Mobbs v Menzies Property Services Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mobbs v Menzies Property Services Pty Limited & others [2022] NSWPIC 419
APPLICANT:	Lynette Mobbs
FIRST RESPONDENT:	Kmart Australia Limited
SECOND RESPONDENT:	Menzies Property Services Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	28 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Action for weekly and lump sum compensation against two employers for physical and psychological injury; whether later employer liable for weeklies; whether alleged psychological injury was primary or secondary; whether the section 11A of the Workers Compensation Act 1987 (1987 Act) defence available if primary; whether the actions of the first respondent were reasonable regarding transfer; whether intervening medical condition relevant; Held — section 16 of the 1987 Act considered regarding weeklies claim against the second respondent after first respondent employment found causative of subject back injury: subsequent back complaints with second respondent not main or contributing factor; award for weeklies against first respondent; psychological injury primary; actions of first respondent not reasonable; award against first respondent for lump sum to be assessed; no current work capacity caused by psychological injury; intervening medical condition not relevant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant has sustained in the course of and arising out of her employment with the first respondent a primary psychiatric injury with a deemed date of 24 February 2015. 2. The applicant has sustained in the course of and arising out of her employment an injury consisting of the aggravation of spondylitic disease in her lumbar spine with a deemed date of incapacity of 27 October 2014, the date of incapacity. The Commission orders: 3. The first respondent to make weekly payments of compensation in accordance with the wages schedule reproduced below, such order concluding on 24 April 2017 at the expiry of the applicant’s entitlement pursuant to s 37 of the Workers Compensation Act 1987. 4. The first respondent is to pay the applicant’s s 60 expenses incurred with regard to her physical injury and her psychiatric injury. 5. I remit this matter to the President for referral to a Medical Assessor for the assessment of whole person impairment on the following bases: (a) Date of injury: 24 February 2015 (deemed) (b) Matter for assessment: psychiatric/psychological injury (c) Evidence (i) Application to Resolve a Dispute and attached documents; (ii) Application to Admit Late Documents with applicant’s annexures; (iii) Reply first respondent; (iv) Application to Admit Late Documents with first respondent annexures, and (v) Reply from the second respondent is excluded. 6. Leave is granted to approach with regard to the calculation of the applicant’s weekly entitlements.

STATEMENT OF REASONS

BACKGROUND

Lynette Mobbs, the applicant, brings an action against Kmart Australia Limited, the first respondent, and Menzies Property Services Pty Limited, the second respondent, for weekly compensation, lump sum entitlements and s 60 medical expenses with regard to both physical and psychological injuries.
Dispute notices were duly lodged.
The Application to Resolve a Dispute (ARD) and Replies on behalf of both respondents were issued.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant suffer physical injury whilst working for the first respondent?
(b)    If so, was that injury aggravated etc by her work with the second respondent?
(c)    Did the applicant suffer a psychiatric/psychological injury with the first respondent?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter was heard over two days on 23 March 2022 and 27 April 2022. The first hearing was conducted by way of telephone conciliation/arbitration and the second hearing was conducted in person at 1 Oxford Street, Sydney. The applicant was represented by Mr Philip Perry of counsel instructed by Mr David Harstein from Messrs Taylor & Scott, lawyers. The first respondent was represented by Mr Dewashish Adhikary instructed by Mr Robbie Elder from Messrs Bartier Perry, solicitors. The second respondent was represented by Mr Paul Stockley of counsel instructed by Messrs Stephen Lee Legal.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

Applicant
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (AALD) dated 21 January 2021.
First respondent
(a)    Reply and attached documents;
(b)    AALD and attached documents dated 21 December 2021.

Second respondent
(a) Reply and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

I note Ms Mobbs was unable to attend the in-person hearing on 27 April 2022 due to an illness but she appeared by way of telephone.
It is common ground that Ms Mobbs commenced work with the first respondent (Kmart) at its Goulburn store in October 2000 and ceased working there on 24 February 2015.
She claims that she was impaired when she worked for Kmart by both a physical and a psychiatric injury. She claimed that the employer had ignored and belittled her when it refused between 2012 and 2014 to give her alternative duties that did not require her to stand in one place as a checkout operator.
She also had a second job as a cleaner for the second respondent (Menzies) which she commenced on 27 July 2009 and resigned from on 10 July 2015.

Applicant’s statements

The applicant made statements dated 14 July 2021, 16 February 2021 and 16 September 2021.

14 July 2021[1]

[1] ARD p 1.

Ms Mobbs stated that she had been working for about 15 years as a kitchen assistant at Goulburn Base Hospital up until the 1990s. She developed a carpal tunnel condition which put her off work until the Commonwealth Rehabilitation Service was able to find her employment with the Kmart at its Goulburn store. She commenced in October 2000. She said from [4]:
“…. When I got the job as Kmart it was on a condition that I was not to perform any repetitive manual work and, in particular, that I was not to work on the checkouts.
5. I needed to work as I was the breadwinner. My husband was very ill and unable to work. He passed away in 2010. I had to keep working after his death as I had no one else to support me.”
Ms Mobbs said that although she had the occasional discomfort in her lower back over the years, it was treated by her local general practitioner (GP), usually by physiotherapy and medication. The discomfort was transient. She began work in October 2000 as a permanent part-time employee working 15 hours per week in the apparel department.
After she commenced work with Menzies in 2009, she found the Kmart start time at 9.00am suited her because it fitted in with the hours she worked with Menzies, where she worked from 5.00am to 8.00am Monday to Friday. After finishing with Menzies she would go home, wash up, and change into her Kmart uniform to get to work by 9.00am.
Ms Mobbs’ work with Menzies mostly involved cleaning offices and her duties were to empty wastepaper bins, wipe down tables, dusk desks, clean bathrooms vacuum the carpeted floor and sweep and mop vinyl floors. She said that most of the flooring was carpeted and one of her colleagues usually did the vacuuming. When she started to feel back pain associated with the work at Kmart in 2012, she did not feel that doing the work for Menzies was making her back pain any worse than it already was. She said that whilst doing her cleaning job she was constantly moving and her duties were not particularly arduous, notwithstanding that they were physical in nature.
Up to 2012 Ms Mobbs said she was working as a permanent part-time employee working 15 hours per week in the various departments of Kmart, but mainly in the apparel department, which also included cosmetics. She described an alteration in her duties in 2012 as being caused by a restructure. She reluctantly agreed to start at 9.30am, which was the only way she would be able to keep her morning start time, as I understood her evidence. The restructure involved a change in her duties and she commenced working on as a checkout operator. Her hours increased to 20 per week.
She described her duties as a checkout operator, which involved repetitively scanning items and placing them in shopping bags whilst standing in the same spot. She said there was continual bending, leaning over and twisting whilst packing the shopping bags. Some of the items she packed were heavy. She spent five hours working in that position with the exception of a 15 minute morning tea break.
She said that she started to notice a severe aching across her lower back and after a few weeks consulted her GP Dr Suzanne Storrier at Marimar Medical Clinic. The clinical notes record complaints to that effect on 12 March 2012.
The applicant stated that Dr Storrier wrote a short letter to Kmart management that Ms Mobbs should be given varied duties because of her back pain. This was addressed to Ms Liz Giddings. The applicant said she did not hear anything further about that.
The applicant asked to be transferred to other duties for some relief from standing in one place, suggesting to Ms Giddings and others that she swap with casuals on the register. She thought her request was made “probably every 2 to 3 months” but was either ignored or denied.
The applicant lodged a letter on 17 April 2012 to the store manager Mr Rob Lee seeking an alteration from her checkout duties, but received no response. This letter will be considered shortly. Over the years, Ms Mobbs said, there were a few meetings with store managers in which she tried to have her duties changed, but nothing came of them until it was too late. She said at [18]:
“There were a few meetings with store managers over the years when I tried to get a change in my work duties to move at least some of the time on the registers so that I would not be spending all my work time standing on the one spot. My friend Peter Primmer accompanied me to at least one meeting with Rob Lee, another meeting with the store manager who succeeded him, Matt Griffin, and then two meetings with the next store manager whose first name was Serio, when we discussed alternative duties to try to avoid my back pain. Nothing came of those meetings until it was too late.”
Ms Mobbs stated that she did not find that her cleaning duties with Menzies affected her back condition, but when she took up her position with Kmart, standing in one place, her back pain would quickly worsen. By early 2014 she was experiencing quite significant pain in her lower back and she saw Dr Ejaz Mohammad, as Dr Storrier was away, on 19 March 2014. He issued a certificate indicating the light duties that he recommended, which was given to Ms Cathy Broughton, the store 2 In-charge (IC) on 20 March 2014. The applicant said at [20]:
“… She told me that there were no other duties available for me and that if I wanted to continue working I would have to be able to do my normal duties.”
Because she needed the work, Ms Mobbs said she went back to Dr Mohammad on 20 March 2014 and got him to issue a certificate saying she was fully fit. Ms Mobbs said she put up with the continuing back pain until 10 April 2014 when she obtained a further certificate from Dr Mohammad which set out the limited duties Ms Mobbs was able to do. A further certificate issued on 24 April 2014 and although they were accepted by Kmart, no duties that reflected the certificates were given.
The applicant kept working, but on about 30 September 2014 was unable to attend because of her back pain. She was then taken by Ms Broughton, her manager at Kmart, to see the company doctor, Dr Peter Falk. Dr Falk worked at the same practice as Dr Storrier and issued a WorkCover certificate suggesting that Ms Mobbs’ position be frequently changed. As a result, Ms Mobbs said she kept on at work. She said at [24]:
“…I believe that it was at that time that I was allowed to work one hour on the register and then have a half an hour break in the staff room.”
I note in passing that a report from Procare Injury Management of 13 November 2014 noted that Ms Mobbs advised the Rehabilitation Consultant at assessment on 22 October 2014 that she was working three days per week, seven hours per day, from 9.30am-3.00pm “primarily as a Customer Greeter and occasionally as a Registers Assistant.” I assume that “Registers Assistant” means checkout operator.[2]
[2] Reply first respondent p 208.
She was then referred to the company specialist, Dr Richard Powell, whom she saw on 10 November 2014. A s 74 Notice then issued denying liability.
Ms Mobbs said at [26]:
“26. From about mid 2014 I found myself feeling very depressed. I would come home from the cleaning job with Menzies to change into my Kmart uniform. I would sit on the lounge at home for a while, feeling sick and feeling that I could not go in to work. Most days I had to make myself go to work because I could not afford not to. There were times when I was so upset l was in tears before I went to Kmart and there were even a few times when I was in tears when I was at Kmart. It seemed that every time I tried to speak to anyone in management about moving off the registers they went out of their way to ignore me and my request.”
Ms Mobbs said that during the Christmas break her back pain eased significantly, but when she returned in January 2015 to checkout work “my back pain increased very dramatically and very quickly.” She obtained a further WorkCover certificate for duties that did not require her to stand in the one spot, amongst other things. However no changes to her position were made when she handed it to her employer. Other staff members who experienced difficulty working on the cash registers were accommodated with suitable duties, but Ms Mobbs said there was none for her.
On 24 February 2015 Ms Mobbs said she was told at a meeting that she would not be given any further duties until she was certified fit for normal duties. She was put off work and has not worked there since.
On 8 May 2015 she attended a further meeting where she was offered the duties of a ‘door greeter.’ Ms Mobbs already had experience of that position some years earlier which caused her back pain. Her friend Peter Primmer attended with her, as she could not have attended by herself. She was feeling ill, anxious and having heart palpitations. She has not been in the Kmart store since. She said at [35]:
“At the meeting, Peter and I pointed out that the door greeter's job is just to stand in the one spot at the front of the store to greet customers and provide information. The problem I had standing in the one spot while working on the checkouts was exactly the same problem I would have as a door greeter. I told them I had previously had experience of having back pain working as a door greeter in Kmart some years earlier. No other job was suggested by Kmart.”
By this time she was being treated by Dr Davies at the Marima Medical Clinic for anxiety and depression. Ms Mobbs was also referred to Dr Melinda Linton-Bradley, psychologist, whom she saw on a number of occasions from June 2015.
Ms Mobbs increased her work hours with Menzies once she ceased work for Kmart. Her hours increased from three to eight per day in order to try to maintain her income to support herself. She said that this involved more demanding physical work including sweeping, moving and cleaning out large garbage bins and shovelling leaves and dirt out of car park gutters. By June/July 2015 Ms Mobbs was suffering “really bad” symptoms in her back, shoulders, hips and hands, and she had to cease her cleaning work on 10 July 2015.
On 24 August 2015 Ms Mobbs attended a medico-legal examination by Dr Robert Kaplan, a psychiatrist retained by the first respondent. Ms Mobbs had a number of issues with Dr Kaplan’s attitude and approach during the consultation. She alleged that he had made a number of errors in his report, the principal one being that whilst her back pain was causing her to be frustrated, it was the conduct of management at Kmart that caused her anxiety, not her back pain. She said at [42]:
“42. It is true that my back pain, which continued to be aggravated by my work on the checkout counter, was causing me frustration and depression. However, my employers continued to ignore me, to belittle and humiliate me. It was this behaviour that was the cause of my anger, my feeling of being worthless and the feelings of panic that I had when contemplating going into work. The anxiety and the palpitations that I felt on 8 May 2015, when I went in with Peter to discuss my position, were symptoms resulting directly from the way I had been treated, not from my pain.”
Ms Mobbs found that living in Goulburn became too difficult and she had to sell her house. She moved to her present address at Sanctuary Point in November 2015. She was contacted by the Human Resources (HR) department from Kmart and had a meeting in Nowra in January 2016 about alternative duties, but nothing came from that meeting. Her employment with Kmart was formally terminated on 18 March 2016. Notwithstanding her move, she remained under the care of Dr Storrier until she retired in late 2019. She has since been treated by the Vincentia Medical Centre.
She said that Dr Storrier referred her to Dr Ted Tsai, rheumatologist, in March 2016, Dr Tsai being at Wollongong.
She is now in receipt of a disability support pension. Ms Mobbs stated that she suffered from depression and described her symptoms which she said had improved since she moved to Sanctuary Point. She said that notwithstanding the improvement she was certain she will not appeal to undertake any gainful employment.
She also said that her back condition was such that she could not be working light duties as her condition was limiting her ability to do her own housework.

