Mueller v Bunnings Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mueller v Bunnings Group Ltd [2025] NSWPIC 114
APPLICANT:	Jayne Mueller
RESPONDENT:	Bunnings Group Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	27 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation for psychological injury where the respondent admits injury but raises a defence under section 11A; respondent also disputes that the applicant has an entitlement to weekly compensation asserting she has capacity for suitable employment; Held – award for the applicant; the respondent had not discharged its onus of proof that the whole or predominant cause of the psychological injury was as a result of discipline; Hamad v Q Catering Pty Ltd applied; finding that the applicant has no current capacity for employment and has an entitlement to weekly compensation pursuant to section 37(1).
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The applicant is entitled to compensation for her agreed psychological injury with a deemed date of injury of 2 May 2024. 3. The applicant has no current capacity for employment. 4. The respondent is to pay the applicant weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 at 80% of her agreed pre-injury average weekly earnings of $867, as indexed from time to time, from 22 October 2024 to date and continuing. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Jayne Mueller, the applicant, was employed with the respondent, Bunnings Group Limited, since mid-2020 as a casual team member. From [80] to [83] of her first statement the applicant describes her prior mental health issues.[1] She says prior to starting at the respondent’s Kembla Grange store in late 2022 she was managing her mental health. She had not taken medication for years and when the issues started at Bunnings, she had to
[1] ARD p 10.
re-start her medication.
In 2022 she experienced inappropriate conduct towards herself from two male members of the staff at the Kembla Grange store. In her statement dated 22 October 2024 the applicant describes this conduct and also how she was treated by other staff after she made complaints about this behaviour. She lodged a workers compensation claim in March 2023 and re-started treatment with her psychologist, Corinna Lancaster, and had a few months off work. Thereafter, she was transferred to various other stores.
She went overseas in October 2023 and on her return she was transferred to the Nowra store. Her present psychological injury claim relates to events at the Nowra store. The respondent agrees she sustained a psychological injury in the form of an aggravation of her pre-existing condition. The deemed date of injury is 2 May 2024.
The issue in dispute is whether there is a defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act) raised by the respondent regarding reasonable action taken by the respondent in relation to discipline, but also performance appraisal and dismissal.
The claim for compensation is confined to weekly benefits from 22 October 2024 and continuing under s 37 of the 1987 Act. The respondent also disputes that the applicant has suffered any incapacity for employment.
The parties forwarded a message to the Personal Injury Commission (Commission) following the hearing that they agree the applicant’s pre-injury average weekly earnings (PIAWE) figure is $867 per week, as indexed from time to time.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter proceeded in arbitration hearing on 29 January 2025 on the MS Teams platform. Mr Paul Stockley, counsel, instructed by Ms Breanna Hill, solicitor, appeared for the applicant who was present. Mr John Fennel. Counsel, instructed by Mr Tim Ainsworth, solicitor, and Mr Grant Fraser from the employer represented the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Applicant’s wages schedule;
(d)    Respondent’s wages schedule;
(e)    Application to Lodge Additional Documents by the respondent dated 22 Janaury 2025, and
(f)    Application to Lodge Additional Documents by the applicant dated 23 January 2025.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been recorded and a written transcript (T) has been made from the recording.

