Moore v Workforce International Group

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moore v Workforce International Group [2021] NSWPIC 320
APPLICANT:	Robyn Joanne Moore
RESPONDENT:	Workforce International Group
MEMBER:	Rachel Homan
DATE OF DECISION:	1 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for ongoing weekly benefits and lump sum compensation for primary psychological injury; worker on a journey home from work when she witnessed and was a first responder to a motor vehicle accident in which a co-worker was seriously injured; post-traumatic stress disorder; whether injury sustained on a journey to which section 10 of the 1987 Act applies; whether real and substantial connection between employment and the incident out of which injury arose; Held - worker sustained a personal injury on a journey to which section 10 applies; award for weekly compensation; matter remitted to President for referral to a Medical Assessor.
DETERMINATIONS MADE:	1. The applicant received a personal injury on a journey to which s 10 of the Workers Compensation Act 1987 applies on 5 May 2020.
1. Award for the applicant for weekly compensation as follows: (a) from 5 May 2020 to 10 August 2020 pursuant to s 36(1) of the Workers Compensation Act 1987 at the rate of $1500.98 per week; (b) from 11 August 2020 to 31 March 2021 pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $1263.98 per week; (c) from 1 April 2021 to 4 May 2021 pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $1,300.39 per week; (d) from 5 May 2021 to 18 May 2021 pursuant to s 37(2) of the Workers Compensation Act 1987 at the rate of $1,292.07 per week; (e) from 19 May 2021 to date pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $1,300.39 per week, and (f) continuing in accordance with the Workers Compensation Act 1987. 2. The parties have liberty to apply within seven days with respect to the above calculations. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 5 May 2020 Body part: Primary psychological injury Method: Whole Person Impairment 4. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the documents attached to the Application to Admit Late Documents lodged by the respondent on 3 August 2021.

STATEMENT OF REASONS

BACKGROUND

Ms Robyn Joanne Moore (the applicant) was employed by Workforce International Group (the respondent) to provide traffic control support at the Bolivia Hill Bypass Upgrade site. On 5 May 2020, the applicant was travelling home to Glen Innes along the New England Highway after a night shift when she witnessed and was one of the first responders to a motor vehicle accident in which a co-worker was seriously injured.
The applicant claims that she received a primary psychological injury pursuant to s 10 of the Workers Compensation Act 1987 (the 1987 Act) as a result of the incident. In the alternative, the applicant claims that she sustained a primary psychological injury in the course of or arising out of employment pursuant to s 4 of the 1987 Act as a result of the conduct of her employer following the incident and ongoing workplace conflict with another co-worker.
The applicant made a claim for compensation on 13 May 2020. On 22 May 2020, the respondent’s insurer disputed liability for the injury in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
A claim for weekly compensation, s 60 expenses and lump sum compensation pursuant to
s 66 of the 1987 Act was made on behalf of the applicant on 28 August 2020. The applicant relied on an assessment of 17% whole person impairment (WPI) made by psychiatrist, Associate Professor Michael Robertson, dated 11 August 2020.
Liability for the claim was disputed in a further notice issued pursuant to s 78 of the 1998 Act on 9 September 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 10 June 2021. The applicant seeks weekly compensation from 5 May 2020 on an ongoing basis and lump sum compensation in accordance with the assessment of A/Prof Robertson.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams videoconference on 9 August 2021. The applicant was represented by Mr Stephen Hickey of counsel, instructed by Ms Elizabeth Campbell. The respondent was represented by Mr Tom Grimes, instructed by Mr Chris McCourt.
During the conciliation conference, agreement was reached that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,579.98 in accordance with the respondent’s wages schedule. It was further agreed that the applicant’s “current weekly earnings” during the period of weekly compensation claimed were as set out in the applicant’s wages schedule.
Leave was granted pursuant to s 289A(4) of the 1998 Act, without objection, to the respondent to rely on disputes as to ss 9A and 11A(1) of the 1987 Act.
The applicant withdrew an Application to Admit Late Documents lodged on 3 August 2021. The Reply and the documents attached to an Application to Admit Late Documents lodged by the respondent on 3 August 2021 were admitted into evidence.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant received a personal injury on a journey to which s 10 of the 1987 Act applies, including, whether there was a real and substantial connection between the employment and the accident or incident out of which the personal injury arose pursuant to s 10(3A) of the 1987 Act;
(b) whether the applicant received an injury in the course of or arising out of employment pursuant to s 4 of the 1987 Act;
(c) whether any injury satisfies the requirements of s 9A of the 1987 Act;

(d) whether any injury was wholly or predominantly caused by reasonable action, taken or proposed to be taken, by or on behalf of the employer with respect to discipline, pursuant to s 11A(1) of the 1987 Act;

