Moran v Remondis Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moran v Remondis Australia Pty Limited [2021] NSWPIC 448
APPLICANT:	Miroslawa Moran (Zurawski)
RESPONDENT:	Remondis Australia Pty Limited
MEMBER:	John Wynyard
DATE OF DECISION:	10 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury alleged when applicant transferred to her old post; no alteration in income; transfer necessity explained at meeting on basis that others in department let go, but employer desirous of keeping applicant’s services; applicant had been agitating for fresh contract including increased income, motor vehicle, computer and phone; psychological injury at her transfer admitted; whether applicant hired as a trial position; whether assumptions made by applicant’s medico-legal psychiatrist as to applicant’s past history established on the evidence; respondent eschewed reliance on its own medico-legal expert; s 11A of the Workers Compensation Act 1987 raised; whether injury caused by single event or whether respondent required expert evidence as to other alleged causes; whether procedure adopted by respondent reasonable in circumstances; Held - each case depends on its own facts; Hamad v Q Catering Limited, Shore v Tumbarumba Shire Council and BlueScope Steel Ltd v Markovski considered; applicant’s injury wholly and predominantly caused by transfer; applicant’s expert’s opinion not established as assumptions not proven; applicant’s credit in question; award respondent.
FINDINGS MADE:	1. The applicant suffered a psychological injury caused by the actions of the respondent with regard to her transfer. 2. The whole and predominant cause of the applicant’s injury were the respondent’s actions. 3. The actions of the respondent with regard to transfer were reasonable.
DETERMINATIONS MADE:	1. There will be an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Miroslawa Moran (Zurawski), the applicant, brings an action for weekly payments of compensation against Remondis Australia Pty Limited, the respondent in respect of a claim for psychiatric injury said to have been caused on a deemed date of 31 March 2021.
Dispute notices were issued. An Application to Resolve a Dispute (ARD) was lodged followed by the Reply.
Ms Moran advised that she had subsequently changed her surname to Zurawski and I accordingly amend the ARD to reflect that change. I shall refer to the applicant as Ms Zurawski in these reasons.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) Was the applicant’s psychological injury wholly or predominantly caused by the actions of the respondent with respect to transfer and/or the provision of employment benefits?
(b) If so, were the actions by the respondent reasonable?

PROCEDURE BEFORE THE COMMISSION

This matter was heard by way of video link on 15 September 2021. The applicant was represented by Mr Craig Tanner of counsel instructed by Mr Andrew Tohme from Messrs Santone Lawyers. The respondent was represented by Mr Allen Parker instructed by Ms Diane Pritchard of Messrs Moray & Agnew Lawyers. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

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

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS
Statement

Ms Zurawski made two statements. The first was dated 26 April 2021. She advised that she had been employed by the respondent for nearly 10 years. She said that since November 2019 she had been in the full time permanent role of Liquids Business Development Manager at the St Marys premises of the respondent.
Before that time Ms Zurawski said she had been employed in an administrative role. She said[1]:
“8. ln March of 2020, I was demoted and put back in to an Admin Role reporting to the Shared Services Manager who was Brad Williams but he has left.”
[1] ARD page 3 [8].
At [68] she said:
“Last year during Covid in March I was demoted back to the admin role. This made me feel upset and angry and anxiety with high BP. L went to Mt Druitt hospital and had an irregular ECG. I was put on Endone for chest pain. It was only 2 tablets.”
Ms Zurawski said that she had been employed on the same contract as a Credit Controller from when she commenced work in 2011 with the respondent. “There has never been a change to my contract since then”.
She continued to work full time in her admin role during 2020 reporting to a Mr Williams until he left on 1 July 2020.
His role was taken over by Ms Nicole Markovich, who was the applicant’s supervisor until November 2020.
Ms Zurawski said that in November 2020 she “moved” to the role of Liquids Business Development Manager reporting to Mr Josh Richter, the State Sales Manager for NSW and the ACT.
Ms Zurawski said that whilst she was working between March and November 2020 she was constantly advising management that she wanted to return to her previous sales role. She said that she would direct her enquiries to Mr Rob Scott.
In November 2020 she was advised that she would be returned to her Liquid Business Development Manager role. Due to a mishap at home requiring her to work from home for about three weeks, she finally commenced back in the sales role on 23 November 2020, reporting to Mr Richter. She was inducted back into the job and advised of the current expectations and targets. She said:
“My contract was not changed and I was not paid any extra income.”
She said:[2]
“I was constantly asking to change my contract, review my salary. Also I was not provided a company car, phone or laptop which would normally be afforded.”
[2] ARD page 4 [19].
She said that she was always asking Mr Richter to address these issues.
She recalled emailing Mr Richter about how long she was staying under the “admin umbrella” but never received a response. She said:[3]
“Whenever I asked him verbally about my contract and working conditions (such as company car, phone, laptop, contract etc) his response was along the lines he was working on it.”
[3] ARD page 4 [22].
Ms Zurawski thought that she was returning to the work she was doing as the Liquids Business Development Manager before COVID. She said that in November she met with Mr Scott and Ms Markovich following her transfer to sales, saying that she met with Ms Markovich in order to hand over her role in admin to Ms Kylie Garousse. She said that on 24 November 2020, the day after she returned to the role she “went out with the liquids truck driver to gain knowledge and experience about fuel and other products”[4].
[4] ARD page 4 [26].
She said that she regularly asked Mr Richter about her employment conditions and [Ms Markovich] about “how long I was falling under the admin umbrella….”[5]
[5] ARD page 4 [27].
Ms Markovich said she was pursuing payroll about it.
She said that everything was going well in her role and that on 22 February 2021 she met Mr Richter in the boardroom asking him about her contract and employment terms.
She said[6]:
“At this time he advised me that it was only a trial. I asked him how long is the trial? He responded - how long is a piece of string. I responded along the lines of this was not what I agreed to and that I was under the impression it was to be permanent”.
[6] ARD page 4 [29].
Ms Zurawski said that she kept on working in the role until on 31 March 2021 she was asked by Mr Richter to meet him and they were joined in Mr Richter’s office by Ms Markovich. Ms Zurawski said[7]:
“36. Then Josh thanked me for my hard work, but unfortunately the trial period has ended and you are now going back to work in the Admin role with Nicole.
37. He said it was nothing on me – but it comes down I am inexperienced for the role Josh also said everything is on hold with liquids at the St Marys branch due to the new maintenance program.”
[7] ARD page 5.
Ms Zurawski said she was so shaken up that she could not recall exactly what she said. She said that she was not angry but simply upset. She was advised that there would be a two week transition period back to the admin role and that during that time she would report to Mr Richter.
When she was sitting at her desk after that meeting Ms Markovich came out and asked her if she was OK to which Ms Zurawski replied in the negative.
Ms Zurawski said:[8]
“I feel that if this meeting had gone the other way on 31 March - that they gave me a permanent contact and benefits such as company car, wage increase, phone and lap top etc, l would not be where I am today, that I would now be happily working in the sales role with none of the psychological health concerns I now am dealing with.”
[8] ARD page 7 [44].
Ms Markovich and Ms Zurawski went outside to talk about this development. Ms Zurawski said:
“Ms Markovich advised she wanted me to lead a new project to do with invoicing. I was not interested in that – I wanted to work in sales.”
On asking Ms Markovich whether she was to be paid commission from her sales work over the previous few months, Ms Markovich indicated that she did not see why not and that she would discuss the matter with Mr Richter.
Ms Zurawski explained:[9]
“I was actually getting paid commissions from sales from when I started in October 2020. But my base wage should have increased.”
[9] ARD page 7.
The two returned to the general office and then Ms Markovich announced to the team that Ms Zurawski was returning. Ms Zurawski decided to leave early, at about 4.15 pm, because she was upset and she picked up her two daughters from daycare and went home.
That evening she said that she did not feel “right”, “I felt chest pains and tingly”. She has a blood pressure machine which indicated her blood pressure was high. When she woke up the next morning her blood pressure was still quite high. She tried to make an appointment with her general practitioner (GP) on Thursday 1 April, the start of the Easter weekend but the GP was fully booked and she made an appointment for Tuesday 6 April.
Her GP Dr Kaur certified her as being unfit for work and referred her to a psychologist, Ms Zareena Anamtharaman whom Ms Zurawski had not at that point yet seen.
Ms Zurawski engaged her present solicitors to represent her at workers compensation and another firm of solicitors to represent her in industrial law.
Ms Zurawski then said:[10]
“There have been other issues at work in the past which have caused me anxiety over the last 12 months.”
[10] ARD page 9 [66].
Before then Ms Zurawski said she had never had anxiety or been treated for high blood pressure “in my life.”
Ms Zurawski said when she was “demoted” back to her admin role in March 2020 during COVID she felt upset and angry and had high blood pressure. She went to Mt Druitt Hospital and was given two tablets of Endone.
She said that around that time she and her partner were “stalked by management”. She said that the Liquids Business Development Manager, Mr Wayne Allen and the Operations Manager Mr Greg Bond drove past her house taking photos on 30 June 2020. This matter was investigated by the employer.
Ms Zurawski said:[11]
“There were also comments around this period made by Wayne Allen to other staff alleging I was sleeping with other drivers.”
[11] ARD page 9 [69].

