McLean v State of New South Wales (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McLean v State of New South Wales (Mid North Coast Local Health District) [2023] NSWPIC 179
APPLICANT:	Allen McLean
RESPONDENT:	State of New South Wales (mid North Coast Local Health District)
Member:	Karen Garner
DATE OF DECISION:	24 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits compensation; applicant had accepted primary psychological injury pursuant to sections 4 and 9A; whether the accepted psychological injury was wholly or predominantly caused by the action of the respondent taken or proposed to be taken with respect to discipline or dismissal; whether the respondent established a defence pursuant to section 11A; whether the respondent established a defence pursuant to section 14(2); whether the applicant had no capacity to work between 8 April 2021 and 2 August 2021; Held – applicant sustained a compensable primary psychological injury pursuant to sections 4 and 9A; the psychological injury was not wholly or predominantly caused by the action of the respondent taken or proposed to be taken with respect to discipline or dismissal; the respondent did not establish a defence pursuant to section 11A; the respondent did not establish a defence pursuant to section 14(2); the applicant had partial incapacity for work between 8 April 2021 and 2 August 2021 as a result of the psychological injury; direction that the matter is listed for a conference in relation to the calculation of the applicant’s weekly benefits entitlement pursuant to sections 33, 36 and 37.
determinations made:

The Commission determines:

The applicant sustained a primary psychological injury pursuant to ss 4 and 9A of the Workers Compensation Act 1987, with a deemed date of injury of 8 April 2021.
The injury referred to in paragraph (a) was not wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal.
The respondent has not established a defence pursuant to s 11A of the Workers Compensation Act 1987.
The respondent has not established a defence pursuant to s 14(2) of the Workers Compensation Act 1987.
The applicant had some capacity for work from 8 April 2021 to 2 August 2021 as a result of the injury referred to in paragraph 1.
The applicant returned to work for not less than 15 hours per week from 8 April 2021 to
2 August 2021, except for the weeks ending 9 May 2021 and 16 May 2021.

The Commission orders:

The respondent is to pay the applicant weekly payments of compensation pursuant to s 36(2) of the Workers Compensation Act 1987 as follows:
(a)    $2,254.60 per week from 8 April 2021 to 11 April 2021;
(b)    $1,980.82 per week from 12 April 2021 to 18 April 2021;
(c)    $1,980.82 per week from 19 April 2021 to 25 April 2021;
(d)    $2,180.82 per week from 26 April 2021 to 2 May 2021;
(e)    $2,254.60 per week from 3 May 2021 to 9 May 2021;
(f)    $2,254.60 per week from 10 May 2021 to 16 May 2021;
(g)    $2,055.82 per week from 17 May 2021 to 23 May 2021;
(h)    $1,980.82 per week from 24 May 2021 to 30 May 2021;
(i)    $1,980.82 per week from 31 May 2021 to 6 June 2021;
(j)    $1,980.82 per week from 7 June 2021 to 13 June 2021;
(k)    $2,254.60 per week from 14 June 2021 to 20 June 2021;
(l)    $1,980.82 per week from 21 June 2021 to 27 June 2021, and
(m)     $1,950.82 per week from 28 June 2021 to 4 July 2021.
The respondent is to pay the applicant weekly payments of compensation pursuant to s 37(2) of the Workers Compensation Act 1987 as follows:
(a)    $2,155.82 per week from 5 July 2021 to 11 July 2021;
(b)    $1,950.82 per week from 12 July 2021 to 18 July 2021;
(c)    $1,950.82 per week from 19 July 2021 to 25 July 2021, and
(d)    $1,950.82 per week from 26 July 2021 to 1 August 2021.
The parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to in orders 1 and 2 above.

STATEMENT OF REASONS

BACKGROUND

Allen McLean (the applicant) is a 62-year-old man who was employed by the State of New South Wales (Mid North Coast Local Health District) (the respondent) as a social worker. He worked at a Medical Centre (the Medical Centre) three days per week and at a hospital (the Hospital) two days per week.
The applicant claims weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychological injury sustained in the course of his employment with the respondent, due to interpersonal conflict with colleagues, management and the general public since 2014, with a deemed date of injury of 8 April 2021.
The worker’s compensation claim was initiated by a Certificate of Capacity issued by
Dr Benjamin Williams on 28 April 2021. On 4 May 2021, an Injury Notification form was completed in respect of psychological injury.
On 15 March 2018, the respondent’s insurer (the insurer) issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer placed ss 4, 11A(3), 33, 59 and 60 of the 1987 Act in dispute and raised a defence under s 11A(1).
On 15 March 2018, the insurer issued a further dispute notice pursuant to s 78 of the 1998 Act. The insurer stated that it accepted that the applicant sustained a psychological injury in the course of his employment pursuant to ss 4 and 11A(3) of the 1987 Act. It raised a defence under s 11A(1) of the 1987 Act. In the alternative, it relied on s 14(2) of the 1987 Act. On that basis, it placed ss 33, 59 and 60 of the 1987 Act in dispute.
By letter dated 7 October 2021, the applicant’s solicitor requested a review of that decision.
On 26 October 2021, the insurer issued a notice pursuant to s 287A of the 1998 Act. The insurer maintained its decision, relying on a defence under s 11A(1) of the 1987 Act with respect to discipline and/or dismissal.
On 29 November 2022, the applicant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) which sought weekly benefits: firstly, for the period from 8 April 2021 to 8 July 2021 pursuant to ss 33 and 36 of the 1987 Act and, secondly, for the period from 9 July 2021 to 2 August 2021 pursuant to ss 33 and 37 of the 1987 Act.
On 21 December 2022, the respondent lodged a Reply to the ARD in the Commission.
On 17 January 2023, at a conference conducted by the Commission, the Commission granted the applicant leave (by consent) to amend the ARD to include a claim for medical and related expenses pursuant to s 60 of the 1987 Act.
On or about 31 January 2023, in accordance with the Commission’s directions, the applicant lodged an Amended ARD in the Commission which sought medical and related expenses pursuant to s 60 of the 1987 Act in addition to weekly benefits pursuant to ss 33, 36 and 37 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a hearing on 1 March 2023, the applicant was represented by Mr Dewashish Adhikary, counsel, instructed by Mr Thomas Ryan of Carroll & O’Dea Lawyers. The respondent was represented by Mr Fraser Doak, counsel, instructed by Ms Amy Corry of HWL Ebsworth Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The respondent no longer disputes that the applicant sustained a psychological injury in the course of his employment with the respondent, pursuant to s 4 of the 1987 Act, with a deemed date of injury of 8 April 2021.
The Commission grants the applicant’s request for leave to discontinue the claim for medical and related expenses pursuant to s 60 of the 1987 Act.[1]
[1] Applicant’s Submissions in Reply, paragraph 4.
Accordingly, the issues for determination are:
(a) was the psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal (required to enliven a defence pursuant to
s 11A of the 1987 Act)?
(b) was the psychological injury solely attributable to the serious and wilful misconduct of the applicant (required to enliven a defence pursuant to s 14(2) of the 1987 Act)? and
(c) further if relevant, what is the extent and quantification of the applicant’s entitlement to weekly compensation pursuant to s 33 of the 1987 Act in respect of the psychological injury?

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply to ARD and attachments;
(c)    Amended ARD and attachments;
(d)    Application to Admit Late Documents by the insurer dated 15 February 2023 and attachments;
(e)    Application to Admit Late Documents by the applicant dated 23 February 2023 and attachments, and
(f)    Application to Admit Late Documents by the insurer dated 1 March 2023 and attachments (applicant’s amended wage schedule).

Oral evidence

No application was made to adduce oral evidence nor cross-examine any other witness.