FINDINGS AND REASONS

S 11A defence

The respondent has accepted that the applicant does have a psychological injury arising out of or in the course of her employment. However, the respondent asserts she is not entitled to compensation for this injury because it has a defence under s 11A of the 1987 Act.
The respondent bears the onus in establishing the s 11A defence.[2]
[2] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, Heggie.
Section 11A of the 1987 Act relevantly provides:
“(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.”
The elements in s 11A which the respondent must prove on the balance of probabilities to establish the defence pursuant to s 11A are whether the psychological injury was:
(a) wholly or predominantly caused with respect to one of the matters set out in the section, and
(b) by reasonable action taken by or on behalf of the employer.
In Hamad v Q Catering Ltd[3] Deputy President Snell stated at [85]:
“There are a number of other findings, relevant to the causation issue, which could not, in my view, be appropriately made in the absence of medical evidence. The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]- [45]).”
[3] [2017] NSWWCCPD 6, Hamad.
As the submissions have been recorded, I will not repeat them verbatim, below is a summary of the main thrust of each parties’ submissions.
The respondent does not dispute that the applicant has suffered an aggravation of a pre-existing adjustment disorder and therefore, has a psychological injury. It is submitted that the relevant time span to consider is back to November 2023, but primarily January 2024 through to about March and April 2024. At that time the applicant was working at the Nowra Bunnings store.
The respondent’s counsel submits that it relies on the opinion of Dr Sahoo as to the predominant cause of the psychological injury, expressed in his reports dated 19 June 2024 and 29 August 2024. It is submitted that the history given to Dr Sahoo by the applicant is that she was victimised constantly by her managers with significant interpersonal conflicts with them. However, counsel submits that Dr Sahoo’s opinion is that it is difficult to substantiate whether or not there was harassment or victimisation as alleged by the applicant and while the doctor says he would not be able to comment on the extent or contribution by each event he does state that “it is possible that disciplinary discussion meeting that took place in 2024 may have had an impact.”
It was submitted when the reports are read as a whole it can be concluded that the meetings in January and March 2024 constitute the predominant cause of the aggravation of the applicant’s adjustment disorder. Counsel submitted that this satisfies Hamad. He submits that Dr Whetton’s opinion does not provide a clear opinion about the whole or predominant cause of injury.
Counsel also made submissions about the reasonableness of the respondent’s conduct in relation to discipline. I have not summarised them because for the reasons expressed below I have found that the psychological injury was not wholly or predominantly caused by any of the elements set out in s 11A upon which the respondent relies.
The applicant’s counsel submits that the above passage quoted by the respondent about
Dr Sahoo’s opinion falls manifestly short of any finding on the balance of probabilities that discipline or performance appraisal actions in relation to the same were the whole or predominant cause of the injury. The applicant submits that the s 11A defence can be readily dismissed on that basis and it is not necessary to consider the applicant’s medical case or the detailed narrative she supplies in her two statements.
However, the applicant’s counsel did refer to various entries in the general practitioner’s clinical notes which he submits shows she was having difficulty coping at the Nowra store. For instance, on 3 January 2024 the doctor recorded that she was not handling Nowra very well, that no one was checking on her, she was overwhelmed by the slight differences in the stores’ processes, she had not heard from Hayley and there is mention of not replying to emails.[4] On 11 March 2024 the doctor reported she had been bullied and harassed at work, had poor sleep and early morning wakening. Counsel submitted this shows that the ebb and flow of the psychological symptoms have continued. He also referred to the entry on
[4] ARD p 120.
19 April 2024 where there was a further complaint regarding the aggravation of her condition due to bullying and harassment and on 3 May 2024 a General Practitioner Mental Health Plan was issued.
The applicant’s counsel submitted that in the clinical records there is no reference to a particular event but the applicant in her statements refers to some particular events, but there is no whole or predominant cause of her injury described in the clinical record. Counsel also relied on the report of Dr Whetton whose history was of a high functioning individual who had obtained a Master’s degree and the doctor diagnosed the presence of a major depressive disorder.