The matter was investigated by Mr Scott and Ms Zurawski was provided with a response to that investigation dated 23 November 2020. Her partner, who also works for the respondent, received the results of an investigation involving him on 28 August 2020. There had been significant issues involving her partner which she said were outlined in the investigation.
The issues involving Ms Zurawski’s partner were that “Wayne breached EEO awareness, bullying, harassment and discrimination”. Her partner went off work with a stress claim due to the issues with Mr Allen. Her partner was off work for a period of 12 weeks until September 2020 whilst the matter was under investigation, and he has since made a graduated return to normal truck driving duties.
Ms Zurawski said that she started feeling unwell in March 2020 when she was “demoted” back to her admin role. She said her symptoms included anxiety, shakes and “extremely bad gastro”. She saw her GP about those issues. She had time off for about three weeks, on and off, due to conjunctivitis which she had experienced in the past, but she felt that this onset was related to stress.
She said she did not want to raise any formal grievance at that time about being demoted in March 2020 although she did speak with her solicitor. She said[12]:
“….[I] did not want to jeopardise my BD role in the future”.
[12] ARD page 11 [77].
Ms Zurawski advised she obtained a Masters degree in Accounting at the University of New England and has worked in financial roles such as accounts payable since. She said:[13]
“I want a rehab consultant to liaise between me my doctor and Remondis to try and sort out a return to work plan / resolution. I do not want to be forced back in to Admin again. Remondis are currently advertising sales jobs on seek.com and so I question why they have not offered one of these roles to me.”
[13] ARD page 12 [85].

Supplementary statement

Ms Zurawski made a supplementary handwritten statement on 23 July 2021[14] which concerned statements made by Mr Richter and Ms Markovich. She denied Mr Richter’s assertion that she commenced in a trial role, indicating that she started full time, “as per Robert Scott on 23/11/20.” She said that no mention was made until February 2021 that she was on a trial role at which time “I was making budget, bringing in big profits (major accounts).”
[14] ARD page 17.
She also said that in the four months between November 2020 and March 2021 Mr Richter met with her three times, once when she started, once at the beginning of December 2020 and then in February 2021 when she was told about being only on a trial basis.
She denied Mr Richter’s statement that she was also performing admin duties. She said that she was not performing any admin duties, she was doing “purely sales”. She would only answer questions from admin when they approached her.
In regard to Ms Markovich’s statement, Mr Zurawski said she had never been advised that her move to sales was a “secondment”. She referred to her title of “Liquids BDM” saying that she had access to and full use of the sales force, Docu-sign and that she was being paid commission.
Ms Zurawski said that the 20 November 2020 meeting was when she had been advised by Mr Scott that she was going back to full time into sales. She said that there was no mention of that position being a trial and she said that Mr Scott told her that she was not to do any admin duties whatsoever during the handover period.
In answer to paragraph 47 she was constantly asking Mr Richter and Ms Markovich about her contract and her benefits. She repeated what she said in her statement in that regard.

Ms Zurawski said:
“I had not been given a company pool car. It was never ‘available’ for me to use. I use my own car. I was only reimbursed once for petrol”.
(Emphasis as written).

Dr Abdal W Khan

Ms Zurawski relied on the opinion of Dr Abdal W Khan, Consultant Psychiatrist as her medico-legal expert. The history he took on 3 July 2021 was that the applicant had been unable to work since she was working for the respondent. The history he took was that Ms Zurawski had reported first experiencing difficulties during her employment in late 2019. He said:[15]
“Ms Moran described how she had worked in an administration position from 2014 to late 2019 when she was promoted to the position of liquids business development manager. She continued to work in this position until around March 2020 when she was reportedly demoted back to an administration position due to the outbreak of the COVID-19 pandemic.”
[15] ARD page 42.
Dr Khan noted that the applicant “reflected” that on 16 June 2020 she developed chest pain and needed to return to the local hospital where she was told that her cardiac symptoms were due to “stressors”, which she presumed to be her work-related stressors, given that she was not experiencing any non-work-related stressors at the time. In considering the applicant’s treatment history he said:[16]
“Ms Moran required one hospital presentation with acute symptoms of anxiety and panic as a result of the subject injury.”
[16] ARD page 43.
Dr Khan further took a history that on 17 June 2020 she stood up, felt light headed and fell injuring her left foot. She came to surgery in September 2020 and wore a moon boot until October 2020.
Dr Khan took a history of Ms Zurawski’s relationship with her partner whom he recorded was a Liquids driver with the same employer. She said she kept a clear delineation between the work life and personal life but that the manager kept saying derogatory and sexually inappropriate things about her on customer sites.
Dr Khan recorded an allegation that this manager had said “It wouldn’t surprise me if she is sleeping with the whole yard”. She said that when she was home to look after her daughter with her partner, she noticed “her manager drove past her house and took photos of how both the cars were in the driveway”. She said that she was disturbed about how she was stalked at home.
She told Dr Khan that she had not been provided with a car, mobile phone, a laptop or salary review which she said had been discussed by her manager previously. Dr Khan reported that the applicant attempted to secure a contract but was ignored and dismissed by management.
Dr Khan took a history of the meeting on 31 March 2021, but did not take any history of the meeting in February 2021. Dr Khan said [17]:
“Ms Moran reported around March 2021, Robert was removed from his position and another manager was made redundant. Her new manager, Josh, called her into a meeting on 31 March 2021 and reportedly told her that her position as a liquids business development manager was a trial and that the trial was to come to an end. He mentioned that liquids had been placed on hold and that it needed to be put into a maintenance program. Josh reportedly asked Ms Moran to lead an administration position, which she did not want to do. She mentioned how Josh had told her in this meeting how she was “too much of an asset” yet proceeded to make these unexpected changes without her consultation.”

[17] ARD page 42.
Dr Khan said:[18]
“As a result of these aforementioned work-related stressors, Ms Moran experienced gradual deterioration in her mental state characterised by low mood, anxious ruminations, panic attacks characterised by chest pain and stress-related gastrointestinal symptoms, agitation, irritability, reduced motivation, reduced enjoyment in activities including disengagement from attending the gym and exercising, social withdrawal, sleep disturbance with poor sleep maintenance, appetite disturbance, reduced energy, reduced self-confidence and loss of trust in interpersonal relationships.”
[18] Ibid.
Dr Khan noted the treatment the applicant had received from Dr Kaur, including Dr Kaur’s diagnosis of adjustment disorder with anxiety, and the referral for psychological treatment over two consultations, which had limited benefit. Dr Khan noted that the applicant had not been referred for psychiatric treatment.
As to past psychiatric history, Dr Khan said[19]:
“Ms Moran denied any pre-existing past psychiatric history. She denied any previous melancholia, mania, hypomania, psychosis, obsessions, compulsions or trauma. She denied any previous psychiatric admissions, deliberate self-harm or suicide attempts.”
[19] ARD page 43.

Dr Khan noted the applicant’s academic career and her employment history. He said that prior to the subject injury the applicant’s mental state was stable.
Dr Khan diagnosed an adjustment disorder with mixed anxiety and depressed mood[20].
[20] ARD page 44.
As to Ms Zurawski’s work capacity Dr Khan said:[21]
“Prior to the subject injury, Ms Moran did not have any incapacity for work. Since the date of the subject injury to date, Ms Moran has suffered a total incapacity to work. Ms Moran remains totally incapacitated to work with this ongoing incapacity arising wholly as a result of the subject psychiatric/psychological injury that she sustained during the course of her employment.”
[21] ARD page 45.
Dr Khan was then asked as to whether Ms Zurawski’s psychological injury was due to any reasonable action by the employer. He said that the injury “first became apparent in early 2020 when [Ms Zurawski] was demoted from the Liquids Business Development Manager position to an administrative position”.
Dr Khan thought that although Ms Zurawski continued to work, she started to experience symptoms of anxiety and panic by mid-2020. Dr Khan said:[22]
“[Ms Zurawski] was subjected to bullying, harassment and stalking by management during this time, which resulted in further deterioration in her mental state. …”
[22] ARD page 46.
Dr Khan stated that Ms Zurawski was then denied an updated contract and deprived of employment benefits that had purportedly been promised by management and was then told that her position had changed again “without prior consultation.”

The clinical notes

The clinical notes of the Ropes Crossing Medical Practice were lodged.
On 16 September 2017 Dr Jahan noted that the applicant was suffering from “anxiety/depression.” The entry noted the presence of anxiety for two months causing “IBS” symptoms, which I assume refers to irritable bowel syndrome.
On 16 July 2018 Dr Ravneet Kaur diagnosed “anxiety and depression.” He noted that Ms Zurawski was working as an accountant and was suffering symptoms of poor sleep, early morning wakening, normal mood, low self esteem. There were no irrational fears, no compulsive behaviours, no suicidal thoughts, no hallucinations, no delusions, no panic attacks, no substance abuse. Dr Kaur offered psychotherapy with a psychologist but was declined by the applicant. A tension headache was noted.
No history was taken of any bullying or harassment.
Similarly on 1 August 2018 Dr Kaur saw Ms Zurawski again, who was then complaining of headache. In his notes he thought that the ongoing headache was:[23]
“stress related
mostly at work
pressure job, works as an accountant”

[23] ARD page 96.