The lay and documentary evidence

Applicant

The applicant provided three statements, respectively dated 16 September 2021,[2]
[2] ARD, page 1.
[3] ARD, page 10.
[4] ARD, page 13.
1 October 2021[3] and 1 October 2022[4] which provided details as to the circumstances of his injury.
The applicant stated[5] that at about 1 to 2pm on 8 April 2021, when the applicant was in a meeting, he received a telephone call from the Acting Community Health Manager for the insured, Danny Passfield, who left a message on his mobile telephone asking for the applicant to contact Mr Passfield as soon as possible. Mr Passfield then left a similar message with a staff member at the Medical Centre, stating that it was vitally important that the applicant respond to Mr Passfield urgently. When the applicant telephoned Mr Passfield, Mr Passfield requested an urgent meeting with the applicant and they arranged to meet at the Hospital that afternoon. At that time, the applicant asked Mr Passfield what the issue was about and Mr Passfield responded that he would discuss it when they met that afternoon. At no time did Mr Passfield indicate that there was an issue or concern that the applicant had to respond to and he was “quite casual” about the meeting.
[5] ARD, page 2.
The applicant attended Mr Passfield’s office at about 3.30pm that afternoon and Mr Passfield called him into another room. As they were standing, Mr Passfield abruptly handed the applicant a letter and stated “Before I say anything read this letter”. At that time, the applicant noticed another person in the room, seated at a table with pen and paper.
The applicant was surprised by that interaction with Mr Passfield and noticing the other person in the room who appeared ready to take notes. Mr Passfield had given him no indication that it was a formal meeting. The applicant felt completely ambushed and overwhelmed. He took the letter outside the room into the corridor to read it. Upon reading the letter, he understood it to be a complaint relating to allegations of sexual connotations being made by the respondent.
The letter dated 8 April 2021, was signed by Mr Passfield and stated:[6]
[6] Reply, page 19.
“Dear Mr McLean
RE: INITIAL ADVICE OF COMPLAINT OR CONCERN
I have received a complaint or concern alleging you have behaved in ways that breach NSW Health and Mid North Coast Local Health District codes, policies, or procedures during your employment as a Social Worker...
This complaint/concern relates to inappropriate comments made by you which allegedly contain sexual connotations; and conduct of a bullying and/or harassing nature]. [sic] If substantiated, these could result in potential breaches of the NSW Health Code of Conduct (PD 2015 _049).
An assessment has been conducted and a decision has been made that an investigation is warranted. You are not required to provide a response to this letter. More specific allegations will be provided to you as soon as practicable and you will have an opportunity to provide your written response. In the event the investigation identifies that no further action is required, you will be notified accordingly in writing.
Administrative Action
Following the completion of a risk assessment relating to these concerns, I have determined that you will be provided with a laptop and mobile phone and be required to work all your rostered shifts from [the Medical Centre]. You are not to access [the Hospital] premises whilst the investigation is being conducted, you are required to hand in your keys to [the Hospital] and your cardex access will be suspended accordingly.
You may contact your manager... or myself by phone, email or meet at alternative premises such as... Base Hospital. This decision was based on an assessment of the potential risks and in no way implies that any conclusions have been made in relation to these allegations or concerns, rather, is a process being followed in accordance with NSW Health Managing Misconduct policy (PD 2018_031).
...
Investigation
... The issues, allegations and investigation remain confidential and you are directed not to discuss these matters with any persons, with the exception of your support/mentor person, union or legal representative. It would be a breach of confidentiality – possibly subject to disciplinary action – if you or other staff discuss or speculate about the matters that are the subject of the investigation and outcome.
These processes can be difficult for those involved and I encourage you to maintain your personal and professional relationships. The purpose of this letter is to ensure confidentiality in relation to this specific investigation. If you need to talk to an independent party, you can access the free confidential counselling services of the District’s Employee Assistance Program provided AccessEAP on...
If you wish to clarify any aspects about the process please contact me on... Alternatively, you may contact your local HR Manager on...”
The applicant stated[7] that because the letter requested him to hand in his identification and keys whilst an investigation was undertaken, he started walking through the hospital to his car to obtain them. As the applicant got halfway up the stairs towards the front door of the hospital, he heard Mr Passfield saying, “Allen stop, come back you must come back and come into the room I have to talk about this”. The applicant kept walking and Mr Passfield kept following him, repeating for the applicant to “stop so we can talk about this” and also stating, “You have to come back and talk to me”. The applicant told Mr Passfield not to follow him but Mr Passfield followed the applicant outside to his car, and continued saying “Stop Allen we have to talk about this. You have to come back with me. You can’t just walk away. You can’t just ignore this”. The applicant felt harassed, intimidated and humiliated by
[7] ARD, pages 2-4.
Mr Passfield’s aggressive conduct in front of hospital staff and visitors.
At the applicant’s car, he handed Mr Passfield his identification and keys. Mr Passfield stood beside the applicant, blocking his movement. The applicant felt overwhelmed and was visibly shaking and distressed. The applicant accused Mr Passfield of bullying and harassment. The applicant walked around Mr Passfield and drove away in his car. He was emotionally distressed. He later contacted the union and a clinical psychologist who had previously assisted him with workplace matters.
The applicant attended the Medical Centre the following day and advised management there what had occurred.
The applicant stated that when he attempted to return to work at the Hospital, he kept “getting the shakes and became anxious”. The applicant attended his general practitioner,
Dr Blessing, regarding his stress and anxiety caused by the letter of complaint and, mostly, the actions of Mr Passfield. Dr Blessing certified the applicant unfit for work on 8, 9, 15, 16, 22, 23, 29 and 30 April 2021.
The applicant stated that on 26 April 2021 an email was sent from one of the respondent’s staff members to another staff member which requested removal of some of the applicant’s clients from a client list, “pointedly suggesting that I had not done my job in a number of areas in regard to clients”. When the content of the email was read to the applicant, it triggered his anxiety further. He started to shake, developed shortness of breath and felt severe pains in the chest. He saw a general practitioner and attended the Hospital for tests. The applicant felt sure that he had been having a heart attack but was told that was not the case.
The applicant stated that on 27 April 2021, he informed the Chief Executive Officer at the Medical Centre, Ms Adamson, what had occurred. He also met with the psychologist,
Ms Coates. It was suggested that, to aid in the applicant’s recovery, he should have no direct contact with the respondent other than through the union. It was arranged with Ms Adamson and the union that they would be the gateway for communication with the respondent in relation to the matter. The respondent was requested not to contact the applicant directly.
On 29 April 2021, the applicant’s general practitioner certified the applicant unfit for work from 28 April 2021 to 19 May 2021.
The applicant stated that he has been contacted directly by the respondent and insurer despite requests that not occur. The applicant stated that on 30 April 2021, Mr Passfield telephoned the applicant and advised that he had breached confidentiality. On 7 May 2021, the applicant received a text message from the respondent’s human resources team member which requested the applicant to speak with her regarding his workers compensation claim. The applicant informed the union which again requested the respondent not to contact the applicant directly. Further, the applicant subsequently received a telephone call from the insurer requesting him to answer questions.
The applicant stated that his mental health was strongly affected by the way that he was treated by Mr Passfield and the respondent.
The applicant disputes the evidence of Mr Passfield and Ms Hawkins that the meeting on
[8] ARD, pages 10-12.
[9] ARD, page 11.
8 April 2021 was not a ‘performance management’ or ‘disciplinary meeting’ and that he did not need a support person.[8] The applicant also disputes Mr Passfield’s evidence of his actions in following the applicant after the meeting.[9] The applicant stated that Mr Passfield was “yelling through the building at me quite loudly in front of all the patients and other staff members and walking me out of the building” which felt “extremely intimidating” to the applicant and “like I was being ‘chased out’ of my employment”.
The applicant stated that he could not attribute his psychological symptoms to anything other than his employment with the respondent.[10]
[10] ARD, page 12.
The applicant stated that any previous disciplinary history is not relevant to his current psychological injury.[11] The respondent denies that earlier allegations of misconduct by him between 2014 and 2018 are relevant to his current claim at all. The applicant stated that those earlier “complaints” were only minor incidents and were not of a serious disciplinary nature and they were resolved. He stated that such allegations have already been dealt with in the past and he was not made aware that there were any ongoing issues pertaining to them. The applicant disputed that he was a serial non-complier of the respondent’s code of conduct.
[11] ARD, page 10.
In a letter dated 14 July 2021, the respondent advised the applicant that, following an investigation into his misconduct, his employment was terminated effective immediately, on the ground that the respondent had lost confidence and trust in his ability to conduct himself in a manner consistent with his position as social worker and the NSW Health Code of Conduct.

In relation to incapacity to work, the applicant stated that after 8 April 2021, although he ceased to work at the Hospital due to incapacity from the psychological injury, he nevertheless continued to work at the Medical Centre for three days per week “as I felt much more supported there and believed I could somewhat manage my symptoms better there”. In or around 2 August 2021, the applicant “felt comfortable” to change to five days per week with the Medical Centre and commenced working there on a full-time basis. The applicant stated that he suffered a reduction in pay of about $4 per hour as a result of transferring to full-time work at the Medical Centre.[12] The applicant stated that he continues to suffer ongoing anxiety as a result of his injury which has detrimentally impacted his life and causes him to routinely have poor sleep. The applicant experiences heightened anxiety whenever he is reminded of the respondent. The applicant stated that he continues to take anti-anxiety medication and regularly consult with his general practitioner and psychologist, Ms Coates.
[12] ARD, page 13.

Daniel Passfield, nursing unit manager

Mr Passfield provided a statement dated 10 August 2021.
Mr Passfield stated that a complaint was lodged against the applicant by a female colleague. In April 2021, the complaint was escalated to Mr Passfield. Mr Passfield gave a broadly similar account of the lead up to his meeting with the applicant on 8 April 2021. Mr Passfield agreed that when the applicant asked Mr Passfield the purpose of the meeting, Mr Passfield said he would discuss it at the meeting.
Mr Passfield stated that the respondent’s human resources office, Joanne Hawkins was seated in the room where he met with the applicant on 8 April 2021.[13] Mr Passfield stated that when the applicant asked what the matter was about, he handed the applicant an “Initial advice of complaint or concern letter” in relation to the complaint and he told the applicant that he should read that first. When the applicant left the room without informing Mr Passfield of his intentions, Mr Passfield followed him through the Hospital as he had to retrieve a set of keys from the applicant. During Mr Passfield’s pursuit of the applicant out into the car park, Mr Passfield twice called out to the applicant that they needed to talk. Mr Passfield stated that action was merely to get the applicant’s attention and not to draw any attention to them in such a public space. The applicant kept walking and did not acknowledge Mr Passfield.
[13] Reply, pages 22- 23.
Mr Passfield finally caught up with the applicant at his car. He noted the applicant’s agitation and anger towards Mr Passfield as he claimed harassment. Mr Passfield attempted to explain to the applicant that, this was not harassment and that it was simply a process that they had to follow. The claimant retrieved a set of keys and identification from his car, which he thrust at Mr Passfield before departing by car.
Mr Passfield denies that he intended to intimidate, harass or target the applicant. He stated that the purpose of the meeting was to simply present the applicant with the advice letter, identify the accusation, explain the process and thereafter allow the applicant to present his response to same.
Mr Passfield had no further contact with the applicant apart from a telephone call on
30 April 2021 for the purpose of reorganising the applicant’s place of work and associated communications as a result of the complaint made against him in April 2021. Mr Passfield also stated that the applicant was required to maintain confidentiality. The applicant accused Mr Passfield of harassment and ended the telephone call. At that time, Mr Passfield had not been informed by the applicant or anyone else that the applicant had made a workers compensation claim or requested not to be contacted directly by staff of the respondent.

