McNamara v State of NSW (Illawarra Shoalhaven Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McNamara v State of NSW (Illawarra Shoalhaven Local Health District) [2022] NSWPIC 600
APPLICANT:	Robyn McNamara
RESPONDENT:	State of NSW (Illawarra Shoalhaven Local Health District)
Member:	Rachel Homan
DATE OF DECISION:	28 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and compensation pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) for psychological injury; whether reasonable action with respect to discipline was the whole or predominant cause of the injury pursuant to section 11A(1) of the 1987 Act; allegations of breaches of policy in relation to accessing clients’ personal information; applicant’s access to electronic records removed; other adverse interactions in the workplace; Held – employer’s action appeared heavy handed in all the circumstances; alleged breaches not sufficiently particularised as to enable a meaningful response; an essential tool of the applicant’s work was removed without alternative duties or arrangements being made; action with respect to discipline was the predominant cause of injury; respondent failed to discharge its onus of establishing that such action was reasonable; award for the applicant.
determinations MADE:	1. The respondent has not discharged its onus of establishing that the applicant’s 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 discipline pursuant to s 11A(1) of the Workers Compensation Act 1987.
ORDERS made:	1. The respondent to pay the applicant weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 from 4 June 2021 to 3 June 2022 based on the agreed pre-injury average weekly earnings (PIAWE) rate of $1,183.07, as periodically indexed. 2. The respondent to have credit for payments already made in the period at Order 1 above. 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicate Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Robyn McNamara (the applicant) was employed by State of NSW (Illawarra Shoalhaven Local Health District) (the respondent) as an administration officer at a mental health service in Nowra.
The applicant claims to have sustained a psychological injury in the course of or arising out of her employment with the respondent.
Liability to pay compensation for the applicant’s injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 August 2021.
The insurer relied on a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) on the grounds that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline.
That decision was maintained following internal review on 31 May 2022.
The present proceedings were commenced in the Personal Injury Commission (the Commission) by an Application to Resolve a Dispute (ARD) lodged on 30 June 2022. The applicant seeks weekly compensation from 4 June 2021 onwards and incurred medical and related treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on
19 September 2022 via Microsoft Teams. The applicant was represented by Mr Paul Stockley of counsel, instructed by Mr Craig Joshua. The respondent was represented by
Mr Bill Loukas of counsel, instructed by Mr Danny Khoshaba and Ms Stiphany Mansour.
During the conciliation conference the parties reached agreement that the applicable pre-injury average weekly earnings (PIAWE) figure was as set out in the ARD, being $1,183.07. The applicant sought an award for weekly compensation pursuant to ss 36 and 37 of the 1987 Act from 4 June 2021 for a period of 52 weeks in accordance with s 52 of the 1987 Act. It was agreed that the respondent should have credit for payments already made.
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 parties agree that the following issues remain in dispute:
(a) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline pursuant to s 11A(1) of the 1987 Act;
(b) the entitlement to weekly compensation as claimed; and
(c) the entitlement to medical and related treatment expenses as claimed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 12 September 2022; and
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 14 September 2022.
Neither party applied to admit oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statement made by her on 29 August 2021.
The applicant said she was employed on a two year contract in a workplace responsible for providing mental health care for people of all ages and conditions. The applicant’s role involved filing, bill payment, making customer appointments, emailing clinicians, managing building maintenance and inbound and outbound telephone calls. The manager of the applicant’s team was Ms Cherie Laidlaw.
The applicant said the reason for her claim was that another manager, Ms Carol Martin, had disabled her access to electronic medical records and the applicant was no longer able to do her job. The applicant noted that it had been alleged that she inappropriately accessed a client’s personal records and in doing so breached the code of conduct.
The applicant made a number of allegations including:
(a)    reasonable requests for flexible work hours being declined by Ms Martin;
(b)    Ms Martin not approving a request to increase the applicant’s PCard allowance from $500 to $3,000, causing the applicant to feel a lack of trust and distress over her lack of financial training. As a result, invoices were required to be sent to
Ms Martin’s admin officer for payment;
(c)    the provision of an electronic sit/stand desk, which was supported by Ms Laidlaw and a WHS assessment as a result of the applicant’s lumbar condition, was not approved by Ms Martin. Ms Martin questioned the need for an electronic desk over a manual desk. In a telephone call in which the matter was discussed,
Ms Martin asked how much the applicant could lift. The applicant responded that she did not even lift boxes of copy paper. Ms Martin commented, “well, maybe you shouldn’t work at all then”. The applicant felt shocked and bullied by this comment;