On 9 October 2018 Ms Zurawski was seen for “stress” by Dr Rowshon Jahan. He noted[24]:
“2 months now separated (sic) from partner. has 4 yr old girl with her. under lot of stress, both personal and work . could not go to work yesterday, need some time off to debreath.
[24] ARD page 97.
need MC for stress leave.”
On 30 August 2019 Dr Kaur noted that the reason for the visit was “headache”. He recorded:[25]
“stress related mostly at work pressure job,
works as an accountant
happens every
[25] ARD page 102.
year likely to persists for another 3-4weeks at work”
On 3 May 2020 Dr Pushpika Jayatillake diagnosed an adjustment disorder. The entry in his notes stated:
“….recently has been under lot of stress, due to lack of staff. Adviced [sic] to take few days rest. patient doesn't think, she needs to see [the] [counsellor] yet.”
“Covid, other workers were made redundant.
now having to do all the work by her, unable to cope.
[Advised] to rest and talk to the employer”
The reason for contact was “stress”.
On the same day, at the same time according to the note, Dr Buddhika Wijerathne diagnosed “hypertension”. He took the history of headaches since the morning and that the applicant was having work stress.
On 12 September 2020 Dr Kaur recorded:
“Unwell [checked] BP
Was high around 159/98
Was fine on random check earlier
[Admits] stressed
Work related stress
Colleague/manager bullying her
Spreading rumours
Causing her stress
Might go on workcover
Awaiting ankle surgery in weeks”
On 22 September 2020 Ms Zurawski was seen by Dr Nazneen Hasan and the reason was “Mental Health Consultation – 2713”. The entry on this occasion was:[26]
[26] ARD page 113.
“stress and anxiety
from workplace
bullying
rumours about her and partner
they both work for same company
colleague/ manager came to her house and taken photos outside of her
house without her knowledge
showed it to other colleagues
giving her stress”
On 1 April 2021 Dr Kaur recorded:[27]
“ongoing work stress
will be applying [for] work cover
harassed (sic) by immediate boss
[27] ARD page 122.
ongoing from few months”

On 6 April 2021 Dr Kaur recorded that the reason for the visit was “adjustment disorder with anxious mood.” His notes recorded:
“work related stress
anxiety
ongoing issues at work since last year
last july she had a colleague stalking and taking pictures of her home with her partner's car standing
she was manager and partner driver in same company
partner went on work comp for stress
related to some ix
was ‘doen reg’ stalking
later she was demoted to admin citing covid and downsizing
she neevr felt appreciated at work
was victimised
later in last nov she was promoted back to manager but was given unrealistic goals by new manager
and now again demoted
….
wants compensation for harassment.”

The respondent’s case

Josh Richter

The respondent lodged a statement by Mr Richter dated 11 May 2021[28].
[28] Reply page 52.
At [6] Mr Richter said that he recalled that the applicant had a trial role in Liquid Sales from around December 2020. He said:
“She does not have a sales background”.
He explained that the role was offered to the applicant because the respondent had lost some contracts and “we moved her in to the [trial] role in sales” to see if any traction could be gained in sales, to move the business forward and to grow new markets.
He and Ms Zurawski would meet every two weeks to review the progress. He noted at [10] that Ms Zurawski did not appear to be stressed or anxious but seemed like she was in unfamiliar territory at times, as was to be expected.
He agreed that he had been queried about her ongoing role and her employment contract in Liquid Sales. Mr Richter said at [11]:
“….. I had advised her that it was on a trial basis and unclear as to where the final destination would be in terms of the structure of liquid sales and business plan”.
Mr Richter referred to the meeting on 31 March 2021 and agreed that he advised that the trial position would not be ongoing and that she was to return to the admin team, reporting to Ms Markovich. He said:[29]
“13.   I recall in this morning I went through the process of reviewing with Mira and it was a decision of the liquids business not travelling very well to budget, as such we had reduced the fleet and relocated some of the fleet to other branches and in the interim operate from St Marys in terms of ongoing support and maintenance phase. This would not require dedicated focus from St Marys.
14.    I made it clear to her that the cessation of the trail [sic] position was not her fault but a business decision. I mentioned to her about her good customer relations such as getting the McDonalds and various other liquids jobs.
15.    She did not raise any grievances with me in this meeting. I advised her it was a tough environment.”
[29] Reply page 52.
Mr Richter said that during the trial Ms Zurawski was still performing her Liquid admin duties. He said that he could see that the applicant was getting upset towards the end of the meeting and he asked Ms Markovich to follow-up with her to see if the applicant was okay.

Nicole Markovich

Ms Nicole Markovich made a statement dated 28 April 2021.[30] She said that she had been with the respondent since 2012 and had been Shared Services Manager for NSW and ACT since July 2020. She was the applicant’s direct supervisor. Ms Markovich was aware that Ms Zurawski had worked for the applicant for about 10 years and indeed they used to work together in the head office at Mascot.
[30] Reply page 88.
Ms Markovich described Ms Zurawski’s work as being satisfactory and that she had never been the subject of any performance, management or disciplinary issues. She referred to an email dated 12 April 2021 she had written to Mr Leung from Health & Wellness, stating that it contained further details. She then said:[31]
“15.   Josh spent most of the time praising her for her efforts and wins in that period, and that the role change was not a reflection of her performance. It was purely a business decision to enter the liquids business in to a maintenance phase, rather than pro-active growth involving sales team.
16.    This business decision did not impact Mira in her role in the liquid sales position. The liquids operations manager (Wayne Allen) was made redundant the same day, although Mira was not advised of this. She knew he had left but not aware under which circumstances.
17.    Josh was doing most of the talking in this meeting. When we moved towards talking about the future with Mira in the company, I told her we were keen to have her back in the admin team, that her skills were valued and that we were looking at involving her in particular projects in the future.”
[31] Reply page 190 [15].
Ms Markovich confirmed in general terms Ms Zurawski’s account of her meeting and speaking with Ms Markovich after the meeting and that she was upset. She confirmed that she told the administrative team that the applicant was coming onboard but Ms Zurawski continued to be upset and left early in the afternoon.
She said:[32]
“39 The change in her role was not a demotion. When she was asked to focus on the liquid sales role, it was like a secondment. There was not [sic] change in remuneration or conditions – apart from having opportunity for sales commission.
40. He (sic) conditions or salary did not change – just her area of work focus.”
[32] Reply page 93 [39].
Ms Markovich stated that she had met with the applicant and Mr Scott in early December 2020 “to invite her to commence the trial role in Liquid assets.” She referred to a report of 12 April which the investigator had a copy of. She said that meeting was “a chat about the role. There was no contract. There was a discussion about changing the focus to the new trial role”.
Ms Markovich was aware of an issue with Ms Zurawski’s partner who raised a grievance issue apparently the year before but she did not know anything about it.
At [46] she said she was unable to comment on the applicant’s allegation that she was demoted back in March 2020 “I was in a different position at that time and not aware of the issue” she said.
Ms Markovich said:[33]
“47. With regard to her allegation she was continually asking to review her contract, I am not aware this ever occurred. I am not sure who she would be asking.
48. She used her own mobile phone for work, and we paid 100% for the phone costs including her personal use as an expense claim. She was also given use of a company pool car if she needed to visit clients while in the trial sale role.”
[33] Reply page 95.
Ms Markovich said[34] that up until 31 March 2021 Ms Zurawski was happy and content in her work.
[34] Reply page 95 [49].

The 12 April 2021 report

The report addressed to Mr Leung referred to by Ms Markovich in her statement was dated 12 April 2021 and was lodged by the respondent[35].
[35] Reply page 100.
It recounted the circumstances in which Ms Zurawski was invited to join the sales team. She said that the invitation occurred in early December 2020. The report noted that no employment contract changes would be made.
The report gave more particularity to Ms Markovich’s statement regarding the meeting of 31 March 2021, again repeating that Mr Richter explained to the applicant that her contribution in the trial position was very much appreciated and to be commended. However, a business decision had been enacted to preserve available profitability in the Liquids Segment.
It was reiterated to Ms Zurawski that the decisions regarding the Liquids Segment no way were a reflection on her. Nonetheless, Ms Markovich reported that Ms Zurawski felt as if she had failed. She was told that her experience with the respondent and her administrative knowledge and skills were highly valued and Ms Markovich described an ongoing financial operations project in which it was anticipated that Ms Zurawski would be a key project team member.
She reiterated that the move back to the admin team was the result of the business decision to enter the Liquid Segment into a maintenance phase and it was not a reflection of her performance in the trial period.
Ms Markovich repeated in her report that she went outside with Ms Zurawski and chatted
one on one, in the smoking area. She said that as soon as they both stepped outside Ms Zurawski shared the news that she was recently engaged.
She said[36]:
“As we sat down [Ms Zurawski] continued to express her disappointment that her position in Liquids Sales was ending, saying that being in sales was her dream and that she felt that she had failed to do enough to turn the Liquids business around.”
[36] Reply page 101.
Ms Markovich reassured the applicant that the decline in the Liquids Business was not her fault but that a large contract had come to an end. Ms Markovich repeated that Ms Zurawski was seen as a valued employee with a strong skill set and was welcomed and needed in the administration team.

Mount Druitt Hospital

The Discharge Summary from Mount Druitt Hospital was lodged by the respondent[37]. It noted that Ms Zurawski was admitted and discharged on 2 June 2020.
[37] Reply page 446.

The history taken was:
“Sudden onset central, stabbing chest pain, tightness in the chest.
Was cooking dinner at the time.”
Dr Wijerathne, one of the applicant’s GPs at the Ropes Crossing Medical Practice in his referral letter to the hospital of 2 June 2020 noted the “presenting problem“ as “ Tightening type chest pain since yesterday evening .” [38]
[38] Reply page 453.