Joanne Hawkins, acting human resources manager

Ms Hawkins made a statement dated 28 July 2021.
Ms Hawkins stated that the catalyst for the meeting with the applicant on 8 April 2021 was a formal complaint received from a female colleague alleging that the complainant had been making unwelcome sexualised remarks to her for a period of 9 to 12 months, making her uncomfortable in the workplace and in his presence.
Ms Hawkins stated that, due to the seriousness of the allegations and the applicant’s previous disciplinary history, a decision was made to appoint an external investigator to conduct an investigation.
Ms Hawkins confirmed that she was in attendance at the meeting on 8 April 2021.
Ms Hawkins stated that the meeting was an “informal meeting only” to hand-deliver an “Initial Advice letter of Complaint or Concern” to the applicant. Ms Hawkins’ involvement was as a “witness to the delivery of that letter” to the applicant and “to provide any advice on process and procedure if so required”. Ms Hawkins denied that the meeting was a “disciplinary meeting” and stated that there was no requirement under the respondent’s policies and procedures that it be suggested to the applicant that he required a support person.
Ms Hawkins confirmed that, after Mr Passfield handed the letter to the applicant, the applicant left the room and did not return.
Ms Hawkins was informed that on 30 April 2021, Mr Passfield contacted the applicant to request he not discuss the investigation with anyone.
Ms Hawkins stated that on 3 May 2021, the respondent was notified that the respondent had received a first certificate of capacity from the applicant. On 6 May 2021, a union representative asked Ms Hawkins to forward any future correspondence to the applicant in relation to the investigation to the union, with the claimant copied in. The applicant subsequently emailed Ms Hawkins, confirming that action.
Ms Hawkins stated that, on 10 May 2021, the respondent provided to the union, for the attention of the applicant, a letter which set out the particularised allegations against the applicant and inviting him to respond to the allegations in a formal interview or in writing. It invited the applicant to be accompanied by a support person at any interview. On
20 May 2021, the investigator interviewed the applicant via Skype, with his daughter and a union representative as his support persons. On 16 June 2021, the applicant was issued an investigation outcome and show cause letter by way of email to the union. The applicant provided a response on 29 June 2021. By letter dated 14 July 2021, the respondent advised the applicant that, following an investigation into his misconduct, his employment was terminated effective immediately, on the ground that the respondent had lost confidence and trust in his ability to conduct himself in a manner consistent with his position as social worker and the NSW Health Code of Conduct.
The applicant’s previous disciplinary history was detailed by Ms Hawkins and various correspondence included in the respondent’s evidence:
(a)    in a letter dated 28 July 2014, the respondent gave the applicant a “second level warning” for breaching a Code of Conduct requirement which requires staff to treat other staff members “in a way that promotes harmonious and productive working relationships, and a collaborative team approach”;
(b)    in a letter dated 9 February 2015, the respondent gave the applicant a final warning for breaching the Code of Conduct requirement which requires staff to treat other staff members “in a way that promotes harmonious and productive working relationships, and a collaborative team approach” by acting in an intimidating, aggressive and unprofessional manner towards his female line manager and he was directed to undertake anger management sessions;
(c)    in a letter dated 19 November 2015, the respondent gave the applicant a show cause letter inviting his response in relation to proposed termination of his employment for aggressive behaviour and raising his voice towards a male patient;
(d)    following completion of an investigation and considering the applicant’s response, in a letter dated 5 July 2016, the respondent stated the findings of the investigation. Allegations that the applicant acted in an aggressive manner towards a male patient, and that the incident was only concluded by the intervention of another staff member, were unable to be substantiated. An allegation that the applicant raised his voice towards a male patient and an allegation that the male patient was intimidated by the interaction with the applicant, were found to be substantiated. The respondent proposed that the applicant be given a “final warning”;
(e)    in a letter dated 20 July 2016, the respondent stated that, in the absence of a response from the applicant to the letter dated 5 July 2016, it gave the applicant a “final warning”;
(f)    Ms Hawkins stated that, in November 2018, the respondent received a grievance from a female colleague of the applicant which alleged that the respondent communicated disrespectfully, however both parties declined to take part in a facilitation process;
(g)    Ms Hawkins stated that, in 2019, the respondent received a complaint from a school principal on behalf of a parent regarding unprofessional behaviour of the applicant, which was resolved and resulted in the applicant being reminded of expected behaviours and core values of the respondent;
(h)    Ms Hawkins stated that, in January 2020, the respondent received a further grievance from the same female colleague which alleged that the respondent communicated disrespectfully, which resulted in the respondent providing an instructional letter to the applicant and required him to review the respondent’s Code of Conduct, and
(i)    in a letter dated 2 April 2020, the respondent stated that it had determined through investigation that there was insufficient or inconclusive detail to form allegations of serious misconduct in the workplace. The letter stated that the findings nevertheless did identify that the respondent had “questionable standards of communication with staff” and had somewhat equal part to play in the breakdown of the relationship between the applicant and the complainant. The respondent stated that it had determined not to pursue disciplinary action in respect of the allegations however it determined that non-disciplinary remedial management was warranted.

NSW Health Managing Misconduct Policy and Code of Conduct

The NSW Health Managing Misconduct Policy sets out the process and various mandatory requirements for managing potential and/or substantiated misconduct by staff of the NSW Health Service and by visiting practitioners.[14] It includes mandatory requirements that:
(a)    action in relation to potential misconduct must take place in a timely manner;
(b)    a staff member who is the subject of an initial review regarding potential misconduct should be informed that an issue has been raised about them as soon as credible details indicating potential misconduct have been identified, and it is deemed safe and appropriate to do so. Any verbal advice should be confirmed in writing;
(c)    written advice must be provided to the staff member about the allegations against him or her and about the investigation process. The advice must contain sufficient information about the allegations to allow the staff member to provide a considered response;
(d)    reasonable notice of an interview must be given in writing (usually 48 hours). All persons to be interviewed must be advised that they may have a support person of their choosing present;
(e)    a person who is subject of a misconduct process must be given adequate opportunity to respond to any allegations, adverse findings, and proposed disciplinary action, prior to any final decision being made, and
(f)    a person who is subject of a misconduct process must be afforded the right to a support person being present at any interviews. Other support may also need to be offered to all affected person, where appropriate.
[14] ARD, page 16.
The NSW Health Code of Conduct defines standards conduct that are required of everyone working in NSW Health. It relevantly states:[15]
[15] ARD, page 42.
“4 THE CODE OF CONDUCT
The Code requires staff to adhere to the standards set out below...
4.1 Promote a positive work environment
Staff must:
4.1.1 Treat patients and members of the public with courtesy and respect and with due sensitivity to the needs of people with different backgrounds and cultures
4.1.2 Treat all other members of staff (irrespective of whether they are at the same level or seniority, or more senior or junior) in a way that promotes harmonious and productive working relationships, and a collaborative teamwork approach
4.1.3 Not bully or harass other staff, patients or members of the public, or discriminate against them on the basis of their sex, race, ethnic or ethno-religious background, marital status, pregnancy, disability, age, homosexuality, transgender or carers’ responsibilities
4.1.4 Not encourage or support other staff in harassing or bullying, or in acting in a way that is contrary to harmonious working relationships between staff members
...”

Wage records and list of payments

The evidence also includes wages schedule, wage records, list of payments and evidence relevant to calculation of the applicant’s pre-injury average weekly earnings (PIAWE).