16 September 2021

Ms Mobbs made a further statement on this date. She referred to a further report from Dr Kaplan whom she had subsequently seen and whose report of 6 May 2020 she referred to.
Ms Mobbs could not recall telling Dr Kaplan that her psychiatric state was “past” but she said that she told him her periods of severe depression were less frequent than when she had been in Goulburn, and that after being dismissed while she was in Goulburn her depression made her desperate. She agreed that she had told Dr Kaplan that she had been in a “dark time.”
She said that notwithstanding her improvement from that time, she became anxious when she was required to leave her home, and she experienced sleeplessness worrying about her proposed journey. Except when she went to visit her daughter in Goulburn (when she was able to make the trip by herself) she needed her friend Peter Primmer to travel with her. She had never experienced this anxiety before she was so badly treated at Kmart.
She had a number of issues with Dr Kaplan’s history, but agreed that she had weaned herself off antidepressants and that activities such as gardening and reading were difficult for her. She said when reading her mind would “wander away” and she felt frustrated and angry about what had been done to her at Kmart.

16 December 2021

Ms Mobbs made a supplementary statement, which was lodged with an AALD. She corrected the record to say that she first saw the rheumatologist Dr Tsai in May 2016, and not March. She said that the symptoms which caused her to see Dr Tsai had commenced at different times. The back pain whilst working at Kmart was severe and worsening to the extent that it became unbearable as she had earlier described. Her back pain worsened during the months she worked on with Menzies until she had to cease work as she had earlier said in July 2015.

From May 2015, she noted the onset of stiffness and pain in her shoulders, elbows, wrists and fingers. These symptoms were mild at first but became increasingly troublesome as a result of which Dr Storrier referred her to Dr Tsai.
After scans had been taken, Dr Tsai advised her that she was suffering from psoriatic arthritis, and she was prescribed medication. She found that the medication did not agree with her and she ceased seeing Dr Tsai in July 2017. Her worst problem, she said at [12], remained the low back pain which had occurred while she was at Kmart. Her symptoms remained severe and she was unable to stand in one place more than 10 to 20 minutes. Her back pain restricted her in carrying out her domestic tasks. She continued to take painkilling medication and continues to suffer the symptoms she described of anxiety and depression.

Contemporaneous notes from the applicant

Ms Mobbs also lodged a series of contemporaneous handwritten and typed notes she had made over the years she had been with Kmart. They concerned the problems she was encountering with management, and covered the period from 17 April 2012 and 19 January 2016.
Ms Mobbs’ note of 17 April 2012 was addressed to Kmart manager Rob Lee. It stated, amongst other things:
“Today was just another day of a long list of incidents which are [bordering] on [bullying] and harassment in the workplace.
I am a checkout operator, have work in this Kmart store for over 11 years and in this position for a number of months.
It is my feeling that my line manager has some problem with me because every opportunity she gets she tries to belittle me and treat me like an idiot child.
…
Other checkout operators can leave their position often throughout the day but I am made to stand there for five hours. I am there, even when I have told them that standing in one position for long periods of time causes me back pain. A letter from my doctor confirming this has been given and still has been ignored.
I am not asking for any special privileges just to be able to work in a happy, safe and [caring] workplace. I did ask to be moved to another area, I was told this cannot be done….
…
I am asking for this problem to be resolved or I will take further, as far as I need to.”
On 19 May 2014 a further note addressed to Kmart stated, amongst other things:
“I currently hold the position of customer service person on the checkouts at the Kmart store, Goulburn.
For some period of time, this position has caused great pain to my back which I have sought medical treatment for and have been placed under WorkCover by my doctor. Kmart has been aware of this from the beginning.
…
I have worked for Kmart for the past 14 years in many varied positions over this time and I know that I have the skills to be placed in another position within the store…”
Sometime in 2015 (the note was undated) Ms Mobbs included the following:
“… I have been working for Kmart since [October] 2000, had no problem until five years ago when my husband passed away, I then had to ask for extra [hours] and was told on many occasions that there was no extra [hours], but I noticed that the managers at the time had plenty of jobs and [hours] for their partners, friends and relatives.
I could not manage my finances on what Kmart would give me so this [forced] me look for employment else where, a small town, not a lot of jobs. I found a cleaning job from 5 AM to 8 AM Monday to Friday which worked in well with Kmart which was at the time 9:30 AM to 2:30 PM Monday to Thursday.
Then about three years ago I was moved to checkouts. I found that standing in the one position was making my back ache. I informed management and they were informed by my doctor as well but we were both ignored. I repeatedly asked to be moved but was told there was no other position in the store, and as time went on my back got worse.
…
While all this was happening 3 other people had been moved off the checkouts to other positions in the store so I had to reduce my [hours] to 16 ½ [hours] because I couldn’t stand the pain…
… After years of [being] treated very badly, bullied and discriminated against, I find myself not able to function properly. I’m on medication for pain, depression and suffer some sort of anxiety at the thought of going in the Kmart store makes my body tremble, my heart pounds and makes me physically sick. I worry and cry all the time and no one else will hire a 57-year-old [woman] in the mess I’m in.”
On 12 June 2015, the applicant again wrote to the “Kmart manager” stating that she was not well enough to return to work “or make any life decisions.”
The remaining contemporaneous notes lodged by the applicant were in similar vein.

Procare Injury Management[3]
[3] Reply first respondent p 206.

I referred above to this report regarding the decreased duties Ms Mobbs was eventually given. The report was by a Rehabilitation Consultant, Ms Kanaar, and followed an assessment on 22 October 2014. It listed the date of injury as “30 September 2014” and referred to a certificate from Dr Falk of 1 October 2014. Dr Falk was identified as Ms Mobbs’ “NTD.” No history was taken of Ms Mobbs’ employment with Kmart, apart from a comment that “prior to April 2014” Ms Mobbs worked 5 hours per day, 4 days per week for Kmart.
Ms Kanaar recorded the following from her interview with Ms Mobbs:
·        Ms Mobbs experienced unbearable back pain in April 2014 whilst she was working from 9.30am-4.30pm three days per week. A certificate was obtained from Dr Falk and she was cleared for full duties in May 2014.
·        On 30 September 2014 Ms Mobbs was standing continuously at the sales register when she felt back pain. At this time she was working 9.30am-3pm three days per week with a 15 minute break each day. Dr Falk cleared her for full duties from 15 October 2014.
·        Ms Mobbs indicated a level over the past three months of both 9 and 10/10 on the pain scale, and indicated a constant level of 8/10. She had also been extremely bothered by feeling depressed in the past week.
·        Ms Mobbs was concerned that she had not previously been listened to when reporting extended periods of standing behind the register to her supervisor/manager and therefore had doubts that this would change
Ms Mobbs current role was described as:
“Registers Assistant - checkout and general duties (NB Ms Mobbs is not currently assigned to a checkout, rather she is required to perform checkout duties to cover for a colleague's break or when it is busy for 10-15 minutes at a time).
Customer Greeter - Greeting and directing customers, uncluttering store entrance.”
At the time of the assessment, Ms Mobbs described her level of pain as 2/10.

M & A Investigations

A factual report was ordered by Kmart and on 28 June 2016 a report from M & A Investigations was supplied.[4] The author, Ms Patti Walker, reported that she had interviewed Ms Elizabeth Giddings, apparel manager, at Kmart Goulburn. Ms Walker noted that Ms Giddings reviewed the personnel file at the store. Ms Walker said:
“The records that were available to her show that the claimant produced a medical certificate (non-WorkCover) for back pain on 20 March 2012. She does not recall what the cause of that back pain was.
Ms Giddings provided a copy of a letter dated 12 August 2013, where the claimant was advised she could not be provided with meaningful suitable duties given her non-work related back injury.”
[4] Reply first respondent p 147.
A statement was taken from Ms Giddings dated 27 June 2016.[5] Ms Giddings did not discuss the certificate of 20 March 2012, neither did she engage with the letter dated 12 August 2013. However the certificate issued by Dr Storrier on 20 March 2012 was annexed to Ms Giddings’ statement. It stated:[6]
“This is to certify that the above has lower back pain which is aggravated by standing in one position for prolonged periods of time.
Her pain is non existent when she is able vary her duties.”
[5] Reply first respondent p 149.
[6] Reply first respondent p 167.
The letter of 12 August 2013 was also annexed. It was what appeared to be a templated letter from the state manager which referred to a meeting with Ms Giddings and was addressed to Ms Mobbs. It stated that there had been a meeting with Ms Giddings on 6 August 2013 to discuss ongoing management of her “non-work related injury/illness,” and advising her that Kmart could “no longer” provide suitable duties.
Ms Giddings did refer to the medical certificates of Dr Ejaz Mohammad dated 19 March 2014 and 20 March 2014, these certificates having been also referred to by Ms Mobbs.
Both certificates were annexed to Ms Giddings’ statement[7]. The first certificate, consistently with Ms Mobbs’ statement, certified Ms Mobbs as being fit for work from 19 March 2014 to 9 April 2014 with the restrictions of no manual handling, avoiding prolonged standing with regular breaks every 1.5 hours, and to avoid bending/twisting/crouching.
[7] Reply first respondent pp 157-158 respectively.
The second medical certificate, issued a day later, certified that Ms Mobbs had been seen at the surgery that day, and that she would be fit for work from 20 March 2014 onwards.
Neither certificate was a WorkCover certificate.

Kmart HR record

The HR department of Kmart reported on 9 April 2014:[8]
“Description of Incident: Lyn suffers from a bad back and has asked before to be moved from the checkouts but without any other suitable duties we have been rotating her between left and right checkouts to minimise localised stress on one side of her body. We received a similar letter from her doctor on the 19th of March stating restrictions of no lifting, no manual handling avoid bending and avoid standing with an expiry of 9th April. When Cathy reviewed suitable duties 11st we were unable to offer Lyn any other duties in the store that met with this restriction. on the 20th of March Lyn returned to the doctor and was given a full clearance to return to work as of 20th March signed by the same doctor that the day before gave her 3 weeks Light duties?”
[8] ARD p 27.