Procare Workplace Assessment

A workplace assessment was carried out by Procare Injury Management for the insurer on 8 June 2021 by Rehabilitation Consultant Ms Beth Worboys.[39] The history taken in that report noted that in November 2019 Ms Zurawski commenced working in the Liquids Business Development role but was told to wait until June 2020 for her change in role to be formalised with a new contract.
[39] Reply page 400.
Ms Zurawski said that she was demoted from that role in March 2020 because of COVID 19 and she went back to her role in administration.
The report then said:
“Ms Moran advised that around this time she started dating one of her colleagues and rumours started going around the office about this. She reports hearing lots of derogatory comments from colleagues….
In July 2020 Ms [Zurawski] reports that two senior managers drove past her house taking photos. She believes they were looking for evidence that she was dating her colleague Michael.
Ms [Zurawski] advised her partner Michael [to] put in a workers compensation claim as a result of this behaviour. However she was worried about putting in a claim as she remained hopeful that she would be returned to the BDM role. Ms [Zurawski] advised that she was ‘promised’ an official change in her role many times.”
The history taken indicated that in July 2020 Ms Zurawski started having chest pains and was admitted to hospital for investigation and no cause was found. She gave the history
that she eventually was given the role in the Business Development Management on 23 November 2020. She maintained that her colleague Wayne, already in the role, excluded her from work which caused her to feel victimised [that new]. As to the event of 31 March 2021 the report said:
“Ms [Zurawski] reports she came to work and was told that Rob Scott resigned. An hour later she reports her colleague Wayne Allen advised her that he was retiring.”
She then described a later meeting with Mr Richter in which she was told that her trial role had ended and she was going back to administration.
Ms Zurawski’s psychological tests scores indicated that she was experiencing “normal” levels of depression and stress symptoms, and “moderate levels” of anxiety symptoms[40]. The recommendation in this report was that Ms Zurawski return to her pre-injury job with the respondent but that Ms Zurawski said that she did not feel that she was able to return.
[40] Reply page 402.
It was indicated that Mr Leung and Mr Voss indicated that suitable duties were available within the business and Ms Zurawski advised that she was happy to liaise with Mr Voss who was the onsite Return to Work coordinator.[41]
[41] Reply page 404.
Mr Leung advised that administrative duties were readily available for Ms Zurawski if appropriate.

Workcover certificates

Certificates of Incapacity were also lodged by the respondent that advised that the applicant had no current work capacity between 6 April and 20 May 2021.[42]
[42] Reply pp 11 and 408.

Michael Kirby

The respondent lodged a Claims Summary Closure dated 28 August 2020, addressed to Ms Zurawski’s partner, Mr Michael Kirby. Mr Kirby had submitted a grievance alleging inappropriate behaviour against Gregory Bond and Wayne Allen in their conduct of passing by the house and taking photos. Allegations were also made that Mr Allen had been inappropriately participating in conversations about employee’s personal lives, and that Mr Allen had threatened him with victimisation if Mr Kirby were to raise the issue.[43]
[43] Reply page 67.
A further document was lodged dated 23 November 2020 from the respondent. The recipient was not identified, and the applicant said in her statement that she had the document. However, the document immediately preceded that of the letter to Mr Kirby of 28 August 2020. Both documents had been signed by Mr Rob Scott, the respondent’s then Sydney Manager. I assume the recipient was again Mr Kirby. This document was entitled “Claim Summary Closure” and confirmed allegations of inappropriate behaviour regarding “bullying and harassment at the St Marys depot.” These allegations had been investigated by Mr Scott and a Mr Andrew Suttor. The “concerns raised” were:[44]
“l     Inappropriate commentary around relationships outside the workplace
·    Exclusion in projects; and
·    Exclusion in communication”
[44] Ibid.

Dr Brian Potter

Dr Potter, Psychiatrist, was retained as a medico-legal expert for the insurer. He reported on 17 June 2021[45].
[45] Reply 105.
It will be seen that Mr Parker accepted that Dr Potter’s report was too confused to be of much assistance, and it is relevant to note that Dr Potter admitted he had difficulty in comprehending Ms Zurawski’s history. This is hardly surprising, in view of the material he was supplied with by the insurer. Dr Potter described it as follows:[46]
“The following documentation has been considered in preparing this report: (65 pages).
1.     Various emails
2.     A claim summary closure of Remondis dated 23 November 2020.
3.     An investigation summary of Remondis dated 28 August 2020 with statement(s).
4.     A consent to interview of Procare dated 28 April 2021.
5.     A report of Dr Ravneet Kaur, General Practitioner, dated 6 April 2021
6.     Certificate(s) of Capacity/Certificate of Fitness.
7.     A worker’s injury claim for with date of injury as 31 March 2021.”
[46] Reply page 106.
The documents dated 28 August 2020 and 23 November 2020 I have described above, and concerned Mr Kirby’s grievances. It does not appear that Dr Potter was supplied with any relevant information on which to make an informed decision as to the applicant’s injury, and he was reliant on her somewhat opaque description at consultation. He did not consider the content of the clinical notes as he was not supplied with them. It is doubtful that he even had access to the statements of the respondent’s witnesses, although it is impossible to tell, as for some reason the respondent supplied two copies of those statements, one of which followed the claim summary closure dated 23 November 2020.

As no reliance was made by the respondent on his report, there is no necessity to analyse it in any detail. Dr Potter noted that Ms Zurawski spoke from a “self-absorbed perspective referring to issues within her workplace which it was difficult for the listener to comprehend without a knowledge of her circumstances of her workplace”. He concluded that Ms Zurawski did not demonstrate the depth and breadth, signs and symptoms required for formal psychiatric diagnosis[47].

SUBMISSIONS

[47] Reply page 113.

Mr Parker

Mr Parker noted that Ms Zurawski had a degree in finance, and her background had been in financial administration. She had been employed by the respondent for many years and had been transferred to the area known as the Liquids area, which was involved with sales. However she had to return to finance because of the COVID pandemic in March 2020.

She was returned to the Liquids sales area in November 2020. Whilst her manager was retrenched, she was simply offered a transfer back to her administrative finance role when a decision was taken by management to close down the Liquids sale area. It was the transfer back on 31 March 2021 that upset the applicant and appeared to be the major cause of her condition and consequent incapacity.
Mr Parker referred to the contents of paragraph 44 of the applicant’s statement, which said that if she had been given a wage increase, a motor vehicle, a mobile phone and a laptop computer, she would still be happily working in sales. Mr Parker submitted that the applicant’s statement fitted “nicely” into s 11A, as it confirmed that the predominant or whole cause of her psychological condition had been the actions taken in regard to her transfer and employment benefits.
Mr Parker said that the incapacity argument was also negated by the applicant’s statement. It seemed that she was saying that she was happy to work for the respondent if she got her own way.
He submitted that the evidence of those respondent witnesses who were also at the meeting on 31 March 2021 confirmed that the respondent was happy with the applicant’s employment and wished to retain her services. Indeed, the applicant conceded as much in her statement, and it could not be argued therefore that the respondent’s actions in transferring her were unreasonable. Mr Parker submitted that the transfer could not be seen as a demotion, as it was characterised by the applicant.
Mr Parker was invited to discuss the medical evidence, and he said it was simply a factual question rather than particularly a medical situation. He conceded that Dr Potter’s history was confused and of no great benefit.
He said that Dr Khan did not address the relevant factual situation. The transfer was not a demotion, but simply a commercial change of business in an attempt to retain the applicant’s services. Dr Khan did not address that factual issue.

Mr Tanner

Mr Tanner noted that the respondent’s case relied on a single episode of 31 March 2021 but contended that the episode was not the whole or predominant cause of the illness. He said it was clear that she had been demoted. He said that it was quite clear that the applicant had been seeking clarification of her position and then was unreasonably ambushed, with no forewarning.

He said although she was congratulated on her work, it was still a demotion.

He said the respondent bore the onus and he said there was no contemporaneous documentary proof that the applicant was put into the sales position only as a trial. He said there was no process of appraisal or notice given to her. He said there was no material that would indicate that the applicant knew that her position would only be as a trial. There were no regular briefings, no records of any meeting, no performance appraisals and the like.

Mr Tanner described the comment to how long a piece of string was, as being cavalier. He said there were no benchmarks or periods of assessment during her so-called trial.

I discussed with Mr Tanner in considering the meeting of 31 March 2021 what a “demotion” was. He said it was a concept that was hierarchical in authority, and not dependant on a change in income. He referred to Ms Zurawski’s evidence as to her expectations of the provision of the perquisites discussed by Mr Parker. In answer to a question whether Ms Zurawski had those perquisites when she was performing that role up to March 2020, Mr Tanner said:
“No.”
Mr Tanner continued that a diminution in status and responsibilities would, as a matter of common sense, constitute a demotion, and that the applicant’s diminution in status and responsibility was accordingly a demotion.

In any event, Mr Tanner submitted, what was relevant at a procedural level was that there was no proper notice, and he referred to Blue Scope Steel Ltd v Markovski[48].

[48] [2013] NSWWCCPD 69 (Markovski).

With regard to Mr Parker’s submission that this was a commercial decision, Mr Tanner said that if the business was not working in that area, and if there was a commercial decision, you would expect that the applicant would be presented with information about the commercial circumstances of that side of the business. He referred to Ms Zurawski’s expectation that when she was called to the meeting on 31 March 2021 her position was going to be formalised and her issues addressed. It brought home the fact that the applicant was given no reason to understand why she was being removed. This was a significant reversal for the applicant who had visions of progress as manager and who was “put back to an administrative role down the hierarchy.”