Medical evidence

Treating medical evidence

Dr Benjamin Williams, general practitioner

A Certificate of Capacity completed by Dr Williams on 28 April 2021[16] stated a diagnosis of “Adjustment disorder with anxious mood – experiencing work-related severe anxiety with somatic symptoms” with a reported date of injury of “9/4/21 and throughout April”. It stated that the applicant had “no current work capacity for any employment” from 28 April 2021 to 19 May 2021. It stated that:
“Severe workplace induced anxiety related to
1. Recent complaint concern regarding possible sexually inappropriate connotation [sic] – unsure if staff or patient.
2. Sense of unfair criticism of past and present work
Severe psychological distress and physical symptoms including severe nausea, shortness of breath and chest pain (warranting ED review on 26/4/21) triggered by thoughts and physical/non-physical contact with work – e.g. driving past hospital, receiving an email will trigger severe symptoms currently.”
The certificate included a declaration by the applicant that he undertook paid work at the Medical Centre three days each week and was also retained as an on-call fire fighter with Fire Rescue New South Wales.
[16] Reply, page 33; ARD, page 196.
A questionnaire completed by Dr Williams on or about 6 May 2021[17] stated that he had been treating the applicant for 11 months. It stated that the applicant “currently... fulfills DSM-V criteria for Adjustment disorder with anxiety”. In response to a question asking when the applicant’s current psychological symptoms and condition commenced, Dr Williams stated that the applicant’s “symptoms have been experienced over the last 4-6 weeks in relation to a sense of unfair criticism at awork but most notably commenced when he was informed of a complaint concern”.[18]
[17] ARD, page 108; Reply, page 37.
[18] ARD, page 109.
Dr Williams noted that a review of the applicant’s medical records showed a history of ADHD, high functioning Asperger’s syndrome and “26/11/2015 – work related stress leading to depression following a complaint. Significant distress regarding the way the complaint was handled, leading to short period of workcover”.[19]
[19] ARD, page 109.
Dr William agreed that the applicant’s psychological symptoms are wholly or predominantly caused by actions taken by the respondent with respect to the investigation process and potential disciplinary action. He stated:
“Yes. Given the temporal association with the complaint and the strong link to workplace triggering of symptoms. eg. nausea, chest pain, anxiety on opening work emails or driving past hospital. The symptoms seem to be predominantly related to above actions as well as a recent sense of unfair criticism regarding past + present work.”[20]
[20] ARD, page 109.
Dr Williams stated that “Although Allen has previously experienced depression + anxiety his current symptoms seem directly related to 1. Recent complaint at work and the initial lack of provided information 2. A perceived sense of criticism of past + present work”.[21] Dr Williams noted that the applicant “has previously had an episode of anxiety and depression however had not required treatment or experienced significant symptoms for a number of years prior to the recent work related incident”.[22]
[21] ARD, page 110.
[22] ARD, page 110.
In relation to the applicant’s capacity to work, Dr Williams stated that “Currently even non-physical contact with Local Health District (phone calls, emails) trigger significant distress to the point he cannot currently work for the Local Health District” and that in his opinion the anticipated time for return to pre-injury duties was “2-6 months”.[23]
[23] ARD, page 110.
Dr Williams prepared a number of psychiatric and psychology referrals, respectively dated
[24] ARD, page 115.
[25] ARD, page 117 and 119.
[26] ARD, page 121.
18 May 2021,[24] 18 May 2015[25] and 26 May 2021.[26] They stated that the applicant had previously experienced “episodic anxiety/depression most recently in 2016”. It stated that, in the last month, the applicant had experienced significant psychological distress and anxiety relating to his work, triggered by a recent complaint regarding his conduct and a sense of unfair criticism of past and present work. Dr Williams stated that although the applicant reported ongoing anxious mood triggered by his work at the Hospital, he reported no significant anxiety symptoms when working at the Medical Centre and that he continued to enjoy his work there.

Ceila Coates, clinical psychologist

In a report dated 14 August 2021,[27] Ms Coates stated that she had acted as the applicant’s clinical supervisor for the last two years and that more recently the applicant had been accessing clinical psychological therapy with her in the context of a workplace psychological injury.
[27] ARD, page 112.
Ms Coates stated that:[28]
“The onset of Mr McLean’s psychiatric illness arose in the context of a workplace incident that occurred on 08/04/2021. On this day, Mr McLean contacted me by phone in a very distressed state following an incident with the Mid North Coast Area Health Acting Community Health Manager, Danny Passfield. Mr McLean reported that he had been in a meeting [at the Medical Centre] when a health worker had relayed a message that he was to urgently contact Mr Passfield. Mr McLean did this and a meeting was arranged with Mr Passfield that afternoon. When Mr McLean arrived for the meeting, he was called into another room where a third person was waiting apparently ready to take notes. Mr Passfield handed Mr McLean a letter and told him to read it before saying anything. Mr McLean stepped outside the room to read the letter, realised it related to a complaint and that it requested he hand in his hospital ID and keys. These items were in his car so Mr McLean walked to the carpark to retrieve them in order to comply with the letter. As he was doing this, Mr Passfield pursued Mr McLean through the public areas of the hospital repeatedly demanding that he return to discuss the letter despite Mr McLean asking him not to follow him. Mr McLean reported feeling like he had been ambushed by Mr Passfield who had not suggested bringing a support person and then embarrassed and humiliated Mr McLean by demanding he return while following him through the hospital and into the carpark. Mr McLean reported feeling extremely anxious and distressed by the time he reached his care and was shaking when he returned the ID and keys to Mr Passfield. At no time was he offered any support despite his obvious distress.
The following day, 09/04/21, Mr McLean contacted me by phone again, still clearly distressed by the encounter with Mr Passfield the previous day. He reported feeling extremely anxious and had not been able to sleep the night before. We made an appointment for a face to face therapy session on 14/0421. At this consultation Mr McLean presented as extremely distressed over the incident with Mr Passfield on 08/04/21. He reported ongoing sleep difficulties, loss of confidence, poor concentration, feeling worthless, hopeless, helpless, confused and often teary during the session. He was clearly anxious about the pending complaint against him, but the stressor that had led to his presenting psychological state appeared to be the incident with Mr Passfield.
I formulated that Mr McLean’s provisional diagnosis was Adjustment Disorder, also known as situational depression. This is defined in the Diagnostic and Statistical Manual of Mental Disorders, (5^th ed.) (DSM-5, 2013) as ‘a stressor-related psychological disorder caused by a specific stressor’... Given the ongoing nature of the stressor and impact on his overall functioning and psychological health, Mr McLean’s diagnosis is now Adjustment Disorder with mixed anxiety and depression: A combination of depression and anxiety is predominant. 309.28 (F43.23) (DSM-5, 2013).
It was established with his treating doctor that Mr McLean was able to fulfill his normal work duties at [the Medical Centre], but anything associated with [the Hospital] triggered significantly extreme anxiety. Despite requests that any enquiries be referred to Mr McLean’s solicitor or the CEO of [the Medical Centre], representatives of [the Hospital] continued to make contact and demand information even during his scheduled leave in the Northern Territory... Given my long-standing knowledge of Mr McLean and the account of the incident with Mr Passfield, it is my professional opinion that that [sic] this incident is the main contributing factor to Mr McLean’s current psychological injury.”
[28] ARD, pages 112-113.

Mental health care plan

On 26 May 2021, Dr Mitchell prepared a mental health care plan for the applicant which included referral for psychological treatment in respect of a diagnosis of adjustment disorder/depression.[29] A DASS 21 completed by the applicant on 26 May 2021 indicated various psychological symptoms.[30]
[29] ARD, page 123.
[30] ARD, page 128.

Clinical records

Various clinical records, which relevantly recorded:[31]
[31] ARD, page 129.
(a)    in October 2014, the applicant reported a conflict at work;[32]
[32] ARD, page 142.
(b)    in November and December 2015, the applicant was diagnosed with depression in the context of a workplace incident and complaint;[33]
[33] ARD, page 146.
(c)    in January to April 2016, the applicant reported ongoing depression in the context of workplace bullying and ongoing workcover claim and his mental health care plan was reviewed;[34]
[34] ARD, pages 147-151.
(d)    in September 2016, the applicant reported that his mental state was quite well;[35]
[35] ARD, page 153.
(e)    on 9 April 2021, the applicant presented with a history of severe stress and reported that he had an anonymous complaint put against him, he was unable to sleep and had increased anxiety;[36]
[36] ARD, page 182.
(f)    on 26 April 2021, the applicant reported severe anxiety and chest pain in the context of:[37]
[37] ARD, page 183.
“Severe workplace anxiety regarding health department work triggered by
1.    A sense of unfair criticism of work – multiple emails regarding incomplete assessments etc
2.    2. Recnt [sic] complaint regarding sexual connotation [sic] – unsure if staff or patient”
(g)    on 28 April 2021, the applicant’s chest pain symptoms had eased but he reported still struggling with severe anxiety, depression and somatic symptoms and the applicant and the doctor noted an impression of adjustment disorder with anxious mood. The applicant stated that he wished to commence workcover proceedings;[38]
(h)    on 14 May 2021, the applicant reported ongoing anxiety, triggered by and physical or non-physical contact with the respondent;[39]
(i)    on 17 May 2021, the applicant reported that contact with the respondent, union and insurer, including disclosure of the nature of the complaint, had escalated his anxiety and psychological distress;[40]
(j)    on 18 May 2021, the applicant was referred for psychiatric and psychological treatment,[41] and
(k)    in May and June 2021, the applicant reported ongoing psychological symptoms.[42] On 16 June 2021, Dr Williams noted that “due to the severity of his work related anxiety stemming from the complaint, how it was handled and an aledgd [sic] recurrent sense of criticism from colleagues” the applicant remained “unable to work in any capacity”.

[38] ARD, page 184.

[39] ARD, page 186.

[40] ARD, page 187.

[41] ARD, page 188.

[42] ARD, pages 188- 191.

Certificates of capacity

Various certificates of capacity stated that the applicant had no work capacity from
28 April 2021 to 14 July 2021.[43]

Independent medical evidence

[43][43] Reply, page 33; ARD, pages 196-212.