(d)    the applicant was disciplined by Ms Martin for ordering an item with excessive freight costs. When the applicant realised the freight costs for the order she sent two emails to Ms Martin to cancel the order. Despite this, the order had been approved by Ms Martin, and
(e)    the applicant described being overloaded with work, particularly on Fridays, when she was the only administration officer at work. Ms Laidlaw had supported a request for a second administration officer to work more hours. This had been declined by Ms Martin, who advised there was no money in the budget for this.
The applicant said on 13 April 2021, she spoke to a client who had the same uncommon surname as her family. The applicant was a family historian and mentioned that there was an upcoming family reunion. The client gave the applicant her phone number and the applicant messaged her a quick hello so the client would have her number.
At about midnight that night, the applicant received a phone call from the client asking for help. The client said a male friend was being bashed up and needed help. The applicant advised the client to contact the police. The applicant felt concerned for the woman and had concerns about whom she was associating with but did not want to become involved.
At about 11:30pm on 14 April 2021, the client sent the applicant an SMS asking if any relatives could come and watch an area as she felt her life was threatened. The applicant did not respond.
On 15 April 2021, the applicant brought the client’s messages to the attention of her clinician and team coordinator. The applicant explained what had happened and showed them the messages, saying she was concerned for the client’s mental state. The applicant wanted to avoid the client in the future and wondered when her next appointment would be. The applicant looked in the electronic medical records and told the team co-ordinator when the client’s next appointment was scheduled. The applicant clicked on the client’s name and appointments as she was trained to do. Neither the team co-ordinator nor the client’s clinician appeared concerned about this and the applicant continued working.
A few days later, the applicant was called into Ms Laidlaw’s office. Ms Laidlaw said she had been told about the issue with the client and informed Ms Martin of it. Ms Martin had responded that the applicant had committed a breach of the code of conduct by inappropriately accessing a client record.
The applicant was shocked as she had not entered the client’s record and had just looked up the appointment schedule. The applicant felt embarrassed as if she had done something terrible. The applicant was told that she would receive a letter about the breach from
Ms Martin.
On 19 April 2021, the applicant received a voicemail from someone called “Rhonda”, with an accent stating that she was returning a call about a “Kate”. The applicant looked on the client list and searched the name in the electronic medical records to try to work out who the call might be for. It turned out that Rhonda was a psychiatrist and calling for a colleague named “Gabe”.
On 20 April 2021, the applicant received a letter from Ms Martin advising her that she had inappropriately accessed a client’s records. The applicant responded to Ms Martin’s letter explaining her actions.
On 31 May 2021, the applicant received a second letter from Ms Martin in relation to the matter, which said there was no reason for the applicant to access the records as she had done. The letter stated that the applicant had committed a serious breach and was being provided with a formal warning. The applicant was required to undertake further education. The applicant’s entire access to the electronic medical records (EMR) was removed.
As a result of her access to the electronic records being removed, the applicant was no longer able to perform her role. The applicant was not advised what she should now do each day and was told not to speak of the matter to anyone.
The applicant approached Ms Laidlaw about the matter and was told by Ms Laidlaw that there had been a second breach. Ms Laidlaw did not know what the second breach entailed and the applicant was not told.
The applicant responded to Ms Martin’s second letter on 11 June 2021, describing her shock and embarrassment about what had occurred.
The applicant said she felt humiliated about not being able to access the system when others asked her to do things for them. When asked what was going on, the applicant was not able to tell them. The applicant was forced to leave work for another officer to complete without explaining why. This was demeaning and embarrassing.
The applicant said she was aware of the code of conduct and the requirement for privacy and confidentiality.
The applicant said her son had received treatment at a different facility and had on two occasions asked the applicant to look up his next appointment. The applicant denied looking at her son’s notes.
The applicant noted that other family members had received treatment but denied accessing their personal records other than basic appointment screens.
The applicant said,
“I have not intentionally done anything in the workplace that would attract a formal warning and Carol had not spoken to me personally, face to face in relation to the warning. I still have not been advised of what the second breach refers to.
I have been prevented from performing my role which has created significant distress and humiliation to me. I was the one who was open and honest, declaring what had innocently occurred with Ms. S…. I attempted to stop the Sharps cradle delivery; my request for flexible working hours has been declined and have not accessed personal record notes. I believe Carol is abusing her level of power and that I have been treated unfairly.”

