Mansfield v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mansfield v Secretary, Department of Education [2023] NSWPIC 664
APPLICANT:	Jonathon Mansfield
RESPONDENT:	Secretary, Department of Education
MEMBER:	Paul Sweeney
DATE OF DECISION:	11 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether worker who was certified by an Medical Assessor (MA) to have permanent impairment as a result of his employment as a teacher suffered further psychological injury as a result of dismissal by respondent; whether the further injury was nullified by section 11A(1); whether the worker was entitled to further assessment in respect of such an injury; Held – finding that the worker suffered psychological injury as a result of his dismissal which attracted section 16; referred for assessment; deduction for prior determination of permanent impairment a matter for MA.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered psychological injury being an exacerbation or aggravation of a pre-existing disease within s 4b (II) of the Workers Compensation Act 1987 as a result of the circumstances surrounding his dismissal by the on 24 September 2021. 2. That the psychological injury is deemed to have occurred on 22 February 2023. 3. Remit the matter to the President for referral to a Medical Assessor to assess the applicant’s psychological injury deemed to have occurred on 22 February 2023 as a result of his employment before that date bearing in mind the previous injury certified by Dr Bench in the Medical Assessment Certificate of 16 June 2020. 4. The Medical Assessor to have access to the Application, the Reply, and the documents attached to each.

STATEMENT OF REASONS

BACKGROUND

Jonathon Mansfield (the applicant) was employed by the Department of Education (the respondent) as a high school teacher in 2000. In 2012, he was transferred to Katoomba High School.
The applicant alleges that during this employment he was bullied by his head teachers and school principal. He developed a psychological illness.
In February 2018, the applicant was involved in a motor vehicle accident. On his return to work, his relationship with his head teacher and headmaster deteriorated. He sought psychological treatment and made a claim for compensation for a psychological injury. The respondent’s insurer initially accepted liability and paid the applicant weekly compensation during his absences from work.
The applicant returned to work in December 2018 but experienced a deterioration in his psychological health. He was absent from work throughout term 2 of 2019.
The applicant again returned to work on 7 July 2019. He was placed on a teacher improvement program (TIP). His mental health further deteriorated and he was again certified as unfit to perform the work of a teacher. The applicant has not returned to work since that time.
In matter number 1562/20 in the former Workers Compensation Commission the applicant sought an award of compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). He alleged that his psychiatric injury was deemed to have occurred on 1 June 2018.
On 16 June 2020, Dr Bench, an Approved Medical Specialist, determined that the applicant suffered a Persistent Depressive Disorder with Anxious Distress and an Alcohol Use Disorder. He assessed whole person impairment in accordance with the Psychiatric Impairment Rating Scale (PIRS) prescribed by the SIRA Guidelines for the Evaluation of Permanent Impairment. He determined that the applicant suffered 8% whole person impairment as a result of the injury. He assessed the category of Employability as being severely impaired.
On 20 November 2020, Arbitrator Homan, heard and determined a claim by the applicant for weekly compensation. The Arbitrator found that the applicant was totally incapacitated for work as a result of a “psychological injury deemed to have occurred on 1 June 2018”. She ordered that the respondent pay the applicant weekly compensation from 1 November 2019 to date and continuing on the basis that he had no current earning capacity.
On 27 November 2020, an arbitrator of the former Workers Compensation Commission determined that as the applicant suffered 8% permanent impairment resulting from psychological injury on 1 June 2018, he had no entitlement to permanent impairment compensation “resulting from psychological injury deemed to have happened on 1 June 2018.”
On 24 September 2021, the applicant’s employment was terminated by the respondent. He was also placed on a list of persons not to be employed in NSW Government schools.
On 22 February 2023, the applicant’s solicitor made a further claim for permanent impairment compensation pursuant to s 66 on the respondent. A letter of that date claimed the sum of $52,820 in respect of 22% whole person impairment. The claim was based on the report of a psychiatrist, Dr Brian Potter, dated 1 February 2023. The letter claim commenced as follows:
“We act on behalf of the abovenamed in relation to claiming compensation for a deterioration of a Psychological Injury sustained 24 September 2021. Our client suffered stress, anxiety and depression due to unfair treatment by the Employer.”
By a s 78 Notice dated 30 May 2023, the respondent’s insurer disputed that the applicant had suffered a new or further psychological injury on 24 September 2021. It asserted that the report of Dr Potter did not “support a conclusion” that the applicant sustained a “new psychological injury on 24 September 2021”. It also relied on the opinion of a psychiatrist, Dr Barrett, dated 9 May 2023.
The s 78 Notice continued:
“In the event that it is found that you did sustain a new psychological injury on 24 September 2021 Alliance says that such psychological injury was wholly or predominantly caused by reasonable action that your employer took or proposed to take with respect to discipline and dismissal of workers and that being the case compensation is not payable.”
Finally, the dispute notice stated that the applicant was bound by the prior determinations of the Workers Compensation Commission in matters number 1562/20 and 4355/20 and was:
“estopped from asserting any matter or claim that is contrary to or inconsistent with the findings and determinations in those proceedings”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act for an injury that is deemed to have occurred on 24 September 2021. The injury is said to be a disease and the injury description in the Application to Resolve a Dispute states:
“psychological injury causing stress, anxiety and depression due to unfair treatment by the employer”.
When the matter came on for a conciliation conference and arbitration hearing in the Personal Injury Commission (Commission) on 20 September 2023, Mr Collins solicitor appeared for the applicant and Mr Hanrahan, of counsel, appeared for the respondent. The proceedings were heard audio-visually.
I was informed by the parties that they were unable to resolve the threshold dispute as to whether the applicant was entitled to make a further claim for permanent impairment compensation in the circumstances of the case. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the issue in dispute but were unable to arrive at a mutually acceptable resolution.