Dr Glen Smith, consultant forensic psychiatrist

Dr Smith provided an expert medical opinion at the request of the applicant.[44]
[44] ARD, page 92.
In a report dated 23 July 2021, Dr Smith stated a provisional diagnosis, according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DMS-5, American Psychiatric Association, 2013 (DSM-5) of major depressive disorder, with anxious distress. Dr Smith noted that the applicant also reported a history consistent with longstanding Asperger’s syndrome.
Dr Smith stated:[45]
“In my opinion, Mr McLean’s employment was the main contributing factor to the development of his major depressive disorder from around 2014. The most significant factor to his recent aggravation was the reportedly aggressive manner in which Danny interacted with him regarding the complaint in March 2021.
...
In my opinion, the manner in which Danny interacted with Mr McLean in March 2021 was the main contributing factor to an aggravation of his major depressive disorder that had initially developed from around 2014, in the context of workplace issues from that time.
...
Although, whether Danny’s actions were reasonable or not, is not a question within my expertise as psychiatrist, I note that Mr McLean felt harassed by the aggressive manner taken by Danny in discussing in presenting [sic] Mr McLean with the letter regarding the complaint and that was the main substantial contributing factor to the development of Mr Mclean’s [sic] major depressive disorder with anxious distress.”
[45] ARD, page 105-106.
Dr Smith recommended ongoing psychological therapy and pharmacotherapy and stated that the applicant’s prognosis depends on his response to treatment.
In relation to the issue of work capacity, Dr Smith stated:[46]
“Mr McLean is currently not fit to return to work at [the Hospital] due to the risk of a predictable deterioration of anxiety and depressive symptoms in that context when exposed to reminders of the events from March 2021. He is currently working in his role at [the Medical Centre] where he feels supported and ongoing work in this environment is likely to be beneficial for his anxiety and depressive symptoms. For him to cease work completely now would likely compound his depressive symptoms in the context of loss of work role and routine.
...
Mr McLean reported that he highly values his role at [the Medical Centre], and, in my opinion, he is fit for this work. He is able to work in a team setting at [the Medical Centre], but he would not be able to supervise others. He is not fit to return to work at [the Hospital] in any capacity.”
[46] ARD, page 106.
Dr Smith prepared a supplementary report dated 2 February 2023, based on a review of provided information. [47] Dr Smith disagreed with Dr Robert’s opinion that the applicant working full-time at the Medical Centre would be inconsistent with suffering from a significant anxiety or mood disorder, stating that such a phenomenon was known as “presenteeism”.
Dr Smith noted that at the time that he assessed the applicant on 23 July 2021, the applicant was then working only three days per week and the applicant had described in his statement dated 1 October 2022, significant anxiety in the workplace, which Dr Smith believed would likely have a significant impact on the applicant’s work functioning.[48] Dr Smith stated:[49]
“... In summary, I generally disagree with Dr Roberts’ conclusions regarding Mr McLean’s condition and in my opinion, his own report was inconsistent, documenting significant ongoing symptoms of anxiety and distress in Mr McLean’s presentation. This was consistent with Mr McLean’s more recent statement regarding his ongoing anxiety and depressive symptoms. I therefore do not believe that it is probable that Mr McLean’s symptoms had improved substantially as an explanation for the discrepancy between my opinion and that of Dr Roberts.”
[47] AALD by applicant dated 23 February 2023, page 1.
[48] AALD by applicant dated 23 February 2023, page 10.
[49] AALD by applicant dated 23 February 2023, page 11.

Dr John Roberts, consultant forensic psychiatrist

Dr Roberts provided an independent medical opinion at the request of the insurer.
Dr Roberts noted that the applicant reported a history of having being bullied and harassed in his employment with the respondent:[50]
“When asked as to who was responsible for such alleged bullying and harassment,
Mr McLean stated that it was not a particular person but ‘the system’.
Mr McLean stated that a fellow employee had caused a problem that this fellow had ‘blown up’ and that he complained; that the matter escalated and faults were found in relation to him.
Mr McLean commented that because of previous problems he had had, there was involvement with Industrial Relations, that he admitted to problems; that he was involved in what he described as ‘ongoing absences because of stress and anxiety secondary to harassment by management’”.
[50] AALD by insurer dated 15 February 2023, page 8.
In a report dated 26 May 2022,[51] Dr Roberts noted that at the time of his assessment of the applicant on 26 April 2022, the applicant was then working in another position as a social worker on a full-time basis. Dr Roberts stated that, in that context, the applicant’s functionality does not indicate significant impairment arising from psychiatric/psychological factors.
[51] AALD by insurer dated 15 February 2023, page 1.
Dr Roberts stated that the applicant “presented in a manner that was entirely unremarkable in all respects, displaying no evidence of any disorder of mood or affect, thoughts either in form or content or cognition”.[52] Dr Roberts stated that he could only assume that Mr McLean must have presented very differently to Dr Smith and Ms Coates, noting that “it is likely that any depressive state has resolved... It is untenable on reasonable psychiatric grounds that a Major Depressive Disorder has persisted as such a condition is incompatible with work undertaken by Mr McLean on a fulltime basis as previously described”.[53]
[52] AALD by insurer dated 15 February 2023, page 10.
[53] AALD by insurer dated 15 February 2023, page 11.
Dr Roberts stated that:
“While the claimant may have in the past suffered from symptoms that would be able to be considered under the heading of a Major Depressive disorder, or an Adjustment Disorder with anxiety and depression, by the time Mr McLean attended my surgery, I would consider that a Major Depressive disorder is precluded by his current activities, and an Adjustment Disorder with anxiety and depression, or severity would not be consistent with his current employment, but a residual anxiety disorder would be of a diagnosis that would be consistent with functioning, I would consider that as is the usual prognosis for an Adjustment Disorder such is going through a period of remission.”[54]
Dr Roberts stated that, in his opinion, the applicant’s psychopathology is that of high functioning Asperger’s syndrome.
[54] AALD by insurer dated 15 February 2023, page 14.
In relation to the issue of work capacity, Dr Roberts stated that:
“in the context of the [full-time] work that Mr McLean is currently doing, this would place him within a level of impairment of 1 to 3%, which is consistent with no deficit or minor deficit attributable to the normal variation in the general population”.[55]

SUBMISSIONS
[55] AALD by insurer dated 15 February 2023, page 14.

Both counsel made detailed written submissions, which have been considered in full.

Submissions of respondent’s counsel

Mr Doak’s submissions, on behalf of the respondent, may be summarised as follows:
(a) the respondent relies on s 11A of the 1987 Act as a complete defence to the claim on the basis that the applicant’s psychological injury was reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal; [56]
[56] Note that the Respondent’s Submissions at paragraph 2 refers to “discipline or transfer” (my emphasis). The word “transfer” where it appears in paragraph 2 appears to be used in error. The Respondent’s Submissions at paragraph 15 states that “The respondent relies on the categories of discipline and termination of employment as notified in its dispute notices”. The insurer’s various dispute notices (referred to above) refer to “discipline and/or dismissal”.
(b)    the evidence demonstrates that the applicant’s psychological injury was wholly or predominantly caused by the action of the respondent taken on 8 April 2021 addressing a formal complaint made in March 2021 by another staff member that the applicant had made sexualised comments towards her for about 9 to 12 months;
(c)    evidence of Dr Smith that the applicant’s employment with the respondent from 2014 was the major contributing factor to the applicant’s psychological injury (noting complaints and disciplinary issues which had previously been raised against the applicant) should be rejected and given no weight because it did not identify the applicant’s level of functioning prior to the incident on 8 April 2021 or the applicant’s medical history and it is inconsistent with contemporaneous clinical records and other evidence of the applicant’s treating practitioner and evidence of Ms Coates;
(d) the action of the respondent taken on 8 April 2021, which included steps to notify the applicant of the complaint, the process that the respondent intended to take to investigate the complaint and that the applicant would be stood down and could not attend the Hospital while the investigation was being undertaken and pending an outcome, was disciplinary in nature and falls within s 11A of the 1987 Act;
(e) the test to be applied in relation to the issue of reasonableness for the purposes of s 11A of the 1987 Act is objective (Commissioner of Police v Minihan (2003) 1 DDCR 57). It must consider the rights of the worker and the objectives of the employer and, overall, there must be regard to the question of fairness in the employer’s actions (Irwin v Director General of School Education, unreported, 18 June 1998). The test is not whether the respondent’s actions or some of them could have been undertaken in a more reasonable or acceptable way with the benefit of hindsight (Department of Education and Training v Sinclair [2005] NSWC 465);
(f)    viewed objectively, the action of the respondent taken on 8 April 2021 was reasonable: The respondent had received a complaint from another employee of about conduct that was a potential breach of the NSW Health Code of Conduct and potentially unlawful conduct under the Sex Discrimination Act 1984 (Cth). The serious nature of the complaint required the respondent to take action in relation to the complaint, including investigating it. The respondent’s objective was the proper investigation of a serious complaint made by a female employee about inappropriate workplace conduct of a sexual nature;
(g)    the purpose of the meeting between the applicant, Mr Passfield and Ms Hawkins on 8 April 2021 was to notify the applicant (both verbally and in writing by letter handed to the applicant at the meeting) that a complaint had been made against him and the steps the respondent would take to investigate the complaint[57] and to enable the applicant to ask questions about the process. The purpose of the meeting was not to discipline the applicant or to provide detailed information about the allegations against him or to question the applicant about the complaint or any underlying allegation;
[57] Respondent’s submissions, paragraph 28(e). Note that the submissions states “was not notify the applicant” (my emphasis), which appears to include the word “not” in error.
(h)    the respondent’s failure to give the applicant notice of the complaint and purpose of the meeting on 8 April 2021 prior to that meeting was reasonable considering the purpose of the meeting, the meeting was not to “discipline” the applicant and the investigation had not yet commenced and the investigator had not then obtained specific details of the complaint from the complainant. Further, it would have been unreasonable for the respondent to instead initially notify the applicant that he was the subject of a complaint of sexual harassment by telephone rather than in person;
(i)    the respondent’s failure to give the applicant an opportunity to bring a support person to the meeting on 8 April 2021 was reasonable considering the purpose of the meeting, the meeting was not to “discipline” the applicant and the investigation had not yet commenced and the investigator had not then obtained specific details of the complaint from the complainant. Further, it would have been unreasonable for the respondent to instead initially notify the applicant that he was the subject of a complaint of sexual harassment by telephone rather than in person;
(j)    the notification of the nature of the complaint (without details of the allegations) given to the applicant in the meeting on 8 April 2021, verbally and in writing, was reasonable because the investigation had not yet commenced and the investigator had not then obtained specific details of the complaint from the complainant. Logically, it could not be done any other way. It was not appropriate for the investigator to interview the complainant before the applicant had been notified of the nature of the complaint, because it would have led to the situation where the complainant and the applicant could have had further contact as they remained working together at the Hospital;
(k)    the steps set out in the letter given to the applicant on 8 April 2021 were reasonable, including the requirement for the applicant to remain away from the Hospital and to only work at the clinic because the applicant and the complainant worked together at the Hospital and it was necessary for the respondent to ensure that there was no contact between them pending the outcome of the investigation and any further action taken arising from that outcome;
(l)    Ms Hawkins’ attendance at the meeting on 8 April 2021 was reasonable because she was to witness the delivery of the letter to the applicant;
(m)     the fact that the applicant walked away from the meeting before the respondent could satisfy all of it’s objectives of the meeting, in particular giving the applicant an opportunity to ask questions about the investigation process, does not detract from the reasonableness of the respondent’s actions;
(n)    the actions of Mr Passfield at and following the meeting on 8 April 2021 were reasonable. Mr Passfield’s purpose of following the applicant to his car after it became clear he was not intending to return to the meeting was to try to give him the opportunity to discuss the complaint and also to retrieve the applicant’s pass key for the Hospital which was reasonable in the circumstances. Mr Passfield called out to the applicant in such a manner that would not draw the attention of anyone else. Mr Passfield only became aware that the applicant was upset and agitated once he reached him at his car and the applicant became agitated;
(o)    in the alternative, if the Commission accepts that Mr Passfield’s actions were unreasonable, his action does not render the respondent’s actions with respect to discipline unreasonable as a whole;
(p) further in the alternative, if the Commission accepts that the defence under s 11A of the 1987 Act is not made out, having regard to the evidence, the Commission could not be satisfied that the applicant has established an incapacity to work and any entitlement to weekly compensation for the claimed period, and
(q)    accordingly, the applicant’s application should be dismissed and an award should be entered for the respondent.

