Marmara v Transdev NSW South Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Marmara v Transdev NSW South Pty Ltd [2022] NSWPIC 84
APPLICANT:	Christopher Marmara
RESPONDENT:	Transdev NSW South Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	1 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical expenses in respect of psychological injury following an incident where the applicant was denied use of toilet facilities at railway station; liability for injury and medical treatment disputed; respondent relied on section 11A of Workers Compensation Act 1987 (1987 Act), in respect of discipline; applicant claimed aggravation, acceleration, exacerbation or deterioration of disease, pursuant to section 4(b)(ii) of the 1987 Act; general order for medical expenses claimed; Held- applicant sustained aggravation of disease, to which employment was main contributing factor, pursuant to section 4(b)(ii) of the 1987 Act; section 11A of the 1987 Act has no application, as injury occurred before the disciplinary meetings; the respondent in any event would not have met its onus to establish a defence pursuant to section 11A of the 1987 Act; Pirie v Franklins Ltd and Department of Education and Training v Sinclair considered; medical treatment reasonably necessary as a result of the injury; consideration of Diab v NRMA Ltd.
ORDERS MADE:	That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christopher Marmara (Mr Marmara) is employed by the respondent, Transdev NSW South Pty Ltd (Transdev) as a bus driver.
Mr Marmara claims to have sustained a psychological injury on 2 May 2021, when he was involved in a disagreement with a train attendant, who refused to allow him to use the station toilets.
The applicant completed an Injury Report Form on 2 May 2021. The date of the incident is recorded as 2 May 2021, and the injury type as “assault”. The injuries were to the back and neck, on the left. Mr Marmara ticked the box marked “Muscular/Ligament/Tendon/Joint”.
The applicant stated that the incident occurred when he wanted to go to the toilet. The train attendant refused to open the toilet door. He pushed the applicant on the back of the left shoulder, resulting in his neck being hurt.
On 29 June 2021, the respondent’s workers compensation insurer, GIO, issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the applicant had sustained a psychological injury, pursuant to section 11A(3) of the Workers Compensation Act 1987 (the 1987 Act); that his injury arose out of or in the course of his employment, pursuant to section 4 of the 1987 Act; that employment was a substantial contributing factor to his injury, pursuant to section 9A of the 1987 Act; and that his employment was the main contributing factor to a disease injury (either the contraction or aggravation, acceleration, exacerbation or deterioration of a disease), pursuant to section 4(b) of the 1987 Act.
GIO therefore disputed that the applicant was entitled to either weekly benefits, because he did not have total or partial incapacity for work resulting from an injury, or medical expenses, because medical treatment was not reasonably necessary as a result of an injury. GIO also asserted that the applicant was not entitled to compensation because his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Transdev with respect to discipline, pursuant to section 11A of the 1987 Act.
By letter dated 7 October 2021, Mr Marmara’s solicitors requested GIO to review its decision to dispute liability for his claim. If a review took place, the review notice is not in evidence.
The applicant lodged an Application to Resolve a Dispute (the Application) on 29 October 2021. He claims that on 2 May 2021, he was involved in a disagreement with a train attendant who refused to allow him to use the train station toilets and pushed him, “as described in his statement and the medical evidence”.
The applicant claims that on 2 May 2021, he sustained the aggravation, acceleration, exacerbation or deterioration of a disease.
The Application claims pursuant to section 60 of the 1987 Act $900 for past medical expenses, being consultations with a psychologist; and $3,240 for future medical expenses, also for consultations with a psychologist.
The respondent lodged its Reply on 2 November 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain to be determined:
(a)    whether the applicant has sustained injury arising out of or in the course of his employment with the respondent;
(b)    whether employment was a substantial contributing factor to the injury;
(c)    whether employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease;
(d)    whether medical or related treatment is reasonably necessary as a result of injury, and
(e) whether the respondent has a defence to the claim, pursuant to section 11A of the 1987 Act, as any injury was wholly or predominantly caused by its reasonable action taken or proposed to be taken with respect to discipline.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 17 February 2022. Mr Tanner of counsel, instructed by Mr Staninovski, appeared for the applicant; and
Mr Gaitanis, instructed by Ms Tancred, appeared for the respondent. Mr Marmara was present.
It was agreed that, should the applicant be successful in his claim, it would be appropriate to make a general order for payment of medical expenses, pursuant to section 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Christopher Marmara

