Millgate v Nationwide News Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Millgate v Nationwide News Pty Ltd [2021] NSWPIC 374
APPLICANT:	Timothy Millgate
RESPONDENT:	Nationwide News Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	27 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and section 60 of the Workers Compensation Act 1987 (the 1987 Act) expenses in respect of disputed psychological injury; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal; extent of incapacity; only medical evidence available is from applicant’s general practitioner; evidence of participation in drag performances during period of alleged incapacity; whether proper foundation for the acceptance of applicant’s medical evidence; Held - the evidence of the applicant’s general practitioner as to injury and incapacity accepted; award for weekly compensation pursuant to section 37(1) of the 1987 Act; general order for section 60 expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of employment to which employment was the main contributing factor pursuant to ss 4(b) and 11A(3) of the Workers Compensation Act1987. 2. The respondent has failed to establish a defence pursuant to s 11A(1) of the Workers Compensation Act1987. 3. From 3 March 2021 to date and continuing the applicant has had no current capacity for work as a result of the injury.
DIRECTIONS MADE:	1. The respondent to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act1987 from 3 March 2021 to date based on the applicant’s pre-injury average weekly earnings figure of $2,458.73, as periodically indexed. 2. The respondent to pay continuing weekly benefits in accordance with the Workers Compensation Act1987. 3. The respondent pay the applicant’s reasonably necessary s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Mr Timothy Millgate (the applicant) claims to have suffered a psychological injury in the course of his employment with Nationwide News Pty Ltd (the respondent) between 1 July 2020 and 19 November 2020.

The applicant claims that his injury was due to a change in resource structure and increased workload and work pressure caused by the deterioration of the advertising market due to COVID-19. The applicant alleges that his condition was exacerbated by unreasonable management by his superiors and a failure by the respondent to properly respond to and accommodate his work-related psychological injury.

A claim for compensation in respect of the alleged injury was made on 15 December 2020.

On 10 February 2021, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the applicant’s entitlement to compensation in reliance upon ss 4, 11A(1), 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
In addition, it was noted that the applicant’s failure to attend an Independent Medical Examiner (IME) appointment was in contravention of s 119 of the 1998 Act. As such, the applicant’s right to recover compensation under the 1987 Act with respect to the alleged injury was suspended until the examination had taken place. That dispute was dealt with in a separate Certificate of Determination issued in these proceedings on 13 July 2021.

The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged on 14 April 2021 seeking ongoing weekly compensation. Leave was subsequently granted to the applicant to amend the ARD to claim ongoing weekly compensation from 3 March 2021 and to include a general claim for incurred s 60 expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via video link on 11 August 2021. The applicant was represented by Mr Paul Stockley of counsel, instructed by Mr Greg Masselos. The respondent was represented by Mr Lachlan Robison of counsel, instructed by Mr Mark van der Hout. Representatives from the insurer were also present.

At the commencement of the arbitration hearing, oral submissions were heard in respect of four Applications to Admit Late Documents and an application made by the respondent to cross-examine the applicant.
Determinations were made to admit all of the late documents with the exception of a statement from the applicant’s solicitor, dated 11 August 2021. Leave was granted to the applicant to give oral evidence in chief and to the respondent to cross examine the applicant.
Due to the time taken to resolve the interlocutory applications and hear the oral evidence, it became necessary for submissions on the substantive issues in dispute to be made in writing. A timetable was agreed for submissions to be served and lodged. The parties were informed of my intention to determine the outstanding disputes at the conclusion of that timetable without holding a further teleconference or conciliation/arbitration.

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 following issues remain in dispute:

(a) whether the applicant sustained an injury pursuant to s 4(b) of the 1987 Act;
(b) whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or termination pursuant to s 11A(1) of the 1987 Act;
(c) the extent and quantification of incapacity resulting from injury, and
(d) the entitlement to s 60 expenses.

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 respondent on 4 June 2021;

(d) documents attached to an Application to Admit Late Documents lodged by the applicant on 21 June 2021;

(e) documents attached to an Application to Admit Late Documents lodged by the applicant on 9 August 2021;

(f) documents attached to an Application to Admit Late Documents lodged by the respondent on 9 August 2021, and

(g) supplementary report of Dr Robert Burton, dated 11 August 2021, lodged by the applicant on 11 August 2021.

The applicant gave oral evidence in chief and under cross-examination at the arbitration hearing on 11 August 2021.

Applicant’s written evidence

The applicant’s written evidence is set out in statements dated 13 April 2021 and 21 June 2021.
In his first statement, the applicant gave evidence that he was employed as a Network Partnership Manager responsible for developing brand solutions/campaigns for advertisers. The applicant expressed the view that he was performing his work to an acceptable level and was a valued member of staff.
On 11 June 2020, the applicant was informed that the portfolio he was responsible for would change from news.com.au/MMH to The Australian effective 1 July 2020. The applicant was required to report to Ms Danica Robinson, who in turn reported to Ms Charlotte Sos.
The applicant stated that The Australian had lost a number of key clients due to COVID-19 and as a result, revenue targets were much harder to achieve. This resulted in significantly increased work pressure for the applicant. The applicant also had reduced support and assistance in his new portfolio. The applicant said:
“From July 2020, these additional work duties together with the constant pressure of being required to reach revenue targets, while working on a new portfolio made working extraordinarily difficult. As I was working without adequate support or assistance, I began to suffer from symptoms of stress and anxiety, which commenced in about mid-July 2020.”
The applicant denied that there were any significant issues with his work performance but conceded that the work-related stress and anxiety he had been experiencing since July 2020 did impact on his ability to carry out his work duties.
On 26 October 2020, the applicant consulted his general practitioner via telehealth consult and after a face to face consultation on 27 October 2020 was put on a mental health plan and prescribed anti-anxiety medication and melatonin.
On 2 November 2020, the applicant had a meeting with Ms Robinson in which she expressed concern about the applicant and said she had heard from other staff that he was suicidal. The applicant denied this but said:
“I told her that I was experiencing anxiety and stress related to pressures at work, in particular pressure to generate briefs and to work on client relationships with the sales team that were not getting results due to the Covid-19 environment and the reduced headcount caused by recent redundancies.”
Ms Robinson arranged for the applicant to speak with a psychologist from the Employee Assistance Program (EAP) the same day.
On 11 November 2020, the applicant was advised that he would be having a formal performance meeting with HR the following day. The meeting went ahead on 12 November 2020 and the applicant was placed on a Performance Improvement Program (PIP). A PIP check-in meeting took place with Ms Sos on 18 November 2020 in which the applicant spoke about his work-related anxiety.
On 19 November 2020, the applicant consulted his general practitioner and was certified unfit for work.
The applicant prepared a further written statement on 21 June 2021 in which he responded to witness statements prepared for the respondent on 26 May 2021.
The applicant stated that his psychological symptoms commenced in July 2020 shortly after he moved to The Australian.
The applicant alleged that the respondent’s witnesses would be motivated to lie about whether the applicant told them his mental health issues were work-related in the meeting on 2 November 2020 due to their failure to follow mandatory protocols and procedures when they were notified of a work injury. This would have prevented Ms Robinson from proceeding to a PIP.
The applicant alleged that Ms Robinson was a poor manager and had failed to disclose that her role had recently changed such that she no longer had any direct reports.
The applicant said it was false to characterise the PIP meeting as a supportive process. The applicant said an email from Ms Renée Sycamore dated 11 November 2020 indicated that it had been decided to “exit” the applicant from the business and the PIP process was merely a “box ticking” exercise. After the applicant reported his stress, a decision was made to exit him from the business. A PIP was implemented only 10 days later as the first stage in the process.