Submissions of applicant’s counsel

Mr Adhikary’s submissions, on behalf of the applicant, may be summarised as follows:
(a) the applicant seeks leave to discontinue the claim for medical and related expenses pursuant to s 60 of the 1987 Act;
(b) it is apparent from the respondent’s submissions that the respondent no longer maintains a dispute pursuant to s 14(2) of the 1987 Act as no submissions were made in that regard;
(c)    in accordance with the statements of Snell DP in Hamad v Q Catering Limited [2017] NSWWCCPD 6 at [87] – [89] and [93], where there are multiple potential causal factors to an injury which extend beyond the factors which a respondent relies upon as part of its defence, what the whole or predominant cause of injury is cannot be decided in the absence of medical evidence and determined on the basis of a decision maker’s common knowledge and experience. Further, in the absence of any medical evidence dealing appropriately with the topic, the respondent could not discharge its onus as to what the whole or predominant cause of injury was;
(d)    the respondent has not discharged its onus to demonstrate what the whole or predominant cause of injury was the events of 8 April 2021, the applicant alleges that there were multiple causal factors that caused his injury, which included the events of April 2021;
(e)    the respondent has not discharged its onus to prove that its actions related to the complaint in March 2021 are reasonable; it was not reasonable that Mr Passfield not only contacted the applicant and left a message but he also contacted other staff (particularly the staff members at the clinic) asking them to ask the applicant to call him urgently; it was not reasonable that Mr Passfield emphasised to the applicant the urgency of the meeting on 8 April 2021 yet, when directly questioned by the applicant questioned about the purpose of the meeting,
Mr Passfield did not provide any information and did not indicate that there was an issue or concern that the applicant had to respond to; the applicant was effectively ambushed at the meeting on 8 April 2021 because the nature of the meeting was contrary to Mr Passfield’s attitude over the telephone as it was not an informal get-together, but was to inform the applicant of drastic consequences for him, such as the prohibition on him continuing to work at the Hospital and that the applicant’s employment was potentially at risk; it was unreasonable that the respondent by its conduct denied the applicant procedural fairness by denying him the opportunity to prepare for the meeting on 8 April 2021 and his response to the drastic action that the respondent intended to take; it was unreasonable that the applicant was effectively denied the opportunity to bring a support person to the meeting; Mr Passfield’s actions at the meeting were unreasonable; the applicant was ambushed by having no notice of Ms Hawkins’ attendance at the meeting; Ms Hawkins’ attendance at the meeting was unreasonable; it was irrelevant that the respondent did not consider the meeting to have been a disciplinary meeting; clearly, the meeting was formal enough for Ms Hawkins to be in attendance and serious enough that the applicant could not be informed, after he had asked, what the meeting pertained to; it was unreasonable that after the applicant left the meeting, Mr Passfield followed the applicant and yelled at him in front of other people and told the applicant that he had to come back to the meeting, and Mr Passfield continued following the applicant after the applicant told him to stop, causing the applicant to feel humiliated, harassed and intimidated; it was unreasonable that Mr Passfield followed the applicant to his car and continued to yell out to him, then stood beside the applicant as the applicant handed his identification pass to Mr Passfield while the applicant was shaking and distressed; it was unreasonable that Mr Passfield effectively blocked the applicant’s movement and forced the applicant to walk around Mr Passfield; it was unreasonable that the applicant was not provided information after contacting his direct manager, Ms Cochrane; it was unreasonable that the respondent did not provide the applicant with any support; it was unreasonable that Mr Passfield continued to contact and communicate with the respondent after the respondent was effectively advised that all communication with the applicant should be indirect or through the union; it is unreasonable that the respondent failed to comply with its own policy; it is unreasonable that the applicant has not been provided with details of the allegations and is still unaware of the year, the location of the alleged conduct and the person against whom he is alleged to have behaved inappropriately towards; it was unreasonable that the applicant was prohibited from continuing to work at the Hospital pending the outcome of investigation of the complaint; there is no evidence of a risk-assessment actually being undertaken (although it was referred to in correspondence) and the applicant was not provided information about the matters being considered in the risk assessment nor an opportunity to inform the risk assessment; it was unreasonable that a blanket confidentiality requirement was imposed upon the applicant and that he was only permitted to discuss matters with his support/mentor person, union or legal representatives in the context that he was not provided with any particulars about his alleged misconduct and his employment being potentially at risk; it is unreasonable that the applicant was effectively prohibited by the confidentiality requirement from discussing the matter with his medical practitioners and that no support person/mentor was defined in the circumstances that the applicant was not given the opportunity to bring a support person/mentor to the meeting on 8 April 2021; it was unreasonable that Mr Passfield contacted the applicant and harassed him about alleged breaches of confidentiality when the applicant was merely informing his employer what was occurring with the respondent; it was unreasonable that the applicant’s employment was terminated in the circumstances because the applicant was effectively summarily dismissed without any proper process or proper consideration and the termination letter did not provide sufficient information regarding the reason why the employer lost trust and confidence in the applicant, what was not consistent with the position of social worker and the relevant code of conduct, what were the circumstances in which the dismissal was justified and what was the conduct which amounted to misconduct;
(f)    the evidence demonstrates that the applicant was incapacitated during the claimed period or, in the alternative, suffered a financial loss in the claimed period, and
(g)    accordingly, the Commission should make an award in favour of the applicant with respect to the claim for weekly compensation.

Submissions of respondent’s counsel in reply

Notwithstanding directions which provided for the respondent to lodge submissions in reply, the respondent elected not to do so and no submissions were lodged by the respondent’s counsel in reply.

LEGISLATION

Section 9(1) of the 1987 Act provides that:
“(1) A worker who has received an injury (and, in the case of death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
At the claimed date of injury, s 4 of the 1987 Act defined “injury” as follows:
“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.”
Section 9A of the 1987 Act relevantly states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note - In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this section does not limit the kinds of matters that can be taken into account for the purposes of this determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of that employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or he had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 11A of the 1987 Act relevantly states:
“(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.
…
(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).
…”
Section 14(2) of the 1987 Act relevantly states:
“(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 36 of the 1987 Act states:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37 of the 1987 Act states:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”

CONSIDERATION

Injury

The respondent does not dispute, and on that basis I accept, that the applicant sustained a primary psychological injury in the course of his employment with the respondent, pursuant to ss 4 and 9A(1) of the 1987 Act, with a deemed date of injury of 8 April 2021.

Defence pursuant to s 11A of the 1987 Act

The respondent raised a defence under s 11A(1) of the 1987 Act. The respondent has the onus of establishing such defence.