EVIDENCE

Documentary evidence

The documents before the Commission are as follows:
(a) Application to Resolve a Dispute and the documents attached, and
(b) Reply and the documents attached.
There was no objection to any of the material referred to above and no application to adduce further written or oral evidence.
In considering the matter, following the completion of submissions, I became concerned that the parties had not addressed troubling aspects of the case. Accordingly, I issued a direction for written submissions requesting the parties to address the following issues in writing:
(a) does s 66(1A) permit the combining or aggregating of the psychological injury deemed to have occurred on 1 June 2018 with the psychological injury alleged to have occurred on 24 September 2021 and/or the impairment, if any, arising from the applicant’s dismissal by the respondent given the Certificate of Determination dated 20 November 2020;
(b) the effect of the reasoning in Cram Fluid Power v Green [2015] NSWCA 250 (27 August 2015), Sukkar v Adonis electrics Pty Ltd [2014] NSWCA 459 (22 December 2014) and any presidential decision relevant to this issue, and
(c) if the nature of the applicant’s employment before 1 June 2018 and after that date cannot be combined or aggregated for the purposes of a s 66 claim is there any evidence that the applicant suffers whole person impairment of 15% or more as a result of psychological injury after 1 June 2018?
Those submissions have now been received. On reflection, I have concluded that the issues on which I sought assistance from the parties are not material to the circumstances of this case.