The applicant’s first statement is dated 21 July 2021.
On 2 May 2021, Mr Marmara’s schedule involved replacing trains, picking up passengers and taking them to different train stations. He had started his shift at 2:33am.
At 5:55am, the applicant arrived at Macarthur station and went upstairs to use the bathroom. All the bathrooms were closed so he went back downstairs to ask the bus marshal whether there were any other toilets around, because he needed “to do 1 and 2”. The marshal said there were not, but the bathrooms were open yesterday at about that time. As they talked, the marshal noticed the train attendant, so the applicant went upstairs to ask him to please unlock the doors.
The attendant said “no”. The applicant said “you got to be kidding me. I need to go to the toilet, please open the door”. The attendant again said no, he had just started his shift and was doing his routine. He did not want to open the bathrooms because they were dirty, and he had not had the chance to clean them.
The applicant told the attendant he did not care whether the toilets were dirty, and that he really needed to use the toilet. He felt tension in his neck because he was feeling extremely stressed and upset. He was wearing his uniform, so the attendant knew he was working as a bus driver for train replacements.
After pleading a few times with the attendant, the applicant turned to go downstairs, when he felt a bowel movement. He told the attendant to “open the fxxk door. I am going to do my bathroom business outside the toilet door if you do not open them for me”. As he turned away, the attendant pushed him on his back. He pretended to undo his zipper, but he was very desperate to use the bathroom. The attendant eventually unlocked the doors.
Immediately after the incident, the applicant informed the bus marshal and the Operation Control Centre (OCC) what had happened. The OCC acts as his supervisor and deals with accidents and reports concerning bus driving. He continued his shift, as he was due for his meal break, but shortly after he informed OCC that he felt upset and stressed from the incident and had to go home. OCC was understanding and let him go home. It was suggested that he go to the police station, but it was up to him.
At 9:30am, the applicant went to Revesby Police Station and told them what happened. The police asked if he wanted to press charges and he informed them he was not sure. The police said they would contact him in two weeks, but they had not contacted him since.
On 3 May 2021, the recovery [sic] to work coordinator, Vanessa Pitt, rang Mr Marmara to arrange for him to see its Immex doctor, Kevin Siu, at Market Town Wetherill Park. The doctor told him to go on light duties, take Advil, and use a heat pack and Voltaren gel.
The applicant went back to work. Due to his neck problems, he was assigned a buddy driver. They were new to the area, and he had to instruct them on the route. One was very frustrating to train, and the applicant’s neck hurt more from the stress. He could not move it to look at the rear-view mirror and he struggled to twist it.
The applicant had another appointment with Dr Siu. He had half an hour with the physiotherapist at the same centre. Dr Siu had a conversation with Ms Pitt saying to go back to work. As his neck was still hurting, he went to his general practitioner (GP), Dr Sadaf, who said he had sustained an injury to his neck and recommended a week off work. He did not work from 4 May 2021 to 10 May 2021. He was given Norgesic for pain relief.
Ms Pitt suggested that the applicant see the respondent’s Employees Assistance, Benestar psychologist, which he did on 6 May 2021.
On 11 May 2021, the applicant had a meeting with the respondent’s area manager, Brett Thomson, Leanne Garland, from People and Culture Advisory, and union representative Grant Taylor. The meeting was called to resolve the issue. The area manager alleged the applicant was aggressive towards the attendant, which was not true. Mr Marmara refused to say he was part of the problem, and the meeting went nowhere.
There was another meeting on 20 May 2021, between Mr Thomson, depot manager Ron Howard, Mr Taylor and the applicant. Mr Thomson accused him of causing the incident. They showed him photos of it and said his threats of urinating outside the toilets was the cause. At this accusation, and when Mr Thomson mentioned his previous incident on 12 February 2021, the applicant got very upset.
The applicant walked away from the meeting to calm himself. He met “Misho” (Stojanovski), area manager, downstairs and asked him to come upstairs. He asked Misho if he knew anything about what happened on 2 May 2021, but Mr Thomson said Misho did not know anything.
The applicant asked Mr Thomson “where is your duty of care?” and said “you made the situation worse”. He did not respond. This was when Mr Thomson produced the second final warning letter. They asked the applicant to sign the document stating he was the problem. He refused and went downstairs. He called Mr Taylor to come down and said “Can you believe what happened just then?” Mr Taylor said to calm down and go home, so he did. He immediately went to his GP. His GP prescribed Restavit, once a night for three days, and he was to have 20 and 21 May off and see how he felt.
The last two meetings have contributed to the applicant’s psychological injury stemming from the incident on 2 May 2021. Mr Thomson has been unempathetic towards his situation. Due to the recent meetings and the 2 May incident, he increased the dosage of his antidepressant for two weeks. He has returned to taking it once a day.
The applicant has been seeing psychologist Dr [sic] Ramsay Andrews. He had also seen
Dr Assad Saboor. GIO wanted an independent investigation, which was held at Revesby depot on 15 June 2021.
The applicant returned to work on 24 May 2021. He carries a plastic bag, a bottle and spare underwear, in case an incident like that on 2 May 2021 happens again.
The applicant was to have another meeting on 12 July 2021, which was cancelled due to Covid and was then to be held on 21 July 2021. He was very anxious and stressed about this meeting. He was nervous he would be fired over this incident and was unsure where he stood.
Since the last meetings, the applicant has had restless sleep, waking in the middle of the night wondering what’s going to happen. Photography is his hobby, but he has not touched his camera in a while. The stress of this process takes away precious time with his grandchildren. His wife says he is “cranky” and they often argue.
Before May 2021, the applicant slept well. Now, he falls asleep at 12am, wakes at 2am to 3 am, then falls back asleep. Due to the stress and anxiety, his sleep is continually interrupted. The insurer has denied liability for his claim, but he desperately needs to keep seeing his psychologist.
The applicant has made a further statement dated 5 August 2021. This statement relates to an earlier incident on 12 February 2021.
On 12 February 2021, a passenger, who was standing, complained that the applicant was driving too fast. The applicant told him he should be sitting until the bus stopped.
The passenger became very angry and started swearing at the applicant. He got off at his stop but was still swearing at Mr Marmara outside the bus. The applicant told him a few times to “bring it on”. He was about to shut the doors when the passenger came back onto the bus. The applicant pressed the panic button and spoke with OCC. The applicant told OCC what had happened and wrote an incident report at the end of his shift.
On 15 February 2021, Mr Howard looked at the CCTV footage of the incident, and reported it to area management.
On 17 February 2021, area management and the depot manager saw the footage and told Mr Marmara he had instigated the incident and he would receive a verbal written warning letter [sic].
On 19 February 2021, the depot manager told the applicant he should expect a warning letter about the incident. On 7 March 2021, he received the warning letter and signed it.

Evidence of Tracie Hawkes

Ms Hawkes is employed by the respondent. It appears that she is also a bus driver. Her evidence is contained in an email dated 12 May 2021, addressed to Ms Chantelle Tamati, allocations manager.
Ms Hawkes was doing a standby shift at Macarthur station on 2 May 2021. At approximately 6am, she spoke with “Steve”, the bus marshal, to see if he needed her to cover him for a toilet break. He was OK and said a driver had just headed up.
Ms Hawkes then walked towards the stairs to take a break. She could hear “a male, absolutely abusing someone”. She thought it was a hung over meth addict or person who was greatly unbalanced, who may have been upset at the rail closure.
While Ms Hawkes could not remember word for word, there was a great deal of profanity and name calling, at whom she believed at the time was the station master. She could not hear any rebuttal or response, “as one would expect dealing with disgruntled public”.
Ms Hawkes asked if the “station master” was OK. He was fine and asked if she wanted to use the toilets. He was extremely polite and offered one inside the office area. As she left, he informed her that the abuse came from another driver. She was appalled and disgraced to be associated with that behaviour. She apologised on the driver’s behalf. She did not see that the station master was at all difficult.
Ms Hawkes told Steve she had no problems, the station master was lovely and they had been chatting. The driver had complained to Steve and she told him what she had outlined above.
Steve went and spoke to the station master. He agreed that he was polite and friendly. There had been an altercation between him and the driver. Steve told Ms Hawkes the driver was abrupt and had an attitude.