Applicant’s oral evidence

In the examination in chief, the applicant gave oral evidence confirming that he appeared in social media posts relied on by the respondent including a video depicting him in a drag performance. The video was of a performance which took place on Mardi Gras night in March 2021. The event took place at a friend’s house. Apart from that performance in March there were two other occasions in 2021 in which the applicant performed at parties or events.
The applicant said he was paid for the performances to reimburse his expenses for the night including an uber, his costumes and wigs.
The applicant said that in 2020 and in previous years he was the ambassador for Instagram and Facebook for Mardi Gras. The applicant was paid generously for those performances and to host events. In 2020, the applicant was paid $1,400 to host three events and appear on a float during Mardi Gras.
The applicant also agreed that he was depicted in a social media post in Queensland in June 2021. The applicant said he flew to Queensland on a family holiday.
Under cross-examination, the applicant gave evidence that he had attended a cabaret and burlesque venue on the Gold Coast in June 2021. The applicant attended with three friends.
To prepare for a drag performance, the applicant said he picked a song and performed it. The applicant appeared under a stage name and had been performing drag for approximately 10 years. For the March 2021 performance, the applicant said a friend dropped off his styled wig and he had friends do his make-up. The applicant agreed that this required him to call the friends and make arrangements to plan the make-up session. The applicant described the performance as putting on a show for friends in celebration of pride. The applicant denied having any difficulty conducting the performance. The applicant said he saw drag as an escape and a chance to become a different person.

The applicant agreed that the performances required him to leave the house and travel. The applicant said he had no difficulty in leaving the house. The applicant denied experiencing any social anxiety. The applicant denied experiencing any anxiety appearing before the Commission. The applicant agreed he was able to understand and respond to Mr Robison’s questions. The applicant said he would find it more stressful working in an office than participating in cross examination before the Commission. The applicant said he had no issue defending himself.

The applicant agreed he was able to engage in planning and interact with multiple other people at once. The applicant agreed that he had attended a professional office for the purposes of the conciliation arbitration. The applicant denied that he had an ability to attend a professional office to do work. The applicant said his work situation was completely different and put him under unforeseen pressure.
The applicant said there were a number of reasons why he could not get a paid gig as a drag performer at the present time.

Worker’s injury claim form

The applicant signed a worker’s injury claim form on 15 December 2020. The applicant described the injury occurring as follows:
“Due to structural changes and reduction in headcount, I was assigned duties for The Australian newspaper and online assets in July 2020. The work was very challenging due to the change in resource structure, increased workload, and deterioration of the advertising market due to Covid-19. My work became much more stressful and my responsibilities increased and it was much more difficult to secure advertisers because of the state of my mental health which I raised with my manager on 2 November 2020. In response, on 11 November 2020, my manager put me on a performance management plan.”
The applicant said the injury occurred over time between July and November 2020. The applicant first noticed the injury on 17 August 2020. The injury was reported on 2 November 2020 and the applicant stopped work on 18 November 2020.

Factual investigation reports

The respondent relies on factual investigation reports prepared by ProCare dated 12 January 2021 and 27 January 2021.
The first report details efforts to procure interviews with the applicant and other witnesses. Correspondence from the applicant’s solicitor indicated that the applicant was unwilling to submit to a formal interview but would be prepared to provide relevant particulars concerning his claim.
In response to a series of requests for information, the applicant’s solicitor indicated that the applicant suffered no prior medical condition of relevance.
It was stated:
“The additional work duties, constant pressure of reaching revenue targets for The Australian in a post Covid-19, challenging market, without adequate support or assistance led the claimant to suffer significant psychological symptoms for which he eventually sought medical advice from Dr Burton on 26 October 2020.”
Further:
“The claimant reported his work-related mental health issues in a face-to-face check-in with his manager, Danica Robinson, Network Partnerships Director, on 2 November 2020. The meeting and injury report are referred to in the claimant’s subsequent email to Ms Sos on 19 November 2020, which will be in your insured’s possession.”
The second factual investigation report, dated 27 January 2021, attached unsigned statements and consents to interview from Alex Noakes, Charlotte Sos and Danica Robinson. That evidence is summarised in the report as follows:
“The evidence from the Insured is the Claimant was undergoing informal performance counselling since 2 September 2020, that support was provided, and no improvement was being made. It is noted the Claimant reported suicidal thoughts to his colleagues and as a result, Robinson arranged a 'check-in' meeting to find out more, on 2 November 2020.
Robinson provides at no stage during this meeting did the Claimant raise any work-related issues but he was referred to EAP.
Following this meeting, Robinson believed the Claimant was ok and so the Insured proceeded with formal performance management. This was not disciplinary in nature and was aimed to improve performance.
A meeting was held on 12 November 2020 with Robinson and Noakes and the Claimant was issued with a formal performance improvement plan. The Claimant mentioned on this occasion that he was suffering with anxiety issues and he was receiving treatment. According to Robinson and Noakes the Claimant did not report having any work-related issues or raise that his work was causing a deterioration of his mental health.
There was a catch-up meeting for the PIP on 18 November 2020 and Sos was present due to Robinson being on leave. Sos says the Claimant was teary during this meeting and recalls he raised not being able to meet the targets set in the PIP.
The Claimant had leave arranged starting the next day, 19 November 2020. On that date, he sent an email to Sos thanking her for her support the previous day. He went on to say he had reported his workplace issues to Robinson on 2 November 2020 and was surprised he was issued with a PIP a week later. The evidence of the Insured witnesses is this was the first mention of work-related issues.
The lnsured's position is the Claimant was supported to ‘nth degree’. The expectation placed on him, in regards to his role, was in line with all team members in the same role and despite the extensive supports in terms of consultation, coaching and feedback, he failed to improve. It is further noted that since his absence, team members have picked up his workload and achieved the targets set.”