Submissions

As the submissions of the parties are recorded or in writing, I do not propose to reiterate each of the arguments made by the parties. At the arbitration hearing, both parties addressed the issues of whether the applicant had suffered a further injury, after the injury of 1 June 2018 for which he had been awarded both weekly payments and permanent impairment compensation. Mr Collins submitted that there was ample evidence of such an injury in the reports of Mr Reed, the applicant’s treating psychologist, in the report of Dr Potter and to some extent, in the report of Dr Barrett.
Mr Hanrahan submitted that the evidence referred to by Mr Collins merely established symptoms which were a manifestation of the applicant’s proven injury on 1 June 2018.
In respect of s 11A(1) Mr Hanrahan submitted that to the extent that the applicant relied upon his dismissal as the cause of a further or new injury, it was wholly or predominantly caused by reasonable action on the part of the respondent with respect to dismissal. He relied on the report of the applicant’s Principal, Ms Boyall dated 14 November 2019 which recommended that the applicant’s employment be terminated as he had:
“not made sufficient improvement to meet the standard of performance required for the position of a classroom teacher.”
Mr Hanrahan submitted that the applicant had not engaged with the TIP process throughout his employment. It was irrelevant that the applicant’s incapacity for work as a result of the psychological injury contributed to his inability to complete the program. Mr Hanrahan submitted that the contents of a letter from Mark Anderson, the respondent’s Director, Employee Performance, dated 16 September 2021 sets out the process adopted by the respondent in reaching the conclusion that the applicant should be dismissed and establishes that the process was reasonable. He also relied on a document prepared by Lisa Francis Jamison of the respondent’s Professional and Ethical Standards Unit dated 30 March 2021 which upheld Ms Boyall’s recommendation and found that it was “supported by the documentation provided”.
Mr Collins submitted that it was unreasonable for the respondent to have persisted with the TIP at a time when the applicant was suffering from a psychological injury. It was evident from the determination of Arbitrator Homan that it was one of the causes of his psychological injury.
Mr Collins also submitted that the evidence of Mr Gasparre, one of the applicant’s head teachers, was internally inconsistent. A statement of 2015 was laudatory of the applicant’s teaching skills whereas his subsequent evidence denigrated them.
In response to Mr Hanrahan’s submissions, Mr Collins submitted that the applicant’s dismissal was not a solitary incident but needed to be considered in the context of the other stressors which the applicant was exposed to by reason of the “sex scandal” at Katoomba Public School, where a teacher was convicted of having sexual intercourse with one of his students.
Mr Collins submitted that the respondent never considered retiring the applicant on the basis that he was medically unfit for work. That would have been appropriate. To terminate his services for an inability to complete the TIP was inappropriate. By reason of his total incapacity he was unfit for any work, including engaging with a TIP.
By its written submissions, the respondent argued that it was inconsistent with “public policy in this instance to allow for the multiple or top-up claims that existed prior to the 2012 amendments”. It continued:
“If the Member is against this point, then the respondent submits that with respect to any two injuries that may be found to have occurred, distinct impairments resulting from each of them ought to be identified before the Commission can be satisfied or refer the matter for assessment by a medical assessor. In this case there is no evidence that any impairment of greater than 15% has been found to result specifically from the incident pleaded on 24 September 2020 as distinct from the overall condition as already assessed.”
In response, the applicant submitted that the applicant had suffered a “new injury” in 2021 and gives rise to all “entitlements that flow under the Act for a new injury”. The applicant referred to the well-known principle established by Calman v Commissioner of Police[1] that employment injury need not had be the sole cause of an incapacity or impairment. It is sufficient if it is a contributing cause. The applicant also referred to McCarthy v Department of Corrective Services[2] where it was stated that:
“It is trite law that a loss can result from more than one cause”.
[1] (1999) HCA 60.
[2] (2010) NSWWCCPD 27.
The applicant further submitted that the sole function of a Member of the Personal Injuries Commission was to determine the issue of “injury”. It was for the medical assessor to determine the impairment arising from the injury.[3]
[3] See Greater Taree City Council v Moore [2101] NSWCCPD 49
The applicant submitted that s 66(1A) was not relevant to these proceedings. He continued:
“Where the applicant claims a ‘new injury’ so s 66(1A) is not relevant to that previous injury.”
The claimed ‘injury’ is a new injury within the meaning of s 16(1) of the Workers Compensation Act 1987 being an ‘aggravation, acceleration, exacerbation or deterioration of a disease’.
The applicant’s claim is that he alleges in the 3 years from 2018 to 2021 including terminating the applicant, the Respondent’s actions aggravated his injuries. The applicant’s claims to be 22% WPI now which is a significant deterioration from the previous MAC of 8% WPI (dated 6 June 2020).
Section 66(1A) is not silent on preventing a further claim by a worker for a new injury. Section 66(1A) only related to ‘an injury’ i.e. in the singular.
A fresh injury should be treated as a fresh injury and assessed.”
The applicant submitted that the combined effect of s 68B(3) of the 1987 Act and s 323 of the 1998 Act was that in the case of a disease pursuant to s 15 or 16 “new injuries/aggravation claims are assessed de novo aggregated without deduction”.
Contrary to the respondent’s submissions, Mr Collins submitted that:
“The applicant’s employment pre and post 1/6/18 can and should be aggregated when assessing further injury 24/9/21 as required by Section 323(1) of the 1998 Act and Section 68B(3) of the 1987 Act for injuries under Section 16 of the Act.”
It will be necessary to return to the submissions of counsel when determining the issues in dispute. It is first necessary, however, to consider the evidence of the applicant and the evidence of the qualified doctors on whom each party relies.