Evidence of Brett Thomson

Mr Thomson sent an email to various employees of the respondent on 20 May 2021. He referred to a meeting with the applicant that day.
Mr Thomson provided a “brief overview” of the incident on 2 May 2021. The applicant had arrived at Macarthur station at about 6am and needed to use the toilets on the platform, but they were locked. He asked the Sydney Trains (ST) employee if he could open the toilets, and was initially told “no, until he had finished his rounds”.
The applicant became upset and threatened to urinate on the platform. The ST employee pushed him in the back – “reason was to stop Chris from carrying out his threat as Chris appears to be motioning to do that”.
The attendant opened the toilets and “Chris does what he needed to do”. He reported this to the OCC on his return to the bus and eventually asked to be relieved due to a sore shoulder. On Monday he was sent to Immex and a claim was made. Mr Thomson believed the applicant also went to the police to lay charges. He was “unsure where this is”.
Mr Thomson had spoken to the applicant when he returned from his week off, with Leanne Garland and Grant Taylor in attendance. After this meeting, he received a statement from another Transdev employee who overheard the conversation; and it appeared the applicant was the aggressor.
That day (20 May 2021), Mr Thomson met the applicant, Mr Taylor and Mr Howard to finalise the investigation. He went through the information and acknowledged they were working with ST to ensure facilities were available but told the applicant his involvement with threats led to the actions of the ST employee.
The applicant became aggressive and argumentative and started to walk out when
Mr Thomson mentioned his previous history. He met Misho at the door and attempted to get him involved. Misho advised him he had no knowledge of the incident. Mr Thomson offered the applicant the opportunity to read the final written warning, but he refused to read or sign it.
Mr Thomson advised the applicant his refusal would be noted on the letter and asked
Mr Taylor if he would be willing to sign as a witness, which he did. Mr Taylor spoke to the applicant downstairs in an attempt to calm him down but was unsuccessful. He suggested the applicant take the day off. The depot then commenced to cover his shift, and
Mr Thomson suggested they look at doing the same for the next day.
Mr Thomson also made a statement, dated 17 June 2021, to an investigator retained by GIO.
Mr Thomson stated that OCC had contacted him to advise that there had been an altercation between a ST staff member and one of the drivers. The driver claimed he was injured and wanted to go home. He instructed the staff member to send him home and organise a replacement.
Mr Thomson started an investigation, using CCTV footage and trying to get information from ST, which was the respondent’s client. They couldn’t supply CCTV footage but provided some still photographs, with some explanations.
Mr Thomson stated that the ST staff member originally refused to allow the applicant to use the toilet, because he had to do his rounds and make sure everything was OK before he did that. There was an altercation “and I believe it got a bit heated”.
The applicant was asked for a written response to the allegations by the rail staff. They had a meeting at which they took the information from him. Mr Thomson believed this was on “about the Wednesday” (which would be 12 May 2021).
Mr Thomson thought that at the meeting, they took the incident report written by the applicant and then “basically just took notes from that if there was anything else we needed to know”. Ms Garland and the applicant’s union representative also attended.
They considered what the applicant had said, and what the ST member said in reply to his senior people or supervisors. They then had another meeting with the applicant a few days later and finalised the investigation. The applicant was issued with a final written warning for his involvement in the issue.

The investigator asked Mr Thomson whether there was a statement from the ST employee. Mr Thomson stated that there was, and it formed part of an email trail – “there’s the statement there from what ST had sent us”. There was also a statement from Ms Hawkes. Mr Thomson did not have the document, but said it was probably on his emails.
Mr Thomson and Ms Garland made the decision to issue the warning. This was based on the applicant’s involvement and his previous history. He had an altercation with a passenger earlier in the year when he became “a little bit aggressive” and was given a written warning, accepting that he was at fault.
The applicant’s response to being issued with the warning was unprofessional. He stormed out and asked Mr Stojanovski to take over. He wasn’t accepting any final written warning.
Mr Thomson told the applicant they believed he wasn’t totally at fault for the incident. Because of his performance history, they had no alternative but to issue him with a final written warning.
The investigator asked if it was true the applicant was told he should have urinated in the street. Mr Thomson had suggested to him that at 6am, “if you really needed to go to the toilet, find somewhere to hide and do it”. The applicant clarified that “it’s more of a number two I needed to do…”.
The applicant had gone off work, Mr Thomson believed on the Thursday, was off work on Friday, and returned to work on Monday. He believed that the applicant had remained on his normal duties and hours since then.
Mr Thomson believed the first and final warning issued to the applicant was proportionate.

Evidence of Ronald Howard

Mr Howard, service delivery manager, has also made a statement, dated 15 June 2021, to the investigator retained by GIO. He is the applicant’s direct manager. Mr Howard was unaware of the applicant having any issues with his mental health before this matter occurred.
Mr Howard knew very little about the incident on 2 May 2021, “From what [he’d] heard, the applicant wanted to go to the toilet and the station master said no”. He then went to go to the toilet in the doorway or on the ground and the station master just pushed him in the back. That was all Mr Howard knew.
Mr Howard believed the applicant had a meeting at Bankstown with Mr Thomson and
Ms Garland. About a week later, there was a second meeting, at Revesby, which Mr Howard attended. Mr Taylor was also present.
This was the follow up that disciplinary action was going to be taken. Mr Howard was a witness for Mr Thomson, who explained the situation. He gave the applicant a final written warning and the applicant “just blew up” and stormed out. He then came back in and “had another go” at Mr Thomson, although Mr Howard could not remember exactly what he said. He stormed out again, went home and didn’t do his shift.
Mr Howard thinks Misho might have turned up, but it was nothing to do with him. He did walk into the room but had nothing to do with the meeting.
Mr Howard agreed it was fair to surmise that the applicant did not believe his actions were improper. His argument was that he imminently had to go to the bathroom and access to it was denied. The investigator would have to talk to Mr Thomson or Ms Garland about the view of the business. Mr Howard was only there as a witness to the disciplinary side of things.
The applicant was a really good worker. He was excellent. He had had about two days off and was performing his normal duties and hours. Mr Howard was asked if there were any external events that may be relevant to the applicant being stressed or anxious. He knew of a family issue “last year sometime” that he believed was resolved. He did not elaborate as it was a personal matter for the applicant.