Signed supplementary statements from the three witnesses dated 26 May 2021 were attached to an Application to Admit Late Documents lodged by the respondent.
An email from the applicant to Ms Sos, dated 19 November 2022, referred to a “catch up” the previous day. The applicant stated:
“More broadly, as I mentioned I am concerned about the impact my work situation has been having on my mental health. This is something I raised with Danica in a discussion on 2nd November, which she arranged as a check-in as she was concerned about my well-being. During that discussion I disclosed to Danica that I was experiencing mental health issues associated with work stress and anxiety. I let her know that I had been receiving treatment from my doctor (including anti-anxiety medication). Danica had already made arrangements for me to receive assistance from the EAP service, which I accessed on the day, and twice since.
I was surprised though, when given that context, I was told just over a week later that I was being placed on a performance improvement plan. In the meeting on 12 November I mentioned again that I was receiving medical treatment related to work stress, as well trying to implement actions to be more visible at work - such as coming into the office extra days, and the reservations I had about whether the revenue targets that had been set for me could be achieved, but I agreed to give it my best efforts.
Unfortunately, and although I am committed to continuing my efforts to improve outcomes, I don't feel able to remain at work at this stage. I have again consulted my doctor today (as I flagged yesterday), who has assessed that I am not currently fit for work. Please see attached letter from Dr Burton and a medical certificate for your assistance.”

A file note of a conversation between Renée Sycamore and the applicant recorded by Ms Noakes on around 11 June 2020 stated:
“Conversation between Renee Sycamore, National General Manager Newsamp and Tim Millgate post redundancy conversation with another Network Partnerships Manager. Renee spoke to Tim regarding the exits in the team that were based on capability and skills Renee was transparent with Tim in saying that there was a marginal difference in capability and skills between him and those that had exited Renee acknowledged that Tim had only just moved portfolios but we need him to deliver end to end Renee had similar conversations across the Newsamp team to ensure the teams knew what was expected of them.”
An email from Ms Robinson to Ms Noakes dated 3 September 2020 stated:
“Thank you for your time yesterday and clarifying things, to ensure I am 100% crystal on next steps I just wanted to confirm the below with you as the next steps:
- Increase 1 :1 to weekly with Tim and address that he is not where he needs to be and the regular catch ups are so I can support him in getting to where he needs to be. I will also address the specific areas of concerns being: Performance: missing meetings in market quota, delivery of output (both quantity and quality, activate Alchemy framework, schedules ) Behavioural: Absenteeism from meetings, missing deadlines.
- I will send a follow up email after each 1: 1 summarising discussion and expectations.”
Ms Robinson sent an email to the applicant on 11 September 2020 referring to a discussion that morning and making arrangements to meet weekly on Thursdays to offer the applicant more support. Ms Robinson stated:
“The core areas in which you need to focus on are - ensuring you are delivering adequate output, $300K per week (in briefs or qualified proactives), meetings in market (min 1 per week). Within your output per week, taking the lead role on the brief response or proactive and working to the alchemy framework and in particular the solution architecture, I want to see a lot more examples of your work here.
I'd like to reevaluate how you are going in a month's time. Please let me know how I can support you in achieving these metrics and goals, I am here to help and available any day of the week (not just at our scheduled 1 :1s).”
Email correspondence from Ms Robinson to the applicant dated 21 September 2020 stated:
“I just reviewed the Gap Plan and it's disappointing to see it is not complete when you were tasked with leading it and the deadline was last Thursday.
If you have completed the building blocks then you need to review these as the work on your $200K+ building blocks has already been done a long time ago. You need to identify new opportunities to show what work you are going to do to drive 02 revenue and to demonstrate the partnerships & opportunities you intend to build from scratch.
Please have this 100% complete update before midday tomorrow, as the lead you are responsible for the full completion of it - if you need commentary or check points with Ros then you need to manage with her directly.”
On 8 October 2020, Ms Robinson sent an email to the applicant stating:
“Thank you for the update on your workload and how things are going.
I am really happy to see a change in your behaviour and a real willingness to take the initiative with resolving issues, so thank you. You have managed some difficult situations with our Cl team over the past two weeks and handled them really well.
As discussed, where I still need to see improvement is through ownership of output of slides, execution sections in decks and schedules. This means taking on the completion of slides and / or schedules without delegating to other people who are on the project or response. I would also like to see you and change your language from
‘I am happy to help’ to ‘I will take the lead on this and I will do this’ when speaking with the project lead or strategy and then of course, seeing the work through and to a high level.
We have been catching up weekly for 5 weeks now and I would like to evaluate how you go with the above in 3 weeks time at our WIP on October 29th, I expect to see a big shift and an increase in owned output between now and then. I will make note of it in the meeting invite so we can discuss and review.
As mentioned, I am here to help and support you so please let me know what I can do to help ensure you achieve this.”
On 20 October 2020, Ms Robinson wrote to the applicant again:
“Can you please update me today on where you are at with the gap plan for Key Accounts?
I have jumped into the forecast document and there seems to be nothing in there. There is an $835K gap in KA for 02 and only $50k in print in the pipeline for Fed Gov and $23k for digital for CBA. It's not good enough.
Did you reach out to all the Key Account managers via email on Friday to advise of your pipeline status and ask for any visibility on any potential forward bookings as I asked you to? Please outline the steps you have taken in efforts to build out a pipeline for Key Accounts.
Your workload and output are very light on at the moment and it's extremely disappointing to see that there is nothing in there, especially given we have discussed at lengths that you are not meeting the expectations of owned output in your role and that you need to be doing a lot more.
For our 1: 1 on Thursday I need to see a detailed update and outlook for the remainder of 02 for each Key Account in Rich and Ryan's patch and for the figures to be in the forecast document.”
On 22 October 2020, Ms Robinson emailed the applicant again about numbers not matching in a Q2 Analysis.
An email from Ms Robinson dated 28 October 2020 referred to a document that had been due at 4:30pm but required further work when it was now 5:30pm.
A series of emails dated 10 November 2020 indicates that a formal performance improvement process was to be implemented. National general manager, Ms Sycamore asked Ms Robinson whether she was comfortable in proceeding with the PIP having regard to the applicant’s mental health. Ms Robinson responded:
“Yes I am comfortable moving forward with the PIP. His demeanour is a lot happier.
Have shared emails with Alex sent to Tim over last 8 weeks outlining performance expectations and where he is not meeting, also emails addressing when he has missed deadlines or completely not performed a task that was asked of him.”
A letter dated 11 November 2020 addressed to the applicant gives notice of a formal performance counselling meeting to take place at 3pm on 12 November 2020.
A chain of email correspondence dated 11 and 12 November 2020 indicated difficulties the applicant had in arranging an appropriate support person for the meeting on 12 November 2020. Amongst this correspondence is an email from Ms Sycamore stating:
“When we can’t exit ppl quickly this is what happens. But the rules are the rules. R”
A “script” for a PIP meeting on 12 November 2020 and email correspondence from Ms Robinson to the applicant attaching a signed Performance Improvement Plan are also in evidence.

Social media posts

The respondent relies on a video and a series of photographs posted on Instagram depicting a performance by the applicant at the time of Mardi Gras 2021. A further photograph depicts the applicant with three other persons at a venue called the “Pink Flamingo Gold Coast”.

