification).
Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Ms Lee has had a current work capacity from 29 December 2022 (when Ms Lee commenced working in her part time administrative role with Think Water Dural) to date in that while I accept Ms Lee is able to work in suitable employment, the weekly amount she has the capacity to earn in such employment is less than the weekly amount she had the capacity to earn in her employment with ATC immediately before the injury.
I accept that since 29 December 2022 Ms Lee has had capacity to work 20 hours per week in an administrative role. Although Ms Lee has expressed apprehension about her re-employment prospects after her employment with Think Water Dural ceased in January 2024 because Think Water Dural did not have any work available for her, I note (a) in January 2023 Dr Manambrakkat described Ms Lee as coping with her part time employment although reportedly “exhausted” at the end of her shifts, (b) in January 2023 Dr Mir certified Ms Lee for 20 hours a week in “admin job trial” and continued to do so, with his last certificate issued on 18 November 2024, (c) in May 2023 Dr Roberts noted Ms Lee had been working in her part time role with an alternate employer since after Christmas 2022, with Ms Lee reportedly describing this as “sufficient”, (d) in January 2024 Dr Nagesh noted Ms Lee had been working in her part time role with an alternate employer for the past year and provided opinion she was not able to work anymore than this with caution her attendance “might be erratic” and opinion she was unable to return to her pre-injury employment, and (e) in June 2024 Dr Roberts recorded Ms Lee had ceased her part-time administration role and was seeking but had yet to secure a similar role and opinion Ms Lee was at that time capable of working 20 hours a week.
I do not accept submission by Mr Necovski that Ms Lee would only wish to return to work on part time basis in any event as this is what she predominantly did in the past, because Ms Lee has not said this is the reason for her seeking a part time role in administration and the medical evidence clearly demonstrates Ms Lee suffers an incapacity for work resulting from her injury since she ceased working with ATC.
Quantification of Ms Lee’s entitlement to compensation payable under s 37 of the 1987 Act?
Ms Lee’s PIAWE is agreed to be $1,345.87 (as indexed).
I accept that between 24 November 2022 to 28 December 2022 Ms Lee had no current work capacity and accordingly during this period Ms Lee’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at 80% of Ms Lee’s indexed PIAWE.
I accept that since 29 December 2022 Ms Lee has had a current work capacity, and I accept Ms Lee has had capacity to work 20 hours each week in an administrative role.
While my review of the Wages Schedule relied on by Ms Lee and supporting payslips from Think Water Dural essentially demonstrate during the period 29 December 2022 to
17 January 2024, being a period of 55 weeks, Ms Lee earned an average of $545 each week, this amount is a little lower than Ms Lee’s contracted remuneration of $29.23 an hour for a 20 hour working week with Think Water Dural, being $584.60 each week.In the circumstances of this particular matter where Ms Lee’s contracted remuneration for a 20 hour working week with Think Water Dural was $584.60 I accept that since 29 December 2022 to date Ms Lee has had capacity to earn $584.60 each week. Accordingly, during the period 29 December 2022 to 17 January 2024 Ms Lee’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at 95% of Ms Lee’s indexed PIAWE less $584.60 (being her ability to earn) and from 18 January 2024 ongoing in accordance with the 1987 Act Ms Lee’s entitlement to weekly compensation is payable at 80% of Ms Lee’s indexed PIAWE less $584.60 (being her ability to earn).
Does Ms Lee require medical or related treatment for her injury?
As I accept Ms Lee has sustained psychological injury arising out of or in the course of her employment with ATC, with her employment being the main contributing factor to injury, it follows Ms Lee may have entitlement to medical or related treatment expenses payable under s 60 of the 1987 Act.
Following review of the evidence as a whole and careful consideration of counsel’s submissions, I am satisfied Ms Lee has an entitlement to medical or related treatment expenses payable under s 60 of the 1987 Act, particularly so noting that (a) in correspondence dated 2 December 2022 Ms Henderson reported Ms Lee continued to be psychologically symptomatic and would benefit from further psychological sessions, (b) when Ms Lee was psychiatrically reviewed by Dr Manambrakkat in January 2023, Dr Manambrakkat recommended an increase in Ms Lee’s Sertraline dosage to 200mg with further psychiatric review, (c) when psychiatrically assessed by Dr Roberts in June 2024, Dr Roberts reported Ms Lee was symptomatic and her medical management required reassessment by a psychiatrist, and (d) as recently as 18 November 2024 Dr Mir continued to certify Ms Lee with a reduced capacity for work resulting from her injury.
Does Ms Lee suffer permanent impairment resulting from her injury?
As I accept Ms Lee has sustained psychological injury arising out of or in the course of her employment with ATC, with her employment being the main contributing factor to injury, it follows Ms Lee may have entitlement to permanent impairment compensation payable under s 66 of the 1987 Act.
It is appropriate for Ms Lee’s claim for permanent impairment compensation resulting from psychological injury sustained in the course of her employment with ATC, with deemed date of injury of 18 September 2022 be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
SUMMARY
By consent, the Application to Resolve a Dispute is amended to reflect the date of injury is the deemed date of 18 September 2022.
Ms Lee sustained primary psychological injury in the course of her employment with ATC, with deemed date of injury of 18 September 2022, with her employment being the main contributing factor to injury.
The parties agree Ms Lee’s PIAWE are $1,345.87 (as indexed). Ms Lee has suffered an incapacity for work resulting from the injury since 24 November 2022 and has entitlement to weekly compensation payable under s 37 of the 1987 Act as follows:
(a) between 24 November 2022 to 28 December 2022 on the basis of no current work capacity at 80% of Ms Lee’s indexed PIAWE;
(b) between 29 December 2022 to 17 January 2024 on the basis of a partial capacity for work at 95% of Ms Lee’s indexed PIAWE less $584.60, and
(c) from 18 January 2024 ongoing in accordance with the 1987 Act on the basis of a partial capacity for work at 80% of Ms Lee’s indexed PIAWE less $584.60.
Ms Lee requires medical or related treatment for her injury and has entitlement to costs payable under s 60 of the 1987 Act.
Ms Lee’s claim for permanent impairment compensation payable under s 66 of the 1987 Act is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
Date of injury: 18 September 2022 (deemed) (as agreed).
Body system: Psychological/psychiatric disorder (as determined).
Method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 20 November 2024 and attached documents lodged by Ms Lee.
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