Ms Laidlaw

Ms Cheryl Laidlaw provided a statement dated 6 July 2021. Ms Laidlaw said the applicant was employed as an administration officer and she was the applicant’s team coordinator. The applicant’s duties included answering phones, greeting patients and making appointments.
With regard to the applicant’s allegation regarding flexible working hours, Ms Laidlaw stated:
“We have flexible working practices and I think it was unreasonable that Carol declined the change in hours for Robyn. I supported Robyn's request to start 30 minutes earlier on a Monday and Tuesday as administration is covered on these days by two staff and the services would be covered until closing at 5pm with no disruption to any service. Robyn had medical appointments she needed this time for and this is what flexible working policy is for.”
With regard to the limit on the applicant’s PCard, Ms Laidlaw stated:
“The person in the position prior to Robyn had a $3,000 limit on their PCard however when Robyn commenced she only had $500. We have about 2 or 3 transactions over $500 per month which are now required to be sent to the Wollongong office to be approved rather than just approving it onsite. This is quite an inconvenience for both our admin person and the Wollongong admin person and adds to work and workplace frustration. Robyn has asked for this to be increased multiple times and I supported her emailing Carol to request the increase. Carol is aware of the frustration surrounding this issue.
…
Carols email etiquette is not the most professional and some of her emails are written in an aggressive tone which could be perceived by some as bullying.”
With regard to the provision of a sit/stand desk, Ms Laidlaw stated:
“The day after this incident, I was advised what had occurred. I contacted Carol to advise that Robyn had taken her words personally and had thought that Carol did not want her to work anymore. Carol denied this and stated that she was just responding to Robyn's comments about not being well enough to do certain tasks. Carol did ask me to speak to Robyn and convey that it wasn't said with any malice but more concern about Robyn's ability to work with her back issues. Carol can come across as being abrupt at times and may not always demonstrate empathy or consider others may be more sensitive than herself.”
With regard to the issue involving an item with excessive freight costs, Ms Laidlaw stated:
“Robyn's email trail reflected that Robyn had made attempts to cancel the order prior to Carol having approved it but Carol made Robyn feel responsible for the mistake and blamed her for not checking the freight costs. I have been in this job for 3 years and have only seen Carol a handful of times as Carol rarely visits Nowra office. The matter has been lengthy and has been handled impersonally.”
In relation to the applicant’s claim that she became overwhelmed by workload on Fridays,
Ms Laidlaw commented:
“Robyn's role is very busy and she is working on her own 2.5 days per week in a busy clinic environment. We are under resourced and it's been virtually impossible to replace Robyn position with casual staff. Robyn is responsible for the maintenance etc on the building mainly because she works 5 days a week, hence she is responsible for most of the ordering or quotes to have anything repaired or installed in the building.”
In relation to the applicant’s access to the EMR being removed, Ms Laidlaw said there were two methods of checking a client’s appointments. Ms Laidlaw said the applicant had said she only accessed appointment screens and had not accessed or read documentation notes.
Ms Laidlaw suggested that IT could have identified which screens the applicant entered.
Ms Laidlaw confirmed that the applicant had disclosed that she had provided her number to a client so she could be invited to a family reunion. During that conversation, Ms Laidlaw had asked when the patient’s next appointment was so the applicant could make herself scarce. The applicant checked this on EMR. The applicant had been asked for the record as they were worried the client may cause problems. Ms Laidlaw considered the applicant had just made a silly mistake. Ms Laidlaw stated:
“I recall Robyn telling me that she was sent a letter a week or so later from HR advising her that an investigation was underway in relation to accessing EMR as a result of a serious breach. Robyn was extremely distressed at this which was then compounded when Robyn was advised by phone from Carol that another letter was coming. Carol told Robyn not to talk to me or anybody and Robyn was extremely emotional and deeply distressed. I offered Robyn EAP immediately and she suggested she would speak to the union as she was clearly not coping.
I believe Carol/HR should have spoken to Robyn face to face and in a supportive manner rather than accusing her and not providing evidence. To my knowledge Robyn has not been shown any evidence or advised specifically what has occurred. Robyn still does not know the issues of the second matter.”
Ms Laidlaw described the impact of this action on the applicant’s mental health:
“I disagree that Robyn has not been told of the second matter as I think this has exacerbated her condition. Robyn has been a local resident for many years and knows a lot of people. I could see Robyn's mental health deteriorate and she was visibly crying at her desk and would become teary when speaking to staff. I am a mental health CNC and could clearly see what was occurring and that Robyn's mental health was deteriorating every day. I suggested Robyn take some time off and see her doctor as she was not functioning, worrying about her reputation and her colleague's reactions. Robyn was not coping as she was not being told any information and no one was talking to her about the matter. Robyn could not do her job and I knew if this continued I would be scheduling Robyn by a weeks' time. Carol told me I was not to talk to Robyn or to discuss anything with her and that I should not have told Robyn to take time off when I feel I was simply fulfilling my duty of care.”
Ms Laidlaw commented generally,
“In conclusion, Robyns mental health has totally deteriorated since she was told about the letter until when she received the letter then was told not to use EMR. I believe Robyn has experienced a lot of built-up pressure and has existing frustrations over a number of issues. Robyn is the only full-time worker and is under a lot of pressure.”

Ms Martin

Ms Carol Martin provided a statement on 1 July 2021. Ms Martin described her position as ‘Service Manager Mental Health Specialist Services’.
Ms Martin described the applicant generally as “nervous and anxious” and said,
“Robyn requires reassurance and does not always comprehend what was being said.
…
Robyn can be frustrating at times and does not seen to be able to follow direction well.”

With regard to the applicant’s request for flexible hours, Ms Martin stated:
“A few staff had requested to alter their hours but in the community we need to work to accommodate our consumers which means working 8:30am to 5:00pm_ We are flexible with all staff to be able to attend appointments such as doctors appointments but admin need to be available to answer phones etc until 5:00pm and Robyn was aware of these hours when she was interviewed for the position.”
With regard to the applicant’s PCard limit, Ms Martin commented:
“The operations manager advised that Robyn does not require approval for over $500_ Very few items purchased are over that amount. There was nothing personal and I am not the allocator of PCards.”
Ms Martin confirmed that an electronic desk had now been ordered for the applicant.
Ms Martin stated:
“I recall Robyn spent 10 minutes telling me about her back and how she couldn't lift this and couldn't lift that so I asked for her own welfare purposes if she was ok to proceed and asking if she was sure she was ok to work. As her manager I needed her confirmation she was able to be at work considering the pain and restrictions she described.”
With respect to the applicant being disciplined over ordering an item with excessive freight costs, Ms Martin said:
“I was very annoyed that Robyn had placed an order for $6.60 with a freight charge of $74.00. Robyn should have asked for a freight charge when ordering the item and not purchased the item as nothing should have been ordered on the Pcard for that small amount as there is a charge of $10 for each transaction. Robyn was trained in Pcard transactions.”
In relation to the applicant’s complaint of excessive workloads, Ms Martin stated:
“On Friday, there is less staff as most take their ADO's on this day and the part time staff do not work. I disagree that Robyn has an excessive workload and the issue is more likely to be related to her poor time management and her inability to make a decision.”
In relation to the removal of the applicant’s access to the EMR, Ms Martin said the applicant admitted she went into EMR to determine the client’s next appointment. The fact that the applicant admitted being over familiar with the client rang alarm bells. An IT audit confirmed the applicant had accessed the EMR in relation to the client.
Ms Martin said the applicant’s son had also made contact as he was concerned that his personal records were being accessed by his mother. An IT audit confirmed the applicant had entered her son’s EMR record twice although it was not visible what she had done.
Ms Martin confirmed that the applicant was not aware of the details of this complaint.
Ms Martin said,
“I recall Robyn has boasted that she was very good at finding things out about patients so this also rang alarm bells when the breaches were identified.”
Ms Martin said a risk assessment was done, guided by HR. The applicant’s EMR access was not removed or blocked but she was advised not to use it.
Ms Martin stated,
“I agree it must have been difficult for Robyn not being able to perform her usual role however it would appear that Robyn has again breached confidentiality as in the letter she was provided it was stated she was not to discuss the matter with anyone other than her representative, her support person, Cherrie Laidlaw, or myself. Robyn was advised that any breach of this may result in disciplinary action but proceeded to disclose her issues with Dr Anne Stuart.”
Ms Martin commented generally,
“I do not believe this claim is genuine. I find it difficult to believe that Robyn has not accessed her sons records and would assess her as a safety risk moving forward.”