Medical evidence

The clinical records of the applicant’s general practitioner, Dr Robert Burton include a telehealth consultation on 26 October 2020 recorded as follows:
“Last few months suffering with anxiety
started new role at work
new boss - this is stressful - feels targeted, isolated
sometimes wakes with heart racing
lots of pressure to perform well in underperforming market
has been trying mindfulness, walks, accupunture
now affecting sleep, lost appetite
has decided he needs a new job
friends have reached out to him with concerns
difficult to get to sleep
wakes at 4am
doesn't think he is depressed, not suicidal
lots of ruminating over work
worried that he will now always be anxious
reassured, reframing,
review tomorrow
sent text with psychologist details
SOS plans
started roaccutane in last few days - does not think causing mood disturbance”
On 27 October 2020, Dr Burton recorded:
“slept slightly better
tried mindfulness yesterday but not sure he finds it that helpful
Feels his anxiety is situational
feels if he gets a new job it will improve
discussed change of job and subsequqent anxiety which has escalated is potentially consistent with adjustment disorder with anxiety
agree on diagnosis (provisional) for MHCP
Pt wishes to complete MHCP today
agreed
Also discussed anti-anxiety medication options
opts for escitalopram”
On this occasion the applicant was given a prescription for Escitalopram and referral to a psychologist, Dr Tim Ambrose.
The case notes of a consultation through the respondent’s EAP, arranged by the applicant’s manager on 2 November 2020 recorded:
“Reported that is currently seeing GP - anxiety
Recently commenced anti-anxiety medication
Stated that people have noticed a change - lost weight; poor sleeping Chinese medicine - acupuncture
Saw GP last week MHCP - referred to Psychologist
Said is in process or making appt
WFH - in office 2 days a week
Manager concerned - colleagues have told her about their concerns
Explained to manager is work related
A lot of pressure causing the issue
Feels that the way manager dealing with T feels quite harsh
Moved onto new team July; change of role; adjustment period ‘anything I do is not good enough’
Network Partnerships - sales support
Less work coming in; no support person
New on the brand - goalpost change
Situational anxiety - GP confident won't stick around
Said did not want to discuss with manager or EAP - worried about the consequences
Feels is being 'gaslighted'
On paper looks like is underperforming
No one has checked in
Support: friends at work
Friends; family; has remained social
They have noticed change in demeanor; change in personality; not as happy as has been Thinks about work all the time; what I haven't done
Feels is being performance managed out
A lot of interactions happening online
Has requested to come to the office more - more than 2 days a week
Anticipates if working in the office will establish better relationship
Much easier to have a conversation rather than online
Symptoms: loss of appetite; broken sleep; going on for months
Palpitations; sweating; nauseous
Tries: meditation and mindfulness (acupuncturist has sent some podcasts)
Medication: since last week; has not noticed a difference as yet.”
The applicant attended further consultations through the EAP on 12 November 2020 and 16 November 2020.
On 19 November 2020, Dr Burton recorded a long consultation:
“1. work stress
not sleeping, losing weight, not eating
very anxious
ongoing troubles with boss at work - has been put on performance management plan
boss arranged for EAP contact
this occured after pt spoke with boss, boss had initiated meeting after some colleagues expressed concern for his wellbeing
does feel he has been treated unfairly by boss - unrealistic targets have been set ??gearing up for constructive dismissal
pt clearly anxious and nervous during consult
over course of consult he became more relaxed
feels he would benefit form time away form work
I agree with this and had actually suggested this at last visit
pt not noticing significant change with escitalopram
suggest he continue for now
agree to time away from work
pt has had confidence knocked significantly
this makes looking for new work all the more difficult
reframing, counselled, reinforced coping strategies
denies significant depression, not suicidal
pt has decided that he will have to look for new work
Plan med cert to 30th Nov - with view ot review and consider extending
SOS plans
Re sleep - trial of melatonin - pt waking anxious around 3am - this may help, aware re se's and off-label use, if not helping can consider limited benzo course to help get sleep back in order
Letter written for work - wording agreed with patient”
On 30 November 2020, Dr Burton recorded that the applicant was feeling slightly better in himself. The applicant went to Byron Bay for a few days with friends and was able to relax. The applicant was still waking in the night and still feeling quite anxious although overall there was some improvement. A medical certificate was given for a further two weeks.
The applicant again reported feeling slightly better on 10 December 2020. On 14 December 2020, Dr Burton recorded:
“feel returning to work is not possible
filled with anxiety at thought of returning
has spoken with a friend who advised he should submit workcover claim - I had previously discussed this with patient who initially opted against this
pt says he has thought very carefully about this
quite clear work injury has left him unable to return to current employer (untenable)
will look for other work - needs to get confidence back
counselled re risks of long-term workcover
did not find Michael Charles to be the right fit
happy to see a different psychologist - difficult to find someone available before Christmas”

Dr Burton issued a Work Cover certificate of capacity on 10 December 2020 certifying the applicant as having no current capacity for any work from 19 November 2020 to 17 December 2020. The incapacity related to a diagnosis of adjustment disorder with anxiety with the date of injury of 17 August 2020. The injury was said to be related to work due to “change in work circumstances undue stress and anxiety.” Dr Burton has continued to certify the applicant as having no current work capacity up until 26 August 2021.
On 17 December 2020, Dr Burton noted that WorkCover forms had been submitted. It was noted that the applicant was having disrupted sleep but finding it easier to get back to sleep with melatonin. The applicant’s anxiety was better away from work. It was noted that the applicant had difficulty finding a new psychologist.
On 7 January 2021, Dr Burton recorded:
“sleep still disrupted, waking a bit stressed without melatonin
found he slept better when he was home
feels he is always on the precipice of having a panic attack - '1 feel I am always on edge' some ongoing rumination of experiences at work/conversations at work - this brings on anxiety
?some PTSD features
not suicidal or overtly depressed”
Dr Burton responded to a questionnaire from the insurer on 7 January 2021 in which he diagnosed the applicant with an adjustment disorder with anxiety. This was said to be secondary to a change in work role with a new manager. The applicant’s symptoms had improved out of work but the applicant was currently unfit for work. The applicant’s symptoms included generalised anxiety, rumination, poor sleep and panic symptoms.
Dr Burton said the symptoms were mainly work-related and the applicant’s symptoms drastically improved away from work.

The applicant’s treatment plan was to see a psychologist and continue escitalopram. The expected duration of the condition was three to six months. A barrier affecting the applicant’s recovery and return to work was said to be the lack of access to psychology.