Evidence of Phil Tiffany

Mr Tiffany is the train attendant with whom the applicant had the dispute. His evidence takes the form of an undated email to “Graeme”.
At 6:02 am, a bus driver from Transdev demanded that Mr Tiffany open the toilet. Mr Tiffany advised that he was setting up and would open it soon. The driver started yelling and swearing at him. He stated that he would not open it, as the driver was swearing and carrying on.
The driver then threatened to urinate on the station. Mr Tiffany said “You will not. You are on camera”. The driver then undid his pants and moved towards the wall on the concourse “to pee”. Mr Tiffany did push him (not hard) to prevent this. He then squared up to throw punches.
Mr Tiffany opened the toilet. The driver continued to swear at him and again made threatening gestures to throw punches. He spoke with (Ms Hawkes) who heard it all but did not witness it. He advised her it was a Transdev driver, “Camera 038”.
Shortly after, the bus marshal spoke to him because he had heard from the street and the driver had complained about him. “And he is a peace [sic] of work”. Another driver had heard it from the concourse.
At about 1pm, a marshal from Liverpool came to the station. She asked what had happened and was horrified when advised that the driver had attempted to urinate on the station.
Mr Tiffany did touch the driver on the left shoulder, and he was wrong to do so, but at no time was there any intent to harm, only to prevent his actions. At no stage was he rude or swearing. “That was from him”.
The investigator referred to a “storyboard” of images from CCTV that show the applicant undoing his zip and being pushed by Mr Tiffany. The images were stated to be appended to the report. They were not.

Medical evidence

Cecil Hills Medical Centre

The clinical records commence in November 2001.
There is a history of depression, for which the applicant was prescribed medication, dating back to 10 November 2003. There were consultations for depression in 2004; 2005; 2006; 2009 (when it was noted that he had ceased snri three months ago and was on it for many years in the past); 2010; 2012 (when it was noted that he had financial issues, had to sell his car and rent his house, and was living with his in-laws); and 2013.
Throughout much of this time, the applicant was being prescribed Pristiq.

Dr Kevin Sui

Dr Sui issued a Certificate of Capacity (COC) dated 3 May 2021. He recorded the date of injury as 2 May 2021, and the diagnosis as acute stress reaction. A relevant pre-existing factor was recorded as “Depression on Pristiq”. The recommended treatment included counselling.
On 4 May 2021, Dr Siu issued a further COC, adding the diagnosis of cervical musculoskeletal soft tissue injury. His recommended treatment again included counselling.

Emerald Hills Medical Pty Ltd

The clinical records commence on 4 May 2021, when the applicant consulted Dr Fasiha Sadaf. He complained of pain in the right side of his neck and right shoulder, which started at work after an altercation with a train attendant.
The history recorded by Dr Sadaf is largely consistent with the applicant’s evidence about the altercation with Mr Tiffany. She noted that he resumed duty but was very upset about the situation. He took a wrong turn and tensed up the whole time. He was seeing a psychologist in the city on Thursday. He felt “anxious and upset to go back to work”. Dr Sadaf encouraged him to see the psychologist, as it was likely he had some anger management issues.
On 7 May 2021, Dr Sadaf recorded that the applicant had seen the psychologist. He was feeling much better. His neck strain was better. There was “still some discomfort” but no other active issue.
On 20 May 2021, Dr Sadaf recorded that the applicant was doing all right in himself. He was seeing the psychologist. He saw his usual GP and his dose of Pristiq was increased.
Later that day, the applicant presented in distress. He had been given a warning letter. His manager told him he was at fault as well and should not have reacted to what the train worker did. He was also told he “could have gone in corner and have done no. 1, 2 in public instead of arguing with the worker”. He left the meeting very angry and was “very stressed now”. He felt he was going to be sacked. The applicant looked shaken and angry. He was shaking and started crying.
On 21 May 2021, the applicant presented for review. He was very upset about the situation and had an appointment with the work psychologist on 28 May 2021. He felt he could return to work on Monday.
Dr Sadaf referred the applicant to Mr Ramsey Andrews, psychologist. She advised that he complained of worsening mood, sleep and appetite after an incident at work. He was coping all right initially but had a meeting with his manager and it aggravated the symptoms, as he was given a warning letter. He had a longstanding history of depression and was on Pristiq.
Dr Sadaf recorded on 24 May 2021 that the applicant had a very stressful weekend. He could not shake off the feeling he was going to be fired and was very upset about the warning letter.
On 10 June 2021, Dr Sadaf recorded that the applicant had an independent psychiatrist assessment, and it went well. He had not yet received an outcome. The insurer was starting a three week investigation. The applicant was starting to feel better and was seeing a physiotherapist and psychologist. He was not as distressed as before.
Dr Sadaf took part in a case conference with Ms Pitt on 22 June 2021. Its purpose was to clarify the applicant’s working hours. He was doing all right and had been discharged from physiotherapy. His mood was better. Psychotherapy was helping.
On 7 July 2021, the applicant was feeling upset about his claim being disputed. He was a bit restless and could not sleep for a few nights. The second warning letter had been changed to a last warning letter. He was talking to the union and a solicitor. He was not sure what would happen. He was seeing the psychologist and Dr Sadaf would talk to the case manager about continuing that.

Mr Ramsey Andrews – Consultant Psychologist

Mr Andrews reported on 27 July 2021.
Mr Andrews recorded a history of events on 2 May 2021 that is largely consistent with the applicant’s evidence. He recorded that the applicant politely asked the train attendant to open the bathroom door. He feared that he was going to defecate on himself due to not making it to the bathroom on time. When the attendant refused to let him use the toilet, the applicant said he would urinate on the door. The attendant pushed him, causing a neck injury. The applicant said he stated he would urinate on the door, not with the intention of using aggression, but of persuading the attendant to open the door, out of sheer panic.
Mr Andrews opined that although the applicant did not meet the criteria for post-traumatic stress disorder, he displayed moderate symptoms of post-traumatic stress in relation to the workplace incident. He diagnosed the applicant with adjustment disorder as well as generalised anxiety.
As the applicant had a history of anxiety, Mr Andrews opined that the workplace injury was a significant contributing factor to the exacerbation of his anxiety and symptoms of post-traumatic stress.
Mr Andrews believed the applicant required ongoing psychological treatment and would continue to consult with him on a weekly/fortnightly basis. The applicant had returned to pre-injury duties and was fit for work. He would require ongoing psychological sessions to sustain employment, as he was at medium risk of burnout, due to aggravation of his psychological condition.