Ms Yeomans

Attached to the ARD is a letter dated 13 September 2021 from a former colleague of the applicant, Ms Leanne Yeomans. Ms Yeomans provided evidence with regard to nature of the applicant’s role and the requirement to access client records in the EMR. Ms Yeomans commented:
“As health employees, we take our obligations to protect patient privacy extremely seriously. This is especially so being a part of a small, close-knit community. I categorically reject any allegation that Robyn is a 'security risk' and firmly attest that in all our dealings, professional or otherwise, Robyn has never divulged or discussed any client information and has always acted appropriately and in accordance with health privacy and confidentiality policy.”

Mr Payne

Attached to the Reply is an unsigned statement prepared by Mr Mitchell Payne, who described his position as ‘Team Coordinator of Child Adolescent Mental Health’.
Mr Payne recalled that the applicant disclosed to him that she met a client in the workplace with whom she had shared her personal phone number. Later this client made unusual and inappropriate requests. Mr Payne reported the matter to the applicant’s manager,
Ms Laidlaw. Mr Payne stated:
“Between myself and Cherrie, we determined that it was a matter that required escalation to Carol Martin our manager. Cherrie and myself phoned Carol and advised the situation. Carol said that what had occurred was a breach of confidentiality, exchanging phone numbers with the client. Carol requested that Cherrie and myself sit down with Robyn to discuss the matter which we did. Robyn was honest and open with the timeline of what occurred and appeared to believe that she had done nothing wrong. It was explained to Robyn the importance of not sharing details and we accepted that it had been an innocent mistake. Robyn was defensive when speaking about her actions as she did not believe she had made any breach. At the end of this conversation Robyn appeared to be clear about what was expected in relation to privacy and confidentiality. No further action was to be taken other than Robyn not to enter the clients EMR (system records) and to send this client an SMS to advise that Robyn would no longer be able to speak with her. Robyn was advised to block the clients phone number.”
Mr Payne said they had spoken about the applicant not being present at the counter when this client arrived for the next appointment.
Mr Payne said the applicant received a letter from Ms Martin in relation to the incident. Subsequently,
“A week or so later I was advised by Carol that EMR access had been removed from Robyn in relation to a second incident however I was not provided any detail. Cherrie and myself then had to work out how to manage the administration for this area as Robyn is the only full time admin. I am unsure whether Cherrie is aware of any details of this second incident.”
Mr Payne observed a deterioration in the applicant’s mood after this:
“I noticed that Robyn became low in mood and I believe it was mainly due to her not being able to tell anyone the reason why she was not able to use EMR when other staff were constantly asking her to do this. This had a big impact on Robyn as she was trying to maintain direction of not discussing it with others. It was about 2 weeks later that Robyn went off sick.”
Mr Payne commented that Ms Martin could be “direct and upfront” and that this could be “confronting for some” although her intentions were not aggressive. Mr Payne stated:
“I believe if better communication had been implemented from the outset Robyn may not have gone off sick eg. Had Carol spoken with Robyn face to face, however Carol rarely visits our workplace.”

Dr Stuart

Also attached to the Reply is a letter dated 1 July 2021 prepared by Dr Anne Stuart.
Dr Stuart said she was disturbed to hear recent allegations made against the applicant and had found her to be a highly competent worker. Dr Stuart wrote:
“Robyn definitely needs eMR access. I often call her from my usual GP practice at 45 Junction Street when I require patient information such as phone numbers, to tell clients of their pathology results, specialist appointments or Mental Health Plans to pick up. She also guided me through retrieving client information when changes occurred a few months ago. Robyn is reliable, trustworthy and helps me a great deal.
To question her honesty as someone has, shows that they do not know Robyn and do not really understand the complexity of her job where several services are involved.”
Dr Stuart also expressed surprise that the applicant’s request for a sit/stand desk had been disregarded. The applicant had a chronic back pain problem that would be assisted by such a desk.

Correspondence between the applicant and employer

A letter addressed to the applicant from Ms Martin, dated 20 April 2021 advised the applicant that an audit had identified that she had inappropriately accessed the EMR on 15 April 2021 and 19 April 2021. The letter stated that there was a requirement to assess and investigate the matter in accordance with policies and procedures. The applicant was invited to respond.
The applicant responded to Ms Martin in writing in an undated letter describing the incident involving the client to whom the applicant had provided her personal phone number. The applicant stated that the client’s EMR record was checked solely to see what appointments she had so that the applicant could go into the kitchen when she was due, following a discussion with the client’s counsellor and Mr Payne. The applicant clicked on the client’s file again on 19 April 2021 after receiving a voice message from a “Rhonda” for a “Kate” and trying to identify the caller.
A letter to the applicant, dated 27 May 2021, prepared by Ms Martin and hand delivered referred to the earlier letter of 20 April 2021 and the applicant’s response, dated 4 May 2021 in which the applicant stated that her reason for accessing the client’s records was to see what appointments she had so the applicant could go into the kitchen when she was due in.
The letter stated that to view a client’s appointment time, the applicant would only be required to access a ‘Community Client List’. It was not reasonable for the applicant to have accessed the client’s EMR records. It was determined that the applicant had inappropriately accessed the EMR record of a client on 15 April 2021 and 19 April 2021.
The letter advised that it was recommended that the applicant be issued with a formal warning on the grounds of “serious breaches” of the:
“NSW Health CORE Values and NSW Health PD2015_049 NSW Health Code of Conduct, specifically sections 4.3 Acting Professionally and Ethically and 4.5 Maintaining the Security of Confidential and/or Sensitive Official Information and 4.5.2 Not use or release official information or records without proper authority.”
The applicant was invited to comment on the proposed findings and recommendations to issue a formal warning and require the applicant to undertake further training.