Dr Burton said the applicant had no capacity for work. The applicant needed psychologist support to explore if he was able to return to his previous role or seek a new role or employment. Dr Burton expected the applicant to make a full recovery.
A further questionnaire was completed by Dr Burton on 20 January 2021 for the insurer. Dr Burton indicated that the stated date of injury was estimated based on the consultation in late October and the applicant’s report of suffering with anxiety for the last few months and the fact that the new role started in July 2020.
Dr Burton said the clinical records of his practice dating back to 2011 contained no mention of any mental health concerns. Dr Burton did not consider that there were pre-existing psychological symptoms prior to the injury. Asked what he believed to be the main contributing factor to the applicant’s psychological condition, Dr Burton responded:
“Change in job role, additional work duties and pressures in a changing market (COVID), with undue pressures, unrealistic expectations.”
Dr Burton was asked whether the applicant’s injury was wholly or prominently caused by the actions of management with respect to performance appraisal and/or discipline. Dr Burton responded:
“The main injury was the result of the above. Performance appraisal may have exacerbated this.”
A report dated 5 March 2021 from Ms Olivia Shurdova, a traditional Chinese medicine and acupuncture practitioner reports that the applicant first consulted her on 5 September 2020. Ms Shurdova stated:
“Mr Millgate reported that his overall mental and emotional health had been on the decline ever since he accepted a new role for his work. He had been in it since June 2020 and has been noticing increased work related distress which appeared primarily in conjunction with anticipated work meetings and calls. The signs and symptoms he would notice were primarily palpitations, chest tightness, neck and shoulder pain and trouble sleeping at night. He felt he couldn’t really ‘be himself’ in the role, and within the dynamics of his work environment. He wasn’t sure what was expected of him and how to go about it. He wasn’t used to feeling this way at work, having enjoyed productive and positive working environments previous to his role. He expressed that he always felt confident in his working abilities prior to this role. Now, he couldn’t switch off and was feeling stuck in his work related anxiety.”
Ms Shurdova recorded that the applicant attended further consultations on 12 September 2020, 31 October 2020, 27 November 2020 and 27 January 2021. At the last consultation, the applicant expressed that he could not return to his former job without regressing to the unbearable symptoms he had experienced over the previous few months.
Dr Burton prepared a report for the applicant’s solicitor on 18 March 2021. Dr Burton set out his clinical note of the initial consultation with the applicant in respect of the psychological condition. Dr Burton diagnosed an adjustment disorder with anxiety in accordance with
DSM-5.
Dr Burton indicated that the applicant had been referred to psychologists and had been commenced on anti-anxiety medication and melatonin at night to help with sleep.

The applicant had some benefit from the medication and had found an initial session with a psychologist, Liesel Berling quite helpful. Time away from work had also reduced his anxiety.
Dr Burton stated:
“I maintain that it is my opinion that the main contributing factor to the client's psychological condition is work-related. I also note, as outlined above in my consultation dated 26th October 2020, that this patient reported he has a new boss, found this ‘stressful’, and felt ‘targeted’ and ‘isolated’.
I maintain that the main contributing factors to the client's psychological condition was the demands or his new role, and not wholly or predominantly caused by the performance appraisal.
I used the term ‘mainly’ as it is never possible to be absolutely certain that individuals do not have other contributory factors affecting their emotional and psychological wellbeing. Having said that, I have not identified any other factors that have lead to this patient's psychological distress and resultant diagnosis.”
Dr Burton expressed the opinion that the applicant was totally incapacitated for work in his current role.
Dr Burton prepared a further report for the applicant’s solicitor on 11 August 2021. Dr Burton was asked to consider photographs and videos accompanying the letter of instruction. Dr Burton said he did not consider there to be any inconsistency between the applicant’s presentation and the photographs and videos. The applicant’s medical complaint related to activities around and exacerbated by the workplace. Dr Burton maintained his opinion regarding the applicant’s capacity for work. Dr Burton disagreed that the photographs and videos evidenced a capacity to return to work. These depicted social activities unrelated to the activities the applicant was expected to perform in the workplace.

Applicant’s submissions

The applicant relies on written submissions prepared by Mr Stockley dated 13 August 2021.
Mr Stockley submitted that the injury alleged was either a disease of gradual onset or an aggravation of a disease or both. The relevant condition constituting the injury was identified by Dr Burton as an adjustment disorder with anxiety.

Mr Stockley submitted that there was no suggestion of any cause for the diagnosed condition other than the workplace events identified by the applicant as having occurred from mid-July 2020 when he began to suffer from symptoms of stress and anxiety. From 5 September 2020, the applicant began consulting Ms Shurdova.

Dr Burton had described causation by reference to workplace stressors within three months of commencing a new work role with a new boss. The main contributing factor to the condition was the demands of the new role.

In so far as the respondent relied on a defence pursuant to s 11A of the 1987 Act, Mr Stockley observed that the witness evidence did not address any dealings with the applicant prior to September 2020. By this date the applicant’s symptoms were already established and the applicant had commenced consultations with Ms Shurdova.
The events relied on by the respondent post-dated the onset of symptoms making it impossible for the respondent to establish the defence under s 11A. By the time that any performance appraisal or discipline occurred, the applicant had already suffered symptoms and initiated treatment. The respondent’s evidence did not demonstrate that the injury was wholly or predominantly caused by relevant action.

Mr Stockley submitted that it may be that the actions of the respondent caused the applicant’s symptoms to worsen. Even if this were established, this did not constitute the whole or predominant cause of the condition. Mr Stockley submitted that the s 11A defence should be rejected and a finding of injury and liability to pay weekly compensation and treatment expenses be made.

With regard to incapacity, Mr Stockley submitted that the Commission would not be satisfied that the applicant’s hobby and distraction of participating in drag performances would constitute a basis for finding residual economic capacity. The payments the applicant received from time to time went to the expenses incurred in presenting the performances. The applicant said his travel to Queensland and performances were not analogous to work. The medical evidence indicated that the applicant had situational anxiety and he remained social. Mr Stockley submitted that the applicant’s evidence indicated that his symptoms were most closely associated with the stresses of work and not social functioning generally.
The social media evidence and the applicant’s oral evidence provided no basis to conclude that he had any current work capacity. A finding of no current work capacity was supported by the certifications provided by Dr Burton.
The applicant sought an award pursuant to s 37 of the 1987 Act for weekly compensation at the rate of $1,966.98 from 3 March 2021 to date and continuing and a general order pursuant to s 60 of the 1987 Act.

Respondent’s submissions

The respondent relies on written submissions prepared by Mr Robison dated 26 August 2021.
Mr Robison submitted that the applicant did not present as suffering from a psychological/psychiatric injury. The applicant presented as outgoing and able to interact with others.

Mr Robison submitted that if there was an injury, liability was defeated by operation of s 11A of the 1987 Act. Dr Burton supported a relationship between the applicant’s psychological condition and performance appraisal after a change in his work circumstances. The applicant’s problems related to appraisal by the new manager, Ms Robinson. As this appeared to be the only cause of any injury, no other medical opinion was required to support the defence pursuant to s 11A.
In the alternative, the respondent submitted that consistently with Dr Burton’s opinion the main contributing factor to the condition was the demands of the applicant’s new role, engaging s11A on the basis of a transfer.
With regard to the reasonableness of the relevant action, the respondent relied on the evidence indicating that the applicant was not meeting the minimum standards to perform his role. Ms Robinson was working closely with the applicant to improve and develop him. Ms Robinson’s evidence was to the same effect. The email from Ms Robinson to the applicant dated 20 October 2020 highlighted the disappointing nature of the applicant’s performance.

The respondent submitted that to the extent that the applicant’s evidence contradicted the other witness evidence it should be rejected on the basis that his claimed incapacity was so utterly implausible that it infected the credibility of his evidence generally.