Wholly or predominantly caused by discipline or dismissal

Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1). The respondent relies on the categories of discipline and dismissal. In Hamad v Q Catering Limited,[58] the Commission suggested that medical evidence is necessary to determine the causation issue. In Smith v Roads and Traffic Authority of NSW,[59] Snell ADP accepted “wholly” and “predominantly” are different concepts.
[58] [2017] NSWWCCPD 6.
[59] [2008] NSWWCCPD 130.
In relation to the term “discipline”, in Kushwaha v Queanbeyan City Council,[60] the Court said that:[61]
“... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”
[60] [2002] NSWCC 25; 23 NSWCCR 329.
[61] [2002] NSWCC 25; 23 NSWCCR 329, at [152].
In Northern NSW Local Health Network v Heggie,[62] (Heggie) the Court of Appeal said that a broad approach is to be taken to the expression “action with respect to discipline” in
[62] [2013] NSWCA 255; 12 DDCR 95.
s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action.
The particular “action” with respect to discipline or dismissal which is relied upon by the respondent to sustain a defence pursuant to s 11A of the 1987 Act is the action of the respondent taken on 8 April 2021 addressing a formal complaint made in March 2021 by another staff member that the applicant had made sexualised comments towards her for about 9 to 12 months.
The ARD describes the applicant’s psychological injury as a disease injury with a deemed date of 8 April 2021. It states that the applicant “sustained psychological injury as a result of prolonged interpersonal conflict with colleagues, management, and the general public since 2014”.
The applicant’s own evidence did not state any other cause of psychological injury apart from the actions of the respondent taken on and after 8 April 2021. The applicant did not give evidence of any “prolonged interpersonal conflict with colleagues, management, and the general public since 2014”, which was alleged by the ARD to be causative of his psychological injury. The applicant did note that, on 8 April 2021, he “phoned a Clinical Psychologist that has assisted me previously with workplace matters”.[63] However, no evidence has been given by the applicant in his statements in relation to psychological injury caused by workplace matters prior to April 2021. Indeed, the applicant denied that previous misconduct complaints are relevant to his current psychological injury.[64]
[63] ARD, page 4.
[64] ARD, page 8, paragraph 69; ARD, page 10, paragraph 4.
However, clinical records evidence that, in October 2014, the applicant reported a conflict at work.[65] Clinical records further evidence that, in November and December 2015, the applicant was diagnosed with work related stress leading to depression in 2015 in the context of a workplace incident and complaint.[66]
[65] ARD, page 142.
[66] ARD, page 146.
Dr Williams’ evidence is that, on or about 26 November 2015, the applicant experienced “work related stress leading to depression following a complaint” and had “Significant distress regarding the way the complaint was handled”, leading to a “short” period on workcover.[67]
[67] ARD, page 109.
Referrals completed by Dr Williams noted that the applicant had experienced episodic anxiety and depression, most recently in 2016.[68] Clinical records state that in September 2016, the applicant reported that his mental state was quite well.[69]
[68] ARD, pages 115, 117, 119 and 121.
[69] ARD, page 153.
Dr Williams stated that the applicant had not required treatment nor experienced significant symptoms for a number of years prior to the events in April 2021.[70] There is no dispute that the applicant was working full-time for a number of years prior to the events in April 2021.
[70] ARD, page 110.
Dr Williams noted that there was a temporal association between the applicant’s current psychological symptoms and the events in April 2021. Dr William agreed that the applicant’s psychological symptoms are wholly or predominantly caused by the respondent’s actions in April 2021 with respect to the investigation process and potential disciplinary action.
[71] ARD, page 109.
Dr Williams opined that “the symptoms seem to be predominantly related to above action as well as a recent sense of unfair criticism regarding past + present work”.[71]
Ms Coates opined that the events of April 2021 was the main contributing factor to the applicant’s current psychological condition. Ms Coates’ evidence did not address the applicant’s psychological history prior to 2021 and she did not address the relationship between the applicant’s past psychological history and his current psychological condition.[72]
[72] ARD, pages 112-114.
Dr Smith did consider the applicant’s psychological history prior to 2021. Dr Smith opined that the applicant’s employment with the respondent was the main contributing factor to the development of his major depressive disorder from around 2014. Dr Smith’s evidence is that the Mr Passfield’s interaction with the applicant in 2021, was the main contributing factor to an aggravation of the major depressive disorder that had initially developed from around 2014 in the context of workplace issues from that time.[73] Dr Smith did not address or explain the applicant’s functioning in full time employment in the period between 2016 and April 2021 or the applicant’s level of functioning immediately prior to the events of April 2021.
[73] ARD, page 104.
In April 2022, Dr Robert’s took a history from the applicant which included that he had attended clinical psychologist, Ms Coates, for a period of five years.[74]
[74] AALD by insurer dated 15 February 2023, page 4.
Dr Roberts recorded a reported history of bullying and harassment by the respondent.
[75] AALD by insurer dated 15 February 2023, page 8.
[76] AALD by insurer dated 15 February 2023, page 10.
[77] AALD by insurer dated 15 February 2023, page 11.
Dr Roberts noted that that applicant reported that it was not a particular person that was responsible, but “the system”. Dr Roberts notes that the applicant reported the making of a complaint by another employee. However, Dr Roberts did not clearly identify with any real precision the timing of those reported events.[75] Dr Roberts did note the respondent’s evidence of a history of disciplinary action and events commencing in around 2014[76] and he noted Dr Smith’s diagnosis given in his report of 23 July 2021 and the report of Ms Coates dated 24 August 2021.[77]
Dr Roberts stated that:
“I would consider that in regard to Mr McLean’s interactions with others during the course of his employment with [the respondent] could be explained on reasonable psychiatric grounds as being the result of a transient exacerbation of an aggravation and deterioration in the underlying disease manifesting itself.”[78]
It is not entirely clear what “underlying disease” Dr Roberts was referring to, however
[78] AALD by insurer dated 15 February 2023, page 12.
[79] AALD by insurer dated 15 February 2023, page 13.
Dr Roberts’ statement in that regard appears to be made in the context of an underlying diagnosis of Asperger’s disorder. Similarly, Dr Roberts later stated that certain of the applicant’s interactions and behaviours during 2015, 2016 and 2021 was understandable “in the context of longstanding, re-existing psycho-pathology” of Asperger’s syndrome.[79]
Notably, Dr Roberts did not specifically refer to, nor consider, the applicant’s diagnosis of major depressive disorder from around 2014. Further, Dr Roberts did not specifically address nor explain the applicant’s 2021 diagnosis in the context of that psychiatric history.
Dr Roberts did acknowledge that the applicant “may have in the past suffered from symptoms that would be able to be considered under the heading of a Major Depressive disorder, or an Adjustment Disorder with anxiety and depression” but he did not specify with any clarity the commencement or cause of such diagnosis.
The evidence in relation to causation is somewhat inconsistent and difficult to reconcile. There are a number of issues that are not adequately explained in the evidence, particularly the relationship between the applicant’s accepted psychological condition, the previous psychological diagnosis from around 2014 and the period of some years immediately prior to April 2021 when the applicant was apparently functioning in full-time employment.
Taking the above matters into account and considering the evidence as a whole, I prefer and accept the evidence of Dr Smith because it addresses the applicant’s current psychological condition in the context of that psychological history and I find it more compelling in terms of an explanation for the cause of the applicant’s accepted psychological condition.
In the context of the applicant’s prior psychological history, Dr Smith’s evidence in this regard raises the very real possibility that the cause of the applicant’s accepted psychological condition is multi-factorial and not limited in any real or substantial sense to the events of April 2021.
On that basis, I am unable to be satisfied that the applicant’s accepted psychological condition was wholly or predominantly caused by the particular action relied upon by the respondent.
I find that the respondent has not discharged its onus of establishing that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the employer with respect to discipline or dismissal.
In the circumstances, I am not required to address the issue of “reasonabless”.
Accordingly, no defence is available to the respondent pursuant to s 11A of the 1987 Act.

Defence pursuant to s 14(2) of the 1987 Act

The respondent raised a defence under s 14(2) of the 1987 Act. In order for a s 14(2) defence to be established, an injury to a worker must be “solely attributable” to the serious and wilful misconduct of the worker. The respondent has the onus of establishing such defence.
The respondent, in its primary submissions, did not make any submissions in relation to
s 14(2) of the 1987 Act. The applicant, in its submissions, submitted that it is apparent that the respondent no longer maintains a dispute pursuant to s 14(2) of the 1987 Act. The respondent then elected not to make any submissions in reply (in relation to a s 14(2) defence, or at all), despite provisions being made for respondent’s submissions in reply in directions for submissions.
Having regard to the evidence as a whole, and my findings in relation to the s 11A defence above, I am not satisfied that the respondent has discharged its onus of establishing that the injury is “solely attributable” to the serious and wilful misconduct of the applicant.
Accordingly, no defence is available to the respondent pursuant to s 14(2) of the 1987 Act.

Total or partial incapacity

Given the above findings, it is necessary to examine the applicant’s capacity for employment for the periods during which he claims weekly benefits, being:
(a) 8 April 2021 to 8 July 2021, pursuant to ss 33 and 36 of the 1987 Act, and
(b) 9 July 2021 and 2 August 2021, pursuant to ss 33 and 37 of the 1987 Act.
Various certificates of capacity stated that the applicant had no work capacity from
[80] Reply, page 33; ARD, pages 196-212.
28 April 2021 to 14 July 2021.[80] There are no medical certificates covering the period between 8 April 2021 and 27 April 2021 and between 15 July 2021 and 2 August 2021.
It is not disputed that, notwithstanding the medical certificates which certified that the applicant was totally incapacitated, the applicant nevertheless continued to work three days per week at the Medical Centre between 8 April 2021 and 2 August 2021.
I give little weight to Dr Roberts’ evidence of the applicant’s capacity because Dr Roberts’ assessment of the applicant took place approximately eight months after the expiration of the claimed period and is not reliable and persuasive evidence of the applicant’s capacity during the claimed period.