Applicant

By his statement dated 8 April 2022, the applicant reiterates that he was bullied during his employment at Katoomba High School which resulted in him developing a psychological injury and off work from June 2018 to November 2018. The applicant continues:
“I attempted a Return to Work plan in November 2018 and normal duties from January 2019 but the bullying continued.
I was placed on an Informal Teacher Improvement Program at a meeting on 11 April 2019 unfairly and was again off on workers compensation from 12 April 2019 to 19 July 2019.
Again, I attempted a Return to Work Program on 19 July 2019 and was then placed on a formal Teacher Improvement Program from 19 August 2019 for not completing the informal plan for being on compensation. I performed about 2 weeks of this and was again off on Workers Compensation from 9 September 2019.
While still on Workers Compensation I was terminated on 24 September 2021 for failing to complete the Teachers Improvement Program while on Workers Compensation. At that time I was seeking and hoping to return to work and was prepared if necessary to complete the TIP.”
The applicant refers to the “rape” of a student at Katoomba High School by a teacher who is now in jail. He states that in November 2020 at the Alex Hotel a woman named Imogen McEvoy mistook him for that teacher and accused him of paedophilia in front of a large group of people. The applicant says:
“I live in a small town where gossip can destroy your reputation. I subsequently took proceedings against her and received a private apology but not a public apology in November 2021 but the damage has already been done.”
The applicant continues:
“Additionally the aggressive approach by the Employer to me in my seeking re-employment in industrial relations proceedings have made it clear that they do not under any circumstances want me back and indeed maintain me on the Not To Be Employed List when I am an injured worker and was always just trying to return to work.
The combination of these matters has resulted in a further injury to me.”

Dr Brian Potter

Dr Potter saw the applicant at the request of his solicitor on 1 February 2023 and provided a report of that date. Dr Potter took a general history that encompassed events which occurred both before and after the previous medical assessment. He records the following:
“Beginning with the statement that he has been unfairly treated by his employer, which has impacted his health and his relationship with and the health of his four children, he described having been terminated from his employment following a bullying, humiliating and unsupported experience during his work as a teacher.
He continued within a rambling account [sic], consistent with anxiety and in an emotional place of feeling humiliated and embarrassed.
With the date of 2018, he described having been performance managed, which continued for 5 years.
He added having been involved in a workers compensation case two years prior to this assessment.
As he continued to give more detailed history in the following specific areas, he added history, painting a picture of an individual, who through bullying and lack of support, has lost his profession; friends and family; and identity.
He also provided a history of a hard work struggle with life, prior to his workplace problem issues with which he was coping, and being productive at work until the bullying and false allegations, Including having been wrongly identified as a paedophile teacher, during his more recent work.”
Dr Potter diagnosed a persistent major depressive disorder and a substance (alcohol) misuse disorder. He said this:
“Although a complex history describing a struggle with life prior to his workplace experience, he gave a history of coping without significant dysfunction until his described workplace experience, which is a mixture of accidental issues, being confused with a paedophile teacher, and specific workplace issues of having experienced being bullied, unsupported and unfairly singled out to be got rid of within performance appraisal demands.”
Dr Potter expressed the opinion that the applicant suffered 23% whole person impairment. He continued:
“I note in the workings of the Workers Compensation Commission, a percentage impairment of 8%. This assessment was completed on 1 June 2020, approximately 2 years and 6 months prior to this assessment. Mr Mansfield had made significant deteriorated moves (sic) since that time, for example as recorded in the self-care and personal hygiene. In the Workers Compensation Commission, it is stated that he was living with two housemates, although still had a class of functioning, 2.
With this more recent assessment, Mr Mansfield’s functioning is at a lower level of ability, which put him in a higher median class value with a greater aggregate score with a significant percentage impairment difference from the tables.”