Dr Assad Saboor – Consultant Psychiatrist

Dr Saboor was qualified by GIO and reported on 22 June 2021.
Dr Saboor recorded a history that the applicant was off work for one week after the incident, following a meeting with management, because it was giving him a second warning. He stated he had been blamed for the incident.
The history of the incident on 2 May 2021 largely accords with the applicant’s evidence.
Mr Marmara said he politely asked the station assistant to open the toilet, but he was told no. He was getting angry and persisted in his request. The man pushed him. He threatened that he would pee on the floor. He could not hold his urges and his neck was hurting.
The applicant said at the first meeting with Mr Thomson and Ms Garland he was blamed for having provoked the assistant. The manager did not help and was not supportive of what had happened. The applicant refused to sign the second warning letter as he disagreed with what they were saying. The union was involved, and he was pursuing this. His first warning was three months ago. He had accepted that it was his fault and apologised.
Dr Saboor recorded the applicant’s symptoms “at the time” as being extremely tense, telling the assistant to open the door. He had been driving for 37 years and had never had any problems. His neck was improving.
At the time of the injury, the applicant became very emotional, and from then he became more anxious about similar episodes. He was carrying an empty bottle and underpants in case something like this happened again. He got upset whenever he thought about this problem. He cried after the incident and thought about it a lot. He had had two sessions with the psychologist. He had been on Pristiq for 20 years.
The applicant’s sleep was good, and his appetite was increased. His energy level and motivation were good, and his self-care intact. His daily functioning was good, he was socialising, and had been back to work. He reported some anxiety due to this issue. His concentration was good, and he did not have any other problems.
Dr Saboor reported that the applicant had become depressed 20 years ago, following the use of LSD. He was treated at Liverpool Hospital and had since been stable. Seven years ago, he tried to stop his medication for two weeks and became depressed. Since then, he had taken medication all the time. He had a difficult childhood and was diagnosed with ADHD as a child.
On examination, the applicant was polite and cooperative, with good hygiene. His speech was normal, his mood was good, and his affect was reactive. He did not display any formal thought disorder and had good insight.
Dr Saboor concluded that the applicant had an incident at work in which he had to go to the toilet. He became aggressive when the door was not opened and the assistant pushed him, injuring his neck. He did not agree with being issued a warning letter and involved the union. He reported briefly experiencing stress and excessive anxiety due to this matter. He had returned to normal and went back to work. He had a history of depression and anxiety and had been stable for 20 years.
Dr Saboor opined that the applicant had a temporary exacerbation of his anxiety, related to this incident, from which he had recovered. His condition did not meet any diagnostic criteria for adjustment disorder with depressed and anxious mood. He had improved substantially and returned to work. He reported some anxiety related to work. Currently, he did not meet any diagnostic criteria for any major mental illness, except brief stress reaction.
Dr Saboor opined that at the time of the incident, the applicant experienced a brief period of increase in his depression and anxiety. He had a brief period of a stress reaction. Based on the history, this increase in his anxiety and symptoms and acute stress reaction was due to the incident at work. Therefore, employment was the main contributing factor for this temporary exacerbation of his acute stress reaction. It was not an exacerbation of his pre-existing condition. It was just a temporary acute distress reaction to the event.
Dr Saboor opined that at the time of his assessment, the applicant did not meet the required criteria for any diagnosis or exacerbation of his pre-existing condition. He was stable. At the time of the incident, he met the criteria for acute stress reaction temporarily for one week, but he improved.
Dr Saboor was asked if the applicant had a psychological or psychiatric disorder, and if so, was it wholly or predominantly caused by the respondent’s actions in respect of transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits.
Dr Saboor responded that the applicant was in remission. He did not meet any criteria for any diagnosis, including adjustment disorder with depressed and anxious mood, major depressive illness, or generalised anxiety disorder. He temporarily suffered an acute stress reaction following the incident. The only issues were that the problems with the warning and the conflict at work remained and may play some role that caused his distress. The applicant was fit to return to his full work capacity. Dr Saboor did not believe he suffered with an incapacity as a result of an acute stress reaction due to work.
Dr Saboor recommended that the applicant have up to six sessions of psychological therapy to support him “while going through this stressful time” and prevent a relapse. His GP should monitor him and ascertain if he required prescription.

Dr Frank Chow – Psychiatrist

Dr Chow was qualified by the applicant and reported on 6 October 2021. He noted that the applicant was working one week on and one week off, due to covid..
Dr Chow recorded a history of the incident on 2 May 2021 that is largely consistent with the applicant’s evidence. The applicant told him he was pushed aggressively by the attendant. He tried to continue but was very upset by the incident. He had soreness in his neck because of his frustration, further aggravated by being pushed.
The applicant saw an EAP (Employee Assistance Provider) psychologist for one session and had a physiotherapy session. He attended his doctor and went off work for a week. He returned to work and had a meeting with management. The regional manager started accusing him of being the aggressor and said he had aggravated the attendant to push him. The meeting did not have an outcome.
Dr Chow recorded that the applicant had another meeting with management and his union delegate. They continued to blame him, and he walked off. He stated he was the victim. He was given a warning letter that he refused to sign. He attended the doctor and had two days off. He did not sleep well, became restless and was prescribed Restavit.
The applicant returned to work and later wrote a letter to management stating he was not treated fairly. He filed a claim, saw an independent medical examiner and had an investigation. The claim was declined.
The applicant had been seeing his psychologist fortnightly since June. His antidepressant was increased for a few weeks, but the dosage had since been reduced. He was due to start EMDR. He was still not sleeping well, with recurrent dreams, but was eating adequately. He had resumed photography. He had been renovating his daughter’s house, as he was trying to keep himself busy.
The applicant stated that he did not like the way he was treated by management. He was angry and felt worthless, but not suicidal, early on. He was attending work regularly, and had a bottle, toilet paper and a spare pair of pants all the time. He was planning to see the psychologist for another 10 sessions. He was showering regularly and wearing clean clothes, performing house chores, and grocery shopping. He was able to drive by himself, had resumed some hobbies and activities and had phone contact with friends and family. He was on 100 mg of Pristiq, blood pressure tablets and 8mg of Atacand.
Dr Chow noted that the applicant had a depressive episode 20 to 30 years ago. He saw a psychiatrist for three years to work through childhood difficulties and had been on antidepressant for 30 years. He remained stable psychologically over the years.
On examination, the applicant appeared neat and tidy. He was cooperative and open about his predicament. His speech was normal; and his affect was restricted. His mood was described as low. He reported ongoing fluctuating low mood and anxiety. There had been some ongoing irritability and anger towards management, but some improvement in his social and recreational activities.

Dr Chow concluded that there was previous psychiatric history, but the applicant had remained stable and well. On returning to work after the incident on 2 May 2021, he felt unsupported and was accused of being the aggressor. With the perceived maltreatment, he went off work and filed a claim. Dr Chow opined that the applicant reported experiencing sufficient symptomatology to warrant a diagnosis of adjustment disorder. Fortnightly psychological support over the next six months would be appropriate. He should continue antidepressants, the cost of which over the next 12 months should be covered as a result of the injury. His prognosis was likely to be positive.
Dr Chow opined that the applicant had suffered an aggravation of his pre-existing condition, and his employment was the main contributing factor to the aggravation. His condition was stable, and he had 0% permanent impairment.
Commenting on Dr Saboor’s opinion, Dr Chow noted that, since Dr Saboor’s assessment, the applicant had continued to require ongoing psychological treatment and support. Despite some improvement, he continued to have symptoms. He continued to suffer adjustment disorder since the incident on 2 May 2021. Dr Chow therefore opined that his employment had caused an aggravation to his underlying condition for which he will require ongoing treatment to consolidate his improvement.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore refer to them only briefly.