With regard to incapacity, Mr Robison noted the social media evidence depicting the applicant socialising and travelling interstate as well as working as a drag queen. This demonstrated an ability to work with others; an ability to organise and plan events; lack of inhibition; an ability to leave the house and deal with the world at large. The applicant’s performances had potential to be remunerative as deposed to by the applicant in his evidence in chief. The applicant’s ability to behave in this way was consistent with an ability to work generally and inconsistent with the alleged psychiatric injury of such severity.

The respondent submitted that an office environment would be less daunting and stressful than performing live as a drag queen. The applicant was not incapacitated and could realistically work anywhere other than with the respondent. Any incapacity was minor and that should be reflected in the quantum of benefits awarded, if any.

Applicant’s submissions in reply

In written submissions in reply dated 30 August 2021, the applicant submitted that the respondent sought to expand its defence under s 11A to allege for the first time that the applicant’s condition was wholly or predominantly caused by reasonable action taken with respect to a transfer. That defence was not raised in the s 78 notice and was not pleaded in the Reply and should not be given any consideration.
In any event, a defence relying on transfer was not made out because there was no transfer. The applicant’s role did not change, he was simply assigned to a different portfolio. Ms Robinson’s evidence indicated there was no change in the job description. Although there was a title change across the board the roles did not change.

There was no medical evidence linking the portfolio assignment with the applicant’s psychiatric condition. The applicant’s evidence was that he was happy to be assigned to a different portfolio. The psychiatric condition was caused by the work duties performed subsequent to the assignment of the new portfolio.

Mr Stockley submitted that the respondent’s case on capacity would require the Commission to reject the only medical opinion in evidence in favour of inadmissible opinions proffered by the respondent’s counsel.
The proposition that the applicant’s participation in his recreational pursuit showed capacity for suitable employment either by earning fees as a performer or because the activity represented transferable skills of economic value was not supported by evidence. In cross examination, the applicant made a clear distinction between his anxiety in a work setting compared to that of preparing and executing a drag performance.

Neither the applicant’s evidence nor that of his doctor suggested that he was a housebound recluse who could not interact with other people. Such a crippling level of disability was not the minimum prerequisite for a finding of incapacity for work.

The applicant submitted that engagement in an occupation involved pressures and demands that were not present when one engaged in a hobby. Work required a capacity to work within set timeframes, manage time and tasks; learn, retain and present new information; take instruction; concentrate and focus for prolonged periods; cope with scrutiny of work performance; promote the employer’s interests; interact with incompatible personalities; and form, maintain and manage professional relationships.

The applicant’s incapacity arose from overwhelming anxiety, nervousness, panic and discomfort associated with the workplace setting. By his certificates of capacity, Dr Burton had continued to certify the applicant has totally incapacitated for work.

Whilst the applicant and his doctor were positive about his prospects of returning to work after receiving appropriate treatment, such treatment had been denied to the applicant due to the rejection of his claim.

Mr Stockley submitted that there was no evidence that the applicant had a capacity to earn income as a professional drag performer. The applicant’s testimony was that this was a loss-making hobby pursued solely for recreational reward. The applicant’s evidence was that he was involved in drag performance regularly before the injury but had engaged in the activity only twice after the injury.

Mr Stockley submitted that the submission that the applicant’s credit was impugned would not be accepted. Dr Burton did not consider the applicant’s incapacity to be implausible and his opinion on that question was the only one that was probative. Dr Burton had also expressed the view that the drag performances were not inconsistent with the applicant’s presentation to him.

The applicant’s injury and total incapacity were firmly established by the uncontroverted medical evidence. The respondent’s s 11A defence was not made out. The opinions of Dr Burton were reasonable, rational and readily acceptable.

Respondent’s further submissions

The respondent served and lodged further submissions on 6 September 2021. The further submissions were made on the basis that the applicant’s submissions in reply dated 30 August 2021 contained submissions in chief made for the first time.
The respondent submitted that the social media material made it difficult, if not impossible to accept the medical evidence that the applicant was suffering from a debilitating psychiatric illness.
The respondent referred to the decision in Palasty v Lendlease Building Pty Limited[1] and submitted that medical evidence, even where uniform or uncontradicted, does not carry a case where the substratum of fact is resolved contrary to the assumptions relied on to express the medical opinion.
[1] [2021] NSWPICPD 19.
Dr Burton’s opinion that the applicant had no capacity for work must be wrong because the applicant had worked post injury. The reference to the performances as a social activity in Dr Burton’s report dated 11 August 2021 was incorrect as the activity was remunerative. The applicant had by his own evidence worked as a drag queen and earned money by doing this activity. The activity itself demonstrated an ability to engage with the world and to work. The social media material constituted evidence in support of this submission. Any injury demonstrably had no effect on the applicant’s ability to engage in activities consistent with an ability to work.

FINDINGS AND REASONS

Injury

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[2].
[2] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Attorney General's Department v K[3] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
[3] [2010] NSWWCCPD 76.

“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);

(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”

Further at [54]:

“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.”

It is the applicant who bears the onus of establishing on the balance of probabilities that he has sustained an injury for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1 injury to the applicant’s right ankle and her cervical spine. 940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.
It is a distinctive feature of this case that the medical evidence is confined to the records and opinions of the applicant’s general practitioner. Although there are notes from a counsellor at the respondent’s EAP and a traditional Chinese medicine and acupuncture practitioner, there is no opinion or evidence from a psychiatrist or any treating psychologist. No medicolegal opinion is available from either party.
The reasons for the lack of medicolegal evidence can be seen from the protracted and unfortunately acrimonious procedural history to this claim. The proceedings in this Commission have been prolonged by a number of interlocutory disputes. Amongst the disputed matters was the implications of the applicant’s refusal to submit himself for IME examination.
That dispute has been dealt with in a separate Certificate of Determination where it was found that the referral to an IME was appropriate and consistent with Part 7.1 of the Workers Compensation Guidelines (the Guidelines). I was not satisfied, however, that the insurer dealt with the applicant’s objection to the IME in the manner required by Part 7.7 of the Guidelines. As a result, the provisions in s 119(3) of the 1998 Act did not suspend the applicant’s entitlement to recover compensation.
The upshot of that dispute is that the respondent finds itself in a position where it has determined the claim and is now required to defend its determination in these proceedings without the benefit of an IME opinion.
As a result, the Commission only has the uncontradicted medical evidence of the applicant before it. Put simply, Dr Burton has provided opinions consistent with the applicant having sustained a diagnosable psychological condition in the course of employment with the respondent to which such employment was the main contributing factor.
The parties are, however, in disagreement with regard to the interpretation of Dr Burton’s expressed opinions as to the causative factors to the injury and the factual assumptions upon which Dr Burton’s opinions on incapacity are based.
The only challenge to the allegation that the applicant has contracted a diagnosable psychological condition arises from the respondent’s observations of the applicant’s demeanour when giving oral evidence at the arbitration hearing and in the activities depicted in the social media evidence upon which it relies. It is the respondent’s submission that the applicant does not present as suffering from a psychological/psychiatric injury. I am not satisfied, however, that this constitutes a sufficient basis for contradicting the consistently expressed and carefully explained diagnosis by reference to DSM-V criteria made by Dr Burton.
Dr Burton first recorded psychological symptoms affecting sleep and appetite on 26 October 2020. The applicant was provided with the details of a psychologist on that occasion. A mental health care plan with a provisional diagnosis of adjustment disorder with anxiety was completed on 27 October 2020. The applicant was commenced on escitalopram. A referral for a psychologist was given.
The applicant reported ongoing symptoms to Dr Burton on 19 November 2020. The applicant was noted to have had contact with the EAP. The applicant continued with escitalopram although he had not noted a significant change. Melatonin was trialled to assist with sleep.
Dr Burton made a diagnosis of adjustment disorder with anxiety in the first WorkCover certificate issued on 10 December 2020. That diagnosis was maintained in Dr Burton’s subsequent WorkCover certificates, his responses to the questionnaires sent to him by the respondent’s insurer and in the report prepared for the applicant’s solicitor dated 18 March 2021. In that report, Dr Burton explained the diagnosis by reference to the DSM-V criteria. Dr Burton noted that the applicant had attended an initial session with a psychologist, Liesel Berling, which he had found quite helpful.