(e) the extent and quantification of any entitlement to weekly compensation, and

(f) the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary Evidence

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

(a) ARD and attached documents;
(b) Reply and attached document, and

(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 3 August 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 20 October 2020 and 2 June 2021.
The applicant’s duties for the respondent involved providing traffic control support at the Bolivia Hill Bypass Upgrade site. This involved running the control room and managing traffic through radio communications with colleagues and truck drivers. The applicant also worked as the tail car escorting heavy machinery working on the hill.
The worksite was about 45 minutes’ drive from the applicant’s home in Glen Innes. The applicant worked six days a week on eight hour shifts or sometimes 12-hour shifts. The applicant rotated between morning, afternoon and night shifts each week.
On 5 May 2020, the applicant finished her work shift at about 6:45am having commenced work the night before between 10:30pm and 11pm. The applicant’s work friend, Tracey Norton, had finished her shift also and was driving home in her car.
The applicant and Ms Norton met while working for the respondent and were close friends at work but had no relationship outside of work. They worked long shifts together and saw each other almost every day as they worked six days a week. The applicant stated:
“Tracy and I would often drive home from work in convoy in case something happened, like a kangaroo jumping out onto the road or if one of us had an accident. We felt it was safer to drive in convoy at that time of day, especially after we had both finished a long shift at work overnight.”
At around 7:30am, the applicant and Ms Norton were both driving down a straight road at about 95 km/h about 13 km north of Glen Innes. Ms Norton was travelling in her own vehicle approximately 100 m behind the applicant’s vehicle. Ms Norton’s vehicle hit a stone embankment on the side of the road and she lost control of the vehicle. The vehicle flipped and rolled several times in the middle of the road. The applicant saw the accident happen from her rear vision mirror.
The applicant described her response:
“I then started to flash my high beams at the oncoming traffic to warn them of the accident. I grabbed my hand held radio and called out, 'Slow down, there's been a crash!", as I noticed some trucks coming down the road. I quickly turned my car around and parked with my hazard lights on.
I grabbed a blanket from my vehicle and ran towards the accident site. I was not expecting Tracy to be alive after seeing how aggressively her vehicle rolled along the road. A few other people stopped and were standing around. I called out for someone to call 000.
I ran over to where Tracy was laying on the road. She had been thrown about five metres from her vehicle. At first, I thought Tracy was dead as she was barely conscious. As I held Tracy I could see that she was in shock and was visibly shaking. There was a lot of blood all around and over Tracy. I used the blanket to clean blood out of Tracy's eyes and around her face.
I then directed some people standing by to go get more blankets from my car to keep Tracy warm as it was very cold and Tracy was in shock. I also called out for people to look for Tracy's phone. I wanted to find her phone because I knew I would have to contact Tracy's husband and tell him what had happened.
I stayed with Tracy and tried to keep her conscious by talking to her and reassuring her that she would be alright.”
Once Ms Norton was taken in an ambulance, the applicant called her supervisor as she walked back to her vehicle. The applicant described the conversation as follows:
“When I spoke to my boss on the phone I became annoyed as he was only interested in whether the vehicle involved in the accident had been a work car. I was appalled at the little concern he showed for his staff. At work I often found him to be a bully and a grub. He was uninterested in the welfare of his staff and indifferent to workplace safety. He told me on the phone that I would need to prepare a statement, as I was a witness of the accident, and that someone from work would come around to my house the next day after I had finished the next night's work shift to pick it up. I was shocked and upset that he didn't seem to care about Tracy's injuries or if I was okay after witnessing my friend have a serious motor vehicle accident.”
The applicant described being in shock for the rest of the day. The applicant was initially given one week off work but had not been able to return to work since.
The applicant described receiving treatment through her general practitioner, Dr Ross Haron, and a psychologist, Mr Anthony Dover. The applicant described her limitations and symptoms and denied any previous mental health issues prior to the injury on 5 May 2020.
In her supplementary statement, the applicant gave further evidence with regard to her relationship with Ms Norton. The applicant said that prior to the accident, Ms Norton had been bullied by another co-worker, Ms Cobec, and had lodged complaints about that bullying. A few weeks prior to the accident, Ms Cobec had told the applicant she was “going to kill” Ms Norton and did not care if she went to gaol. The applicant made a formal complaint about the threat on 11 April 2020, after which, management stepped in and Ms Cobec was moved offsite.
A copy of the applicant’s written complaint, dated 11 April 2020, was attached to the applicant’s statement. The applicant stated:
“On the day of the accident and as I was helping Tracey, while she was lying on the road I thought Sandra had sabotaged Tracey's car. After I had left the scene of the accident, and while I was still in shock, I did call Sandra and accuse her of sabotaging Tracey's car and told her I would put her in the ground. The following day, 6 May 2020 Adam, my manager, contacted me and told me to apologise to Sandra. On the same day, I did text Sandra and apologise for the accusations.”
The applicant also described in more detail conversations with her supervisor, Mr Adam Butters, on the day of the accident:
“Following the accident, at no point was I asked by my employer if l was ok until after I went off at Adam when he messaged me at 9:47am on the day of the accident. I had come off night shift and would normally sleep during the morning. However, Adam, having known I had come off nightshift did not consider I would need time to sleep and asked me to start on an accident statement. Had the accident not been related to work I would not have been asked to complete an accident statement by my employer. This lack of care for my welfare has been very upsetting to me especially because I gave so much to my job.”
The applicant gave evidence that she had attended accident sites before and worked in nursing homes where she saw dead people. The applicant did not believe her injury was from seeing an injured person or witnessing a motor vehicle accident. The injury had come about because the person injured was her workmate. The applicant said the thought that
Ms Cobec had sabotaged Ms Norton’s vehicle also played heavily on her mind due to the threat made by Ms Cobec to kill Ms Norton only a few weeks before and the applicant felt that potentially she could have prevented the accident.
The applicant noted that her job with the respondent involved long work days, consisting of a minimum of eight hours, six days per week on a rotating roster. In addition, the applicant spent two hours minimum driving to and from work. Some days, the applicant would work up to 12 hours, particularly for a nightshift.
The applicant worked in teams of two and this was the second time the applicant’s team member had nearly died driving to or from work. When Ms Cobec was the applicant’s team member she also had a motor vehicle accident and was off work for a couple of months. In the six months prior to Ms Norton’s accident, another two colleagues had car accidents. One wrapped his car around a tree and another ran off the road. The applicant stated:
“I had previously felt very sleep deprived when driving home and that was a reason as to why we did drive home in pairs in case something were to happen to one of us.”
The applicant described in more detail her conversation with Mr Butters as she walked back to her car following the accident. The applicant said Mr Butters’ initial response had been to laugh and ask whether he needed to get a tow truck and was she in a work car. The applicant described her shock at this response:
“This affected me greatly as I couldn't understand how he did not show any empathy and left me feeling upset and like he didn't care about his staff. Particularly after all of the previous accidents that had occurred with work I thought his response was shocking.”
Attached to the applicant’s statement was a text message from Mr Butters time stamped 09:47am asking the applicant to start writing her witness statement.
The applicant stated that following the accident she stayed with Ms Norton, kept her talking and tried to keep her conscious and warm. The applicant said that if Ms Norton had been an unknown member of the public she would not have been so involved and would have left it to the police to contact family members. Ms Norton was very distressed and the applicant wanted to stay with her until the ambulance officers arrived as she was her close work colleague. The applicant rang Ms Norton’s husband to come out to the accident scene. The applicant also gave Ms Norton’s phone to the police.
The applicant stated that she had recently obtained part-time job as a disability support worker. The work was for 15 hours per week but the applicant only lasted five shifts. The applicant thought she would be able to cope with the position but was on edge all of the time. The applicant found her coping mechanisms were not what they used to be and she burst into tears on her second or third shift. The reason for her tears was minor. On the fifth shift, management had sent an email out to all staff and the applicant took the email personally, ended up in tears again and quit. The applicant felt like a failure because she could not do something that would have been easy for her to do before the accident. The applicant denied engaging in any other work since the accident.