Treating evidence

Treatment notes prepared by naturopath, Ms Danielle Schellnegger, indicate that the applicant was seen from April 2021 onwards, in relation to anxiety and stress due to a situation at work. A record created on 22 April 2021 noted:
“Pt required NC appointment as suffering symptoms of depression, insomnia and fatigue. questioned pt on cause and situation with another staff member at work-whereby patient is feeling bullied, targeted and having work questioned with this staff member when patient knows she is completing job tasks correctly.
Pt feeling down, teary and anxious and BP readings have elevated due to this. Staff member is using inappropriate words and responses to patient with loud and abrupt response which patient feels are unprofessional and affecting daily duties. Questioned patient on any issues or causes she could think of and no incident or Robyn's lack of work or error has caused this.”
A record created by Ms Schellnegger on 7 May 2021 noted,
“Insomnia major issue as patient used to find sleep not of concern but now rethinking work situation of an evening and feeling down about how she is being treated at work causes pt to stay awake as well as worrying about next day causing anxiety to not fall asleep. Again suggested pt seek professional advice with work situation.”
The applicant was seen by mental health nurse, Ms Linda Fread, on 9 June 2021, who recorded:
“Works for CAMHs admin team in Nowra, having trouble with managers. Finding service manager, started last year and doesn't feel she has any support. Has always worked long hours. Feels her treatment is unfair.”
The same history was repeated in a number of clinical records recorded by the applicant’s general practitioner in the period that followed.
Patient notes recorded by psychologist, Mr Alan Hudson, indicate that the applicant was first seen on 29 June 2021. On that occasion, Mr Hudson noted:
“1. Robyn presented emotionally, lively affect; described herself as 'curled up' and shocked after the letter and the event
2. She talked through the essentials of her case, described elsewhere in detail so not repeated here; she was 'very apprehensive' about when she returns to work; she has an appointment with hew new GP on Thursday
3. Her senior manager Carol Taylor described as 'mean', and she thinks clearly vindictive for some reason towards Robyn; she believes the whole incident could have been remedied by a couple of simple calls.”
In a consultation on 7 July 2021, Mr Hudson recorded:
“… She is still upset over her access to NSW Health EMr
4. She stated she is very conscious of the appropriate ethics and confidentiality
5. She is experiencing nausea and occasional shaking
6. Carol Taylor has got personal about the incident; Robyn describes her as having an "inflexible management style"
In a consultation on 27 July 2021, Mr Hudson noted.
“She still is not aware of the other 'serious breaches' she has been told she has committed.”
On 12 August 2021, Mr Hudson recorded,
“Robyn still perplexed and confused about the internal NSW Health process that is being followed for her case.”

Dr Siotia

The applicant relies on a medico-legal report prepared by consultant psychiatrist, Dr Rajiv Siotia, dated 30 January 2022.
Dr Siotia recorded a history of the events leading up to the removal of the applicant’s access to the EMR in a manner which was consistent with the applicant’s statement evidence.
Dr Siotia noted:
“Ms McNamara stated that when she was first advised that she had breached confidentiality and tried to access a client’s records, she became quite anxious and her sleep was affected. She stated that she felt humiliated. She was very distressed as she felt that she was prevented from performing her role. She felt that she had been honest with what had happened and went and spoke to her managers and other relevant stakeholders; however, this was escalated and caused her significant distress. Ms McNamara stated that she felt devastated that she was not able to access the EMR and was struggling to do her job. She spoke to Employee Assistance Program sometime in May. Her concentration and motivation were affected, and she stopped enjoying activities. Her sleep was disturbed, and her functioning started to deteriorate.”
Dr Siotia noted that although this was the main issue causing the applicant’s health to significantly deteriorate. Other interactions in the workplace specifically with Ms Martin had led to these issues including repeated requests for flexible hours been declined; request to increase, her PCard allowance not been processed; not being provided with a sit/stand desk; and being overwhelmed by workload on Friday.
Dr Siotia recorded the applicant’s current symptoms and treatment including medication and consultations with mental health nurse. The applicant had a referral to see a psychologist under a mental health care plan. Dr Siotia noted some previous episodes of depression but noted that the applicant had been well over the last few years.
Following a mental health state examination and reviewing the various documents described above, Dr Siotia made a diagnosis of “major depressive disorder with anxious distress, current episode, moderate”.
With regard to the applicant’s capacity for work, Dr Siotia gave the opinion:
“At this stage, Ms McNamara does not have a work capacity. However, she suffers from a treatable condition and as such, once her mental health is better, she should regain capacity to work at the level that she was working.
…
At this stage, Ms McNamara is not fit for work and as such is totally disabled.”
Asked whether the applicant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to discipline, Dr Siotia gave the opinion:
“Yes, I agree that the psychological injury was wholly and predominantly caused by the action taken or proposed to be taken by the employer. I am unable to comment whether it was a reasonable action or not.”
Dr Siotia expressed general agreement with a report prepared by A/Prof Gordon Davies.