Respondent

The respondent submitted firstly that medical treatment is not reasonably necessary as a result of the injury. The applicant returned to work not long after the incident and had been gainfully employed full time and able to conduct himself appropriately. He is a good worker and had maintained his work since June 2021.
As regards injury, the respondent submitted that Dr Saboor diagnosed a brief stress reaction, which does not meet the diagnostic criteria for a psychiatric injury, and therefore there is no psychological injury. If I were persuaded that there is a diagnosable psychiatric condition, the respondent submitted that it was wholly or predominantly caused by reasonable action in terms of discipline. The respondent further submitted that the incident on 2 May 2021 did not cause the applicant any physical injury.
The respondent submitted that the applicant had given various versions of the event and referred to Mr Tiffany’s evidence and the COCs. It submitted that it does not appear that the applicant saw a psychologist between 2 May 2021 and 7 May 2021 in relation to this issue.
The respondent submitted that the applicant’s psychological injury existed for decades. He has been on significant medication for a number of years. There is an attempt to attribute the continuing treatment to this incident, whereas it [the condition] has been longstanding.
The respondent referred to Dr Sadaf’s referral to Mr Andrews on 21 May 2021. It submitted the applicant was coping but had meetings with the manager and his symptoms were aggravated. The respondent submitted that the meetings on 11 May 2021 (there appears to be an issue as to the date, but there were clearly two meetings) and 20 May 2021 were benign and innocuous. There was nothing unreasonable.
The respondent also referred to the clinical records of Cecil Hills Medical Centre. It submitted the applicant has had continuing psychological issues throughout. At the time of the incident on 2 May 2021, he had a prevailing psychological condition. It seems there had been some kind of stress reaction, not a psychological condition or injury.
The respondent submitted that the meetings were for the purpose of discipline. The applicant was supported by his union representative. He was told that his behaviour was not professional.
The respondent submitted that Mr Andrews has given no real explanation as to why the applicant requires ongoing psychological sessions. He has gone back to work. He had prior issues. The respondent submitted that there was a minor incident on 2 May 2021, but the applicant did not respond appropriately.
The respondent submitted that Dr Chow assessed 0% whole person impairment, but despite this and the applicant having gone back to work, has opined that he requires psychological treatment. There is no explanation as to why it is reasonably necessary. There is no explanation of why there is an adjustment disorder.
The respondent submitted that the evidence relied on by the applicant is unsatisfactory for me to form the view that there has been a diagnosable psychiatric condition. The most plausible explanation is the diagnosis of Dr Saboor, which is an acute stress reaction. He reported that the applicant would get upset whenever he thought about this problem, so it is not some prevailing constant situation.
The respondent submitted that it acted entirely appropriately in providing the applicant with a final written warning, bearing in mind the previous warning in February 2021. If someone intimates an intention to urinate on premises, that is an offence under section 195 of the Crimes Act. Mr Tiffany was well within his rights to defend the property.
In reply to the applicant, the respondent submitted that Dr Saboor put the applicant’s condition back to the meeting situation, as opposed to the incident on 2 May 2021. It referred to the applicant’s evidence and submitted that any complaint or grievance he may have related to what occurred after 2 May 2021. Section 11A squarely comes into play.
The respondent submitted there was a process to ensure probity and the right process.
Mr Thomson took a statement from Ms Hawkes. The reason behind the warning was based on the applicant’s history. The respondent submitted that it dealt with the matter entirely appropriately. It was a fair thing to give the applicant a final warning when there had been a prior incident only three months earlier.
The respondent submitted that Mr Thomson’s comment about the applicant urinating in the street was a “throwaway line”. It submitted it had gone a long way towards satisfying me that there had been reasonable action.