Respondent’s evidence

The respondent relies on a written statement prepared by Mr Adam Butters, dated 26 July 2021.
Mr Butters confirmed that he was the applicant’s supervisor at the time of the incident.
Mr Butters confirmed that the applicant worked eight hour shifts on a seven-day roster, usually working six days straight with at least one day off. The applicant would work rotating shifts, for example, one week of mornings, one week of afternoons and one week of night shifts.

Mr Butters stated that the applicant had phoned him quite early in the morning on 5 May 2020 and said that there had been an accident and that Ms Norton had been injured.
Mr Butters said he thought the applicant was joking at the time as it was not unusual for traffic controllers to give him a hard time and joke around. The applicant sounded as if she was joking.
The applicant said that Ms Norton had been thrown out of her car and that she had been doing what she could to help. The applicant said that an ambulance had arrived and
Ms Norton was “not good”.
Mr Butters described the applicant’s account of what occurred as unclear. The applicant was not crying but her voice sounded different to her usual voice and she was possibly in shock.
Mr Butters believed the motor vehicle incident occurred about 20 minutes south of the Bolivia Hill depot. The applicant and Ms Norton had been driving home from a night shift in their individual cars with the applicant in front of Ms Norton at the time the incident occurred.
Mr Butters said that at times staff members had called him to advise of a motor vehicle accident. His first response was to ask whether a tow truck was required and whether the police had attended. Mr Butters said he regularly received calls from staff who had hit kangaroos on the road while travelling in work cars or their own cars. His usual response was to ask what needed to be done, if everyone was okay and if they had called a tow truck.

Mr Butters called the applicant that afternoon to see how she was and to find out more. The applicant was in tears at times then would become angry and upset. Her demeanour was
up-and-down and Mr Butters just listened. Mr Butters told the applicant to take as much time off as she needed, suggested she see a doctor and recommended the Employee Assistance Program (EAP).
Mr Butters said he was aware of issues between Ms Cobec and Ms Norton and that they needed to be kept apart by scheduling them to work differing shifts. Mr Butters recalled that the applicant had reported that Ms Cobec had made a serious verbal threat against
Ms Norton. The complaint was reported to the safety team. Mr Butters said that at some point he thought Ms Norton may have taken out an AVO against Ms Cobec but he was not certain of this. Mr Butters expressed the opinion that Ms Cobec was a bully with a nasty personality and said it was possible that some staff may have been scared to formalise complaints against her.

Mr Butters said he had received an email on 5 May 2020 from Ms Cobec advising that the applicant had phoned her, sounding drunk and threatening to kill her. Mr Butters spoke to the applicant on the morning of 6 May 2020 and asked her to apologise to Ms Cobec.

Treating medical evidence

Clinical records from the applicant’s general practitioner, Dr Ross Haron, are in evidence. A record, dated 7 May 2020, stated:
“Witnessed serious MVA on way home from work at Bolivia Hill (traffic Controller)- Tuesday morning after working nightshift- workmate Tracey was following in car behind- Robyn saw her car swerve, flip, roll and crash, ending up on its roof- Robyn stopped, raced back, warned oncoming vehicle sand helped Tracey until emergency services arrived- "thought she was dead"- is a friend as well as work colleague- can't sleep, can't eat, teary, not sure if covered by workcover- clearly unable to work at present- workcover cert issued- see next Tuesday- may need ref for psychologist”