Mr Tanner submitted that “they were using this ruse of a trial for ending this position.” Mr Tanner submitted that the respondent had been “disingenuous” as a structural decision had been taken without any prior consultation or notice to the applicant. This, Mr Tanner argued, was the reason that the applicant became so upset during the meeting.
Mr Tanner submitted that Ms Zurawski’s comment, so heavily relied upon by Mr Parker, that she would still have been working happily in the sales role if the meeting had gone the other way, needed to be considered in its proper context. This statement was made in April 2021 and in view of all the medical evidence her sense of grievance was responsible for her comment. Mr Tanner drew the analogy of someone having a knee injury alleging that but for the injury that person would still be doing vigorous physical activities.

Mr Tanner submitted that the applicant’s statement must be seen in the context of the medical evidence, and he referred to the entries in the clinical notes. He argued that there had been a “slow build up over a significant period of time.” This had given her reason to lack confidence and trust in management. The way in which this was “sprung on her” needed to be appreciated in the context of a variety of respects in which they had not treated her in a fair and reasonable fashion.

He referred again to Markovski and said that the way in which the applicant was removed from her managerial role, when properly assessed, must lead to the conclusion that she had been unreasonably dealt with. Accordingly, the reliance on s 11A falls away.

It was submitted that in any event, as already submitted, the respondent had failed to satisfy its onus of proof that the cause of the applicant’s psychological injury was either wholly or predominantly the cause of the actions taken by the employer, whether reasonable or not. Mr Tanner referred to the variety of stressors the applicant had been exposed to over a period of time, one of which included the “stalking” of the applicant and Mr Kirby. He submitted that I would not give any credence to Mr Parker’s submission that because that event was not countenanced by management it could not be seen as relevant.

I was referred to the history taken by Dr Khan. Mr Tanner said that a consistent history had been taken that accorded with the applicant’s statement and the clinical notes. Mr Tanner referred to Dr Khan’s opinion that Ms Zurawski’s psychological injury was not due to any reasonable action by the employer.

Mr Tanner noted that Mr Parker did not rely on the opinion of Dr Potter, whose opinion as to the question of whether the applicant’s condition had been wholly or predominantly caused by reasonable action was “not applicable.” Thus, the expert medico-legal case presented by the respondent was that s 11A did not apply.

There was no evidence that the applicant had any capacity for work, Mr Tanner argued. He said that the applicable 80% rate this being a s 37 matter was $1,155.28, on 8 July 2021.

I asked Mr Tanner about the first issue raised in the dispute notice, being that there was no injury. Mr Tanner referred me to Dr Potter’s opinion, saying it was clear that he thought there had been an injury, notwithstanding that he advised that at the time of his evaluation the applicant did not demonstrate the depth and breadth of signs and symptoms required for a psychiatric diagnosis. Dr Potter’s recommendation that there should be 10 sessions with a psychologist indicated that there was such a psychological condition, Mr Tanner said.

Mr Parker in reply

Mr Parker reiterated that the question before the Commission was as to causation. He referred to Mr Tanner’s reliance on the entries in the clinical notes to assert a history of stress from work over a period of time. Mr Parker referred to the clinical notes in detail, submitting that in the entries, whilst mentioning stress and anxiety, showed the presence of a mental state dating back to 2017. In answer to a question whether that related to the present condition. Mr Parker replied that it did not. The present condition was wholly or predominantly caused by the transfer. It was not a demotion but was simply because the sales operation was being closed down.
In answer to a further question as to whether Dr Khan made a connection between the entries in the clinical notes as being contributory to the applicant’s reaction on 31 March 2021. Mr Parker said that Dr Khan did not deal with that question, and he agreed that there was no link between the content of the notes and Dr Khan’s opinion, but rather that I was being asked to infer that there was.

Mr Parker agreed, and said that Dr Potter also did not consider the notes. He had a rather confused history, and did not deal with the issue of the change in role that was the catalyst for the applicant’s psychological breakdown. That change was done quite professionally, Mr Parker submitted.
Mr Parker addressed Mr Tanner’s criticisms of the process, asking rhetorically how was the applicant supposed to have been warned of the change in role in a manner that would have changed the situation? There was nothing more the respondent could have done, particularly when both her managers in the Liquids area had been let go.

Mr Tanner

I invited Mr Tanner to respond to some of the questions I had asked. Whilst conceding that Dr Khan did not specifically refer to the clinical notes, Mr Tanner said Dr Khan’s analysis referred to a variety of stressors that emerged from the applicant’s statement and “at times” from the clinical notes. He referred to Dr Khan’s opinion that the condition became apparent in early 2020, which Mr Tanner said could be “picked up” from the notes, some of which he then referred to. He relied on Dr Khan’s opinion that there had been a gradual deterioration of the applicant’s condition.
Mr Tanner submitted that an employer was expected to consult with a worker before implementing a decision that affects the worker. There was no evidence in this case that the applicant was provided with any information prior to 31 March 2021 that her position was likely to be changed. He referred to Markovski as to the question of reasonableness.

DISCUSSION

Although the dispute notices challenged whether Ms Zurawski had in fact suffered a psychological injury within the relevant definitions of ss 4(a), 9A and 4(b) of the Workers Compensation Act 1987 (1987 Act), Mr Parker, acknowledging that Dr Potter had been unable to take a reliable history, relied simply on the provisions of s 11A.
Section 11A provides relevantly:

“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) …
(4) ….
(5) (Repealed)
(6) …
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8) …”
The reasonable actions were particularised as being with respect to “transfer” and/or “the provision of employment benefits.”
In submitting that the applicant’s statement demonstrated that the respondent’s actions on 31 March 2021 were wholly or predominantly the cause of her psychological condition, Mr Parker contended, as I understood him, that this was one of those rare cases referred to in Hamad v Q Catering Limited[49] where expert evidence was not necessary, because there was only one possible trigger for the onset of her psychological condition.
[49] [2017] NSWWCCPD 6 (Hamad).
In Hamad DP Snell, after considering the relevant authorities, said:
88. “The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
It was common ground that the respondent bares the onus of establishing the application of s 11A as a defence to its liability. Mr Parker’s task accordingly was to show that it was the meeting of 31 March 2021 that was the “single instance of major psychological trauma, with no other competing factors” that was the cause of the applicant’s injury.
Mr Tanner submitted that there was an abundance of other competing factors which, as I understood him, could not be resolved on the basis of the common knowledge and experience of Members of the Commission.
It is accordingly necessary to consider the medical evidence in the light of the two competing positions, and the relevant authorities.

Hamad

In Hamad the injured worker suffered a psychological injury when, during an industrial dispute, he was stood down at a disciplinary interview for failing to obey a written direction from his employer. The industrial dispute had arisen when the employer consolidated separate functions performed by different leading hands. This occurred in 2013, but a dispute arose regarding the relevant grade level that should accompany leading hands performing the consolidated role. The relevant union argued that such workers should now be paid at a Level 6 grade, rather than the Level 5 grade that had pertained hitherto. Mr Hamad, in keeping with other workers in the same role, refused to work the consolidated role, but reverted to his original leading hand duties some time before Christmas 2014.
Mr Hamad, along with others, was to be given a letter of direction to perform the consolidated duties on 19 February 2015. In line with the advice he had received from the union, Mr Hamad refused to take the letter, and it was forwarded to him by Express Post. When Mr Hamad attended the workplace on 20 February 2015 he again declined to carry out his consolidated role and was given work compatible with that done by Level I – 3 grade workers (DP Snell noted that the precise level was uncertain). Mr Hamad was then called to a meeting at about 12.36 pm, at which he was given a warning letter and other documents. At about 3.15 pm Mr Hamad was paged and required to do work that was compatible with his usual duties. He ceased work at the end of his shift and sought medical attention for his psychological condition.
The Arbitrator found the s 11A defence - that the injury had been wholly or predominantly caused by the respondent’s reasonable actions concerning discipline - had been made out. This decision was overturned as the respondent had not lodged any medical evidence, and particularly none of which advised whether the disciplinary action itself was the predominant or whole cause of Mr Hamad’s injury.
The medical evidence before the Arbitrator consisted of some shorthand written reports from the applicant’s GP, his clinical notes, and a report from his treating psychiatrist. There was also a report from a dermatologist that referred to the applicant- being bullied.
DP Snell found at [73] that the medical evidence did not support the causation finding. The clinical notes, which commenced after Mr Hamad had been disciplined, showed the presence of “some conflicts between the worker & union & employer” and to other disputes with the employer concerning the offer of inferior duties, discrimination, and demotion to a lower grade level. Bad treatment was also alleged against a supervisor. In referring Mr Hamad to the treating psychiatrist, the GP referred to a “situational stress reaction after being downgraded by his employer from Grade 5 to Grade 1 duties.”
The learned Deputy President noted from [75] that the report from the treating psychiatrist referred to a number of issues, including the disciplinary interview. Other issues involved:
·        The issue of the warning letter.
·        The respondent not agreeing to the Union demand for extra pay for the increased work duties.
·        The transfer to a section staffed by lower paid employees, which distressed and humiliated Mr Hamad.
·        The refusal by the respondent to allow Mr Hamad to go home when he felt “distressed” and “unwell.”
·        embarrassment at his treatment by the employer to whom he had always felt loyal
·        a perception that a supervisor treated Mr Hamad harshly.
DP Snell noted at [77] that the medical evidence did not seek to address the issue of the competing causal roles of the various work matters referred to in the history. The onus was on the employer to do so.
Before the Arbitrator, these matters were distilled into six causal issues, as DP Snell noted from [10]:
·        The absence of evidence to establish that the psychological injury had been predominantly or wholly caused from disciplinary action.
·        The respondent’s failure to accede to the worker’s demand for extra pay.