Despite the absence of evidence from a treating psychologist or psychiatrist and notwithstanding the applicant’s refusal to submit himself to IME examination, in the absence of any opinion to the contrary, I accept that the evidence from Dr Burton provides a proper basis upon which to accept that the applicant has sustained a diagnosable psychological condition.
There is nothing in Dr Burton’s evidence or the evidence from the EAP or Ms Shurdova to suggest any other cause for the applicant psychological symptoms other than workplace events.

Dr Burton did, in his response to the insurer’s questionnaire on 7 January 2021, indicate that the applicant’s symptoms were “mainly” work-related. Dr Burton has, however, explained in his report for the applicant’s solicitor dated 18 March 2021 that he used the term “mainly” as it was never possible to be absolutely certain that there were no other contributing factors. Dr Burton said he had not identified any other factors that had led to the diagnosis.
The applicant’s own evidence is that he was assigned a new portfolio on 11 June 2020 with effect from 1 July 2020. The applicant gave evidence that due to COVID-19 his revenue targets were harder to achieve. This resulted in significantly increased work pressure. The applicant said he had reduced support and assistance in his new portfolio. The applicant said he began to suffer with symptoms of stress and anxiety commencing in about mid-July 2020. The applicant conceded that the work-related stress and anxiety he had been experiencing since July 2020 impacted upon his ability to carry out his work duties.
The occurrence of the events described by the applicant are to an extent corroborated by the witness evidence relied on by the respondent.
Ms Robinson, for example, has given evidence that with effect from 1 July 2020 due to structural changes, the applicant’s portfolio changed. Ms Robinson said the applicant’s role did not change although the portfolio he was required to manage did.
There are clear differences between the applicant and Ms Robinson with regard to their perception as to the ease with which the applicant’s new targets could be achieved and the level of support provided to him.
Consistently with the applicant’s evidence, however, Ms Robinson’s evidence indicates that prior to the commencement of performance discussions in September 2020, the applicant was repeatedly missing deadlines, had been absent from meetings and had issues with both the quality and quantity of his output.
The first account of the applicant’s psychological symptoms is set out in the report from Ms Shurdova. Ms Shurdova has given evidence that the applicant first consulted her on 5 September 2020 reporting a decline in his mental health since commencing in the “new role” in June 2020. The applicant had noticed increased work related distress primarily in conjunction with anticipated work meetings and calls. The applicant described signs and symptoms including palpitations, chest tightness, neck and shoulder pain and trouble sleeping at night. The applicant felt he couldn’t be himself in the role and within the work environment and was unsure what was expected of him. The applicant denied having felt this way in a work environment previously.
Consistently with Ms Shurdova’s evidence and the applicant’s own evidence, the first clinical record in which the applicant described psychological symptoms to Dr Burton refers to suffering anxiety “for the last few months”, starting a new role at work, having a new boss, feeling targeted and isolated and under pressure to perform in an underperforming market.
In the consultation on 27 October 2020, Dr Burton again referred to “the change of job” and subsequent anxiety. Although the consultations from 19 November 2020 onwards referred to being put on performance improvement plan, the first WorkCover certificate of capacity described the relationship between the injury and work as being the change in work circumstances.
The records from the EAP which commenced in 2 November 2020 refer to work pressure; moving into a new team in July; change of role and an adjustment period; feeling that anything he did was not good enough; less work coming in; no support person; being new on the brand; and his goalposts changing.
The contemporaneous treating evidence thus indicates an onset of psychological symptoms from July 2020 associated with the applicant being assigned the new portfolio at work. I am satisfied on the evidence before me that the change in the applicant’s work portfolio was a real event. I am satisfied on the evidence that the applicant perceived his work environment and conditions following the change in work portfolio as hostile. I am satisfied the applicant felt under pressure and began to experience symptoms of anxiety, particularly in the context of anticipated work meetings and calls. This is reflected in Ms Robinson’s impression of absenteeism at meetings, missing deadlines and a decline in the quantity and quality of the applicant’s work output. I am satisfied on the evidence that the working conditions and environment following the change in portfolio were causative of the psychological condition diagnosed by Dr Burton.
The respondent seeks to rely on a defence pursuant to s 11A(1), which requires it to establish on the balance of probabilities that actions taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or termination were the whole or predominant cause of the psychological injury.
In the written submissions, the respondent sought to additionally rely on management action with respect to transfer for the purposes of s 11A(1). The respondent’s submissions were opposed by the applicant on the basis that a dispute with regard to transfer had not been notified to the applicant in accordance with s 78 of the 1998 Act. I accept that to be the case.
The respondent has not, at any stage in the Commission proceedings, made an application pursuant to s 289A(4) of the 1998 Act to rely on a defence with regard to transfer. I am not satisfied in those circumstances that the Commission has power to hear or deal with the respondent’s submissions with respect to transfer.
Even if I am wrong in that regard, the evidence does not suggest that change in the applicant’s portfolio, if that can be described as a transfer, was itself causative of the injury. Rather it was the working conditions and environment after the change was effected which gave rise to psychological symptoms.
There is no suggestion in any of the lay or medical evidence that termination was the whole or predominant cause of the applicant’s psychological injury. I am also not satisfied that there is any evidence of discipline being the whole or predominant cause of the applicant’s psychological injury.
The applicant’s defence is therefore reliant on performance appraisal being the whole or predominant cause of the psychological injury.
In Hamad v Q Catering Ltd[5], 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.”
[5] [2017] NSWWCCPD 6; BC201701872.
As indicated above, there is in the circumstances of this case no medicolegal opinion which states that performance appraisal was the whole or predominant cause of the injury. The respondent submits, however that Dr Burton’s evidence supports a relationship between the applicant’s psychological condition and performance appraisal.
The factual evidence is clear in establishing that the applicant was subject to performance appraisal prior to the cessation of work and indeed prior to the applicant’s first consultation with Dr Burton. Although a performance improvement plan was not implemented until 12 November 2020, I am satisfied on the respondent’s witness evidence and the contemporaneous emails attached to that evidence that the applicant was participating in structured one-on-one meetings with Ms Robinson to address his performance from 11 September 2020 onwards.
I would also accept the respondent’s submission that Dr Burton’s evidence supports a relationship between that performance appraisal and the applicant psychological condition. I am not satisfied however Dr Burton’s evidence supports a finding that the performance appraisal was the whole or predominant cause of the applicant’s psychological injury.
Dr Burton has estimated the date of injury to be 17 August 2020. Dr Burton explained in his response to the insurer’s questionnaire on 20 January 2021 that this date was estimated based on the consultation in late October and the applicant’s report of suffering anxiety for the last few months since starting the role in July 2020.
Ms Shurdova’s evidence indicates that the applicant had already sought treatment from her for psychological symptoms by 5 September 2020. Ms Shurdova’s account of the applicant’s initial consultations with her does not suggest that the respondent’s actions with respect to performance appraisal was causative of the applicant’s symptoms. Rather, her evidence, the evidence contained in the EAP case notes and Dr Burton’s evidence all indicate that it was the working conditions and environment in general following the transfer which triggered the applicant’s symptoms.
Dr Burton does indicate that those symptoms may have been exacerbated by the performance appraisal process which followed. In Dr Burton’s response to the questionnaire from the insurer on 7 January 2021 he stated that the applicant’s diagnosis was secondary to a change in work role with a new manager.
In the response to the insurer’s questionnaire on 20 January 2021, Dr Burton was asked what he believed to be the main contributing factor to the applicant psychological condition. Dr Burton responded that it was the change in job role, additional work duties and pressures in a changing market with undue pressure is an unrealistic expectations. Dr Burton said these had caused the main injury although performance appraisal may have exacerbated this.
This particular response from Dr Burton has been identified by the respondent as suggestive of performance appraisal being causative of the injury. As indicated above, I also accept that the clinical records of Dr Burton on 19 November 2020 refer to the performance improvement plan. Dr Burton’s questionnaire response is also somewhat opaque for the purposes of determining the hierarchy of causative factors pursuant to s 11A(1).
It is appropriate, however, to consider Dr Burton’s evidence as a whole. In his report to the applicant’s solicitor dated 18 March 2021, Dr Burton clearly stated that the main contributing factor to the applicant psychological condition was the demands of his new role and the condition was not wholly or predominantly caused by performance appraisal.
I am not satisfied on all of the evidence, that the injury was wholly or predominantly caused by actions with respect to performance appraisal. I am not satisfied that the respondent has discharge its onus of establishing the defence under s 11A(1).
I am satisfied that the applicant has sustained an injury in the nature of a diagnosable psychological condition in the course of employment with the respondent. I am satisfied that employment with the respondent was the main contributing factor to that injury for the purposes of s 4(b) of the 1987 Act.
I am satisfied that the applicant’s injury is compensable under the 1987 Act.