A letter of referral from Dr Haron, dated 19 May 2020, to the applicant’s psychologist,
Mr Anthony Dover stated:
“Would you please see Robyn Moore who witnessed a serious car accident involving a work colleague while driving home from work on 5th May. She works as a traffic controller on the Bolivia Hill roadworks and was driving home after working the night shift and her colleague was in the car behind her- she saw the other car swerve and roll and went to assist her friend who was unconscious as well as alerting traffic and she helped her friend until emergency services arrived she reacted badly to this and has ongoing sleep disturbance, anxiety, teariness, hyperallertness? developing PTSD.”
Mr Dover prepared a report for Dr Haron, dated 25 June 2020, in which he indicated that the applicant had experienced a discrete/acute event liable to give rise to symptoms of PTSD. The applicant met the criteria for PTSD in accordance with DSM-V.
The applicant’s scores on the Depression, Anxiety and Stress Scale (DASS21) taken on
10 June 2020 placed her in the severe range for stress, extremely severe range for anxiety and severe range for depression.
Mr Dover observed:
“She experiences disturbed cognitions associated with the accident by way of paranoid thoughts that maybe the victim's car had been sabotaged and that she can't realistically reason the event of the accident.”
Further:
“Critical to the expression of symptoms of PTSD is the fact that she experienced the response of her superior(s) as unresponsive and uncaring.”
Mr Dover recommended a program of cognitive behavioural therapy.
A number of ordinary medical certificates and WorkCover certificates of capacity are in evidence, covering the period 5 May 2020 to 23 January 2021. All certify the applicant as having no current work capacity.

A/Prof Michael Robertson

The applicant relies on medicolegal reports prepared by consultant psychiatrist, A/Prof Michael Robertson, dated 11 August 2020 and 10 June 2021.
In his first report, A/Prof Robertson took a history of the motor vehicle accident on 5 May 2020 and the applicant’s involvement at the scene including, assisting Ms Norton and contacting Ms Norton’s husband. The applicant described a significant deterioration in her mental state and being aggrieved at the conduct of her boss who was more interested in whether a work car was involved than anyone’s welfare.
The applicant’s symptoms were described as was the treatment she had received from her psychologist Mr Dover. A/Prof Robertson gave the opinion:
“Ms Moore is a 52-year-old woman who presents with acute posttraumatic stress disorder comorbid with a major depression. Ms Moore witnessed a serious motor vehicle accident in which a co-worker was seriously injured. The situation was made worse by the described problematic conduct of her employer.”
A/Prof Robertson said the applicant had no current work capacity although the applicant was contemplating seeking alternative employment in a different role with the RSPCA.

A/Prof Robertson said the motor vehicle accident was “the substantial contributing factor” to the applicant’s post-traumatic stress disorder.
A/Prof Robertson made an assessment of 17% whole person impairment resulting from the injury.
In his supplementary report, A/Prof Robertson was asked to comment further on the applicant’s work capacity and stated:
“The account you provide of a recent work trial appears to indicate that your client has not been able to sustain employment on a reduced hours basis in a less demanding role because of the effects of her psychiatric symptoms on her work capacity. If this is taken as reflective of her current psychopathological state, this account would appear to indicate no current or foreseeable future work capacity.”

Applicant’s submissions

Mr Hickey identified the primary issue in dispute as being whether there was a real and substantial connection between employment and the accident or “incident” out of which the injury arose for the purposes of s 10(3A) of the 1987 Act. The reference to an “incident” was noted to permit a wider scope of enquiry than the term “accident”.
Mr Hickey referred to the applicant’s statement evidence and noted the location of the applicant’s workplace at the Bolivia Hill Bypass. The applicant had a 45 minute drive home and would work up to 12 hour shifts. The applicant’s shifts rotated between morning, noon and night.
On the day of the injury, the applicant ceased work at 6:45 am. Her co-worker, Ms Norton, had finished at the same time. The applicant and her co-worker were close friends at work. The applicant’s evidence was that she and Ms Norton had come to an arrangement whereby they would drive home in convoy as they felt it was safer having regard to the time of day and after a long night shift.
The applicant described the “incident” in which Ms Norton was involved in a motor vehicle accident. The applicant was one of the first on the scene and got blankets from her car as it was very cold. What the applicant was exposed to was a traumatic experience or incident. The incident involved the trauma to the applicant’s injured workmate and the applicant’s involvement in responding to that event.
Mr Hickey submitted that there was a real and substantial connection between the incident and employment. Mr Hickey noted that the test in s 10(3A) was wider and lesser than the causal test in s 9A of the 1987 Act. The relevant test for s 10(3A) was satisfied by a number of matters, including:
(a)    the distance of the workplace from home and its risky location, requiring travel by highway through areas where kangaroos were present;
(b)    the irregular time at which the applicant ceased work;
(c)    the plan to drive home in convoy with her co-worker in order to promote their mutual safety having regard to the risks above;
(d)    the involvement of the applicant’s co-worker, who had been working on the same shift and who was driving home in convoy with the applicant, in the accident, rather than a random member of the public, and
(e)    due to driving in convoy, the applicant was first on the scene. The applicant rendered assistance in confronting and traumatic circumstances and made contact with the co-worker’s husband to inform him of the accident.

Mr Hickey said the relevant “incident” involved the trauma suffered by the applicant’s
co-worker. Work had brought the two women together as travellers on the journey home and gave rise to the need for the applicant to witness the event and give care to her workmate. The incident caused a psychological injury and that injury had a real and substantial connection to employment.
Mr Hickey described as a “secondary element”, the unfeeling and unsympathetic response from the applicant’s supervisor when informed of the incident. The applicant had given evidence that she was shocked and upset by this response. This was part and parcel of the incident and established a real and substantial connection to employment in that the words conveyed by the applicant’s supervisor caused an affront to the applicant’s mind.
Mr Hickey noted that the applicant’s further statement reinforced her earlier evidence about the close relationship with her injured workmate. The applicant’s evidence was that the work they performed was dangerous and only two workers were present overnight. They had to watch each other’s back.
Mr Hickey referred to the applicant’s evidence with regard to the conflict between Ms Norton and another co-worker, Ms Cobec. The applicant stated that she had thought Ms Cobec had sabotaged Ms Norton’s car, causing the accident. The applicant called Ms Cobec and accused her of this although she later apologised.
The applicant had given evidence that had it been a member of the public involved in the accident she would not have been so involved.
Mr Hickey noted the applicant’s evidence that multiple co-workers had experienced car accidents driving to or from the work site.
Mr Hickey referred to the authority in State Transit Authority of New South Wales v Fritzi Chemler[1] and said the evidence established that there were real events. The applicant’s reaction to those events could be gleaned from the medical evidence in the case.
[1] [2007] NSWCA 249.