Dr Melissa Barrett

Dr Barrett, a psychiatrist saw the applicant at the request of the respondent’s solicitor on 9 May 2023.
Dr Barrett recorded a history that the applicant had been exposed to stressors as a consequence of the break-up of his relationship with his partner in 2012. His former partner made an allegation that he had “sexually abused one of their children”. This led to the police attending the campus of the Katoomba High School to interview him.
Dr Barrett records that the applicant was involved in family law litigation dispute as to whether he should have access to his three children, a further relationship break-up and a motor vehicle accident arising from an epileptic seizure in 2018. She continues:
“He stated that despite his employer being aware of some of these stressors, he regarded he was unsupported. He stated he was set up to fail, required to teach business studies in which he stated he was untrained. He reported that within one or two weeks of return to work after his seizure and motor accident, he was commenced on a Teacher Improvement Program as part of performance management. He perceived the purpose of this was to ‘collect evidence to terminate’ him, rather than to assist him.”
By 2017, the applicant had developed symptoms of anxiety and depression and believed that there were “rumours circulating about him”. There were also rumours that he had sexually assaulted students. By 2018, his sleep was disrupted, he was fatigued, experienced reduced concentration, and suffered from chronic suicidal ideation.
Dr Barrett recorded the following:
“He has the ongoing stress related to the workers compensation claim on the basis of his performance management process, his employment was eventually terminated. He stated since then his symptoms have ‘spiked’ although he acknowledged that there was no period of remission of his symptoms from 2018 onwards. Since the termination, he has a sense of, ‘no escape, no way out, no solution’ and there has been a further increase in his alcohol and substance use. In the last 5 years, he has been using marijuana intermittently, and he stated that he continues to use 4 to 6 standard drinks daily. He wakes overnight with a tremor. He finds it difficult to stop drinking because he experiences increased anxiety. He has his first drink at 6 or 7pm. He continues, despite awareness of the negative impact of alcohol upon his physical health.”
The doctor also records that the applicant has been using cocaine intermittently for a period of five years.
Dr Barrett also diagnosed a persistent depressive disorder and alcohol use disorder. On balance, she thought that it was likely that he also suffered a “cocaine and marijuana use disorder”. She thought that he was totally unfit for any employment.
Dr Barrett expressed the opinion that the applicant’s condition represented a “continuation of a condition that has been persistent since 2017 or 2018”. She continued:
“Therefore, its causes remain the same cause of the 2018 condition, combined with subsequent perpetuating stresses causing further exacerbation of symptoms, including the stress of the ongoing workers compensation matter, the stress of the ongoing family law matter, the stress of ongoing rumours about him in the community in regard to symptoms since 2012 in regard to the previous relationship break-up, persistent stresses in regard to his allegation of being harassed and provoked by a man in the community and legal matters regarding this, infrequent contact with his children, and further employment stresses in regard to termination of his employment.”
Dr Barrett was asked to specifically address whether the applicant suffered a “new psychological injury” as a result of the termination of his employment on 24 September 2021. She responded to this question as follows:
“It is not my view that Mr Mansfield suffered a new psychological injury as a result of termination of his employment on 24 September 2021. Instead, I consider he has experienced chronicity of the previous psychiatric disorder, persistent depressive disorder and alcohol use disorder from 2017 or 2018, but that these conditions were likely further exacerbated after termination of his employment on 24 September 2021 which was the final stage of the performance management process which he had objected to, as a form of bullying and is reported to have caused his 2017/2018 condition.”