Dr Smith gave evidence that the applicant remained anxious and depressed and was not fit for work in any capacity at the Hospital. Dr Smith explained that that was due to the risk of a predictable deterioration of anxiety and depressive symptoms in that context when exposed to reminders of the events from March 2021.
Dr Smith stated that the applicant was fit for continuing work at the Medical Centre in a team setting, but not supervising. Dr Smith noted that the applicant was currently working at the Medical Centre where he felt supported. Dr Smith stated that ongoing work at the Medical Centre was likely to be beneficial for the applicant’s anxiety and depressive symptoms and that ceasing such work would likely compound his depressive symptoms in the context of loss of work role and routine.[81]
[81] ARD, page 106.
Dr Smith did not comment on the applicant’s ability to work in alternative scenarios, such as either full-time at the clinic or in a place other than the Hospital.
On 6 May 2021, Dr Williams reported that the applicant “cannot currently work for the local health district” because even non-physical contact (such as telephone calls and emails) triggered significant distress. Dr Williams expressed uncertainty as to what other duties the applicant could cope with if he could not return to his substantive employment. He anticipated that between two to six months would be a timeframe for return to the applicant’s pre-injury duties and that the applicant would likely need gradual reintroduction.[82]
[82] ARD, page 110-111.
Ms Coates noted that it was established with the applicant’s treating doctor that he was able to fulfill his normal work duties at the Medical Centre, but anything associated with the Hospital triggered extreme anxiety.[83]
[83] ARD, page 113.
I prefer and accept the evidence of Dr Smith, Dr Williams and Ms Coates in relation to capacity, because I find it to be persuasive and consistent with the applicant’s own evidence in that regard. I accept that during the claimed period, the applicant was unable to tolerate working at the Hospital because of the risk that it would cause psychological distress. However, during that period, the applicant was nevertheless able to continue to work at the Medical Centre for three days per week, because he perceived to be a supportive environment it provided a work role and routine that was beneficial for his psychological condition.
Considering the evidence as a whole, I am satisfied and accept that, during the period from
8 April 2021 to 2 August 2021, the applicant had no capacity to work at the Hospital however the applicant nevertheless did have capacity to work three days per week at the Medical Centre, in a non-supervisory role.
On the basis of the matters set out above, I find that the applicant had partial incapacity for work between 8 April 2021 and 2 August 2021 as a result of the injury.

Calculation of weekly compensation

It is appropriate to make an award in favour of the applicant with respect to the claim for weekly compensation.
In respect of the first entitlement period, pursuant to s 36(2) of the 1987 Act, the weekly payment of compensation in respect of a period during which a worker has current work capacity is to be calculated at the rate of:
(a) (AWE x 95%) – (E + D), or
(b) MAX – (E +D),
whichever is the lesser.
In respect of the second entitlement period, pursuant to s 37(2) of the 1987 Act, the weekly payment of compensation in respect of a period during which a worker has current work capacity and has returned to work for not less than 15 hours per week is also to be calculated at the rate of:
(a) (AWE x 95%) – (E + D), or
(b) MAX – (E +D),
whichever is the lesser.
Pursuant to s 35 of the 1987 Act, in the above calculations:
(a)    AWE means the worker’s PIAWE;
(b)    D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker;
(c)    E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(i)the amount the worker is able to earn in suitable employment;
(ii)the workers current weekly earnings, and
(d)    MAX means the maximum weekly compensation amount.
Based on the applicant’s evidence, I accept that during the period from 8 April 2021 to
2 August 2021, the applicant worked at the Medical Centre for three days per week, being not less than 15 hours per week, except for the weeks ending 9 May 2021 and 16 May 2021 when it appears from the pay records that he did not work at all.
In relation to the calculation of weekly benefits, directions issued on 17 January 2023 noted that PIAWE was disputed and the parties were directed to liaise and attempt to reach agreement in relation to PIAWE. The parties filed evidence relevant to determination of PIAWE and calculation of weekly benefits.[84] Counsel’s submissions did not deal with calculation of PIAWE or calculation of weekly benefits.
[84] AALD by insurer dated 15 February 2023; AALD by worker dated 23 February 2023; further AALD by worker dated 1 March 2023.
I prefer and accept the calculation of PIAWE and weekly benefits which is set out in the applicant’s amended schedule dated 1 March 2023 because it appears to be consistent with relevant pay slips and earning summaries.[85] Accordingly, I find that PIAWE is $3,348.23 and the maximum weekly compensation amount is $2,254.60.
[85] AALD by worker dated 23 February 2023, page 17; further AALD by worker dated 1 March 2023, page 1.
On that basis, I accept the applicant’s calculation of entitlement to weekly compensation in respect of the period from 8 April 2021 to 8 July 2021, pursuant to ss 33 and 36 of 1987 Act as follows:

Week ending	PIAWE x 95%	Actual weekly earnings (excluding leave)	Deductible amount	Weekly compensation entitlement
11.04.2021	$3,180.82	$800.00	Nil	$2,254.60 (maximum)
18.04.2021	$3,180.82	$1,200.00	Nil	$1,980.82
25.04.2021	$3,180.82	$1,200.00	Nil	$1,980.82
02.05.2021	$3,180.82	$1,000.00	Nil	$2,180.82
09.05.2021	$3,180.82	Nil	Nil	$2,254.60 (maximum)
16.05.2021	$3,180.82	Nil	Nil	$2,254.60 (maximum)
23.05.2021	$3,180.82	$1,125.00	Nil	$2,055.82
30.05.2021	$3,180.82	$1,200.00	Nil	$1,980.82
06.06.2021	$3,180.82	$1,200.00$	Nil	$1,980.82
13.06.2021	$3,180.82	$1,200.00	Nil	$1,980.82
20.06.2021	$3,180.82	$800.00	Nil	$2,254.60 (maximum)
27.06.2021	$3,180.82	$1,200.00	Nil	$1,980.82
04.07.2021	$3,180.82	$1,230.00	Nil	$1,950.82

Further, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 9 July 2021 to 2 August 2021, pursuant to ss 33 and 37 of 1987 Act as follows:

Week ending	PIAWE X 95%	Actual weekly earnings (excluding leave)	Deductible amount	Weekly compensation entitlement
11.07.2021	$3,180.82	$1,025.00	Nil	$2,155.82
18.07.2021	$3,180.82	$1,230.00	Nil	$1,950.82
25.07.2021	$3,180.82	$1,230.00	Nil	$1,950.82
01.08.2021	$3,180.82	$1,230.00	Nil	$1,950.82

The respondent did not make submissions in relation to calculation of weekly compensation entitlements. In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.

SUMMARY

Accordingly, I determine that:
(a) the applicant sustained a primary psychological injury pursuant to ss 4 and 9A of the 1987 Act, with a deemed date of injury of 8 April 2021;
(b)    the injury referred to in paragraph (a) was not wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or dismissal;
(c) the respondent has not established a defence pursuant to s 11A of the 1987 Act;
(d) the respondent has not established a defence pursuant to s 14(2) of the 1987 Act;
(e)    the applicant had some capacity for work from 8 April 2021 to 2 August 2021 as a result of the injury referred to in paragraph 1, and
(f)    the applicant returned to work for not less than 15 hours per week from
8 April 2021 to 2 August 2021, except for the weeks ending 9 May 2021 and
16 May 2021.
On that basis, it is appropriate to make the following orders:
(a) The respondent is to pay the applicant weekly payments of compensation pursuant to s 36(2) of the 1987 Act as follows:
(i)$2,254.60 per week from 8 April 2021 to 11 April 2021;
(ii)$1,980.82 per week from 12 April 2021 to 18 April 2021;
(iii)$1,980.82 per week from 19 April 2021 to 25 April 2021;
(iv)$2,180.82 per week from 26 April 2021 to 2 May 2021;
(v)$2,254.60 per week from 3 May 2021 to 9 May 2021;
(vi)$2,254.60 per week from 10 May 2021 to 16 May 2021;
(vii)$2,055.82 per week from 17 May 2021 to 23 May 2021;
(viii)$1,980.82 per week from 24 May 2021 to 30 May 2021;
(ix)$1,980.82 per week from 31 May 2021 to 6 June 2021;
(x)$1,980.82 per week from 7 June 2021 to 13 June 2021;
(xi)$2,254.60 per week from 14 June 2021 to 20 June 2021;
(xii)$1,980.82 per week from 21 June 2021 to 27 June 2021, and
(xiii)$1,950.82 per week from 28 June 2021 to 4 July 2021.
(b) The respondent is to pay the applicant weekly payments of compensation pursuant to s 37(2) of the 1987 Act as follows:
(i)$2,155.82 per week from 5 July 2021 to 11 July 2021;
(ii)$1,950.82 per week from 12 July 2021 to 18 July 2021;
(iii)$1,950.82 per week from 19 July 2021 to 25 July 2021, and
(iv)$1,950.82 per week from 26 July 2021 to 1 August 2021.
(c) The parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to in the orders above.

[2023] NSWPIC 179

24 April 2023