A/Prof Davies

The respondent relies on a medico-legal report prepared by Adult, General and Forensic Psychiatrist, Associate Professor Gordon Davies, dated 9 August 2021.
Dr Davies took a history of the incident involving a client which whom the applicant had shared her phone number. The applicant disclosed that she had checked the client’s file so she could avoid meeting her when she next came to the office. The applicant also disclosed that she had accessed some of the patient’s files when asked to locate a particular file for another worker. The applicant said she had reported these issues then received a letter from the service manager saying she would be subject to formal disciplinary proceedings in relation to her actions.
The applicant said she had become anxious and was not sleeping. The applicant had been shaking and having difficulty concentrating on tasks. The applicant felt that her whole integrity was being questioned and that she was not trusted.
The applicant described her current symptoms and Dr Davies performed a mental state examination. Dr Davies made a diagnosis of moderate (ICD 10) or major depression (DSM-5). Dr Davies gave the opinion:
“She presents with a history of having developed an acute depressive illness following being advised that formal disciplinary proceedings had been instigated against her at her workplace.”
Dr Davies said the available information, suggested that the applicant first became ill in
May 2021. It was clear that the illness related to issues which occurred at work. Dr Davies expressed the opinion that employment was a substantial contributing factor resulting in the psychological symptoms.
Asked whether the injury was wholly or prominently caused by the actions or proposed actions of the employer with respect to discipline, Dr Davies responded,
“While it is clear that disciplinary issues are at the core of Ms McNamara’s illness the history and documentation suggest that there has been some thoughtlessness and disregard of personality and circumstances in the management of the issue by her employer.”
With regard to the applicant’s capacity for work, Dr Davies gave the opinion:
“Given her presentation at interview I would regard Ms McNamara as presently unfit to return to work.”

Respondent’s submissions

The respondent submitted that the applicant’s statement evidence identified the reason for the claim as the employer disabling her access to medical records. The respondent described this as “the crux of the claim” and submitted that for the purposes of s 11A(1) there was no real dispute as to the cause of the injury. Both medicolegal experts said action by the employer was the cause of injury. In order to determine whether those actions were reasonable, it was necessary to look at the nature of the employer’s business.
The respondent submitted that it was not unreasonable that there be policies in relation to confidentiality and privacy. The applicant made contact with a client and inappropriately exchanged private information. This was a clear breach and the respondent was obliged to take action in accordance with its policy. The breach was brought to the applicant’s attention and it was appropriate for that action to be taken.
In relation to further correspondence sent to the applicant, the respondent referred to the statement of Ms Martin who indicated that the applicant’s access to medical records was not removed or locked but she was advised not to use it. Ms Martin said she was acting on the advice of human resources and there were alarm bells in relation to the applicant’s overfamiliarity with a client who was in need of mental health assistance.

The respondent submitted that in the circumstances it was necessary for the respondent to bring the applicant’s breach of privacy and confidentiality to her attention. It was this action which caused the applicant’s injury.
If the employer’s action was reasonable, the defence in s 11A(1) would be made out.
The respondent noted that the applicant alleged that she was bullied and harassed and targeted. The respondent submitted that these allegations were not made out. Rather, there was an appropriate institutional response to the applicant’s breaches.
Not long afterwards, the applicant’s son contacted her employer regarding his own concerns. An IT audit identified that the applicant had entered her sons record twice.
The employer was concerned about patient safety and confidentiality. The applicant was provided with a formal letter and that was where the matter ended as the applicant went off work. The respondent submitted that the employer had not acted unreasonably.
The respondent noted that Dr Siotia and Dr Davies were in agreement. The suggestion by
Dr Davies that there had been some thoughtlessness and disregard of personality and circumstances in the management of the issue by her employer should be disregarded. The applicant was not reprimanded to any great degree. The applicant was not stood down. All that happened was that the breach was brought to the applicant’s attention and her use of the electronic system taken away. The respondent had no ability to do anything further, as the applicant went off work.
The respondent submitted that there was a policy in place and strict rules as to how personal information should be accessed. Personality was irrelevant. Policy ought not to be bent to account for personality or familial relationships.
The respondent submitted that the employer’s actions were exactly what the legislators had in mind in enacting the defence in s 11A(1) of the 1987 Act.

Applicant’s submissions

The applicant submitted that the respondent had not discharged its onus of establishing that relevant action was the whole or predominant cause of the applicant’s injury.
The applicant’s view that Ms Martin was an unsympathetic manager was supported by
Ms Laidlaw’s statement evidence. Ms Laidlaw clearly thought Ms Martin’s response to earlier requests had not been sympathetic or reasonable. Ms Laidlaw’s evidence supported the proposition that the applicant might well have concluded that Ms Martin was bullying or targeting her.
The employer’s actions with respect to discipline added to the negative history of interactions with Ms Martin. The applicant’s response to the disciplinary action was significantly informed by what had gone on before. The injury was not wholly or predominantly caused by relevant reasonable action.
The applicant submitted that Ms Martin’s responses to the applicant’s allegations were in terse terms and very dismissive of the applicant’s complaints. The applicant’s complaints were corroborated by Ms Laidlaw. Ms Martin indicated that she did not believe the applicant’s claim was genuine and she found it difficult to believe that the applicant would not have access to her son’s records. The applicant submitted that Ms Martin’s own evidence demonstrated the manner in which she dealt with the applicant in the past.
With regard to the reasonableness of the employer’s actions, the applicant noted that the respondent had not placed before the Commission the substance of the alleged breach. The respondent had identified the notion that personal information of patients should remain private and confidential. Although it would hardly be surprising that a policy in relation to client information was in place, the policy was not before the Commission, and no articulation of what the policy entailed had been provided.
The applicant submitted that the letter addressed to the applicant by Ms Martin, dated
27 May 2021 did not disclose the manner in which the applicant’s actions were inappropriate. The applicant’s role required her to know what appointments were booked. It was far from clear what the transgression was.
The applicant’s complaints regarding Ms Martin’s handling of the matter were corroborated by Ms Laidlaw and Ms Yeomans. Ms Laidlaw gave evidence that she expected IT could have identified what screens the applicant had entered. The applicant had denied reading any of the clients notes.
Ms Yeomans’ evidence confirmed the applicant’s assertion that she had not been shown any other way to access appointment information. The inference available was that the applicant was trained to use the system in the way that she did. It was not clear that there was a flouting of any previous direction.
The applicant submitted that being denied access to the electronic records made her job extremely difficult. The applicant had been upfront about her interactions with the client in question. Ms Martin made no attempt to speak with the applicant. It could be seen from the evidence that Ms Martin’s manner could be perceived as bullying.
Given the nature of the presumed infraction, the applicant submitted that the proper approach should have been to conduct a face-to-face meeting with the applicant to find out what happened. The applicant submitted that it was difficult to accept on Ms Laidlaw’s evidence that Ms Martin’s action was reasonable. The applicant submitted that the respondent was incapable of discharging its onus.
The applicant noted that Dr Davies as a third-party commentator had expressed some reservations about the manner in which the respondent went about its task.
Further insight could be seen in the notes of psychologist Mr Hudson who observed that the applicant was perplexed and confused about the process. The second alleged breach was only identified to the applicant in July 2022 after the commencement of proceedings in the Commission.
The applicant submitted that her injury was not wholly or predominantly caused by reasonable action. The applicant was not told what the policy was or why accessing an appointment date constituted a breach of anything. Even if the applicant had breached relevant policy, the approach of Ms Martin was entirely inappropriate.
The applicant claims supported by medical opinion. The applicant had a total incapacity for work. The payment of treatment expenses was sought.