·        The respondent asking Mr Hamad to undertake the combined duties, knowing he would refuse.

·        The respondent’s failure to allow Mr Hamad to go home when he became upset after receiving the warning letter.

·        The respondent’s direction to Mr Hamad to perform work that fell below his usual classification. (This issue was discussed from [101]-[108] where DP Snell held that the Arbitrator had fallen into a factual error, as he mistakenly found that the Level 1 work was performed after Mr Hamad had received his warning letter. It was found to have occurred in the morning before the warning letter had issued.)

·        The actual Level I work Mr Hamad was paged for and requested to perform prior to his being issued the written warning.

It can be seen that the relevant psychological injury in Hamad resulted from the events of that day. The medical evidence raised a number of different relevant causes that might have been significant, and the employer failed because it did not call any evidence to establish that the disciplinary actions by the employer had been wholly or predominantly the cause of the injury. The assumptions made in the medical evidence, and the causal issues consequently identified, were not challenged, in contrast to the present case.

Shore

In Shore v Tumbarumba Shire Council[50] ADP Roche considered a case in which Mr Shore suffered a psychological injury as a result of a decision by the employer to transfer him to another area.
[50] [2013] NSWWCCPD 1 (Shore).
The background was that a worker with whom Mr Shore had worked for five years had suffered a motor vehicle accident when she had passed out at the wheel. She believed the accident was caused by the stress she was experiencing because she had to work with Mr Shore. The fellow worker complained that Mr Shore would often come to work saying he was stressed, crying and expressing self-harm issues. He had also attended his fellow workers home uninvited on occasions. The Council was concerned for the mental state of the fellow worker and thus determined to transfer Mr Shore.
The medical evidence was that Mr Shore had suffered his psychological injury as a direct result of his workplace difficulties. The qualified psychiatrist, Dr Westmore, said that the difficulties started with a grave re-opening incident, and the subsequent adjustment disorder suffered by Mr Shore was attributed to a number of causes. At [49] ADP Roche noted that the effect of the grave re-opening incident on Mr Shore himself was not challenged. The incident played on Mr Shore’s mind, and every time he had to reopen a grave he became distressed. Moreover he had been taking medication prior to the transfer meeting that had made his condition manageable.
From [51], ADP Roche said:
“I do not accept Ms Hewish’s submission that the Arbitrator considered that Mr Shore was relying on events other than the meeting on 8 July 2010 as causative of his injury, but did not accept that such events were causative of the alleged incapacity and need for treatment. First, merely saying, as the Arbitrator said, that there had been some prior problem and that perhaps Mr Shore was psychologically ‘fragile’ did not deal with the causation issue in the terms required by s 11A.
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.”
Accordingly, it is necessary to identify the relevant psychiatric injury, and the evidence that was relevant to its cause.

Dr Khan

Mr Tanner submitted that Dr Khan had provided the necessary evidence that established that there were other potential causes that may have contributed to Ms Zurawski’s injury. The question therefore arises as to whether the matters raised by Dr Khan are relate to the relevant psychological injury.
Dr Khan found that the applicant was suffering an adjustment disorder with mixed anxiety and depressed mood. That diagnosis was explained in different ways.
He recorded a history that the applicant in November 2020 was returned to the “liquids business development manager” position. That history is common ground, except that there is no support for the applicant’s assertion that she was holding down a position of “manager.”
Dr Khan noted that the applicant had not been provided with “a car, mobile phone, laptop or salary review…” It is common ground also that the applicant was seeking to renegotiate her contract, but it would seem that at least she already had access to the car pool. It was also common ground that she handed over her administrative duties, as was recorded by Dr Khan, although again, there was a dispute as to whether she continued to do some work in that area.
Be that as it may, Dr Khan also recorded a history that the manager “Robert” (whom I accept was Mr Scott) and another manager were made redundant in March 2021, again, a matter that is not in dispute.
Dr Khan recorded that there had been a meeting on 31 March 2021, which is also common ground. However, Dr Khan recorded that at that meeting Ms Zurawski was told that her position in Liquids sales “was a trial and that the trial was to come to an end.” That history was incorrect, on the applicant’s own version. There are a number of implications to that incorrect history, but for present purposes it is correct that Ms Zurawski was told that the trial had come to an end.
Dr Khan recorded that the reason for the trial ending was because liquids sales had been put on hold and into a maintenance program, and that, too, is not in dispute – nor is the history taken that Ms Zurawski was asked to head an administration position and was “too much of an asset.” He also recorded that Ms Zurawski raised how these “unexpected changes” could have been made without her consultation.
This history was taken against a long period of service by Ms Zurawski for over 10 years with the employer during which time she had held down a responsible job commensurate with her academic qualifications, a Masters Degree in Accounting.
It is also common ground that Ms Zurawski did not suffer any incapacitating symptoms until she was advised that she was being transferred back to admin. Both she and Ms Markovich described how she went home early after being introduced back to the admin team, and it was common ground that the news that her position was ending upset her. Both Mr Richter and Ms Markovich attested to that. Further, the applicant said that when she got home after picking up her two daughters from day-care, she developed symptoms after dinner. Her partner, Mr Kirby “thought about calling an ambulance” she said in her statement, but her condition stabilised and she did not suggest that any ambulance was in fact called.
It can be seen that to this point there is some mutuality in the circumstances described by both parties. That mutuality, as I understood Mr Parker, underlines the respondent’s contention that it was simply the applicant’s disappointment on receiving the news of her transfer on 31 March 2021 that was the whole and predominant cause of her accepted psychological condition.
The distinction between the circumstances of this case and those I have referred to above, is that in both Hamad and Shore, there was no controversy as to the accuracy of the medical evidence that was before the Commission. It is not correct to assert that because there is medical evidence in a case which involves s11A that it must be accepted at face value. The above cases apply when the medical evidence is unchallenged. The existence of other contemporaneous potential causes for Mr Hamad’s psychological injury were discussed by DP Snell on the basis that the treating psychiatrist had obtained a correct history. Similarly the evidence of Dr Westmore in Shore had not been challenged.

A gradual deterioration?

However, in the present case the basis of Dr Khan’s opinion is in a different category. The portion of Dr Khan’s report that I have thus far referred to was contained under the title “History of Presentation.” After detailing the matters I have referred to as largely constituting common ground above, Dr Khan said, as I indicated when considering his evidence:
“As a result of these aforementioned work-related stressors, Ms Maureen experienced gradual deterioration in her mental state….”
A number of symptoms was set out included chest pains, gastrointestinal symptoms, a disengagement from attending the gym, reduced self-confidence and other matters that I reproduced in the body of these reasons. As can be seen, the evidence does not support a finding that there had been a gradual deterioration in the applicant’s mental state, unless Dr Khan was referring to her subsequent progress after 31 March 2021.
The evidence is unchallenged that Ms Zurawski was suffering no symptoms at all whilst she was engaged with liquids sales. She described that when she was appointed to the role in November 2020 she was congratulated by Mr Richter, and she clearly performed well, as arrangements were made to retain her services when both her managers had been let go in March 2021. She described going out with the liquids truck driver to gain knowledge about fuel and other products, and she said that everything was going well.
Her constant refrain within her statement was that she wished to regularise her contractual position, and be entitled to what she appeared to regard as the perquisites of her position. She referred to this issue in at least eight different paragraphs in her statement. She summed up her position at paragraph 44, as I have already reproduced. To repeat:
“I feel that if this meeting had gone the other way on 31 March - that they gave me a permanent contact and benefits such as company car, wage increase, phone and lap top etc, l would not be where I am today, that I would now be happily working in the sales role with none of the psychological health concerns I now am dealing with.”
It is accordingly necessary to consider the basis on which Dr Khan thought there had been a gradual deterioration of Ms Zurawski’s mental state. The obvious inference is that the applicant’s mental state has gradually deteriorated since 31 March 2021, as I have indicated, but Dr Khan included, in referring to the “aforementioned work-related stressors” three other matters, and it is those on which Mr Tanner predominantly relies, together with the contents of the clinical notes, from which he also sought to gain some evidentiary value.