Return to work plans

On 20 March 2014 a handwritten note written by Ms Cathy Boughton stated:[9]
“Spoke to Lynn about certificate , went through the suitable duties manual there are no duties that are suitable for her to remain at work . then said that she would return to the doctor to get another cert. I suggested to Lynn that may be she needed to work shorter hours , so she is not standing as long each day . I also suggested that maybe her shift needs to be rostered as customer greeter so she is not standing in one spot.”
[9] Reply first respondent p187.
The respondent lodged two return to work documents. There were three copies of return to work plan number 1 and four copies of plan number 3.[10] Plan number 1 was dated 15 April 2014 and signed by the applicant, Ms Giddings and Ms Cathy Boughton. The plan was said to cover the period from 10 April 2014 to 23 April 2014 and it related to an injury of 9 April 2014. The restrictions suitable duties were described as:
“Restrictions: Avoid : Lifting, carrying, pushing, pulling, bending, twisting and squatting standing 1hr with 30 min break from standing
To avoid standing in the same position for more than 1 hr
Offer of Suitable Duties
Specific Tasks: Customer greeter duties moving from 1 side of the door to the other regularly to ensure no prolonged periods of standing still. Recovery in easter department avoiding twisting and
bending must have a break every hr, (1hr standing half an hr sitting). When lyn is needing to sit down she can hang clothing returns.”
[10] Reply first respondent pp 171, 174 and 176 (return to work plan1); pp 179, 180, 181 and 183 (return to work plan 3).
Plan number 3 gave a start date of 24 April 2014 and a review date of 7 May 2014. It related to the same date of injury, 9 April 2014. The restrictions and suitable duties were described as:
“Restrictions: Lifting up to 5kg, Sitting as tolerated, Standing tolerance up to 1hr with 30min break from standing, avoid standing in the same position for > 1hr
Offer of Suitable Duties
Specific Tasks: Customer greeter moving around and greeting customers, using registers as required having a 30min break from standing every hour.”
A handwritten document from Ms Boughton dated 21 November 2014 referred to a date of injury of 10 September 2014. Ms Boughton stated:[11]
“Lyn spoke to me before she started work today. She has made another appointment with Dr Falk for today at 12:30 PM. Lyn was upset that she received a letter from Wesfarmers stating that her claim had been reasonably excused.
1. Her concerns are that over the last few years she has given the store two letters from doctors that standing in the one spot for any length of time makes her back ache
2. Lyn doesn’t see that her back is sore because of wear and tear and cannot see that her other job may be a problem as well.…”

MEDICAL EVIDENCE

[11] Reply first respondent p 185.

Clinical notes

The clinical notes from Marimar Medical Clinic were lodged by the first respondent. They showed that on 7 March 2012 the applicant presented complaining of a three day history of lower back pain, which was getting better and of which she had experienced similar episodes past.
The 15 March 2012 entry read:[12]
“Mood – currently having issues with an employer – Kmart – they have moved her to the Registers which is 4 days a week for 5 hours. Finds the standing in one position aggravates her back.
Has not had back pain for years, no history of injury. Just the occasional few days of back pain over the years. Had 2 days off last week with back pain.”
[12] Reply first respondent P 91.
On 1 July 2014 the entry read:[13]
“Exercise - Working at Kmart 3 days (reduced from 4 - Tue, Weds , Thurs) and 5 mornings cleaning at T AFE.
Mobility/ Falls - steady on her feet, no falls.
Pain - Osteoarthritis - LIS Spine
Workcover (Kmart) I 0/4/ l 4 - Exacerbation of existing osteoarthritis - lower back
Refered to GBH Physio 27/2/14
full return to work 5/5/14
She has reduced her hours to 3 days as the 4 days of standing was aggravating back pain
Since then has been good. She does the physio exercises most days.”
[13] Reply first respondent p 85.
The clinical notes from Dr Storrier’s practice were lodged and detailed the first complaints of joint aches in the hands, hips and elbows on 22 April 2015. These complaints were repeated on 29 April 2015, with a note that the applicant was emotionally labile. On 30 April 2015, Dr Storrier said “review polyarthralgia.”[14]
[14] Reply first respondent p 83.
On 17 June 2015 the entry noted “back pain now much improved” and stated:[15]
“Feels that can no longer continue working as a cleaner as the joint pains stop her working as she should and she feels that this is unfair to her work [colleagues].”
[15] Reply first respondent p 82.
On 19 May 2015 the entry by Dr Davies read:
“Generally tired , with no energy
Nauseated and paniky when thinking about kmart
Palpitations on thinking about kmart
Wakes at 4am for work
Appetite preserved
Sad all the time
Cant ever remember feeling this bad
Anhedonic
No interest in leaving house or socialising
Occasional glass of wine…”
The final relevant entry was a comprehensive history by Mrs Andrea Hunter, presumably as part of the preparation to a disability support plan, dated 14 July 2015. Mrs Hunter noted variously that “all joints aching so has limited exercise” and “Pain – osteoarthritis – L/S spine. Back pain improved since she stopped work.”

Orthopaedic
Dr Peter Giblin

Dr Giblin was retained as the applicant’s medico-legal expert. He supplied three reports dated 3 July 2015,[16] 14 August 2015,[17] and 27 August 2019.[18]

3 July 2015
[16] ARD p 235.
[17] ARD p 240.
[18] ARD p 242.

In his first report, Dr Giblin took a history that Ms Mobbs began with Kmart working 20 hours a week in 2001. (That history would appear to be inaccurate in that she started with Kmart in 2000 working 15 hours per week, but nothing turns on that inconsistency). Dr Giblin said that in 2012 she was doing checkout duties which required her to stand in one position over a five to six hour period. It was at this time that she first noticed low back pain for which she sought medical treatment, which included some physiotherapy.
In 2014 she had to take some time off work due to her back and Dr Giblin recorded that when she returned to work on 25 March 2014 she was put back doing checkout duties, which had the effect of worsening her back pain. He recorded that she eventually ceased work on 24 February 2015.
Dr Giblin recorded that the applicant had also been working in a second job with Menzies since 2009. He noted:
“She said that this was not an unduly heavy job, and she was constantly on the move and did not have any aggravation of her back symptoms.
She stopped doing that job a couple of weeks ago for unrelated medical reasons and she has not gone back.”
His findings were that the applicant’s current symptoms and restrictions were solely related to her work at Kmart. He said:
“…the second job as a cleaner… Has no material impact on her current clinical situation.”

14 August 2015

In his next report of 14 August 2015, Dr Giblin repeated his opinion that the soft tissue injury to the lower back was causally related to the work at Kmart, which was the main contributing factor. He explained that periods of prolonged standing by the applicant were conducive to causing such injuries. Whilst not all people were susceptible, there was a percentage of the population who were “simply unable to stand in one spot for long periods, and if forced to do so, would develop lumbar symptomatology caused by the chronic strain” of such activity, Dr Giblin advised. He said:
“I do not view her job as a cleaner as contributing her back condition on the basis of her history. She said that she was always moving and can change her body habitus at will and that her job was not heavy or repetitious. That is to say she was largely in self control of her work environment and she had no symptomatology during that period.”

27 August 2019

In his third report, four years later on 27 August 2019, Dr Giblin noted that the applicant had not worked since “25 May 2016” (in fact Ms Mobbs ceased working for Menzies on about 10 July 2015). He recorded that Ms Mobbs had been in receipt of the Disability Support Pension since about 2018 “for medical reasons which included arthritis in her knees and shoulders and …hands and wrists.”
Dr Giblin took a history that the applicant continued to complain principally of low back pain which he said was “mechanical in nature.” Ms Mobbs was limited in the distance she could walk, had difficulties sitting in one place more than 30 minutes and that her back pain would usually wake her up at night.
Dr Giblin maintained his opinion that the low back injury was a disease injury to which the employment with Kmart had been “a” main contributing factor. He recorded that Ms Mobbs was permanently unfit to engage in a work environment requiring prolonged periods of sitting, standing or walking. “Theoretically,” Ms Mobbs was capable of working in a sedentary capacity, once she had been adequately rehabilitated. Dr Giblin thought that her back condition would continue to deteriorate.

Dr Chris Browne

Dr Browne was a rheumatologist who reported to the applicant’s solicitors on 30 December 2019. He took a history of the onset of Ms Mobbs’ low back problems whilst working at the Kmart checkout for long periods of time. He noted that there was an improvement when she was doing her cleaning job, which she coped with more easily than her concurrent checkout duties with Kmart.
Dr Browne noted that when Ms Mobbs increased her hours with Menzies after ceasing work at Kmart, but several aspects of the cleaning duties were too heavy, and she had resigned on 10 July 2015.
Dr Browne referred to X-rays of the lumbar spine dated 24 March 2014 and 5 December 2019. He said:
“X-rays of the lumbar spine on 24 March 2014 showed moderate loss of disc height at L5/Sl and minor degenerative changes of the facet joints of the lower lumbar spine. Updated X-rays of the lumbar spine on 5 December 2019 showed moderate scoliosis concave to the left with the apex at the level of L2/3.”

Dr Browne’s opinion was that there was “clearly” a relationship between the work conditions with Kmart which, by the long periods of standing aggravated her back pain. This pain was not as bad when she was able to move whilst doing her duties for Menzies. He described her condition as “mechanical” back pain with significant aggravation by the prolonged standing posture. She suffered from lumbar spondylosis of constitutional origin, which had been:
“….significantly aggravated by the nature and conditions of her employment with Kmart rather than with Menzies Property Services as the prolonged standing has been the major contributing factor to the worsening of her back pain.”
Dr Browne thought that Ms Mobbs was fit for duties that allowed her to vary her posture and move about but was unfit for lifting or carrying loads in excess of 10kg.

Dr Susanne Storrier

Dr Storrier supplied reports dated 8 March 2015, 18 June 2015, 1 February 2017 and 18 November 2019.
In her report of 8 March 2015 Dr Storrier reported that an X-ray of 24 March 2014 had shown disc disease and facet joint disease. The diagnosis was of degenerative back disease. Dr Storrier stated that Ms Mobbs was “more than capable” of being a customer greeter because of her experience with Kmart but that she would be unable to sustain a full shift doing that activity because of the need to stand in one place which was the same problem as Ms Mobbs was experiencing as a cash register operator.
Dr Storrier said that because of Ms Mobbs’ years of service and her maturity she would be able to do any duties in the store, but she needed variety there would be no safety concern for her or others. It was clear that Dr Storrier was reporting to management at Kmart. She said:
“… It is a peculiarity of her back disease that change of position and movement alleviates the pain evidenced by the fact that until her job was changed .. she had no trouble with her duties at Kmart which I believe were varied and within the apparel department stop her pain only became evident when she was moved to cash register duties and was asked to stand in one spot for her shift. In the future if her duties were varied her left restrictions could be 10 KG with the occasional of 15 KG and her stand, sit walk and bend/twist/squat would be limited by commonsense so that no one activity would be repeated for greater than 30 minutes at a time.”
Dr Storrier stated in the same report that her certificate issued for Ms Mobbs made that position quite plain.
On 18 June 2015 Dr Storrier, replying to Ms Mobbs’ solicitors, related her treatment for an aggravation on 27 February 2014, which was noted in her clinical notes. Ms Mobbs did not want time off, as she thought the pain would resolve and did not want her condition noted at work. Dr Storrier noted that Ms Mobbs felt harassed by management and other employees when she did decrease her duties. She repeated Ms Mobbs’ assertion that positions Ms Mobbs was able to do were being given to younger employees of less seniority. Dr Storrier said at [5]:
“Ms Mobbs felt harassed by management and other employees when she decreased her duties and made a Workers Compensation Claim. It appeared that management was giving the sort of positions which would have suited her condition to others younger and employed for a shorter time after she had requested a transfer and after I had stated her needs to stay employed.
She began to dread attending work because of the name calling and the lack of understanding of fellow employees and management.”
Dr Storrier said, in answer to an unknown question:
“9. No, as her pain occurred after changes in her Kmart job and after her shift there. The only time that she had increased pain with her cleaning job was when she tried to increase the hours to supplement the income she lost through decrease and ultimate ceasing of her Kmart hours.”
On 13 October 2015 Dr Storrier referred Ms Mobbs to rheumatologist Dr Ted Tsai in Wollongong.[19] Dr Storrier advised that Ms Mobbs ceased work because of the inability of her employer to conform with medical certification that directed the employer, by whom Dr Storrier clearly meant Kmart, to ensure that she kept moving. She detailed Ms Mobbs’ subsequent work with Menzies, which had increased from three hours per day five days per week with which the applicant could cope, but advised that the increase “exacerbated her pain.” Dr Storrier said:
“Her symptoms are polyarthralgic now back ,. shoulders hips, fingers and wrists. I had thought it was simply degenerative arthritis of the back but decided to check the rheumatological markers and found a borderline ANA. I wondered if you could review her and advise if indeed there is a connective tissue element to her pain and arthritis…”
[19] Reply first respondent p 57.
In her report of 18 November 2019 Dr Storrier noted that Ms Mobbs’ history had not changed and had been “iterated” many times. Dr Storrier said that Ms Mobbs had been employed as a permanent part-time worker for Kmart for 12 years prior to the low back issue. This had been caused by the change of duties implemented in 2012, and Dr Storrier said there had been no mention of any acute injury, rather than months of standing in one place at the checkouts for five hours at a time with only a 15 minute break had caused the onset of persistent low back pain. Dr Giblin supported that diagnosis, Dr Storrier observed. There was never any suggestion of any acute back injury and “Ms Mobbs and the doctors she saw for treatment” had never made one. Ms Mobbs was persistently certified fit for duty provided that her duties included a variety of activity and that checkout work was limited to a small part of her five hour shift.
Dr Storrier said at [3]:
“3.     The relationship between the physical symptom Ms Mobbs was suffering and a consequent depression and agoraphobia experienced in Goulburn was caused by the inability of the supervisors at Kmart to be able to provide duties to a long-term employee, who had originally been employed after a work injury incurred elsewhere, when there was a restructure within the organisation. Ms Mobbs had to work as at that point her husband, who had been very ill for a number of years had died (2010), and she was the only breadwinner in her family. Subsequently she had to sell her family home as she was unable to keep up mortgage payments when her work ceased in 2015.
4.      Menzies Property Services was only peripheral to the issue caused by Kmart. Ms Mobbs states clearly that she worked three hours a morning Monday to Friday with no trouble and then went on to her five hour work day Monday to Thursday with little or no pain for as long as she was free to move between the tasks within Kmart. Her difficulties with Menzies only started when she was forced by loss of work at Kmart to increase her hours there to 8 hours per day.
5.     …It appeared to Ms Mobbs that the supervisors would give others, younger and more junior in standing, precedents for the jobs that might have suited Ms Mobbs and allowed her to continue working for many more years with the organisation. She does have osteoarthritis of the spine and does suffer a mild form of psoriatic arthritis but neither of these was caused by Kmart employment. It was the back pain and depression with agoraphobia that I believe was caused by her employment at Kmart…
6.      I do not believe that Menzies Property Services had any part in the aggravation, acceleration, exacerbation or deterioration of Ms Mobbs condition. In this I concur with Dr Peter Giblin.”