Respondent’s submissions in reply

The respondent submitted that the applicant’s submissions were inconsistent with her statement evidence as to the whole or predominant cause of her injury. Both the applicant’s and the respondent’s experts said the predominant cause of the injury was disciplinary action taken or proposed to be taken by or on behalf of the employer.
The respondent submitted that the relevant policies were identified in the correspondence to the applicant from Ms Martin.
The respondent submitted that Ms Martin’s actions were done in accordance with policy. The respondent’s actions in relation to the applicant’s conduct were entirely reasonable. The respondent should not be held responsible for the applicant’s reaction to it.
The respondent conceded that on its own medicolegal evidence, the applicant had no current capacity for work.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
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.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A worker who receives a psychological injury which meets the statutory definitions will not be entitled to compensation if the defence in s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence[1].
[1] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[2], Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[2] [2017] NSWWCCPD 6.
The test of reasonableness is an objective one[3]. In Commissioner of Police v Minehan[4] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education[5]:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.
[3] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[4] [2003] NSWCA 239.
[5] (unreported 18 June 1998).
In Northern New South Wales Local Health Network v Heggie[6](Heggie) Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:
[6] (2013) 12 DDCR 95; [2013] NSWCA 255; BC201311746.
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
In the present case, there is no dispute between the parties as to the occurrence of an injury within the meaning of s 4 of the 1987 Act. Nor is there any dispute that the applicant has, at all relevant times, had no current work capacity as a result of that injury. What remains in dispute between the parties is whether the injury is compensable having regard to s 11A(1) of the 1987 Act.
The applicant submits that the respondent has failed to discharge its onus in relation to a
s 11A(1) defence in so far as it has failed to demonstrate that relevant action was the whole or predominant cause of the applicant’s injury. Even if the respondent were able to establish that action with respect to discipline was the “whole or predominant” cause of the injury, the applicant submits that such action was not reasonable.
As noted in Hamad, the issue of causation is something usually requiring medical evidence.
In the present case, the medico-legal evidence on the causative events leading to the applicant’s injury is imprecise. Dr Davies, in his report, referred broadly to the history of the applicant’s interactions with a client to whom she had provided her personal phone number. It was noted that the applicant had access that client’s file in order to avoid meeting her when she next came into the office. The applicant had reported the issue and then received a letter from the service manager stating that she would be subject to formal disciplinary action.
Asked for an opinion on causation, Dr Davies referred to “issues in the workplace” being the primary initiating factors to the applicant’s injury. Asked specifically whether action with respect to discipline was the whole or predominant cause, Dr Davies said that “disciplinary issues” were at the core of the applicant’s illness.
The disciplinary issues to which Dr Davies referred were not, however, identified with any precision elsewhere in his report.
This lack of precision is significant given the history of other adverse interactions in the workplace recorded in the statement evidence and the history provided to Dr Siotia.
In addition to the events surrounding the applicant’s access to a client’s records, Dr Siotia took a history of interactions with Ms Martin around a request for flexible work hours, the applicant’s PCard allowance, a sit/stand desk and her workload. Dr Siotia indicated that these other incidents had also caused the applicant’s mental health to deteriorate.
These “other incidents” are not addressed in Dr Davies’ report. The failure to weigh these causative factors raises questions over the reliability of Dr Davies’ opinion.
The statement evidence from both the applicant and Ms Laidlaw indicates that the applicant found these incidents distressing. Ms Laidlaw described Ms Martin’s handling of these matters as unreasonable, frustrating, lacking in empathy or sensitivity, impersonal and unnecessarily drawn out.
Having regard to the statement evidence and Dr Siotia’s opinion, I am satisfied that these events contributed to the applicant’s psychological injury. The hierarchy of causative incidents is not, however, addressed by Dr Siotia.
The events surrounding the applicant’s access to a client’s records have clearly been significant contributing factors to the applicant’s psychological condition. The treating evidence before me indicates that the applicant first sought assistance from Ms Schellnegger shortly after receiving the letter from Ms Martin, dated 20 April 2021.
The applicant’s concerns regarding Ms Martin’s handling of the issue feature prominently in the histories provided by the applicant to both the medico-legal experts and her treating practitioners.
Although Dr Davies’ report, in isolation, would not be sufficient to satisfy me that the employer’s action in relation to this issue was to the whole or predominant cause of the applicant’s psychological injury, having regard to the evidence as a whole, I am satisfied that such actions were, whilst not the whole cause of the injury, at least the predominant cause.
What remains is for the respondent to demonstrate that the relevant action was reasonable. Whilst I accept the respondent’s submission that it was reasonable for Ms Martin or some other person, on behalf of the employer to take action on discovering the applicant’s interactions with the client in question, several aspects of Ms Martin’s handling of the matter are problematic.
The evidence indicates that upon being informed by Ms Laidlaw and Mr Payne of the applicant’s interactions with the client, Ms Martin caused an IT audit to be conducted in which it was identified that the applicant had accessed the client’s electronic records on two occasions.
The reasons for the applicant accessing those records could have been readily identified in a conversation with the applicant or Ms Laidlaw and Mr Payne. Indeed, the evidence suggests that both Ms Laidlaw and Mr Payne had encouraged the applicant to find out when the client’s next appointment was so that she would not have to interact with her further.
The evidence indicates that the applicant’s duties as an administrative officer regularly required her to access client records. Although Ms Martin has given evidence that there were other ways for the applicant to access appointment information without accessing client records, the applicant has explained that the only reliable way she knew to access appointment information was by accessing the EMR. The applicant’s evidence in this regard is broadly consistent with the other witness evidence.
Both Ms Laidlaw and Mr Payne acknowledged that the applicant had been open in disclosing what occurred and neither suggested that any further action, other than instructing the applicant not to enter the particular client’s records and cease communication with the client, was considered necessary.
Both Ms Laidlaw and Mr Payne have given evidence suggesting that the matter could have been handled more appropriately through better communication with the applicant.
Ms Laidlaw suggested that Ms Martin or human resources should have spoken to the applicant in a face-to-face setting and in a supportive manner rather than accusing her without providing evidence.
Similarly, Mr Payne has suggested that had Ms Martin spoken with the applicant face-to-face and better communication been implemented from the outset, the applicant may not have gone off sick.