Applicant

The applicant’s case is that he suffered a psychological injury on 2 May 2021. There is no dispute that he became agitated because he was not given access to a bathroom. He submitted that it was a perfectly understandable response.
The applicant’s case, as supported by the medical evidence, is that his reaction involved a psychological injury, as opposed to a mere stress reaction or momentary emotional response. He relies on the report of Dr Chow. He submitted that Dr Saboor also clearly understood that what occurred on 2 May 2201 resulted in what the Commission would consider to be an injury within the meaning of section 4. Dr Chow has addressed the issue of section 4(b)(ii).
The applicant referred to Dr Chow’s report. It is common ground that he had a psychiatric history and had been on antidepressants for 30 years. His case is of an exacerbation or aggravation of the underlying condition. He submitted there is no basis to dispute the factors that constituted the trigger for his reaction. There was conduct by the employer that was cause for dissatisfaction on his part, but that was subsequent to his being injured on 2 May 2021.
The applicant submitted that clearly what occurred on 2 May 2021 doesn’t give rise to any defence under section 11A because that exchange does not fall under the umbrella of discipline. There was subsequent disciplinary action that plainly could not cause the condition, which had already arisen on 2 May 2021.
The applicant then referred to Dr Chow’s diagnosis and his evidence regarding the necessity for medical treatment. The claim includes past medical expenses, but the applicant sought a finding that fortnightly psychological support or therapy for six months was reasonably necessary. Dr Chow is a specialist in his field and has provided his opinion as to the necessary treatment. The applicant submitted that Dr Saboor, too, acknowledges that he has continued to suffer an adjustment disorder since 2 May 2021. The condition had not resolved.
The applicant also referred to Mr Andrews’ evidence. Dr Chow does not rely on post-traumatic stress disorder as the condition, but there is common ground in the sense of an exacerbation of a pre-existing or underlying condition. Mr Andrews has provided his opinion as to the necessity for ongoing treatment.
The applicant submitted that the fact that a worker is working is never an answer to the completely different question of whether he has a psychiatric condition. People may succeed in returning to work, but that doesn’t mean their condition has resolved. The treating psychologist is aware of the applicant’s condition and that he had returned to work. He has said the applicant will benefit from ongoing psychological intervention, which the applicant submitted I would take into consideration, having regard to the authorities, including Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab). The fact that the applicant is receiving medication managed by his GP is also confirmation of an ongoing condition.
The applicant referred to his attendance on Dr Sadaf on 4 May 2021, when it was noted he was to see a psychologist on Thursday. There was a physical aspect to the alteration.
Ms Hawkes’ version is that the anger was only on the applicant’s side. He submitted that anger was evidence of his emotional response, which has been diagnosed as constituting a psychological condition. He submitted that within two days of the incident there was a determination that he needed psychological treatment, and there is reference to anxiety.
The applicant submitted his injury was the subject of treatment well prior to the event on which the respondent might rely for a section 11A defence. It’s simply misconceived. The injury took place on 2 May 2021. The GP issued a COC dated 3 May 2021, which referred to the date of injury as 2 May 2021. This particular doctor chose the words “acute stress reaction” but would not be filling out a COC if he wasn’t satisfied an injury had been suffered.
The applicant submitted that Dr Saboor’s reference to “this incident” was to the incident at work. He opined there was a temporary exacerbation, which the applicant submitted was an injury. The question of whether he has recovered is a second question, and he relies on the opinions of Dr Chow and Mr Andrews.
Dr Saboor’s reference to a stress reaction doesn’t extricate the respondent from the concessions recorded in his opinion. His opinion that there was not an exacerbation of the applicant’s pre-existing condition is not compatible with there having been a temporary exacerbation of his anxiety. Dr Saboor also recommended that the applicant have up to six sessions of psychological therapy.
The applicant submitted that I would accept the opinions of Mr Andrews and Dr Chow; that the evidence establishes a psychiatric condition arising from the incident on 2 May 2021; and that employment was the main contributing factor to the aggravation or exacerbation, as there was no competing source. Section 11A has no application to what occurred on 2 May 2021.
The applicant submitted that if the respondent relied on section 11A, it needed a medicolegal opinion that considered the competing factors, having regard to the decision in Hamad v Q Catering Limited [2017] NSWWCCPD 6.
In terms of reasonableness, the applicant submitted that if there was a disciplinary enquiry on 11 May 2021 or 13 May 2021, there is no evidence of proper notice, of the applicant being told what the subject matter would be or being given an opportunity to prepare. If his evidence is accepted, the stance of the area manager alleging he was aggressive indicated a pre-determination of his guilt. That wouldn’t constitute a fair hearing.
The applicant further submitted that on 20 May 2021, there was criticism of him without any recognition of the circumstances in which he found himself. The issue of a warning would be regarded as unreasonable. He submitted that this is irrelevant, as the injury had already occurred. This was in fact adding insult to injury.
The applicant instructed his counsel to make a submission about Mr Thomson’s suggestion that he should have urinated on the street. He submitted that this illustrates grossly unreasonable behaviour by the respondent. He further instructed counsel to make submissions about his conduct in carrying a bottle, toilet paper and a spare pair of pants, submitting that it explained the continuing anxiety relating to what occurred on 2 May 2021.

SUMMARY

Injury

Section 4 of the 1987 Act provides:
“In this Act--
‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’ , which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is not in dispute that the applicant had a longstanding psychological condition, for which he had for many years been prescribed medication. He relies on section 4(b)(ii) of the 1987 Act, maintaining that on 2 May 2021, he sustained injury by way of the aggravation, acceleration, exacerbation or deterioration in the course of his employment of a disease; and maintains that his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that disease. I will refer in these reasons to aggravation, for convenience.
The applicant maintains that, as the injury occurred on 2 May 2021, section 11A of the 1987 Act has no application, because he had already sustained the injury when the meetings on which the respondent relies in support of its defence took place. There is some confusion as to whether the first meeting took place on 11 May 2021, 12 May 2021, or 13 May 2021. The applicant’s evidence is that it was on 11 May 2021, but nothing turns on the date in any event. The parties accept that the respondent bears the onus of establishing a defence pursuant to section 11A of the 1987 Act: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) DDCR 206 (Sinclair).
I am satisfied that the applicant sustained a psychological injury on 2 May 2021. That injury was an aggravation of a disease, to which his employment was the main contributing factor.
The evidence establishes that on 2 May 2021, the applicant was involved in an incident with an employee of ST, Mr Tiffany, who initially refused to allow him to use the toilet at Macarthur station. The applicant became, in his words, “extremely stressed and upset”. The respondent maintained that the applicant was the aggressor and relied on Ms Hawkes’ evidence as to what she heard of the interaction between the applicant and Mr Tiffany. As there is no allegation that the injury was solely attributable to the applicant’s serious and wilful misconduct, pursuant to section 14 of the 1987 Act, this is of little relevance to the issue of injury.
The applicant’s evidence, which is confirmed by Mr Thomson, is that he went home after the incident on 2 May 2021. The applicant stated that it was because he felt upset and stressed. Mr Thomson’s evidence is that he asked to be relieved due to a sore shoulder. I accept the applicant’s evidence. He also stated that Ms Pitt suggested he see the respondent’s Employee Assistance psychologist, and he did this on 6 May 2021. That was obviously before the first meeting, whenever it took place. I infer that Ms Pitt believed the applicant’s level of distress was such that he may need psychological intervention.
Dr Siu’s COCs recorded the date of injury as 2 May 2021. The first COC diagnosed acute stress reaction. Depression was recorded as a pre-existing factor. The recommended treatment included counselling. The second COC added the diagnosis of cervical musculoskeletal soft tissue injury. The recommended treatment again included counselling.