DISCUSSION AND FINDINGS

Injury

The starting point for determining whether the applicant suffered an injury as alleged in the present application is the Medical Assessment Certificate of Dr Bench of 16 June 2020. Dr Bench recorded that the applicant’s mood at the time was “very low”. He suffered middle insomnia, had low energy levels, low libido and his attention was “very bad … very, very scattered”. Dr Bench diagnosed Persistent Depressive Disorder with anxious distress and an alcohol use disorder. He concluded, however, that as the applicant’s use of cannabis, ecstasy, and amphetamines was on a recreational basis and had “not provoked any impairment”, he did not meet the diagnostic criteria for a substance use disorder.
Dr Bench certified that the applicant had reached maximum medical improvement and that he suffered 8% whole person impairment as a result of the diagnosed injuries.
The claim for permanent impairment compensation was based on the opinion of Dr Ben Hooi-Beng Teoh, a psychiatrist, who saw the applicant on 12 February 2020 at the request of his solicitors and provided a report of that date. Dr Teoh expressed the opinion that the applicant had a chronic adjustment disorder with mixed anxiety and depressed mood. He expressed the opinion that the applicant suffered 17% whole person impairment on the PIRS. By a supplementary report of 5 May 2020, he said this:
“It is my opinion that Mr Mansfield suffered one injury – the primary injury of his chronic adjustment disorder with mixed anxious and depressed mood, started in 2018. Subsequently, he was exposed to a stressful situation at work where he felt harassed, belittled and unsupported despite his complaint. Nothing was done about his concern.
I agree with Dr George that Mansfield has suffered a ‘cumulative series of events’ leading to his psychiatric condition. The events in September 2019 had aggravated his condition. He did not suffer a new injury in September 2019.”
By his initial report, Dr Teoh stated that:
“His condition is likely to remain the same, and could fluctuate depending on the outcome of his employment. He is experiencing financial stress and uncertainty of his career, which may aggravate his depression.
If his condition deteriorates, he will require review by his general practitioner and by a psychiatrist. He has fleeting suicidal ideation which could get worse if the social and employment conditions do not improve.”
Dr Teoh’s evidence is important in two respects. First, it establishes that the applicant’s condition is one that might fluctuate depending on the “outcome of his employment”. It also suggests that there was some fluctuation in the applicant’s condition between the time of his assessment and the date of the assessment by Dr Bench which may explain the different assessments of permanent impairment by the two psychiatrists. While Dr Bench dealt with a date of injury of 1 June 2018, he took into account in assessing the applicant’s permanent impairment that he ceased employment, although the date he records for the cessation of employment in 2019 is not consistent with the other evidence.
While I accept that there is a degree of variability in serious psychiatric conditions, the evidence in this case suggests the likelihood that the termination of the applicant’s employment aggravated his depression. Dr Teoh thought that scenario was possible. Dr Barrett referred to it as an exacerbation of symptoms. I have set out the relevant aspects of her report above. Dr Potter records the fact of the applicant’s termination of employment in his report but does not elaborate on its consequences. While his evidence on causation is not crystal clear, he states:
“At this assessment it is reasonably clinically to accept his described workplace experience as the aetiology of his persistent major depressive disorder.”
I doubt that Dr Potter’s evidence, standing alone, would be sufficient to prove an exacerbation or deterioration of the applicant’s already well entrenched condition by his termination in 2021. His evidence, however, must be read in the context of all of the evidence in the case. Importantly, the applicant’s treating psychologist, Mr Reed in a report of 27 August 2021 stated:
“The threat to dismiss Mr Mansfield, and further, to place his name on a list of persons not to be employed in the New South Wales Government Schools has deeply distressed Mr Mansfield and further exacerbated his psychological injury.”
Thus, while the applicant had a serious psychological condition, which incapacitated him for work before 24 September 2021, there is a good deal of medical evidence that the circumstances surrounding the termination of his employment caused an exacerbation or deterioration of his existing disease. An exacerbation or deterioration of a disease in the course employment is an “injury” in accordance with the definition of that word in s 4 of the 1987 Act, provided the employment was the main contributing factor to the exacerbation or deterioration of the disease. There is a long-standing authority that the termination of worker’s employment arises out of and in the course of his employment. It was not suggested at the hearing that there were non-employment factors which contributed to the exacerbation or deterioration of the applicant’s disease.
The process of dismissal clearly extended over several months and, possibly years. During that time it undoubtedly caused the applicant continuous psychological stress.
Conversely, I am not satisfied that the applicant has established that the incident he describes at a hotel in 2020 has caused or contributed to a further psychiatric injury or aggravated his underlying psychiatric disease. It is true that Dr Potter takes a history of the false allegation where he was “wrongly identified as a paedophile teacher, during his more recent work”. The history, however, is inaccurate and Dr Potter does not analyse the circumstances of the incident in any detail. While it may be arguable that the circumstances arise out of the employment, it must be seen in the context of the fact that the applicant has had persistent symptoms without remission since at least 2017. In the absence of any contemporaneous medical evidence dealing with the November 2020 incident, it is difficult to reach a positive conclusion that it caused or contributed to applicant’s psychiatric injury.
Further, other than the termination of his employment, the applicant has not proven other circumstances, which postdate the previous determination of permanent impairment, arising out of or in the course of his employment which may give rise to an “injury” as defined by the 1987 Act.
Accordingly, I find that the applicant suffered a psychological injury namely an aggravation of a pre-existing persistent depressive disorder as a result of the termination of his employment on 24 September 2021. These stressors were also the last in series of psychological insults commencing in 2017 that had materially contributed to the applicant’s condition. While it was not addressed in submissions, almost certainly, the deemed date of injury for a permanent impairment claim in accordance with s 16 (1) (a) (II) is the date of claim which is 22 February 2023: see Stone v Stannard Brothers Launch Services Pty Ltd[4] and the many presidential decisions which apply it.
It was not suggested at the arbitration hearing that there were non-employment stressors operative in 2019, which outweighed the undoubted impact of the termination of his appointment on the applicant’s psyche. Accordingly, I am satisfied that the applicant’s employment, or more accurately the termination of his employment, was the main contributing factor to this deemed injury.