In these circumstances, where electronic records were regularly required to be accessed in the performance of the applicant’s duties; where the applicant accessed the client’s records on the first occasion with the knowledge, if not the encouragement of, her supervisors; and where the applicant had been open with her supervisors about what had occurred,
Ms Martin’s handling of the matter appears unnecessarily heavy-handed.
The letters provided to the applicant by Ms Martin described “serious breaches” of policy without explaining in a meaningful way the manner in which the identified policies had been breached by the applicant. Further explanation was required given the requirement to use the electronic records as part of the applicant’s day to day work and in the circumstances disclosed.
The evidence indicates that the applicant’s mental health deteriorated following the initial letter in April 2021. There appears, however, to have been a particular deterioration in the applicant’s health after she was advised of a further “breach” and instructed not to access the EMR. It was these events which appear to have been the catalyst for the applicant ceasing work.
The material before the Commission indicates that particulars of the further breach were not provided to the applicant until proceedings in the Commission were commenced approximately a year later. The adverse effect of the failure to inform the applicant of the nature of this further breach is well documented in the evidence.
Ms Laidlaw gave evidence that she could see the applicant’s mental health deteriorate and she was visibly crying at her desk. Ms Laidlaw could see that the applicant was not functioning and was worrying about her reputation and her colleague’s reactions. The applicant was not being told any information and no one was talking to her about the matter.
Mr Payne said he also noticed that the applicant became low in mood, mainly due to her not being able to tell anyone the reason why she was not able to use the EMR when other staff were constantly asking her to do this. Mr Payne said this had a “big impact” on the applicant and it was about two weeks later that she went off sick.
The treating medical evidence confirms that the applicant not knowing the details of the allegations against her was a cause of significant concern. On 27 July 2021, Mr Hudson noted that the applicant was still not aware of the other “serious breaches” she was alleged to have committed. On 12 August 2021, Mr Hudson recorded that the applicant was still “perplexed” and “confused” about the internal process being followed.
The failure to provide the applicant with adequate particulars of the alleged breaches prevented her from providing a meaningful response to the allegations.
The removal of the applicant’s access to the EMR, which was an essential tool of her work and the instruction that she was not to discuss the matter with colleagues clearly placed the applicant in a difficult position. The difficulty of the applicant’s position was reflected in the evidence of both Ms Laidlaw and Mr Payne as well as the correspondence from Dr Stuart. Ms Martin herself has acknowledged that it would have been difficult for the applicant to perform her usual role.
The circumstance of having her EMR access denied also featured prominently in the medical evidence. Mr Hudson, for example, recorded on 7 July 2021 that the applicant was still upset over her access to the EMR.
It is not apparent on the evidence before me that any instruction was given to the applicant as to how she was to perform her duties or explain her inability to access the EMR to her colleagues, when this had previously been a usual part of her duties. The applicant was not provided with alternative duties. This placed the applicant in an unnecessarily uncomfortable and difficult position, made worse by the circumstance that there was no proper explanation of the reasons for the decision and no proper opportunity to provide a meaningful response.
Ms Martin’s written correspondence to the applicant disclosing alleged breaches, the allegation of a further unparticularised breach and the direction to the applicant not to access the EMR or discuss the matter with her colleagues were clearly the predominant causes of the applicant’s psychological condition.
Although I have indicated above that it was appropriate for the employer to take some action in response to the situation which presented itself in April 2021, for the reasons given above, I am not satisfied that the actions in fact taken, were conducted in a manner or in circumstances which were reasonable.
The respondent has failed to discharge its onus in establishing a defence pursuant to
s 11A(1) of the 1987 Act.
The applicant’s injury is therefore compensable and she is entitled to an award of weekly compensation and s 60 expenses as claimed.

[2022] NSWPIC 600

28 October 2022