With regard to the applicant’s capacity for work, Mr Hickey noted that the applicant had worked five shifts since ceasing work for the respondent and had provided payslips corresponding to the same period. The applicant’s actual earnings were set out in the applicant’s wages schedule.
The applicant’s evidence as to her ongoing symptoms and incapacity for work were consistent with the supplementary report from A/Prof Robertson. The certificates of capacity issued by Dr Haron certified the applicant as having no current work capacity. Mr Hickey submitted that the applicant would be found to have no current work capacity.
Mr Hickey noted that pursuant to subsection (4), s 9A did not apply to an injury to which s 10 applied.
The histories taken by both A/Prof Robertson and Mr Dover involved the witnessing of the serious motor vehicle accident and the problematic conduct of the employer. The letter from Mr Dover to Dr Haron said it was critical that the applicant experienced the response of her supervisor as unresponsive and uncaring.
With regard to the affront to the applicant’s mind by the lack of empathy in her supervisor’s response to the incident, Mr Hickey submitted there was an additional psychological injury “arising out of employment” pursuant to s 4 of the 1987 Act. Mr Hickey referred in this regard to the decision in Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer[2].
[2] [2011] NSWWCCPD 38.

Respondent’s submissions

77.Mr Grimes submitted that little or no evidence had been provided with respect to the issue of causation other than medical opinions indicating that the witnessing of a motor vehicle accident was what caused the applicant’s psychological condition. That was the accident or incident causing injury. For the purposes of s 10(3A) it was then necessary to determine whether there was a real or substantial connection between that incident and employment.
78.Mr Grimes referred to the decision in Young v Commissioner for Railways[3] and submitted that the applicant bore the onus of establishing that the journey was one to which s 10 applied.
[3] (1960) 34 WCR 71.
79.Mr Grimes noted that the clinical records of Dr Haron and the certificates of capacity issued by him referred to an acute response after witnessing a motor vehicle accident. There was no support in the evidence for the other workplace events being causative of a psychological injury. No mention was made of difficulties with the applicant’s supervisor in the records from Dr Haron or the applicant’s interactions with Ms Cobec.
80.Mr Grimes noted that A/Prof Robertson also diagnosed acute PTSD as a result of the motor vehicle accident. It was this incident rather than any interactions with the applicant’s supervisor which were causative of the condition. The reference to the applicant’s condition being made worse by subsequent events was insufficient to find an injury caused by those events. All of the other treating medical evidence referred to the witnessing of the motor vehicle accident as the causative event.
81.Mr Grimes submitted that the Commission was required to determine whether the witnessing of the motor vehicle accident had a real and substantial connection with work. Mr Grimes submitted that the relevant connection was not established.
82.Referring to the decision in Bina v ISS Property [2013] WCCPD 72 Mr Grimes submitted that the fact that the applicant was travelling from work was insufficient to establish a real and substantial connection to work.
83.With regard to the applicant’s evidence that she was travelling in a convoy with Ms Norton, Mr Grimes submitted that that was not something reasonably expected or required to be done by the applicant’s employer.
84.There was no evidence that the applicant’s injury was caused by her own fatigue and there was no evidence that she was required, for example, to work later than normal.
85.Although the applicant had provided general evidence that she worked six days per week for eight to 12 hour shifts and rotated between shifts, she gave no evidence as to the nature of her shift on the day of the accident. It was unclear how long the applicant had worked that day. The evidence was not supportive of fatigue or a long shift being a relevant factor.

86.Mr Grimes submitted that the applicant’s evidence was that she was travelling in her own vehicle on a straight road. There was nothing out of the ordinary about that journey. It was not perilous or at night. No evidence had been provided as to how Ms Norton’s car lost control and began to flip. Nothing in the applicant’s statement provided a real and substantial connection to employment. No evidence had been provided from Ms Norton as to whether fatigue was a factor in the accident. Mr Grimes submitted that the facts of this case were distinguishable from other cases in which s 10(3A) was satisfied.
87.With regard to whether interactions with her supervisor were causative of injury, Mr Grimes submitted that there was a factual dispute as to the allegations. Mr Grimes submitted that many of the events relied on by the applicant were contested and credit was in question.
Mr Butters had explained in his evidence that he thought the applicant was joking when she told him there had been an accident as other staff had joked with him in a similar way.
Mr Butters disputed that he had not asked how Ms Norton was and recalled the applicant saying she was not good. Mr Butters gave evidence that he called the applicant personally to make sure she was okay later in the day. Mr Butters suggested the applicant access the EAP.
88.Mr Grimes submitted that the Commission would accept Mr Butters’ view of what happened. The applicant was clearly in a traumatised state after the accident, so much so that she made a death threat to a co-worker. Mr Butters’ request that the applicant apologise was reasonable. In so far as any injury was said to be caused by these events, Mr Grimes submitted that it would be caused by reasonable action taken by or on behalf of the employer with respect to discipline.
89.Mr Grimes submitted that the Commission would approach the applicant’s allegations with respect to the impact of Mr Butters’ conduct with caution. None of these allegations were referred to in the clinical notes of Dr Haron.
90.With regard to the applicant’s capacity for work, Mr Grimes noted that the applicant had a range of work experience and had demonstrated an ability to work 15 hours per week.
Mr Grimes submitted that the Commission would find that the applicant had residual capacity in one of the roles in which she had previously worked, to earn wages on an ongoing basis.
91.Mr Grimes submitted that if the Commission were to find in favour of the applicant on the question of injury, there was a medical dispute that should be referred to a Medical Assessor. The respondent did not agree that there was permanent impairment resulting from an injury. It was also noted that the assessment of A/Prof Robertson was more than a year old and so an updated assessment would be desirable.