Incapacity

What remains to be determined is the extent and quantification of any incapacity resulting from the injury found above.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include a weekly payment during the incapacity.
Section 37 of the 1987 Act provides:
“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.”
The expressions “current work capacity” and “no current work capacity” are defined in cl 9 of Sch 3 of the 1987 Act as:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

Once again, the only medical evidence before the Commission on this issue is that of Dr Burton. Dr Burton has expressed the opinion in his responses to the insurer’s questionnaires, his report to the applicant’s solicitor and in his ongoing WorkCover certificates of capacity that the applicant has no current capacity for work. The applicant has provided WorkCover certificates that cover almost the entire period of weekly compensation claimed to date.
The respondent’s submission that the applicant has capacity for work is based on the social media evidence of his engagement in drag performances and travel to Queensland during the period of weekly compensation claimed. The respondent submits that the applicant’s oral evidence with respect to the social media posts confirmed an ability to engage in activities consistent with an ability to work. The respondent submits that Dr Burton’s opinion on the applicant’s capacity for work must be wrong because the applicant’s oral evidence indicated that he had worked for remuneration when conducting those performances.
The applicant’s evidence, however, was that he conducted performances on three occasions in the relevant period. The performance depicted in the social media posts appears to have been conducted in a private home for friends. The applicant’s evidence was that he was reimbursed for the costs of his Uber, costumes and wigs only. I am not prepared to accept on the oral evidence alone that this performance constituted work or gave rise to “earnings” for the purposes of s 37 of the 1987 Act.
I am prepared to accept that the social media evidence depicts an ability to organise and plan events and leave the house and deal with the world at large. The evidence is consistent with an ability to travel, maintain social relationships and engage in recreational pursuits. The social media posts and the applicant’s demeanour during his oral evidence gave no indication of the psychological symptoms described by Dr Burton. The evidence does not suggest that the applicant has had regular treatment from a psychologist or any psychiatrist.

That is not to say, however, that Dr Burton’s opinion is wrong. Dr Burton has considered the social media evidence and had the benefit of regular consultations with the applicant over an extended period of time both before and after the injury. In his report of 11 August 2021, Dr Burton said he did not consider there to be any inconsistency between the applicant’s presentation to him and the social media evidence. Dr Burton disagreed that the social media posts evidenced a capacity to work, drawing a distinction between social activities and the activities the applicant would be expected to perform the workplace.
As identified in the applicant’s submissions, employment requires a capacity to work within set timeframes; manage time and tasks; learn, retain and present new information; take instruction; concentrate and focus for prolonged periods; cope with scrutiny of work performance; promote the employer’s interest; interact with incompatible personalities; and form, maintain and manage professional relationships.
Neither the social media evidence, the applicant’s oral evidence nor his demeanour in giving his oral evidence are sufficient to satisfy me that Dr Burton’s certifications and qualified opinion on capacity lack a proper factual foundation or are otherwise unreliable. In the absence of any competing medical opinion, I am satisfied that Dr Burton’s opinion should be accepted.
I am satisfied that for the period 3 March 2021 to date the applicant has had no current work capacity. The applicant’s pre-injury average weekly earnings (PIAWE) figure of $2,458.73 as set out in the wages schedule attached to the ARD has not been disputed by any evidence lodged by the respondent in these proceedings. In the absence of a competing schedule of earnings, the applicant’s PIAWE is taken by r 68 of the Personal Injury Commission Rules 2021 to be admitted by the respondent.

There will be an award for the applicant for weekly compensation pursuant to s 37(1) of the 1987 Act from 3 March 2021 to date based on the applicant’s PIAWE as periodically indexed. There will also be an order for weekly benefits to continue in accordance with the 1987 Act.

Entitlement to s 60 expenses

Having found above that the applicant has sustained a compensable injury, the applicant will be entitled to compensation for any reasonably necessary medical and related expenses resulting from that injury pursuant to s 60 of the 1987 Act.
There will be a general order for the respondent to pay the applicant’s s 60 expenses upon production of accounts, receipts and/or valid Medicare notice of charge.

[2021] NSWPIC 374

27 September 2021