Other suggested causes by Dr Khan

The first matter related to the first time Ms Zurawski had worked in Liquids sales. Dr Khan stated that the applicant first began experiencing difficulties “during her employment in late 2019,” but he gave no detail as to what those difficulties might have been, and Ms Zurawski did not refer to any problems that were work-related in 2019. It may be that Dr Khan was intending to intimate that it was in late 2019 that Ms Zurawski was first appointed to the position of Liquids sales.
There was very little evidence about that first stint with Liquids sales. Neither Mr Richter nor Ms Markovich were present when that occurred, and the applicant herself simply noted that she was “demoted” from the position in March 2020, without making any further comment, apart from noting that she had been on the same contract as a Credit Controller in 2011.
The second issue referred to by Dr Khan was that on 16 June 2020, Ms Zurawski developed chest pains and was admitted to her local hospital. Dr Khan recorded that because Ms Zurawski had been told that her cardiac symptoms were due to stress, she presumed the stress must be work-related, “given that she was not experiencing any non-work-related stressors at the time.” There were a number of difficulties in relation to this history.
Firstly, Dr Khan did not indicate what the self-diagnosed work stressors had been, neither did he appear to enquire. The assumptions on which he based his finding that this was an “aforementioned work-related stressor..” is accordingly absent. Secondly, Dr Khan was given an inconsistent date, as the Mt Druitt Hospital Discharge Summary indicated that the applicant was admitted on 2 June 2020, not 16 June 2020. Whilst that inconsistency was of small moment, Dr Khan also had available the applicant’s statement, in which she said, as indicated, that her demotion back to the admin role in March 2020 had made her “upset and angry and anxiety with high BP.” She went to Mt Druitt Hospital and was put on Endone for chest pain. The inference was inescapable that she was asserting that the Mt Druitt Hospital admission was as a direct result of her being moved back to admin during Covid in March 2020. This was clearly inconsistent with the contemporaneous record from Mt Druitt Hospital and does significant damage to the applicant’s credibility. Moreover, it would appear that Dr Khan did not note the inconsistency between the date given to him of 16 June 2020 and the assertion in the applicant’s statement that the hospital admission occurred in or around March 2020 as he recorded under “treatment history” that the applicant “required one hospital presentation with acute symptoms of anxiety and panic as a result of the subject injury.”
It can be seen that the Mount Druitt Hospital Discharge Summary recorded no such cause. Whilst caution must be exercised when considering the content of the clinical notes of health professionals[51], neither those of the hospital, nor the referral letter from Dr Wijerathne, nor his clinical notes made any connection between the sudden onset of chest pain whilst the applicant was cooking dinner and any other cause, let alone “acute symptoms of anxiety and panic” caused by an undiagnosed psychological injury. The only support for Dr Khan’s assumption was the self-diagnosis, made in retrospect, by the applicant whose credit is in some doubt for the reasons I will shortly adumbrate.
[51] See the authorities cited in Collins v Bunnings Group [2021] PIC 313 at [221] per Member Capel.
The third work-related stressor was the behaviour of Gregory Bond and Wayne Kelley taking photos of Mr Kirby’s car and her car in the driveway of her house on 30 June 2020. Dr Khan also noted that Ms Zurawski had been the subject of derogatory and sexually inappropriate comments at work. As indicated, the conduct of these employees was the subject of investigation following complaints it would seem by Mr Kirby.
I agree with Mr Tanner that the respondent could not disclaim responsibility for any psychological damage that conduct might have caused to the applicant, simply because it did not authorise it, and in fact had disciplined the two employees. The difficulty is that in her statement, the applicant did not make any such claim. She described investigation process that followed, and the finding that Mr Allen had breached EEO awareness, bullying, harassment and discrimination policies, and she was careful to say to Dr Khan that she kept a “clear delineation” between her work life and personal life. She told Dr Khan that she was “particularly disturbed” about how she was “stalked” at home, but she made no mention of any such disturbance in her statement, nor as will be seen, did she make any contemporaneous complaint of any deleterious effect to her GP.
I note further that the applicant denied any pre-existing past psychiatric history to Dr Khan, a denial that the clinical notes also bring into question.
Thus, whilst I accept Dr Khan’s diagnosis that the applicant suffers from a psychological injury, namely an adjustment disorder with mixed anxiety and depressed mood, there is no support for his assumption that the applicant experienced a gradual deterioration in her mental state prior to the events of 31 March 2021, if that is indeed the basis of his opinion.
The clinical notes were not supplied to Dr Khan. The documentation provided to him was described as follows:[52]
“The following documentation was provided and reviewed:
·        Investigator statement of Ms Miroslawa Moran, dated 29 April 2021;
·        Section 78 Notice, dated 29 June 2021 (including the report of Dr Brian Potter dated, 17 June 2021)
·        Workcover Certificates of Capacity, variously dated.”
[52] ARD page 41.

Clinical notes

I have set out the relevant entries in the clinical notes above. Whilst it may be that Ms Zurawski has not been diagnosed by a qualified psychologist or psychiatrist in the past, one of her treating GPs, Dr Jahan diagnosed anxiety and depression on 19 September 2017 for two months which had caused an irritable bowel syndrome. No reason was given for the GP’s diagnosis.
Similarly, Dr Kaur diagnosed a condition of “anxiety/depression” on 16 July 2018. The cause was noted as her work as an accountant. Dr Kaur noted on 30 August 2019 that Ms Zurawski suffered from headaches which happened every year as part of her “pressure job” as an accountant. As I noted, there was no suggestion that the applicant was being bullied or harassed when she complained of work stress.
The word “stress” appears many times in the clinical notes, as has been seen, and was connected with her occupation as an accountant, as well as other unrelated matters. It needs to be borne in mind that stress and mental health are everyday concerns for well-adjusted people. I have reproduced s 11A(7) as an illustration that the word “stress” or “stress condition” does not connote a psychological condition within the legislation for the purpose of the issue of certificates, and it demonstrates an acceptance within the workers compensation scheme that a more precise terminology is required.
Dr Jahan noted an attendance for “stress” on 9 October 2018 which related to some personal and work issues. Ms Zurawski was coping with the separation from her then partner, and looking after her young daughter.
The attendance on Dr Jayatillake on 3 May 2020 coincided with her return to admin after her first stint with Liquids sales. Although the complaint was concerned with the applicant’s stress due to lack of staff because of the pandemic, there was no complaint of any psychological injury. The applicant did not want to see a counsellor, and another practitioner on the same day noted “work stress.”
This entry again raises the reliability of the applicant’s recall – particularly the history upon which Dr Khan based his assumptions. There was no suggestion that Ms Zurawski was upset that she had been returned to her admin position in March, and, again bearing in mind the need to approach the content of clinical notes with caution, one would have expected that issue to have been raised as a cause of the stress reported. The entry was concerned with the causes of her condition, which was described by Dr Jayatillake as an “adjustment disorder.”
It is significant in view of Ms Zurawski’s propensity to seek medical treatment when she suffered from stress, that she did not do so when she was returned to her admin duties in March 2020. Her complaint on 3 May 2020 was that because other workers had been made redundant, she had to do all the work herself, and was unable to cope. The reason that the applicant went off work in March 2021 was not that she could not cope, but rather that her enthusiasm for the work had not resulted in the confirmation of her position that she strongly desired.
Moreover, there is no support in the clinical notes for Dr Khan’s assumption that the applicant was admitted to Mt Druitt Hospital because she had acute symptoms of anxiety and panic as a result of the “subject injury.” Dr Wijerathne noted on 2 June 2020 that the applicant was complaining of a sudden onset of tightening type chest pain, and twisted her ankle getting out of bed on 3 June 2020.[53]
[53] ARD page 107.
The first entry that suggested that the applicant was being affected by something other than the ordinary stress of her occupation was on 12 September 2020, which indicated that she was being bullied by a manager/colleague, who was spreading rumours. The entry recorded that the applicant “might go on workcover.” This was further confirmed on 22 September 2020, as indicated above, when the ‘stalking” event of 30 June 2020 was first recorded. The entry recorded both stress and anxiety as a result of the “stalking” event, and that the photos were shown to other colleagues.

From 22 September 2020 no further reference was made to the applicant’s mental state until after she had been transferred on 1 April 2021. Her history is that she thereafter accepted a transfer into Liquids in November 2020. There is no suggestion that Ms Zurawski suffered any difficulties in performing that role, for which she expressed satisfaction and enthusiasm in her statement. There was no evidence that Ms Zurawski was undergoing any treatment for any mental state in the 12 visits she made to her GP between 22 September 2020 and 1 April 2021.

Dr Khan’s assumptions not established

From a commonsense viewpoint, the fact that Ms Zurawski showed no incapacity for work until 31 March 2021 would indicate that it was probable that her disappointment at being in the Liquid sales area was the whole and predominant cause of her injury. The relevant question is whether there were a number of potentially causative factors raised in the applicant’s statement and the medical histories that required the expert view of a qualified specialist to consider as to which was the whole or predominant cause of the applicant’s injury. I do not accept Dr Khan’s opinion that there were other causative factors. His assumptions were based on an acceptance of the applicant’s history, and they have not been established on the evidence.