The applicant also consulted Dr Sadaf on 4 May 2021, again before either of the meetings on which the respondent relies in support of its section 11A defence. Dr Sadaf recorded that Mr Marmara was very upset about the situation. He felt anxious and upset about going back to work. She encouraged him to see the psychologist.
The COC issued by Dr Sadaf on 4 May 2021 included a diagnosis of stress/depression flare up. The applicant “finally went to the toilet but he was very tensed [sic] abt it and developed pain in his neck and right shoulder”. Dr Sadaf recorded that he was seeing a workplace psychologist on Thursday.
The fact that Dr Siu recorded the applicant’s condition as “acute stress reaction”, which is not included in DSM-5, is not determinative of the issue of whether he sustained a psychological injury on 2 May 2021. Dr Sadaf was of the opinion that he had depression, which is included in DSM-5, by 4 May 2021, when she first examined him. Her clinical notes record that he was anxious. The date of injury is clearly recorded as 2 May 2021.
While Dr Sadaf’s referral to Mr Andrews referred to the applicant having been coping all right, with his symptoms aggravated by a meeting with his manager, she also referred to his symptoms after an incident at work. That can only mean the incident on 2 May 2021, and the applicant had already sought psychological treatment before the first meeting.
The applicant also has support from the evidence of Mr Andrews, who was aware of the meeting/s. He recorded that the applicant displayed moderate symptoms of post-traumatic stress in relation to the workplace incident, which again can only refer to the incident on 2 May 2021. He also diagnosed adjustment disorder and generalised anxiety. The workplace injury was a significant contributing factor to the exacerbation of the applicant’s anxiety and symptoms of post-traumatic stress.
Dr Saboor’s report is somewhat confusing, and in some ways contradictory, but he does provide some support for the applicant’s claim. He recorded the applicant’s symptoms “at the time”, when he was telling the assistant to open the door, as being extremely tense. He became anxious about similar episodes; took precautions against it happening again; and got upset whenever he thought about it.
Dr Saboor opined that the applicant had a temporary exacerbation of his anxiety, related to the incident, from which he had recovered. At the time of the incident, he experienced a brief increase in his depression and anxiety. The incident in question can only mean that which occurred on 2 May 2021. As the applicant submitted, an exacerbation of a disease condition is an injury.
It appears that Dr Saboor may have diagnosed the applicant with two conditions, that is an increase in his anxiety and symptoms; and acute stress reaction, but that is not entirely clear. He opined that the increase in anxiety and acute stress reaction was due to the incident at work; and employment was the main contributing factor to this temporary exacerbation of his acute stress reaction. He went on to opine that it was not an exacerbation of his pre-existing condition (having firstly opined that it was), but just a temporary acute distress reaction to the event.
Dr Saboor did not believe that the applicant met the criteria for any diagnosis when he reported in June 2021. Again, his report is somewhat contradictory, in that he nonetheless recommended that the applicant have psychological treatment. He did opine that part of the reason for such treatment was to prevent a relapse. On the whole, I have not found
Dr Saboor’s evidence of great assistance.

That leaves the evidence of Dr Chow. While he referred to a depressive episode 20 to 30 years ago, he also recorded that the applicant had been on antidepressants for 30 years. He was clearly aware that the applicant had a pre-existing psychological condition. He referred to it and noted the applicant had remained stable and well.
Dr Chow opined that the applicant had suffered an aggravation of his pre-existing condition, to which his employment was the main contributing factor. He continued to suffer adjustment disorder since the incident on 2 May 2021 (emphasis added). He required ongoing treatment to consolidate his improvement. That is, perhaps, not so different to Dr Saboor’s opinion that he required treatment to prevent a relapse.
I have found the evidence of Mr Andrews, who is the applicant’s treating psychologist, and
Dr Chow persuasive. For the reasons above, I found little assistance from Dr Saboor’s evidence. The factual and medical evidence establishes that the applicant sustained a psychological injury on 2 May 2021. The injury consisted in the aggravation of a disease, pursuant to section 4(b)(ii) of the 1987 Act.
Apart from the suggestion by Mr Thomson that the applicant had family issues, which may have been the financial issues referred to in the records of the Cecil Hills Medical Centre, there are no competing factors to the aggravation of the applicant’s disease condition.
Mr Howard described him as an excellent worker. The applicant’s employment was the main contributing factor to the aggravation of the disease.

Section 11A

Section 11A of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A
"psychological injury" is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6) This section does not extend the definition of
"injury" in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition".
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
As I have determined that the injury occurred on 2 May 2021, it is unnecessary that
I consider the application of section 11A of the 1987 Act. However, had it been necessary to do so, I do not consider that I had sufficient evidence to establish that the respondent’s actions with respect to discipline were reasonable, given that it bears the onus.
There is no evidence as to the notice given to the applicant before each of the two meetings, or whether he was given details of the allegations he was required to address. It may perhaps be inferred that the fact that his union representative attended both meetings meant he was given sufficient notice to arrange for that support, but there is simply no evidence before me of the arrangements for the meetings, or the information provided to the applicant before they took place.
The investigator retained by GIO referred to the “strange comment” by Mr Thomson that the applicant should have urinated on the street. I agree that it was a strange comment, and hardly reasonable to suggest that he should have committed an offence. He was wearing his uniform when the injury occurred, so it must be assumed he could be identified as an employee of the respondent. Had he urinated in the street and been the subject of a complaint by a member of the public, or come to the attention of the police, it is at least possible that he may have found himself facing disciplinary action for that conduct.
A course of conduct may still be “reasonable action”, even if particular steps are not: Sinclair. Therefore, Mr Thomson’s “throwaway line” may not have been sufficient to find that the respondent’s conduct was not reasonable, had it been necessary for me to determine that issue. However, in the circumstances, the comment should not have been made.

Medical treatment

Section 60 of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
…”
The applicant relies on the principles applied by Deputy President Roche in Diab, which have been applied in many disputes before this Commission and the former Workers Compensation Commission.
Roche DP referred to the following:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
Roche DP warned that while the above matters are “useful heads for consideration”, the “essential question remains whether the treatment was reasonably necessary” (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204).
In this matter, the evidence with respect to the applicant requiring medical treatment is all one way, although it differs as to the duration of the treatment required. Dr Saboor, who was qualified by the respondent, opined that the applicant required up to six sessions of psychological therapy, and should be monitored by his GP regarding medication.
I accept that the treatment proposed is appropriate. There is no suggestion that alternative treatment is available. Mr Andrews has calculated the potential cost of further treatment as $1,835, while the Application claims $3,240. Neither is an excessive amount. The treatment has the potential to be effective and allow the applicant to sustain his employment. Psychological therapy and antidepressant medication are accepted forms of treatment for psychological injuries.
The respondent submitted that the applicant has gone back to work, and there was no real explanation as to why he required ongoing treatment. As the applicant submitted, the fact that he is working is not an answer to the question of whether he has a psychiatric condition or requires treatment. There are many workers who are able to maintain their employment precisely because they have access to appropriate treatment or medication. The applicant appears to have been one of them. He has taken medication for many years but was nonetheless an “excellent” worker. As he submitted, Mr Andrews was well aware that he had returned to work, but still opined that he required ongoing treatment. Dr Saboor also recorded that the applicant had returned to work.
The applicant sought a finding that fortnightly psychological support or therapy for six months was reasonably necessary. I do not believe it is appropriate that I make such a finding. It is impossible to know at this time how the applicant will respond to treatment, or how his requirements may change in the future. It is appropriate that I make a general order for the payment of his medical expenses.
There will be an award in favour of the applicant, pursuant to section 60 of the 1987 Act.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 84

1 March 2022