Dr Ted Tsai

Dr Tsai reported back to Dr Storrier on 9 May 2016, following his assessment of Ms Mobbs.[20]
[20] Reply first respondent p 64.
Dr Tsai noted complaints of diffuse joint pain over the last year and that Ms Mobbs described four hours of early morning stiffness affecting her shoulder region in particular. He said:
“She also has significant pain affecting her elbows, wrists and fingers. Currently she has frequent waking due to her shoulder and arm pain. She has migratory hip pain also. There is mild associated soft tissue swelling from time to time. There was no obvious triggers prior to the onset of her arthritis. She has gained 10kg of weight since developing the arthralgias. Her skin psoriasis remains stable and minimal. Previously she had midline mechanical sounding lower back pain for a 2 year period while she was working as a check out assistant.”
Dr Tsai diagnosed “diffuse upper limb inflammatory arthritis. ? psoriatic arthritis v bilateral adhesive capsulitis” amongst a number of other conditions, including lumbar spondylosis and anxiety and depression. He referred the applicant for a whole body scan, bilateral sacroiliac joint X-rays and blood tests.
In a second report dated 20 June 2016[21] Dr Tsai noted an excellent response to a three week course of Prednisolone, and that when she ceased the course she noticed recurrence of pain and stiffness affecting her bilateral shoulders, wrists, hips and lower back. His impression was:
“Mild psoriatic arthritis. Polyarticular disease of the shoulders, wrists and lower back.”
[21] Reply first respondent p 68.
His formal diagnosis was, relevantly (there were some co-morbid issues):
“1.     Psoriatic arthritis: shoulders, lower back. Mild bone scan uptake wrists. B27 neg. Normal SIJ Xrays 2016.
2.      Mild psychomotor retardation. ? secondary to Zoloft.
3.      Scalp psoriasis.
4. …
5.      Lumbar spondylosis.
6.     Anxiety and depression.
7. …”
On 7 November 2016 and 24 July 2017 Dr Tsai wrote similar reports to Dr Storrier.[22]

Dr Richard Powell
[22] Reply first respondent pp 70 and 71.

Dr Richard Powell, orthopaedic surgeon, was retained as the medico-legal expert for Kmart. On 1 December 2014 he reported to the senior case officer.[23] Dr Powell assumed that Ms Mobbs working hours had been for 20 hours per week, and that she had been working predominantly at the checkout since 2000. He took a history that Ms Mobbs had been suffering lower back pain from at least April 2014 and that it was of gradual onset, there being no specific precipitating incident. This history is inconsistent with other evidence which establishes that Ms Mobbs commenced in 2000 working 15 hours per week, and began working on checkout duties in 2012 for 20 hours per week, when she first complained of back pain as a result of having to stand in one place to Dr Storrier.
[23] Reply first respondent p 7.
Be that as it may, Dr Powell noted that the medical recommendation for light duties had been “reportedly declined by the employer.” He noted that an X-ray taken demonstrated degenerative changes. He noted that the checkout duties were decreased and her hours were reduced to 16.5 per week, with a lifting restriction being applied of 5kg. He also assumed that Ms Mobbs had been moved to a “concierge/stock return role.” He recorded that the time of the consultation Ms Mobbs remained symptomatic, although her condition was improving. She complained of an intermittent aching discomfort in the midline region of lower back, occurring every few days, and being well localised. On examination Dr Powell noted:
“Ms Mobbs was a most compliant and cooperative patient throughout the taking of the history and examination. There was no suggestion of overreaction or exaggeration.”
Dr Powell’s diagnosis was of a “musculoligamentous injury on a background of some underlying spondylitic change.” He accepted that the duties described were capable of resulting in the symptoms on which he based his diagnosis. He advised that Ms Mobbs’ employment was not a substantial contributing factor to her condition, observing in an answer to a further question that he did not think that Ms Mobbs’ lower back condition was “conclusively the result of her employment with Kmart in Australia.” There was no specific incident, Dr Powell said. Bearing in mind her history of intermittent lower back pain going back several years, Dr Powell advised that her current condition was consistent with constitutional degenerative change within the lumbar spine. Dr Powell advised that the natural history of a degenerative condition such as lumbar spondylosis was for continued deterioration. When asked to report on the question of aggravation, exacerbation, deterioration or acceleration, Dr Powell said:
“I do not believe there is sufficient evidence to conclude on the balance of probability that her employment with Kmart Australia has resulted in any specific aggravation, exacerbation or deterioration of her condition.”
In answer to a later question he said:
“… She has a disease process, though her employment is not the main contributing factor in that process or its aggravation.”
In a further report dated 28 December 2021 addressed to Kmart’s solicitors[24], Dr Powell conducted a file review, having been provided with the above reports from Dr Tsai, and the report from Dr Browne of 30 December 2019.
[24] ALD p 1.
Dr Powell was firstly asked whether Ms Mobbs lower back symptoms “which presented in 2014” were related to the diagnosis of psoriatic arthritis. Dr Powell thought that “it is reasonable to conclude” that there was such a relation. He repeated his earlier opinion that there was no specific precipitating incident and that the level of symptoms fluctuated. He said:
“She went on to develop changes in inflammatory arthropathy in the hands and feet, eventually leading to the diagnosis of psoriatic arthritis. The development of lower back symptoms would be consistent with that diagnosis.”
Dr Powell stated that it was “possible” that prolonged standing such as Ms Mobbs experienced at Kmart would aggravate that condition. He also considered that her duties as a cleaner “could also aggravate her pre-existing lumbar spine condition.”
Dr Powell was asked how long he would have expected the effects of the aggravation to have lasted if there had been an aggravation to the psoriatic arthritic condition whilst working at Kmart or as a cleaner. Dr Powell thought that any aggravation would settle with appropriate conservative management and adjustment of duties over three months or so. He said that this would vary depending on the extent of the underlying arthropathy and the nature of the aggravation. The natural history for inflammatory arthropathy was for continued deterioration and if the aggravating factors were removed and the various symptoms appropriately treated, the remaining symptoms would primarily reflect the underlying disease processes.
Dr Powell considered that the continued work as a cleaner after Ms Mobbs had ceased work with Kmart could have represented an aggravating factor, but he acknowledged that he did not have the opportunity to clarify the nature of any ongoing symptoms.
Dr Powell referred to the X-ray of the lumbar spine in 2014 which showed pathology consistent with degenerative change. He noted that subsequent X-rays of 5 December 2019 showed additional pathology, which he said would suggest progression of the underlying disease process. That appearance was in turn consistent with the natural history of the “known pathology,” he advised.
He said that the underlying disease process had progressed over the last seven years and the pattern of symptoms described by Ms Mobbs in 2014 would be consistent with the natural history of the underlying disease process. He conceded that the conditions of her employment “which did involve periods of prolonged standing” could cause aggravation but such aggravation would have been minor and temporary. It would not be possible, Dr Powell said, to say that her employment represented the main contributing factor to the development or permanent aggravation of the pre-existing disease process. The subsequent progression would be in line with the known natural history of the condition.

Psychiatric
Dr Oldtree-Clark

The applicant relied on the opinion of Dr Thomas Oldtree-Clark, consultant forensic psychiatrist. Dr Oldtree-Clark reported on 2 July 2015, 5 December 2019 and 27 September 2021.
In his report of 2 July 2015[25], Dr Oldtree-Clark took a consistent history of the development of Ms Mobbs’ back condition as a result of having to stand in one position for long periods of time. He noted her attempts to obtain suitable work and the failure by management to alleviate her situation, notwithstanding her speaking to her managers about the problem. At the time of this report the applicant was still working at Menzies, which work, he said, did not aggravate her back.
[25] ARD p 201
Dr Oldtree-Clark noted complaints of depression. Ms Mobbs said she found she was crying and that she felt sick at the thought of working on the checkout counter. He listed a series of symptoms that Ms Mobbs felt as a result of her treatment at the hands of Kmart. He noted that Ms Mobbs came from a Goulburn family and at that stage she was still living there. Dr Oldtree-Clark’s diagnosis was:
“Ms Mobbs has many signs of what is known as a mobbing, or in common terms bullying, and being ignored after many years of service. One cannot call it a Post-traumatic Stress Disorder since there is no life threatening precipitating event. However, she has many characteristics which can now be described as a Persistent Depressive Disorder.”
As to fitness for work, Dr Oldtree Clark said that she should not return to her prior place of employment. He noted, “She has become housebound and withdrawn due to the repeated humiliation.”
In his next report of 5 December 2019, Dr Oldtree-Clark noted that Ms Mobbs was now living in Sanctuary Point.[26] He noted that Ms Mobbs had developed a chronic depression which had persisted over the years. She had left Goulburn as she felt rejected, abandoned and neglected by the towns people as she was ostracised in public.
[26] ARD p 215.
Her move to Sanctuary Point had “transformed” her, so that she felt settled and peaceful. He noted that Ms Mobbs said been seen by Dr Kaplan, psychiatrist, who agreed that she was suffering from a Persistent Depressive Disorder. That condition persisted . Dr Oldtree-Clark said:[27]
“Her psychiatric impairment developed as a direct consequence of her employment. Therefore, her employment as a substantial contributing factor to her psychiatric injury. Her Persistent Depressive Disorder is a well-recognised primary psychiatric disorder.”
[27] At p 219.
He thought that Ms Mobbs was not fit to return to her former employment and that her fitness for other tasks was affected. He stated that the injury was a primary psychiatric injury.
On 27 September 2021, Dr Oldtree-Clark gave a file review.[28] He was sent two reports of Dr Kaplan dated 24 August 2015 and 6 May 2020, together with Ms Mobbs’ supplementary statement of 16 September 2021.
[28] ARD p 229.
Dr Oldtree Clark noted that Ms Mobbs still had problems facing people with her sociophobia. He noted that Ms Mobbs stated she had lost her confidence and that everything took an interminable time. The diagnosis was therefore unchanged although he noted there had been some positive adjustments in Ms Mobbs’ life. She had a friend who accompanied her driving but she was not able to entertain friends or make a social life for herself. She lived in a rented property but could not properly maintain the garden or complete household tasks. It was necessary for her to make lists for her chores. Dr Oldtree-Clark noted Dr Kaplan’s observations about her difficulties in organisation, forgetting things and that she had to put reminders on her fridge.
Dr Oldtree-Clark confirmed the diagnosis of Persistent Depressive Disorder.