Section 11A(1)

The exposition of the law relating to s 11A (1) in Northern NSW Local Health Network v Heggie[5] provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
[5] [2013] NSWCA 255 (Heggie).
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline.’ It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan[6] the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
[6] [2003] NSWCA (24 September 2003).
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd.[7] I see no reason why this is not such a case.
[7] [2001] NSWCC 167 (10 September 2001).
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.

Wholly or predominantly

There is a long line of authority emanating from the Presidential Unit of the Commission that the word “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services.[8] In See v The Commissioner of Police [2017] NSWDC 6 (3 February 2017) Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss ‘predominantly’ with the adverb ‘chiefly’. To me it means much more than merely 51%, which is where ‘mainly’ usually leads. To predominate something must eclipse each other factor and all other factors.”
It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue in this case.
[8] [2010] NSWWCCPD 7 at [157].
It is evident from the report of Ms Boyall dated 14 November 2019 and the other documentation relevant to the termination of the applicant’s employment that his head teachers and school principals were concerned with his performance well before he suffered a psychological injury. It is unnecessary to itemise each of the recorded incidents. They commence in March 2012 when a Mr Attwood, the applicant’s head teacher, and Mr O’Brien, the relieving principal, “determined that a move to a formalised program would not be undertaken but rather additional offer of support would be provided”.
On 15 October 2012, Mr O’Brien “raised concerns about Mr Mansfield’s teaching performance” and requested a meeting to discuss implementing an informal support plan.
From 7 August 2014, Ms Boyall met with Mr Mansfield and his support person on several occasions regarding his attendances at school, and the “quality and variety of his lesson preparation and delivery”. It is stated that these concerns were raised by several staff members and a student.
Against that background, it is understandable that the respondent wished the applicant to complete a TIP and that the executive at the Katoomba High School had doubts as to his capacity to perform the duties of a high school teacher.
At the conclusion of the TIP which was implemented on 22 August 2019, Ms Boyall stated:
“Based on the limited evidence I have reviewed as part of the TIP, Mr Mansfield has not demonstrated satisfactory performance in this standard. In the two lesson plans submitted I know no evidence that adjustments were being made for students with additional needs. There was no evidence that the individual learning plans for students were considered. In the two lesson observations, I noted that the delivery of the lessons did not demonstrate teaching strategies based on knowledge of his students. There was little evidence that Mr Mansfield was checking that students were learning during the lesson. My observation and the observation of the external observer was that the majority of the class was disengaged (e.g. playing on their phones, eating, doodling and chatting)”.
Accordingly, Ms Boyall recommended that the applicant had not made sufficient improvement to meet the standard of performance required for the position of a classroom teacher.
It is evident that from the applicant’s statement and Ms Boyall’s report that the TIP which commenced on 19 August 2019 was never completed as the applicant ceased work. He was paid compensation from 9 September 2019 for an accepted psychological injury. When the respondent ceased to pay weekly payments of compensation, the applicant brought a dispute before the Commission. It was in those circumstances that Arbitrator Homan found that the applicant was totally incapacitated from 1 November 2019.
As Mr Collins argued, at the time that the respondent implemented the TIP in 2019, the applicant was undoubtedly suffering from the effects of a psychological injury. He was unable to complete the TIP because he ceased work and was paid compensation by his employer.
While the employer’s actions in respect of discipline and dismissal are undoubtedly the predominant cause of the injury which I have found associated with his dismissal on 24 September 2021, it is not possible in the circumstances to find its actions in dismissing the applicant were reasonable. I accept that there were long standing doubts concerning the applicant’s competency. He was resolutely resistant to having his competency assessed. But by reason of the earlier findings of the Commission he has a proven psychological injury. The effects of that injury are profound. The respondent’s qualified psychiatrist states that the applicant is unfit for work. He has a drug use disorder.