Applicant’s submissions in reply

92.Mr Hickey referred to the decisions of Field v Department of Education and Communities[4] and State Super Financial Services Australia Limited v McCoy[5].
93.Mr Hickey noted that the present case involved someone else having an accident but said there was nonetheless an incident sufficient to allow compensation to be paid. The factual test to be applied in s 10(3A) only required that the incident involving the applicant have a real and substantial connection to work.
94.The relevant incident involved the applicant’s co-worker. The applicant and her co-worker went home in convoy because of safety concerns. That presented the opportunity for the injury to be suffered. The convoy was for their mutual safety in circumstances where there was a risk, for example, of hitting a kangaroo due to the location of the work site and time of day. Mr Butters’ evidence tended to corroborate that there had been a number of motor vehicle accidents involving co-workers. Mr Butters said he regularly received calls from staff who had hit kangaroos.

[4] [2014] NSWWCCPD 16.

[5] [2018] NSWWCCPD 26.

FINDINGS AND REASONS

95.Section 10 of the 1987 Act relevantly provides:

“10 Journey claims
(1) A personal injury received by a worker on any journey to which this section
applies is, for the purposes of this Act, an injury arising out of or in the course of
employment, and compensation is payable accordingly.
…
(3) The journeys to which this section applies are as follows—
(a) the daily or other periodic journeys between the worker’s place of abode
and place of employment,
(b)the daily or other periodic journeys between the worker’s place of abode, or
place of employment, and any educational institution which the worker is
required by the terms of the worker’s employment, or is expected by the
worker’s employer, to attend,
(c) a journey between the worker’s place of abode or place of employment and
any other place, where the journey is made for the purpose of obtaining a
medical certificate or receiving medical, surgical or hospital advice,
attention or treatment or of receiving payment of compensation in
connection with any injury for which the worker is entitled to receive
compensation,
(d) a journey between the worker’s place of abode or place of employment and
any other place, where the journey is made for the purpose of having,
undergoing or obtaining any consultation, examination or prescription
referred to in section 74 (3),
(e) a journey between any camp or place—
(i) where the worker is required by the terms of the worker’s
employment, or is expected by the worker’s employer, to reside
temporarily, or
(ii) where it is reasonably necessary or convenient that the worker reside
temporarily for any purpose of the worker’s employment,
and the worker’s place of abode when not so residing,

(f) a journey between the worker’s place of abode and the place of pick-up
referred to in clause 14 of Schedule 1 to the 1998 Act,
(g) a journey between the worker’s place of abode and place of employment,
where the journey is made for the purpose of receiving payment of any
wages or other money—
(i) due to the worker under the terms of his or her employment, and
(ii) which, pursuant to the terms of his or her employment or any
agreement or arrangement between the worker and his or her
employer, are available or are reasonably expected by the worker to
be available for collection by the worker at the place of employment.

(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a
journey to which this section applies only if there is a real and substantial
connection between the employment and the accident or incident out of which the
personal injury arose.”

96.In the present case it has not been disputed that the applicant was on a journey pursuant to
s 10(3) of the 1987 Act. Nor is there any dispute that the applicant sustained a diagnosable psychological condition in the nature of a personal injury on that journey.
97.The primary dispute is whether there is a real and substantial connection between the employment and the accident or incident out of which the applicant’s injury arose in accordance with s 10(3A).

98.Subsection 10(3A) was inserted by the Workers Compensation Legislation Amendment Act 2012. In the Second Reading Speech of the Workers Compensation Legislation Amendment Bill 2012, the Minister said:

“… journey claims will no longer be covered by the New South Wales workers
compensation scheme consistent with the position in many other Australian
jurisdictions. While workers who travel for work will still be covered by the scheme,
employees [sic, employers] will no longer be liable for a journey between a worker’s
home and his or her place of work where the risk of injury is outside the control of the
employer.”[6]
[6] Hansard, Legislative Assembly 19 June 2012.

99.In Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden[7] (Wickenden), Roche DP said at [41]-[43]:
[7] 2014] NSWWCCPD 13.

“In s 10(3A), which talks about a real and substantial connection between the
employment and the accident or incident, the connection may be provided by
establishing that the employment caused the accident, but that is not a necessary
requirement. Even if, contrary to my view, s 10(3A) requires a causal connection
between the employment and the accident, the employment does not have to be the
only, or even the main, cause. It is trite law that an accident can have many causes
(ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]).
The use of the indefinite article ‘a’, in s 10(3A), makes it clear that employment does
not have to be ‘the’ connection between the accident or incident. It only has to be ‘a’
connection, albeit one that is real and of substance (Bina at [112], citing Badawi v
Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75
NSWLR 503 (Badawi) at [82]–[83] and [107]). That requirement is satisfied on the facts
of the present case because Ms Wickenden’s employment required her to work later
than normal. That meant she finished work in darkness and had to journey home on a
narrow country road in darkness.
For the reasons already canvased above, the darkness unarguably played a role in the
accident. That role did not have to be the cause of the accident. It only had to provide
‘a’ connection, of substance, between the employment and the accident. In other
words, the employment had to create, and did create, a factual association or
connection with the employment that was real and of substance.”