Dr Robert Kaplan

Dr Kaplan is a forensic psychiatrist who provided two reports dated 24 August 2015 and 6 May 2020.[29]
[29] Reply pp 16 and 25 respectively.
Dr Kaplan took a consistent history of the onset of Ms Mobbs’ psychiatric condition. He noted that, according to Dr Powell’s report in December 2014, that Kmart had taken steps to alleviate Ms Mobbs’ situation by reducing her hours and returning her to the concierge/stock return role.
Dr Kaplan diagnosed an Adjustment Disorder with depression and anxiety, in partial remission. He said:
“The [Adjustment Disorder] arose in the course of her work and can be attributed to
(a) secondary to back pain, and
(b) dispute with her employers over relocation.
I have considered whether other issues, such as her husband's death, have contributed to this, but am unable to show that this is the case.”

Dr Kaplan referred to the provisions of s 11A of the Workers Compensation Act 1987 (1987 Act). He said it was “not possible” to show that Ms Mobbs had been subjected to unreasonable behaviour from her employers. He thought that it was also “not possible” to show that the employment with Kmart was the main contributing factor to her condition. He said:
“The prognosis is poor. Ms Mobbs is intensely preoccupied the sense of being victimised by her employers which is showing little change over time. The possibility that other issues in her personal life are affecting recovery cannot be entirely excluded.”
In his second report of 6 May 2020 Dr Kaplan reviewed Ms Mobbs’ case after interviewing her on the same day by telehealth. He noted that she said that it took years to get over the persecution she experienced and she was in pain for two years. When she complained to the managers she had been told she could either leave or do the job. After 10 years of loyal service she could not understand why she had been treated so badly and she felt that the company management should be accountable for what they did.
Dr Kaplan recorded that Ms Mobbs was pleased to be living in the “ idyllic location of Sanctuary Point” and that she was “much better now.” Dr Kaplan noted that Ms Mobbs said she suffered anxiety only when she had to see doctors for reports and that her depression now is rare compared with how bad it was in the past. Her mood changed and she left the area and she was reluctant to leave her “comfort zone.”
In reviewing the documents before him, Dr Kaplan noted that he had found an adjustment disorder and not a Persistent Depressive Disorder. His diagnosis remained that of an Adjustment Disorder with depression and anxiety, but which had resolved. He repeated that the adjustment disorder had been secondary to her back injury and disputes with management at work. He said:
“This was predominantly due to the actions taken by her employer with regard to transfer.”
Dr Kaplan took a history that Ms Mobbs no longer had psychological treatment and that her prognosis was good. He noted that Dr Oldtree-Clark had assessed a persisting depression with a whole person impairment (WPI) of 16%. Dr Kaplan thought that the improvement he had noted since Dr Oldtree-Clark’s assessment explained why he thought there was 0% WPI.

SUBMISSIONS
Mr Perry

Mr Perry said that the case against Kmart for weekly compensation was that Ms Mobbs was incapable of any work from at least when she left the employ of Menzies. The claim was limited by the entitlement periods in ss 36 and 37 as set out in the wages schedule.
There was a further claim against Kmart for a primary psychological injury in respect of which there was some agreement between the experts of both sides, he submitted.
Against Menzies, Mr Perry said the evidence showed that the work there was in the nature of an aggravation of Ms Mobbs’ underlying degenerative condition. Mr Perry submitted that if he did not succeed against Menzies, he would still succeed against Kmart.
Mr Perry addressed the issue of physical injury by referring firstly to Dr Powell’s report of 1 December 2014. Leaving aside some inaccuracies in the history taking, Dr Powell’s analysis confirmed the histories taken by the other medical practitioners in the case. Dr Powell accepted that Ms Mobbs was compliant and co-operative and there was no suggestion of overreaction or exaggeration, and he accepted that the work duties had been capable of resulting in soft tissue injury and the aggravation of spondylitic change.
His opinion that Ms Mobbs employment with Kmart had not been a substantial contributing factor to her injury was accordingly difficult to understand, Mr Perry argued. He referred to Badawi v Nexon Asia Pacific Pty Ltd[30] as authority that the phrase “substantial contributing factor” in the legislation was to be interpreted as meaning “real or of substance.” There was no other explanation for the cause of the aggravation but the nature of the work that Ms Mobbs was required to do, Mr Perry said.
[30] [2009] NSWCA 324.
In the light of his acceptance that the duties described by Ms Mobbs were capable of causing the aggravation of her degenerative change, I would not accept Dr Powell’s assertion that in fact there had been no such aggravation, Mr Perry argued. Besides the obvious contradiction to his earlier expressed opinion, Mr Perry submitted that it was also contradicted by the other practitioners in the case. Drs Mohammad, Storrier and Giblin all found that the checkout work had aggravated of Ms Mobbs’ spondylitic change.
As to the claim that Ms Mobbs had suffered a psychiatric injury, Mr Perry submitted that there was an acceptance by Dr Oldtree-Clark and Dr Kaplan that Ms Mobbs was indeed suffering such a condition. Her perception of the events which caused her psychiatric condition was based in reality, as the evidence from several sources demonstrated. Although Kmart had raised the provisions of s 11A, it could not establish that its actions had been reasonable. Dr Kaplan had said Ms Mobbs’ evidence was inconsistent, as Dr Powell had noted that checkout duties were decreased and concierge duties given, but, Mr Perry said, Dr Powell himself had been misled, and there was no inconsistency in Ms Mobbs’ history. There was ample contemporaneous support for Ms Mobbs from Dr Storrier’s evidence, he submitted.
Dr Kaplan’s second report had to be read in the context of Ms Mobbs’ statements both as to her criticism of Dr Kaplan’s attitude, and her description of her continued psychological condition, Mr Perry said, stating that lasting resentment was noted by Dr Kaplan.
Mr Perry summarised by submitting that the applicant had been shown to have suffered a significant aggravation of her degenerative spine. She had no disabling problem in 2000 but by 2014 had made Kmart aware, as they acknowledged, that the duties she was being asked to perform were causing her back pain. Mr Perry observed that Dr Giblin noted that the extra hours worked at Menzies had increased M Mobbs’ symptoms, which would make Menzies liable to pay weekly payments pursuant to s 4(b)(ii) of the 1987 Act.
Mr Perry conceded that given the right duties, Ms Mobbs had some physical capacity to earn. He submitted that there should be an apportionment regarding liability between the two respondents, again pursuant to s 16 of the 1987 Act, I assume. Kmart should be found liable for medical expenses incurred for the psychological condition, he concluded. I was referred to the WorkCover certificates lodged.

Mr Adhikary

Mr Adhikary first addressed the applicant’s claim regarding her physical injury. He referred to AV v AW[31] as authority for the proposition that the test for defining the main contributing factor in the context of claims pursuant to s 4(b)(ii) of the 1987 Act was a stringent one, and required a consideration of the evidence overall, and not just the medical question.
[31] [2020] NSWWCCPD 9.
He referred to the report of Dr Powell and submitted that Dr Powell made it quite clear that the cause of Ms Mobbs’ condition was her constitutional degenerative lumbar spine, and her employment with Kmart had not resulted in any aggravation of that condition. Some discussion ensued as to Dr Powell’s concession Ms Mobbs’ work was capable of aggravating her underlying degenerative condition.
Mr Adhikary referred to an entry in the clinical notes dated 21 April 2016 from Dr Davies which stated relating to superannuation, which stated that the main reason for stopping work was “OA with depression also incapacitating.” This, when considered with Dr Tsai’s opinion of 7 November 2016, supported Dr Powell’s opinion, he submitted.
Mr Adhikary submitted that the opinions of Dr Browne and Dr Giblin were compromised because neither practitioner had seen Dr Tsai’s reports. I would accordingly accept the opinion of Dr Powell, he argued.
However, if Ms Mobbs had satisfied her onus to show that employment had been a substantial contributing factor to her condition then liability would lie with Menzies, as Ms Mobbs’ employment there was of a kind to which the injury was due. The duties carried out with Menzies constituted a clear aggravation of Ms Mobbs’ condition. It was the work with Menzies that resulted in her final incapacity, he submitted.
Mr Adhikary referred to Ms Mobbs’ first statement that the increased hours with Menzies once she had ceased work with Kmart caused her “really severe back pain” which prevented her from continuing that work. Further, he submitted, Dr Storrier supported that position when she advised in her report of 18 June 2015 that the increased hours with Menzies had increased her pain. He submitted that entries in the clinical notes also confirmed the worsening of Ms Mobbs’ pain on 29 April 2015, and that she was ceasing work with Menzies because of her pain in the entry of 17 June 2015.
In this respect Mr Adhikary submitted that Dr Powell’s opinion in December 2014 that the duties were capable contributing to Ms Mobbs’ current condition had application when considering the work being done for Menzies. Mr Adhikary contended that Dr Giblin did not have regard to her continuing work with Menzies, whereas Dr Browne noted her back pain as well as the shoulder and hip pain which caused her to resign in July 2015.
Mr Adhikary then turned to the claim against his client for psychological injury. He noted that the dispute notice of 25 May 2020 had raised the issue of the provisions of s 11A of the 1987 Act. The relevant test was set out in Manly Pacific Hotel International v Doyle[32]he submitted. The action relied on by Kmart related to the actions taken with regard to “discipline,” he said, although I assume he meant to say “transfer.” He referred to Dr Kaplan’s first report, noting the history of the onset of symptoms and Dr Kaplan’s diagnosis of an Adjustment Disorder secondary to back pain, and a dispute over relocation.
[32] [1999] NSWCA 465.
Mr Adhikary relied on Dr Kaplan’s opinion in his second report that the psychological condition had resolved. I understood Mr Adhikary to submit that support for the proposition that the psychological injury was secondary to the physical injury could be found from Dr Storrier in her report of 18 November 2019, and from Dr Oldtree-Clark’s opinions. Dr Kaplan viewed the actions taken by Kmart with regard to transfer as being the relevant s 11A category. This interpretation was also consistent with the applicant’s own statement that her back pain had caused her frustration and depression.
He submitted that if it were found that the psychiatric condition were primary, that in any event the actions by Kmart had been reasonable. Mr Adhikary referred to the evidence of Ms Giddings and the Kmart HR incident report of 9 April 2014. He submitted that the evidence showed that the respondent’s actions were reasonable. The test was objective, Mr Adhikary said. It did not require a standard of perfection and Ms Giddings had explained how attempts had been made to assist the applicant.
Mr Adhikary referred to the return to work plans as support for Ms Giddings’ evidence. He then referred to the HR incident report of 9 April 2014. The respondent accordingly did all it could to accommodate the applicant in view of the fact that no suitable duties were available.
Mr Adhikary concluded by submitting that Kmart had no liability for payment of weekly compensation, relying on Dr Powell’s opinion and also that of Dr Tsai which showed that the applicant ceased work with Menzies because of her psoriatic arthritis, which was not related to employment.
Alternatively, although the claim was that Ms Mobbs was totally incapacitated, the certification before the Commission showed that she had some capacity to earn working suitable duties. There was no dispute that the pre-injury average weekly earnings (PIAWE) was $19.14 per hour based on a 35 hour week. Dr Storrier had certified in her report of 18 June 2015 that the applicant had been capable of working for 20 hours per week in her pre-injury duties provided they were varied. There was a certification that the applicant had no current capacity for work from 21 May 2015 to 31 December 2015, Mr Adhikary said, and that was the limit of her entitlement, bearing in mind the opinions of Dr Powell and Dr Tsai.