It is highly improbable that the applicant could be fairly assessed by way of a TIP when he was suffering from an accepted psychiatric injury. It is not surprising that he was unable to complete it in the circumstances. It was not reasonable for the respondent to terminate the applicant’s employment on the basis of his failure to engage with or complete the TIP program in 2019. While I accept that the applicant was undoubtedly unfit to teach, the course adopted by the respondent ignored his proven psychological injury. It has not proven that its actions were reasonable.

Disposal

I accept the submission of the applicant that the jurisdiction of the Commission in respect of a claim pursuant to s 66 for permanent impairment is limited to the determination of liability disputes: see Jaffarie v Quality Castings Pty Limited[9] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited.[10] Once there is a finding of injury, the questions of whether it is transient or permanent, and whether a deduction should be made for supervening event or pursuant to s 323 for a pre-existing condition or prior injury are peculiarly within the jurisdiction of a Medical Assessor.
[9] [2014] NSWWCCPD 79 (10 March 2015).
[10] [2014] NSWCA 264.
I also accept injury caused by the circumstances surrounding the termination of the applicant’s employment is an injury which “consists in” the aggravation of a disease in accordance with the reasoning of Hodgson JA in Rail Services Australia v Dimovski.[11] It, therefore, attracts s 16. That is because it cannot be confined to one psychological stressor that occurred on 24 September 2021. Rather, as is apparent from the report of Mr Reed referred to above, the process of termination occurred over several months in 2021, and possibly before. and is best characterised as a series of psychological stressors culminating in the applicant’s dismissal.
[11] [2004] NSWCA 267 (11 August 2004) at [68].
The applicant argues that once it is accepted that he sustained an injury on 24 September 2021, he is entitled to be assessed in respect of all of the injurious psychological stressors to which he was exposed in his employment as a teacher. This is so irrespective of whether those stressors predated the previous medical assessment or predated the earlier deemed date of injury. In essence, the applicant asserts that one ignores the previous determination of injury for the purposes of a further assessment.
On reflection, I accept that the cases referred to in my Direction, Cram Fluid Power v Green[12] and Sukkar v Adonis Electrics Pty Ltd[13] have no direct application to the present case. Section 66 (1A) has no application because the applicant does not seek to make multiple claims for permanent impairment in respect of an injury. He previously sought compensation pursuant to s 66 in respect of an injury deemed to have occurred on 1 June 2018. He now seeks compensation in respect of an injury he alleges is deemed to have occurred on 24 September 2021 but which, applying s 16, occurred on 22 February 2023. They are different injuries with different deemed dates and different, although overlapping, causes.
[12] [2015] NSWCA 250 (27 August 2015).
[13] [2014] NSWCA 459 (22 December 2014).
I find the precise operation of s 16 in these circumstances somewhat arcane. I have previously contemplated that a worker may have several different deemed dates of injury with one or more employers in a lifetime of work. A worker who performs repetitive heavy lifting may have several aggravations of a disease of the spine, a worker who is exposed to the sun may have several aggravations of his skin cancer. Each episode would fall within s 4b(II) and attract s 16. This does not appear to be controversial. In each case the injury would encompass all of the insults to the spine or skin in the course of the worker’s employment. To the extent that the worker had been found to have permanent impairment in respect of an earlier deemed date of injury, s 323 of the 1998 Act requires that there be a deduction in respect of any “previous injury” irrespective whether compensation has been paid.
While the circumstances of this case are not identical to the circumstances above, I have concluded that the same approach should be adopted. Not without hesitation, I intended to remit the matter to the President for referral to a Medical Assessor to assess whole person impairment deemed to have occurred on 22 February 2023 as a result of the nature of the applicant’s employment before that date. I have concluded above that as there is a previous injury there should be a deduction pursuant to s 323 to reflect that fact. But I appreciate that the question of a deduction is pursuant to s 323 is solely within the prerogative of a Medical Assessor.

[4] [2004] NSWCA 277 (18 August 2004).

[2023] NSWPIC 664

11 December 2023