In State Super Financial Services Australia Limited v McCoy[8] (McCoy) Keating P said at [69]:
[8] [2018] NSWWCCPD 26.

“The test to be applied under s 10(3A) is a different and less demanding test to that
applied to establish that an injury arose out of or in the course of employment pursuant
to s 4 of the 1987 Act. The test under s 4 requires a causative element which is to be
inferred from the facts as a matter of common sense. The test under s 10(3A) of a ‘real
and substantial connection’ may, but does not necessarily, convey the notion of a
causal connection. It requires an association or relationship between the employment
and the accident or incident, which may be provided by establishing that the
employment caused the accident or incident. However, employment does not have to
be the only, or even the main cause.”

In Bina v ISS Property Services Pty Limited[9], Keating P at [112] agreed with the findings of the Arbitrator below that:
[9] [2013] NSWWCCPD 72.

“(a) that a substantial connection is one ‘of substance’ (Badawi at [82]-[83], [107]);
(b) that ‘employment’ in s 10(3A) is the same as in s 9A, that is, it is the activities of,
or incidental to the employment, as opposed to the (mere) fact of being employed (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [11]);
(c) the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident - there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose, and
(d) if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.”

Further at [117]:

“It is therefore clear that s 10(3A) has work to do. Its purpose is found in the words used in the subsection, read in the context of the 1987 Act as a whole. In my view, the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”

President Keating said,

“Whether and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a common sense and practical manner in each case (Doyle CJ in Brophy).”

A real and substantial connection between employment and the incident out of which an injury arose was found in McCoy where the worker tripped and fell because she was tired after a long day of work and was hurrying to get to a work function on time.

In Wickenden, the fact that the worker had been required to work late and therefore travel in darkness was sufficient to establish a connection with employment that was real and of substance.

A real and substantial connection was found in Field v Department of Education and Communities[10] because the worker was rushing to commence work on time in circumstances where he had been given short notice to attend the workplace.

[10] [2014] NSWWCCPD 16.

In the present case, the relevant injury is a primary psychological injury in the nature of post-traumatic stress disorder. That condition has consistently been diagnosed by the applicant’s general practitioner, psychologist and medicolegal expert. There is no contrary medical opinion before me.
The evidence from the applicant’s treating practitioners and medicolegal expert, are consistent in identifying the applicant’s witnessing of a motor vehicle accident involving a
co-worker as causative of the applicant’s psychological condition.
The initial clinical record from Dr Haron refers to the motor vehicle accident occurring on the way home from work after working nightshift. The clinical record noted that the victim of the motor vehicle accident was a workmate who was following the applicant in her car. It was noted that the applicant stopped and rendered assistance until emergency services arrived.
The significance of the involvement of a workmate in the motor vehicle accident and the applicant’s involvement in rendering assistance, alerting traffic and helping her friend until emergency services arrived was highlighted by Dr Haron in his letter of referral to the applicant’s psychologist, Mr Dover. The report from Mr Dover which is in evidence confirmed that the applicant had experienced an acute event giving rise to the diagnosis of post-traumatic stress disorder.
Associate Prof Robinson has, consistently with the treating evidence, given an opinion that the applicant presented with acute post-traumatic stress disorder comorbid with major depression caused by witnessing a serious motor vehicle accident in which a co-worker was seriously injured.
Consistently with her medical evidence, the applicant’s own evidence suggests that the involvement of a co-worker in the motor vehicle accident which she witnessed was significant. The applicant expressed the view, having seen motor vehicle accidents on previous occasions, that she would not have been so affected by the motor vehicle accident had Ms Norton not been the victim.
The uncontradicted evidence before me is that Ms Norton and the applicant were team mates who were working together on a night shift immediately prior to the journey during which the incident occurred. The applicant’s evidence is that she and Ms Norton became close through their work but had no relationship or friendship outside of work. The applicant described the work as dangerous and said there was only the two of them together overnight. The applicant said the nature of her work required her and Ms Norton to have each other’s back and work closely. The applicant and Ms Norton usually worked together six days per week.
The evidence indicates that the applicant and Ms Norton finished their shift at around the same time on 5 May 2020. The applicant’s evidence was that she and Ms Norton had made a plan to travel in convoy home to Glen Innes from the bypass upgrade work site. The reasons for this included the remote location of the work site and the time of day at which they were required to travel, being early in the morning following a nightshift, a time when kangaroos were likely to be more active.
The evidence of both the applicant and Mr Butters indicated that a number of the applicant’s co-workers had been involved in motor vehicle accidents travelling to or from the work site. Mr Butters confirmed that a number of workers had called him after hitting kangaroos. This evidence lends credibility to the applicant’s claim that she and Ms Norton had made a particular plan to travel in convoy for their safety.
I am satisfied that the applicant’s work duties brought her into contact with Ms Norton and led to them developing a close relationship. I am satisfied that the time at which the applicant and Ms Norton finished their shifts and the location of their work site on 5 May 2020 rendered their journey home a potentially perilous one.
Whilst travelling in a convoy with Ms Norton was not something the applicant was required to do by her employer, as noted by the respondent, I am satisfied that the applicant’s place of work, the timing of her shift, her work relationship with Ms Norton and the past experiences of her co-workers led to the decision to travel in that convoy.
There is no evidence before me as to the factors which caused Ms Norton to lose control of her vehicle. That omission in the evidence is not, however, fatal to the applicant’s case. I am satisfied that the work-related circumstances described above caused the applicant to be in close proximity to Ms Norton when the motor vehicle accident occurred and gave rise to the opportunity for the applicant to witness its occurrence.
I also accept the applicant’s evidence that those circumstances led to the applicant stopping and rendering assistance. I accept the applicant’s evidence that she was particularly involved in obtaining blankets, trying to keep Ms Norton comfortable and conscious, and reassuring her whilst waiting emergency services because of her relationship with Ms Norton. I accept that the applicant may not have been so involved or affected by the ordeal had the victim been an ordinary member of the public with whom she had no prior contact or relationship.
In these circumstances, I am satisfied that there was a real and substantial connection between the applicant’s employment and the incident out of which the personal injury arose. The applicant was not simply travelling home from work when she witnessed a motor vehicle accident. The applicant was travelling in a convoy, with a co-worker, for reasons related to her work location and the timing of her shift, when that same co-worker, with whom the applicant had developed a close relationship through the particular nature of their shared work duties, was involved in a serious accident. The witnessing of that accident and the applicant’s involvement in rendering assistance to her co-worker was, on the evidence of
Dr Haron and A/Prof Robertson, causative of the psychological injury.
Whilst the facts of this case are different to those arising in the cases to which the respondent referred, it is necessary to apply the words of s 10(3A) in a common sense and practical manner in each case.
I am satisfied that the applicant received a personal injury on a journey to which s 10 applies. As a result, the injury is for the purposes of the 1987 Act an injury arising out of or in the course of employment and compensation is payable accordingly.
Pursuant to s 9A(4), it is not necessary to consider whether employment was a “substantial contributing factor” to the injury.
Having made the findings above, it is not necessary for me to deal with the allegations with respect to the applicant’s interactions with Mr Butters or her co-worker, Ms Cobec. As a result, it is also not necessary to consider the dispute with regard to s 11A(1) of the 1987 Act.

Capacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer to the injured worker shall include a weekly payment during the incapacity.
Section 36 of the 1987 Act relevantly provides:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.”
Section 37 of the 1987 Act provides:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The expressions “current work capacity” and “no current work capacity” are defined in clause 9 of Schedule 3 of the 1987 Act as:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)  the worker’s age, education, skills and work experience, and
(iii)  any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)  any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)  such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)  whether the work or the employment is available, and
(ii)  whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)  the nature of the worker’s pre-injury employment, and
(iv)  the worker’s place of residence.”
The medical evidence from Dr Haron and A/Prof Robertson indicates that the applicant has, during the period of weekly compensation claimed, had no current capacity for work. Although the applicant did in fact return to work for five shifts with a different employer in May 2021, the applicant and A/Prof Robertson have given evidence that the applicant’s inability to cope with that employment is indicative of a current and ongoing lack of capacity for work. No medical opinion to the contrary has been provided by the respondent.
The parties have agreed that the relevant PIAWE for the purposes of ss 36 and 37 of the 1987 Act is $1,579.98.
That figure is subject to periodic indexation in accordance with s 82A of the 1987 Act.
The indexation number which applies in respect of 1 October 2020 is 0.9795[11]. Applying this number to vary the amount of a weekly payment to a worker, in accordance with s 82A of the 1987 Act, has the effect of reducing the amount. Accordingly, under s 82C(a) of the 1987 Act, the variation is deemed not to have taken effect.
[11] SIRA Workers Compensation Benefits Guide - Part 2.4.
From 1 April 2021, the PIAWE is indexed at the rate of 1.0288[12] resulting in a PIAWE of $1,625.48.
[12] SIRA Workers Compensation Benefits Guide - Part 2.4.
It has been agreed between the parties that from 5 May 2021 to 18 May 2021, the applicant worked 15 hours per week and had “current weekly earnings” of $252.14.
In the circumstances, there will be an award for the applicant for weekly compensation as follows:
(a) from 5 May 2020 to 10 August 2020 pursuant to s 36(1) of the 1987 Act at the rate of $1500.98 per week;
(b) from 11 August 2020 to 31 March 2021 pursuant to s 37(1) of the 1987 Act at the rate of $1263.98 per week;
(c) from 1 April 2021 to 4 May 2021 pursuant to s 37(1) of the 1987 Act at the rate of $1,300.39 per week;
(d) from 5 May 2021 to 18 May 2021 pursuant to s 37(2) of the 1987 Act at the rate of $1,292.07 per week;
(e) from 19 May 2021 to date pursuant to s 37(1) of the 1987 Act at the rate of $1,300.39 per week; and
(f) continuing in accordance with the 1987 Act.
The parties will have liberty to apply within seven days with respect to the above calculations.

Permanent impairment

The applicant has also sought lump sum compensation pursuant to s 66 of the 1987 Act. Section 66 (1) provides that a worker who receives an injury that results in degree of permanent impairment greater than 10% is entitled to receive compensation for that permanent impairment as provided by that section in addition to any other compensation under the 1987 Act.
The applicant has provided evidence from A/Prof Robertson of 17% WPI resulting from the accepted injury. Although the respondent has not relied on an assessment of whole person impairment made by a qualified permanent impairment assessor, a dispute has been notified as to whether there is any permanent impairment resulting from an injury. I am satisfied that this is sufficient to ground a medical dispute for the purposes of s 319 of the 1998 Act.

Having made the findings above, I am satisfied that the appropriate course is to remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the psychological injury on 5 May 2020.
The materials to be referred to the Medical Assessor are to include all of the documents admitted in these proceedings.

[2021] NSWPIC 320

1 September 2021