Mr Stockley

Mr Stockley observed that closer inspection of the certification referred to by Mr Adhikary would show that the cause of her having no current work capacity, was Ms Mobbs’ anxiety state. This, Mr Stockley submitted, was unrelated to any allegation against Menzies.
The s 74 Notice issued by Menzies raised the limitation provisions of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), that is to say, there had been no notice of injury or claim made in the statutory period set out in ss 254 and 261. The earliest notice that Menzies were given of either the injury or the claim was on 16 April 2016, when she had ceased work on 10 July 2015. There was no evidence that specifically dealt with those matters, and Mr Stockley assumed that the applicant would seek to draw inferences from parts of the chronology. The plainest explanation, I understood Mr Stockley to submit, was that none of the medical practitioners had ever suggested that Menzies carried any liability.
Mr Stockley referred to Dr Storrier’s view of 11 August 2015 that the applicant had been forced to retire and was on the disability pension because of a medical condition. Had Dr Storrier formed the view that Ms Mobbs’ retirement on that basis involved an injury, it was reasonable to suggest that she would have certified that to be the case at that time.
Mr Stockley referred to the clinical notes within Dr Storrier’s practice that pertained to the period between the applicant’s cessation with Kmart and when she ceased work for Menzies. The entry of 22 April 2015 dovetailed with Mr Adhikary’s submission that the reason the applicant was no longer able to work was the psoriatic arthritis. The claim that after the applicant ceased work with Kmart she suffered a deterioration in her back condition whilst working for Menzies had to be seen in the context of a much more difficult clinical picture, which did not support that proposition, Mr Stockley said.
The relevant notes had references throughout to the applicant’s “joints,” and such references, Mr Stockley submitted, could not be interpreted to include the lumbar spine. Dr Davies noted in addition to the complaints about Ms Mobbs’ joints, that she was emotionally labile, which Mr Stockley suggested was a reference to the claim for psychological injury brought against Kmart. While the clinical notes had references to the hips, that was the closest entry to any complaint about the lower back. When the back was actually mentioned on 17 June 2015 the note said that its condition had improved. However, physiological symptoms regarding the applicant’s psychological condition as a result of her experiences with Kmart were noted on 19 May 2015, Mr Stockley said. The purpose of the visit on 17 June 2015 was to set up the applicant’s disability pension by attending to the relevant paperwork, for the reasons given in that entry.
He referred to the entry of 14 July 2015, noting that it was a comprehensive review of the applicant’s medical history. It showed that she was complaining of pain in her joints but that her back pain had improved. Thus there was nothing to suggest that her duties with Menzies had caused any aggravation to the lower back in the contemporaneous clinical records. There was nothing that would lead to a conclusion that work with Menzies had any effect on her back whatsoever in that period.
Mr Stockley then made submissions regarding the appropriate legal principles to be considered. The starting point was the text of the applicable statute, he said, and he noted the use of the phrase by counsel of “work to the nature of which the aggravation was due,” which was apposite to s 15, but had no application to the application of s 16 of the 1987 Act. Section 15 had the effect of deeming an injury without having to show causation, but did not apply in this case, he submitted. Mr Stockley referred to s 4 of the 1987 Act which provided that the necessary causal test was of employment being the main contributing factor to the aggravation. That in the first instance is the proposition that has to be considered as to whether Ms Mobbs has sustained an aggravation of her underlying disease condition with Menzies, he argued.
Mr Stockley said that the apex of the case against Menzies appeared to be the opinions of Dr Powell, which were difficult to reconcile within his reports, given his occasional attempts to “ride two horses at the same time.” The highest that his opinion rose to however, Mr Stockley argued, was that the nature of the cleaning work “could” aggravate her pre-existing degenerative condition. None of the expressions of opinion Dr Powell advanced, however, had the effect that it did in fact have such a result.
On the other hand, both Dr Giblin and Dr Storrier expressly disavowed any causal nexus between the injury and the work performed at Menzies. Mr Stockley referred to the passages of the practitioners’ reports on which he relied. Dr Giblin saw her on 2 July 2015 and was given the history of her work duties with Menzies at a time when she had, according to Dr Giblin, not worked for Menzies for a couple of weeks. This confirmed the clinical notes Mr Stockley had referred to.
The passage relied on by Mr Adhikary at [78] of AV v AW, Mr Stockley submitted, shows that the test is legal and not purely medical, however expert medical opinion is relevant and Dr Giblin’s opinion was powerful evidence in favour of his client. Dr Giblin’s short following report of 14 August 2015 also confirmed his opinion. Dr Giblin confirmed that opinion again in 2019, finding that employment with Kmart was the main contributing factor. Dr Giblin saw the applicant twice, and gave three consistent opinions, Mr Stockley said.
Dr Storrier also expressed the same view on 18 November 2019. Thus both doctors had expressly disclaimed any causal relationship with Menzies.
A relevant fact in this case was the contrast between the efforts by Ms Mobbs’ doctors to obtain suitable duties from Kmart and the complete absence of any such effort with regard to Menzies. There was also a lack of complaint from the applicant herself.
Mr Stockley then submitted that the question might arise, if two or three injuries were found, as to how relatively debilitating the effects of those injuries might be. He submitted that the applicant appeared to be in a very low emotional and psychological state from February 2015 onwards. The applicant’s case was she had to move to a new location, and the certificates issued since July 2015 said she had no current work capacity because of her psychological disorder, and such a claim would “weigh heavily” in any question of apportionment.
Mr Stockley submitted that s 16 really only came into play where there were a succession of employers and the current situation was of concurrent employment, although Mr Stockley acknowledged that Menzies was the last employer. In discussion he said that the fact that Menzies was historically the last employer did not mean it was automatically liable pursuant to s 16 in the absence of any evidence of a causative relationship.
There was no notice of claim or injury made within the statutory period, Mr Stockley concluded, because there no injury had been contemplated against Menzies.

Mr Perry in reply

Mr Perry was granted leave to file written submissions by 13 May 2022. He acknowledged that s 16 requires employment to be the main contributing factor to the injury. He also conceded that Mr Stockley was correct in thinking that notice and claim had not been given in time because originally there was no medical opinion that implicated Menzies
Over objection from Mr Stockley, I granted leave for Mr Adhikary to reply in writing to Mr Stockley’s submissions by 20 May 2022.

Mr Adhikary

Written submissions were duly received. Mr Adhikary referred to well known principle that the contents of the notes of health professionals should be viewed with caution. He submitted that the emphasis made by Mr Stockley on the clinical notes from Dr Storriers’ practice was misplaced, and that the note that Ms Mobbs’ back had improved in 2016 needed to be looked at bearing in mind that she had ceased working for both respondents at that stage. Dr Giblin’s report of 3 July 2015 was relevant in this regard.
Mr Adhikary also submitted that a review of all the evidence would show that the work with Menzies did aggravate Ms Mobbs’ condition. I would accordingly be satisfied that the employment with Menzies was the main contributing factor to the injury.
Mr Adhikary submitted that the evidence of Dr Tsai led to an inference that the symptoms experienced whilst working for Menzies were related to her underlying spondylitic condition.

Mr Perry

Mr Perry submitted that adverse inferences could not be drawn from Dr Tsai’s reports, as Dr Tsai was not asked to discuss causation.
With regard to the s 11A claim, Mr Perry referred to various parts of the evidence in support of the submission that Kmart’s actions had not been reasonable.
He also addressed the concept of a substantial contributing factor with regard to s 16(1)(b) of the 1987 Act.