The applicant

I have indicated above that the applicant’s credit is in doubt, and I have referred to the lack of corroboration in the contemporaneous material for her assertions to Dr Khan that she was distressed by her return from Liquids to her previous admin position in March of 2020. In her statement she said that she suffered anxiety, shakes and extremely bad gastro, for which she attended her GP. The clinical notes show that she attended Dr Kulanayagam on 17 February 2020 (when she was still in the Liquid sales role) to whom she complained of “stress” for the last two weeks. Her blood pressure was taken at 150/100 and she was suffering a migraine headache.[54]
[54] ARD page 103.
She next attended Dr Kulanayagam on 15 March 2020 for treatment of her conjunctiva discharge and she was still complaining of “tension headaches”. On 31 March 2020 Dr Jayatillake reported that the eye infection had recovered, but that she was then having the symptoms again. Her next attendance at the Ropes Crossing Medical Centre was on 3 May 2020, which I have discussed above.
It can be seen that, whilst Ms Zurawski was treated for conjunctivitis in March 2020, there was no attendance regarding “gastro” problems or any complaint that she was suffering from “the shakes.”
It is relevant at this point to note the way her statement was constructed. Ms Zurawski spent from paragraphs 12 to 67 describing the events of her transfer back to her admin position in March 2021, and then made allegations about the effect that earlier events had on her mental state. In paragraph 8 she said she had been “demoted” from a position she described as “Liquids Business Development Manager” to her admin role.
She returned to the “demotion” at paragraph 68. She stated that when “in March” she was “demoted” back to her admin role she was so upset and angry that she had anxiety with high blood pressure, and she went to Mt Druitt Hospital. I have already indicated that I do not accept that evidence, which I regard as an attempt to conflate an unrelated medical problem involving chest pains into a relevant issue. The construction of the statement is consistent with a recital of the applicant’s primary complaints regarding the circumstances of her disappointment at being transferred back to her admin role, followed by an attempt to include any matter that might remotely justify the onset of a psychological condition prior to her transfer on 31 March 2021.
The transcript will show, and indeed I have referred to the discussion I had with Mr Tanner, about the definition of the word “demotion.” Mr Tanner advanced the theory that implicit in the term is a reduction in the hierarchical status of a person, regardless of the economic status. I was not referred to any authority for the proposition, and whilst as a generality that might be so, in the context of an industrial claim, it would usually involve a reduction in income. Be that as it may, the use of the word by the applicant emphasises her dismay that her position in Liquids sales was no longer available, and the importance she attached to it.
Ms Zurawski made it plain, as I have indicated, that she wished to have her contract altered. She clearly had an expectation, but it is unclear as to why. Mr Richter agreed that the applicant had queried him about her contract but said that because her role was on a trial basis he was unclear as to “where the final destination would be.” The applicant’s account was that Mr Richter would reply that he was “working on it.” She said that she emailed Mr Richter about it, but was unable to produce the email.
Ms Zurawski did not suggest that any promise had been made to her, and her evidence was consistent that it was her idea that she was entitled to it. I found it odd that the applicant maintained that she was so entitled, as she had already been moved to Liquid sales between November 2019 and March 2020. She did not claim that she was entitled to the separate benefits she now claims when she was performing that role at that time.
Neither Mr Richter nor Ms Markovich could shed any light on this aspect, as they were not in their current positions at the time the applicant worked in Liquid sales in 2019/20. However, I found her reticence as to her contractual circumstances at that time to be puzzling. She did not for instance claim that she had been entitled to the benefits she now claims then, and I am left with the impression that she was then content to continue working under the same contractual conditions.
I also had reason to look with askance at the applicant’s unambiguous claim that she had not been provided with a company car, when Ms Markovich stated in her statement that there was a car pool available. The applicant conceded in her supplementary handwritten statement that such was the case, but that she used her own car because a car from the car pool was never available to her. She also conceded that she was reimbursed the petrol she used in her car, albeit only once, which implies that there were procedures in place to recompense her if she was using her car. In view of my reservations about the applicant’s credit I would have needed some more proof as to that representation. I also note that Ms Markovich said that the company paid 100% of the mobile phone use by the applicant, whether for business or personal use.
Similarly, I have reservations about the applicant’s professed ignorance that she was working on a trial basis. Ms Markovich stated that Ms Zurawski’s position with Liquid sales was similar to a secondment, and that there was no change in her remuneration or work conditions, except that there was the opportunity for the applicant to earn commission on her sales. Mr Richter stated that when he was approached by the applicant about her employment contract he explained that is working on a trial basis and there was uncertainty as to the business plan. I find that evidence to be credible, but lacking in precision. In any event the applicant herself acknowledged that she knew she was working on a trial basis from the time of the meeting on 22 February 2021. Whilst the applicant may have not realised until that time that she was working in Liquid sales on a trial basis she was in no doubt after that time. Her evidence was simply that she told Mr Richter that she had not agreed to that term, and that she had been under the impression that it was permanent. Clearly, after 22 February 2021, she was aware both that her position was part of a trial, and that there was uncertainty as to its duration. It is relevant also that the trial was between November 2020 and March 2021, with the Christmas season included.

Procedure

Mr Tanner submitted, on the authority of Markovski, that the employer had failed to implement proper procedure in its actions in transferring Ms Zurawski. He submitted that if the business was not working, and if a commercial decision was to be made that the applicant would have been supplied with information about the commercial circumstances that brought about this position.
In Markowski, which involved the procedure used by Bluescope Steel with its workforce, DP Roche considered the authorities relating to the question of reasonableness. The learned DP summarised the authorities at [192]:
“Determining if an employer’s actions were reasonable requires an objective assessment of those actions…. [DP Poche discussed the facts before him]. As each case will depend on its own facts, it would be unhelpful to attempt to list those matters. Suffice to say that questions of reasonableness will always involve questions of fairness in all the circumstances.”
At [190] DP Roche referred to the well-known principles used to determine reasonableness. He said:
“190. The often-quoted statements by Geraghty CCJ in Irwin [citation omitted] and Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998) (Ivanisevic) remain the best guide to determining reasonableness. In Irwin, Geraghty CCJ said:
‘The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.’
191. In Ivanisevic, Truss CCJ said:
‘In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected’.”
In the circumstances of this case I am satisfied that the respondent was fair in the actions it took to transfer Ms Zurawski. Mr Tanner’s criticism that she ought to have been made aware of the circumstances is answered by the fact that the applicant was aware at the time of the meeting on 31 March 2021 that her position was a trial position, and that when on 22 February 2021 she enquired as to its duration but was told in effect by Mr Richter that he did not know. Accepting that his answer was as related by the applicant as to how long a piece of string was, she, being an intelligent and qualified employee, would have realised that it was impossible to tell at that stage in February. I think it probable that Mr Richter did explain that the answer depended on the structure of liquid sales and, as I understood his evidence, the success of the business plan.
The meeting of 31 March 2021 was described by both Mr Richter and Ms Markovich. Their description of events tallied with that of the applicant herself. The explanation that Mr Tanner submitted was not given to the applicant for the decision to transfer her, was in fact given at that meeting. Not only was it explained to Ms Zurawski that the decision was purely a business decision in order to preserve available profitability in the Liquids Segment, it was also explained to her that the decision was not anything to do with her performance, which Mr Richter praised, mentioning the obtaining of the McDonald’s business and other successful accounts she had obtained. Moreover Mr Richter and Ms Markovich said that her experience with the company, her administrative knowledge and her skills were highly valued. Ms Zurawski was told that there was an ongoing financial operation project in which it was anticipated that she would be a key project team member. Ms Zurawski also knew that her immediate managers had not been so favoured, and had lost their jobs.
It follows that I reject Mr Tanner’s suggestion that the meeting was a “ruse” to end the applicant’s position. I did not find the conduct of the employer to be disingenuous and, as I say, the applicant was aware that there was no certainty about the duration of her appointment.
If I am wrong in my decision I make the following comments about the applicant’s ability to earn.
I note that Ms Zurawski was certified by her GP as having no current work capacity until 17 July 2021[55].
[55] ARD page 556.
Dr Kaur’s opinion is somewhat at odds with the workplace assessment which was carried out on 8 June 2021. The object of that assessment was to return the applicant to a suitable role with the respondent where work was readily available. It is apparent that the respondent was still anxious to facilitate a return to work and during the hearing of the case I interrupted proceedings so that Mr Tanner could obtain instructions as to whether the applicant wished to return to work as indeed she had indicated at ARD page 404, when Mr Parker indicated (without instructions) that the employer would like her to return to work.
The content of the workplace assessment report satisfies me that the respondent did have that intention, but understandably the applicant did not wish to return to the premises.
The applicant has a successful work history behind her based on her academic qualifications and I have no doubt that in any suitable employment she would be able to use her undoubted talents to a high degree.
Section 32A of the 1987 Act provides, relevantly:
‘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.

It can be seen that the availability of work is not a relevant question in considering an injured worker’s capacity to earn. The certificates lodged on her behalf are standard form and really give no indication as to whether any fresh approach has been made to the question of her certification. Against that there is the more considered opinion of the workplace assessment of 8 June 2021.
It noted that after an exhaustive consideration of her capacity to earn, it was recommended that Ms Zurawski was to return to her pre-injury occupation as an administrative assistant. Whilst I accept that she is unable to return to work with the respondent, her qualifications and experience would mean that she was able to find employment of a similar nature. These issues are not discussed in the certification issued by her GP.
I am satisfied that in appropriate employment Ms Zurawski would be able to earn the equivalent of her salary with the employer.
Dr Khan was of the opinion that there was a total incapacity for work but with respect his opinion was something of an ipsi dixit. In discussing the applicant’s prognosis Dr Khan thought it was uncertain. He noted that her symptoms of anxiety and depression would have a negative impact on her social, occupational and other important areas of functioning.
That opinion may be contrasted with the assessment of the workplace assessment report that showed that two weeks before the date of the report, 8 June 2021, she was at a wedding and had an enjoyable time. She was able to drive herself, and her cognitive abilities did not appear to be impaired in that she advised the author, Ms Worboys, that she could watch TV and concentrate on reading books and similar without difficulty.
Whilst Dr Khan noted that the applicant was not confident about returning to her pre-injury occupation, he also noted that she had limited mental health treatment to date and required further treatment to enable her to stabilise.
There is a tension therefore between the opinion of the rehabilitation consultant Ms Beth Worboys and the qualified expert.
I think it reasonable, now that it has been a further three months since Dr Khan gave his opinion, that Ms Zurawski would have retained some capacity to earn. At this stage she would not have returned to her full capacity, but it is to be hoped that she eventually will.
Her pre-injury average weekly earnings being $1,444.10 per week equates to $38 per hour. I think she would be capable of finding work utilising her skills as an accountant in a related capacity for four to five hours per day and thereby has a capacity to earn of $855 per week. She would therefore be entitled to $516.90 per week.
For the above reasons, there will be an award in favour of the respondent.

[2021] NSWPIC 448

10 November 2021