DISCUSSION

Section 4 of the 1987 Act provides relevantly:
"‘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…”
Section 16 of the 1987 Act provides relevantly:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii)if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
The final dispute notice from Kmart regarding the physical injury declined liability on the basis that Ms Mobbs employment had not been the “main contributing factor to any aggravation acceleration exacerbation or deterioration of the osteoarthritis of your lumbar spine.”[33] The basis for that declinature was the opinion expressed by Dr Powell. The notice suggested that the treating practitioners did not provide an opinion as to that requirement, but limited its identification of those treating practitioners to Dr Mohammad and Dr Falk. No reference was made to Dr Storrier’s opinions. Neither did it refer to the qualified opinion of Dr Giblin.
[33] Section 78 Notice 19 July 2019: ARD p 73.
The Notice also observed that Ms Mobbs continued to work for Menzies and ceased due to her ongoing lumbar spine symptoms.
The final dispute notice from Menzies relied on Dr Giblin’s report of 3 July 2015 which, as has been seen, related liability to Ms Mobbs employment with Kmart.[34] Menzies in its earlier dispute notice relied also on the opinion of Dr Powell that no injury had been suffered with either Kmart or Menzies.[35]
[34] Section 78 Notice 10 September 2019: ARD P 75.
[35] Section 74 Notice 20 September 2016: ARD p 671.
I have noted above when considering Dr Powell’s report that the history he assumed as the basis of his opinion was inconsistent with other evidence. Firstly, Dr Powell did not appreciate that Ms Mobbs had been working for Kmart between October 2000 and early 2012, working in various departments but mainly in the apparel section of the Goulburn store. He did not take the history of 12 years’ employment, during which time Ms Mobbs had no problems with her back condition, and did not seek any treatment.
Secondly, Dr Powell was unaware that during those 12 years Ms Mobbs was working for only 15 hours per week, and not the 20 hours that he assumed.
Thirdly Dr Powell’s assumption that Ms Mobbs had been working at the checkout since 2000 was also erroneous, and not established by the evidence.
Fourthly, Dr Powell assumed that Ms Mobbs had only become aware of her back pain for several months prior to the “documentation” which located the date of injury as 1 October 2014. He said that he was told by Ms Mobbs that she had been aware of lower back pain from at least April 2014. She had in fact been complaining about her lower back pain since 7 March 2012, as Dr Storrier’s note demonstrated.
These errors in history taking were remarked on in passing by Mr Perry, but they cause me to have reservations about Dr Powell’s opinion, regardless of the various conclusions he came to. Had he been aware that Ms Mobbs had been able to work without complaint for 12 years for Kmart, he may have given more consideration to the effect that the restructure of 2012 caused to the applicant’s pre-existing lumbar spondylitic condition. Had he also been aware that Ms Mobbs had noticed the onset of her back pain as early as March 2012, but that her attempts to notify the employer had not been successful, again his opinion regarding both whether there had been an aggravation caused by the nature of the work and whether that work had been the main contributing factor might have been very different.
There was no criticism made regarding the credit of Ms Mobbs’ testimony. Dr Powell found her to be a compliant and cooperative patient who did not overreact or exaggerate when he assessed her. As has been seen, her assertions of fact have in the main been supported by contemporaneous evidence, and her foresight in reporting her awareness of the damage the checkout work was doing to her back from the earliest opportunity demonstrates that she was a diligent and concerned employee. This aspect of her character becomes relevant when considering the actions of Kmart that led to her psychological injury, to which I shall come in due course.
I assume from the description of the light duties given by Dr Powell, that he had access to the Procare Injury Management report of 13 November 2014. That report, too, suffered from the disadvantage that no history of Ms Mobbs’ employment was taken prior to April 2014, and it was assumed that the injury had occurred on 30 September 2014, but I accept that at the time of Dr Powell’s report, Ms Mobbs had been doing the duties described since 15 October 2014 as a customer greeter and checkout operator. I note also that Ms Kanaan reported an earlier aggravation in April 2014.
It can be seen that the Procare report was limited in its scope. There was no reference to the events in March 2014, nor any earlier history of any involvement by Kmart with Ms Mobbs’ situation.
The earliest history in fact dated to 2012. Annexed to Ms Giddings’ statement was a handwritten letter that Ms Mobbs sent to her manager on 17 April 2012. It contained an allegation of bullying and harassment, about which Ms Mobbs gave explicit detail. However she did also complain that she was suffering back pain because she had to stand in one position for long periods of time.
This document was not commented on by Ms Giddings, and neither was it, nor any reply thereto, annexed to her statement. It has not been suggested that the document had not been received, and Ms Mobbs recalled writing it to the manager, Mr Rob Lee specifically - no doubt because of her threat to take the matter further. The employer accordingly had constructive notice at least but probably actual notice of its contents and accordingly its failure to produce it or comment on it suggests that, at the least, the Goulburn branch of the employer did not keep its health and safety records in an organised fashion.
Similarly, the state manager’s letter of 12 August 2013 was simply annexed to Ms Giddings’ statement, without there being any attempt to explain its contents. This raised many questions. The state manager said there had been a meeting on 6 August 2013 between Ms Giddings and Ms Mobbs about management of her injuries. There is no record of that. There must have been a medical certificate lodged, on which to base the state manager’s assertion that her injury was not work related. There is no record of that either.
There is also the statement of Ms Boughton dated 20 March 2014 that confirmed that when told by Ms Boughton there were no suitable duties, Ms Mobbs said she would obtain another certificate, which she did. This, as has been seen, changed the certification for restricted duties on 19 March 2014 (which required amongst other things, Ms Mobbs to avoid prolonged standing up to 9 April 2014) to Ms Mobbs being fit for work from 20 March 2014.
Dr Powell’s opinion accordingly has to be approached with some circumspection, as it does not reflect the entire relevant history. The contradictory nature of his opinion is reflective of this problem. His statement that Ms Mobbs’ duties were capable of resulting in soft tissue injury and aggravation of some spondylitic change was referred to by counsel, and it was submitted that although he conceded such a capability, Dr Powell found in fact that the work had neither aggravated it, nor was it the main contributing factor to her injury.
That submission must be rejected. As indicated, had Dr Powell been in full possession of the relevant history I cannot be satisfied that he would have maintained his opinion that there had been no aggravation. I prefer the opinion of Dr Giblin, who was aware of the relevant history (with the slight variation I referred to) that Ms Mobbs had worked at Kmart for over 10 years and did not suffer her back pain until she began work on the checkout registers. I also accept his opinion that there are a percentage of people, of whom Ms Mobbs was one, who were simply unable to stand in one spot for long periods and would develop lumbar symptomatology if forced to do so.
I also accept the opinion of Dr Browne that Ms Mobbs’ prolonged standing posture had significantly aggravated her constitutional lumbar spondylosis.
In AV v AW at [78] DP Snell considered the existing authority regarding the application of the ‘main contributing factor’ causal test to cases involving s 4(b)(ii). He summarised his findings, saying:
“78. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I am satisfied for these reasons that the prolonged standing entailed in Ms Mobbs’ duties as a checkout operator for Kmart was the main contributing factor to her injury, which was the aggravation of her constitutional degenerative disease condition.
It can be seen that the provisions of s 16 of the 1987 Act provide that an injury as defined will be “deemed” to have happened by the employer who last employed the worker in employment that was “a substantial contributing factor” to the aggravation
I pass over the contradiction in the two tests – “the main contributing factor” in s 4(b)(ii) and “a substantial contributing factor” in s 16(1)(b) – as I was not fully addressed on it, and the substantive provision that defines the injury is s 4(b)(ii) and would accordingly govern the procedural terms of s 16(1)(b).
Kmart submitted that if they were found to liable for Ms Mobbs’ injury, the terms of s 16(1)(b) would apply in these circumstances to deem Menzies liable as the last relevant employer.
Mr Adhikary relied on Ms Mobbs’ statement of 14 July 2021, in which she stated that the longer hours (from three hours to eight hours per day) she worked with Menzies resulted at the end of June and early July in her suffering “really severe back pain.” Reference was also made to the entries in the clinical notes of Marimar Medical Clinic which were said to support this submission, as did Dr Storrier in her report of 18 June 2015.
Dr Storrier’s answer in her report of 18 June 2015 was that “the only time” Ms Mobbs had increased pain with her cleaning job was when she increased her hours after ceasing with Kmart. The question she was answering was not reproduced.
The clinical notes relied on did not support Mr Adhikary’s submission, as those of 29 April 2015 did not refer to the lower back, citing “stiffness and pain” in other joints, and that of 17 June 2016 noted that the back pain was “now much improved.” The entry stated that Ms Mobbs could no longer work because of her “joint pains,” which brings us to another issue in this case, the onset of Ms Mobbs’ psoriatic arthritis.
Dr Storrier referred Ms Mobbs to rheumatolgist Dr Tsai in Wollongong on 13 October 2015 for review in the light of polyarthritic symptoms that had developed in the shoulders, hips, fingers and wrists. She also mentioned Ms Mobbs’ back in that referral, but Dr Tsai in his report of 9 May 2016 reported diffuse symptoms in the upper limbs, noting the two year history of “mechanical sounding” low back symptoms and the onset of anxiety and depression. After tests had been performed Dr Tsai found that Ms Mobbs was suffering from mild psoriatic arthritis in the shoulders wrists and lower back.
I do not read either the clinical notes relied on by Kmart, or the opinion of Dr Tsai as being relevant to the question of whether the work with Menzies aggravated Ms Mobbs’ back condition. The clinical notes themselves did not mention the involvement of the lower back. I bear in mind the danger of ascribing causal outcomes to the contents of clinical notes[36] but I note further that although Dr Tsai later included the lower back as being affected by psoriatic arthritis, his descriptions of Ms Mobbs’ symptoms did not include the back. His view that the past history of low back pain was mechanical in nature and his comorbid diagnosis of lumbar spondylosis satisfies me that the views of Dr Giblin and Dr Browne are correct – that the injury whilst with Kmart was the aggravation of Ms Mobbs’ degenerative disease.
[36] See eg: Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 at [53]; Collins v Bunnings Group [2021] NSWPIC 313 at [221].
The question nonetheless remains as to whether the subsequent work with Menzies further aggravated that condition. It is correct that Ms Mobbs said herself that she suffered “severe back pain” whilst working the longer hours with Menzies. The context was that “at the end of June and in early July” she noticed that back pain and “also other aches and pains” in her shoulders, hips and hands, and she had to cease work.
This statement stands in clear contradiction to the opinion of Dr Giblin, Dr Browne and Dr Storrier, all of whom, as has been seen, stated emphatically that the work with Menzies did not cause any such aggravation. Dr Storrier’s remark, relied on by Kmart, on 18 June 2015 that the only time the cleaning work with Menzies increased Ms Mobbs pain was when she started working eight hours per day, is difficult to understand in the absence of the question she was asked. Her later report of 18 November 2019 perhaps gives the explanation that the work with Menzies was “only peripheral” as the applicant was able to work that job whilst she was free to move around her Kmart job before the restructure. In that report Dr Storrier did again state that it was only when Ms Mobbs had to increase her hours with Menzies that “her difficulties” started.
On the balance of the evidence therefore I am satisfied that the work with Menzies did at least perpetuate her injury to an extent. The opinions of both Dr Giblin and Dr Browne considered the nature of that employment. Dr Giblin’s report was contemporaneous with the time that Ms Mobbs ceased with Menzies – indeed his comment that she had ceased work “a couple of weeks ago” at the time of his consultation on 3 July 2015 was discussed during submissions, and it may be that although Ms Mobbs formally ceased work on 10 July 2015, as other evidence indicated, she in fact stopped work earlier. In any event Dr Giblin recorded that Ms Mobbs stopped work for “unrelated medical reasons” which in context could only mean the onset of her psoriatic arthritis as recorded in the clinical notes. The low back was not mentioned in those notes, except for the entry of 17 June 2016, which noted that the back had “now” much improved. Whether that entry meant that there had been an improvement since she ceased work with Menzies, or with Kmart is unclear.
Dr Browne agreed with Dr Giblin, and both specialists emphasised that it was the prolonged standing with Kmart that had been the “major contributing factor” (Dr Browne) or “a main contributing factor” (Dr Giblin) to Ms Mobbs’ injury. In either case the meaning is clear, and accordingly I find that the nature of the work Ms Mobbs was doing with Menzies was not the main, or indeed a contributing factor to the aggravation of her degenerative disease. That had already been established by her work with Kmart.
If I am incorrect in this conclusion, then the provisions of s 16(2) are apposite. If Menzies is liable because of the provisions of s 16(1)(b) I would order that Kmart make a 100% contribution to Menzies.

Psychiatric injury

Section 65A of the 1987 Act provides relevantly:
“(2)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(3)    …
(4)    …
(5)     …
(5)     In this section--
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
In the s 74 Notice of 21 October 2015 Kmart declined liability on the basis that on 24 August 2015 Dr Kaplan had diagnosed an adjustment order with depression and anxiety, in partial remission, and which was secondary to Ms Mobbs’ back pain “and a dispute with your employer over relocation.”[37]
[37] ARD p 47.
This basis was repeated in the s 74 Notice of 3 May 2016, but in a s 78 Notice dated 25 May 2020 the claim that the psychiatric injury was secondary was repeated, but in the alternative the Notice pleaded:
“In the alternative, if you have suffered from a primary psychiatric/ psychological injury in the course of your employment, the injury was wholly or predominately caused by reasonable management actions taken by or proposed to be taken by your employer with respect to transfer and the provision of employment benefits. (Section 11A of the Workers Compensation Act 1987).”

A secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to a physical injury as defined in s 4. In Bunce v Sydney Traffic Control[38] Member Michael Wright considered the dicta of Campbell J in State of New South Wales (NSW Department of Education) v Kaur[39] and determined that the respondent bears the onus, as s 65A is a disentitling provision. I adopt that interpretation, with respect.
[38] [2022] NSWPIC 66.
[39] [2016] NSWSC 346.
Dr Kaplan found that Ms Mobbs suffered a psychological disorder and attributed it as both being secondary to back pain and as a result of a dispute with her employers over relocation. In the context of this case the evidence shows that Ms Mobbs’ psychiatric condition can be traced to much more than a simple aggravation of her back condition, as indeed Dr Kaplan acknowledged by referring to the dispute with her employers.
Counsel for Kmart submitted nonetheless that support for Dr Kaplan’s view could be found in the reports of the applicant. I do not agree, and the portions of evidence referred to by Mr Adhikary were somewhat selective to say the least. I accept Ms Mobbs statement which I reproduced when considering her evidence. Whilst she said it was true that her back pain was causing her distress, it was the conduct of the employer which ignored her, belittled her and humiliated her that was the cause of her feeling worthless, angry and panicky at having to go to work.
Similarly, I do not accept Mr Adhikary’s submission that Dr Oldtree-Clark supported the proposition that this was a secondary psychiatric injury. His diagnosis was of “mobbing” which was commonly known as bullying, and of her being ignored after many years of service.
Mr Adhikary also relied on evidence from Dr Storrier, a submission I also reject. I have reproduced a considerable amount of Dr Storrier’s reports, as she had the care and control of Ms Mobbs’ condition at all relevant times and her opinion carries considerable weight as she had the opportunity of discussing the many aspects of Ms Mobbs condition, and its varied causes, including the onset of her psychiatric condition. I note in passing that although Ms Mobbs appeared to be Dr Storrier’s patient, Dr Falk, whom Ms Mobbs described as the “company doctor” was named as the Nominated Treating Doctor. In any event Dr Storrier also confirmed that the relationship between Ms Mobbs’ physical symptoms and her continued depression and agoraphobia was caused by the conduct of Ms Mobbs’ employers in failing to give her suitable duties when she was a long time employee.
As indicated, I accept the applicant’s evidence. I accept that Ms Mobbs became frustrated with the lack of response from her employer. The entry in Dr Storrier’s clinical notes as early as 15 March 2012 confirmed that Ms Mobbs was “having issues” with Kmart as she already had found that standing in one place aggravated her back – a complaint Dr Storrier had noted on 7 March 2012. She said that Dr Storrier wrote to Kmart about that, and received no reply.
On 17 August 2012 Ms Mobbs wrote her letter to Mr Lee, raising concerns about her being bullied by her line manager, who “tries to belittle me and treat me like an idiot child.” Ms Mobbs complained that whilst other checkout operators could leave their position often throughout the day, she was made to stand there for the five hours she was at work. She explained in that letter to her manager that having to do so was injuring her, and yet she received no response.
Ms Mobbs made frequent requests to swap with casuals to relieve her from having to stand in one place, but was either ignored or denied. Over the years she had meetings with her store managers to have her duties changed, but she said nothing came of them until it was too late. She said that from about mid 2014 she became very depressed, and her symptoms included physiological expressions of her distress. The objective evidence supports these claims, as does the failure by Kmart to respond to these allegations.
I am satisfied that Ms Mobbs’ distress with the way she had been treated, particularly after 12 years of working for Kmart was the cause of her psychological condition, and that it was accordingly a primary psychiatric condition.
The alternative defence advanced by Kmart if the psychological condition was shown to be primary, was that afforded by s 11A of the 1987 Act.
Section 11A of the 1987 Act provides relevantly:
“(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.”
It is accepted law that the onus lies on the respondent to establish the elements of this section.[40] In Heggie, Sackville AJA said at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care.”
[40] See eg Northern New South Wales Local Health Network v Heggie [2013] NSWCA 225 (Heggie).
The claimed actions were said to be in respect of transfer and the provision of employment benefits. I accept that Ms Mobbs’ psychiatric condition was caused over the question of transfer. I was not addressed as to the provision of employment benefits.
I have referred to the dispute about Ms Mobbs’ treatment at the hand of the employer to some extent above. I apprehend that the gravamen of its defence lies in the actions that were described within the Procare Injury management report of 13 November 2014.
It is correct that from 1 October 2014, that steps were taken to alleviate Ms Mobbs’ condition, and she was in fact given the door greeter job, and was allocated shorter periods relieving on the checkout registers. However, I note that reference was also made in that report to April 2014. Ms Kanaan’s comment was:[41]
“She reported that she experienced unbearable back pain during this time and went to see her Doctor, however was not issued with a WorkCover NSW certificate of capacity initially. Due to ongoing symptoms, one was eventually issued by Dr Falk (NTD).”
[41] Reply first respondent p 208.
This statement was a referral to the events of 19 and 20 March 2014, and demonstrated the difficulty facing the first respondent in satisfying its onus. Ms Mobbs’ complaint did not simply relate to what the employer attempted to do for her in late 2014. As she said herself, she had meetings with three named managers, Rob Lee, Matt Griffin and “Scrio” about alternative duties, but nothing came of those “until it was too late.” I am satisfied that October 2014 was the time she referred to as being too late.
The applicant had been writing letters and seeking meetings since March 2012. Whilst I accept her evidence in any event, the unreasonable conduct of the employer was demonstrated by the factual report from M&A Investigations, which contained the statement from Ms Giddings and the documents she annexed, which included a note from Ms Boughton.
Firstly, Ms Boughton, the store 2IC, was well aware on 20 March 2014 that Ms Mobbs was suffering from back pain and was to avoid, amongst other things, prolonged standing, because Ms Boughton was given Dr Mohammad’s medical certificate of 19 March 2014 that said so. The conduct of the employer in October 2014 illustrated what reasonable actions would have been, but Ms Boughton denied there were any duties and, knowing Ms Mobbs was injured, nonetheless accepted Dr Mohammad’s replacement certificate of 20 March 2014 and simply returned Ms Mobbs to her checkout duties, which was causing her “unbearable” pain. That conduct was unreasonable, particularly as Ms Boughton acknowledged that the applicant should be rostered as customer greeting to avoid standing in one spot, and that she should shorten her hours for the same reason. Having made those observations, the actions of the employer in allowing her to continue were unfortunate.
I note that the HR department of Kmart was also sufficiently confused by the actions of Ms Boughton on 20 March 2014 that after recounting that “Cathy” had reviewed the “suitable duties list” and could not offer any light duties, and that Ms Mobbs had returned with a full duties certificate, the report concluded with a question – “Lyn returned to the doctor and was given a full clearance to return to work as of 20th March signed by the same doctor that the day before gave her 3 weeks Light duties?”
Additionally, the report - again confirmed in Ms Mobbs’ evidence - admitted that without suitable duties Ms Mobbs had been rotated between left and right checkouts. This in the actual knowledge that standing in one spot was causing her injury. That too I find to be unreasonable action taken by this employer. The rotation did nothing to alleviate the problem of standing in one place.
Further I found it disingenuous for the employer to simply ignore the content of medical certificates because they were not in WorkCover approved form. Not only did Ms Kanaan seem to accept that such a technicality absolved the employer from any further responsibility, but the same excuse was used by Ms Giddings, the customer service manager in her reported conversation with the investigator, Ms Walker, who noted that the certificate of 20 March 2012 was “non-WorkCover,” as was the certificate of 19 March 2014.
I have already commented on the shortcomings of the record keeping at the Goulburn store. The failure by Ms Giddings to give any explanation of what occurred when Kmart received the first certificate from Dr Storrier of 20 March 2012, which stated plainly that Ms Mobbs “has lower back pain which was aggravated by standing in one position for a prolonged periods of time,” I find difficult to accept. Ms Walker stated that Ms Giddings did “not recall what the cause of that back pain was.” I would observe that the cause was written on the certificate and I view Ms Giddings lack of recall with some askance.
Similarly, the failure by Ms Giddings to explain the circumstances under which she had held a meeting of 6 August 2013, what the suitable duties were that Ms Mobbs was no longer able to supply, or why it was thought that the injury was not work-related, are matters of real concern – particularly as the respondent bears the onus. Ms Mobbs did not complain of any other injury, and it is consistent with her evidence that the injury at that time was the aggravation of her degenerative disease condition caused by her standing in one position for prolonged periods of time. As it was Ms Giddings herself who communicated with the state manager, and as it was Ms Giddings herself who held the meeting, I struggle to accept her statement to Ms Walker that she could not recall the event – notwithstanding that Ms Giddings herself produced the letter of 13 August 2013.
I note Mr Adhikary’s submission that the test of reasonableness is objective, and did not require a standard of perfection, but, applying those principles to the actions of Kmart I am far from satisfied that they have been reasonable.[42]
[42] See Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 at [64].
I also reject Dr Kaplan’s opinion that Ms Mobbs’ condition has resolved. I note her response to that opinion, that although having to move away from Goulburn had improved her outlook on life, she was by no means able to function normally and was incapable of undertaking any gainful employment. Whilst she had weaned herself off antidepressants, she still experienced problems with doing such prosaic tasks as gardening and reading.
Dr Oldtree-Clark saw the applicant after she had moved to Sanctuary Point, reporting in December 2019, and confirmed her psychological state as described by Ms Mobbs. Dr Oldtree-Clark thought that she was unfit for her pre-injury employment, and that a rehabilitation physician should be consulted for advice as to her fitness for other tasks. His report of September 2021 noted that her condition persisted.
I do not regard his assessment for the purposes of the psychiatric Impairment rating scale of having some capacity for work as being applicable after Ms Mobbs ceased work with Menzies. His opinion that she had some moderate impairment was based on the fact that at the time of that assessment, 2 July 2015, Ms Mobbs was still working at Menzies, but she was about to cease on 10 July 2015, or indeed may actually have stopped as discussed above. I prefer the assessment of her GPs at the Marima Medical Clinic, set out from p 303 of the ARD, that Ms Mobbs’ psychiatric condition has caused her to have no current work capacity since she ceased with Menzies.
There will accordingly be an award in favour of the applicant against Kmart with regard to both her physical injury and her primary psychiatric injury.
As to Ms Mobbs’ ability to earn, I accept the calculations set out in the wages schedule, and the explanation thereto. The earnings have been precisely calculated in accordance with the certification therein set out. There is however no entitlement claimed pursuant to s 38, and I accept Mr Perry’s calculation that Ms Mobbs’ entitlement ceases on 24 April 2017. I reproduce that document:

PERIOD

APPLICANT

ACTUAL

(average P.W.)

PIAWE

(2)

DIFFERENCE

P.W.(3)

ENTITLEMENT

CLAIMED

P.W.

(4)

27 October 2014 –

2 November 2014

$381.48

(Annual leave)

+

$310.22

(wages)

$669.97

$359.75

$326.25

(ss 36 & 49)

3 November 2014 –

9 November 2014

$109.96

(Annual leave)

+

$380.19

(wages)

$669.97

$289.78

$256.28

(ss 36 & 49)

17 November 2014 –

23 November 2014

$595.11

(wages)

$669.97

$74.86

$41.36

(s 36)

1 December 2014 –

7 December 2014

$530.13

(wages)

$669.97

$139.84

$106.34

(s 36)

22 December 2014 –

4 January 2015

$576.57

(Annual leave)

+

$119.19

(wages)

$669.97

$550.78

$517.28

(ss 36 & 49)

5 January 2015 –

11 January 2015

$737.86

(Annual leave)

$669.97

$669.97

$636.47

(ss 36 & 49)

12 January 2015 –

18 January 2015

$682.38

(Annual leave)

$669.97

$669.97

$636.47

(ss 36 & 49)

19 January 2015 –

25 January 2015

$578.05

(Annual leave)

$669.97

$91.92

$58.42

(s 36)

26 January 2015 –

1 February 2015

$329.88

(Annual leave)

+

$248.18

(wages)

$669.97

$421.79

$388.29

(ss 36 & 49)

2 February 2015 –

8 February 2015

$391.95

(Annual leave)

+

$310.22

(wages)

$669.97

$359.75

$326.25

(ss 36 & 49)

16 February 2015 –

22 February 2015

$270.70

(Annual leave)

+

$310.22

(wages)

$669.97

$359.75

$636.47

(ss 36 & 49)

23 February 2015 –

1 March 2015

$109.96

(Annual leave)

+

$310.22

(wages)

$669.97

$359.75

$326.25

(ss 36 & 49)

11 May 2015 –

24 May 2015

$310.95

(wages)

$669.97

$359.02

$325.52

(s 37)

8 June 2015 –

5 July 2015

$310.22

(wages)

$669.97

$359.75

$326.52

(s 37)

6 July 2015 –

20 August 2017

$0.00

$669.97

$669.97

$535.98

(s 37)

21 August 2017 –

16 February 2020

$0.00

$669.97

$669.97

$535.98

(s 38)

(1)     The applicant’s actual earnings during the relevant period from both the first and second respondents.
For all periods the applicant was incapacitated to work for the first respondent and was in receipt of payments of annual leave from the first respondent.
For all periods until 6 July 2015 the applicant was employed by the second respondent and was able to perform her duties as shown in the pay records.
For the period 2 March 2015 to 10 May 2015 the applicant worked extra hours for the second respondent so as to compensate for her loss of pay from the first respondent.
(2)     The applicant’s probable earnings during the relevant period.
The applicant’s PIAWE earnings from the first respondent were calculated from her earnings over the period 8 April 2013 to 9 April 2014. The applicant worked only 45 out of 52 weeks, therefore the year’s gross salary is divided by 45 pursuant to s 44C(1) of the 1987 Act as preserved.
$16,334.42 / 45 weeks - $362.99 per week.
The applicant’s PIAWE from the second respondent were calculated from per [sic] earnings over the period 13 April 2013 to 11 April 2014.
$15,962.93 / 52 - $306.98 per week
The applicant’s total PIAWE is therefore aggregated to the following in accordance with Schedule 3, Column 1 Item 7:
$362.99 + $306.98 = $669.97
$669.97 x 95% = $636.47 per week
$669.97 x 80% = $535.98 per week
(3) The difference between (2) and (1).
(4)     Entitlement claimed for the relevant period.
For the periods 27 October 2014 to 9 November 2014, 22 December 2014 to 18 January 2015, 26 January 2015 to 8 February 2015 and 16 February 2015 to 1 March 2015 the applicant claimed payments of weekly compensation benefits up to 95% of her PIAWE pursuant to ss 36 & 49 of the Act.
For the periods 17 November 2014 to 23 November 2014, 1 December 2014 to 7 December 2014 and 19 January 2015 to 25 January 2015 the applicant claimed payment of weekly compensation benefits up to 95% of her PIAWE pursuant to s 36 of the Act.
For the periods 11 May 2015 to 24 May 2015 and 8 June 2015 to 5 July 2015 the applicant was employed 15 hours per week and claimed payment of weekly compensation benefits up to 95% of her PIAWE pursuant to s 37 of the Act.
For the period 6 July 2015 to 20 August 2017 the applicant claimed payment of weekly compensation benefits up to 80% of her PIAWE pursuant to s 37 of the Act.
For the period 21 August 2017 to 16 February 2020 the applicant claimed payment of weekly compensation benefits up to 80% of her PIAWE pursuant to s 38 of the Act.

I therefore find:
(a)     The applicant has sustained in the course of and arising out of her employment with the first respondent a primary psychiatric injury with a deemed date of 24 February 2015.
(b)     The applicant has sustained in the course of and arising out of her employment an injury consisting of the aggravation of spondylitic disease in her lumbar spine with a deemed date of incapacity of 27 October 2014, the date of incapacity.
(c) The first respondent is to make weekly payments of compensation in accordance with the wages schedule reproduced above, such order concluding on 24 April 2017 at the expiry of the applicant’s entitlement pursuant to s 37 of the 1987 Act.
(d)     The first respondent is to pay the applicant’s s 60 expenses incurred with regard to her physical injury and her psychiatric injury.
(e)     I remit this matter to the President for referral to a Medical Assessor for the assessment of WPI on the following bases:
(i)Date of injury: 24 February 2015 (deemed)
(ii)Matter for assessment: psychiatric/psychological injury
(iii)Evidence:
(A)ARD and attached documents;
(B)ALD with applicant’s annexures;
(C)Reply first respondent;
(D)ALD with first respondent annexures.
(E)Reply from the second respondent is excluded.
(f)     Leave is granted to approach with regard to the calculation of the applicant’s weekly entitlements.

[2022] NSWPIC 419

28 July 2022