S 11A Determination

The applicant refers to the following incidents about her time at the Nowra store:
(a)    when she started at Nowra she was not met with any empathy or compassion from her managers or supervisors;
(b)    the store manager, Richard Jenkins was particularly rude to her, he would talk over her, expressed rude body language and spoke in a cold, condescending tone;
(c)    the insurance rehabilitation provider recommended a Workplace Adjustment Plan be put in place and the HR person, Julie Askar, told her to discuss this with management when she started at Nowra. She says later in her statement she asked about this plan repeatedly and was ignored until she was told there would be no plan;
(d)    Richard Jenkins told her she was tidying the aisles wrong and when she asked him how to do it correctly, he gave her no guidance;
(e)    in her first week at Nowra there was a 6am morning meeting held but she was not told she had to attend. She says Mr Jenkins got angry with her for not attending. He said she was the only team member not to attend but she later found out through a colleague that three others had not attended. She said Mr Jenkins said he announced the meeting over the store radio but she says she did not hear the announcement;
(f)    her supervisor, Paula, spoke to her very rudely, gave her judgemental looks and made her feel very uncomfortable. She says her colleagues warned her that Paula was unpleasant and difficult to work with;
(g)    on 2 January 2024 she was a store greeter when she had a panic attack. She asked twice over the radio for a supervisor to come and take over but none did. She says she asked a third and fourth time and she was hyperventilating and struggling to breathe. Eventually a co-worker came and relieved her and she left her position;
(h)    on 21 January 2024 she was pulling stock from shelves to fill gaps in the store shelves as she had been instructed to do. She says Paula walked up to her and said in a rude tone that she had done this three days ago and there will always be gaps. She says later that day she was working as a spotter in the landscape department as an aisle was closed for a co-worker to use a walkie stacker to pull down pallets of soil, the applicant says a customer wanted to access the aisle and she replied no but as she insisted she asked the colleague, Pete, who was operating the walkie stacker and he said yes so she let the customer into the aisle. At [34] she relates Paula speaking to her in an aggressive tone and yelling at her. The applicant says she asked over the radio for a manager and was told by a department manager, Mr Jackson, that she was not to return to the landscape department and to finish her shift inside. The applicant said she left work that day feeling very upset and so anxious that she felt nauseous;
(i)    the applicant says later on 21 January 2024 she spoke to colleagues and told them that Paula was making her feel uncomfortable and she would prefer not having to talk to her. She says she wanted to protect herself as Paula was causing a re-aggravation of her psychological symptoms. She says she was in a meeting with Mr Jenkins and Ms Perry and said, “I drove home too fast from work last night”. The applicant says she said this in a light hearted way in an attempt to bond with them. She said she didn’t actually speed but drove fast as she felt nauseous regarding the interaction with Paula;
(j)    on 30 January 2024 she was called into a disciplinary hearing. She says she was not given notice as to what was to be discussed. She says her support person was dialled. She said she was told she spread workplace gossip (because of the above conversations) and she left two high risk roles, referring to the events on 2, 21 and 23 January. She provided a written response a couple of days later and she was given a formal warning for breaching workplace policy;
(k)    the applicant says following this meeting she requested a Workplace Adjustment Plan be put into place so management were aware of her condition and triggers. They refused to supply her with such a plan. She said she had such a Plan at Kembla Grange so she knew it was possible to make such a plan;
(l)    the applicant says she had a meeting with her general practitioner and insurance case manager and they decided to close her case from the Kembla Grange store. She said she didn’t really agree as she was experiencing issues at the Nowra store but she felt pressured to sign off;
(m)     she says on 3 March 2024 Mr Jenkins called her into his office to discuss a day off work she had on 9 February 2024. She asked to bring a support person but was told she did not need to. Mr Jackson was also present. She said Mr Jenkins spoke about the payroll and roster very aggressively and used technical terms she did not understand. She says she felt pressured to accept leave without pay for the day. When she got home she looked at her diary and realised the
9 February was when she met with the insurer and her general practitioner so she told Mr Jenkins the next day and he seemed annoyed she had not told him the day before;
(n)    on 5 March 2024 the applicant says she went to Mr Jenkins office and took Sam Beavis with her and she asked if she could be introduced to the union delegates who were at the store. She says Mr Jenkins used a rude and dismissive tone and asked her why she wanted to speak to the union. She replied that she needed to discuss some matters with them that she did not feel comfortable discussing with Mr Jenkins. In [48] and [49] she relates their further conversation. She said he used a raised voice and his tone was very rude and condescending and made her feel embarrassed and upset;[5]
(o)    she spoke to the union delegates and she says she was very emotional and cried throughout the conversation. In a break in this conversation she sent Sarah Agland a message through their internal chat that “Richard is an insecure and spiteful man and he continues to intimidate me.” She says she was frustrated and upset with how she had been treated and her emotions got the better of her when she sent that message. Sarah replied, “please remember our respectful workplace procedure” and the applicant says she immediately replied that she agreed and she thought that was the end of the matter;
(p)    she says the conversation with the union delegates resumed and they told her to write down everything and she did but overhead Mr Jenkins say to someone “she’s been off the floor for six hours”. She was then called in to a meeting with Mr Beavis and Matt Jenkins, who was another manager. They told her she needed to return to the floor as it had been six hours and it was not fair to other staff. She says this made her upset as it had only been a couple of hours and she had only done what the union had told her to do. She returned to the floor in tears so Mr Beavis sent her home;
(q)    she says after this managers only approached her in pairs;
(r)    at [58] she refers to a meeting on 8 March 2024 with two managers and she was told that on Monday there would be a disciplinary meeting regarding the message she sent Sarah about Richard Jenkins;
(s)    on 11 March 2024 the meeting was held. The applicant says she spent the entire weekend worrying about it. She says there was no attempt to resolve the matter informally. She sets out details of the meeting from [61] to [66]. She adds by this point her psychological condition had deteriorated, she felt victimised and target by Richard and the other managers. She felt Bunnings was an unsafe environment for her. She said in the meeting she again asked about a workplace adjustment plan;
(t)    on 12 April 2024 another meeting was held and again asked about the workplace adjustment plan and she say Richard said no and was very dismissive and that her claim was over and there was no need;
(u)    she says on 16 April 2024 she attended a 6.00am meeting and Richard asked her in front of 20 colleagues had she filled out the Have Your Say survey. She said she felt like he asked her in front of everyone to try to embarrass her;
(v)    she says in May 2024 she went to see Dr Jasim and obtained a certificate of capacity and lodged a second workers compensation claim. She said it was Julie from HR who advised her to do this. She says she restarted her treatment with her psychologist, Ms Lancaster and psychiatrist, Dr Lal, and
(w)   on 19 June 2024 she was assessed by Dr Sahoo for the insurer and found this very triggering and stressful and after that she self-harmed. Two days later she sent a message to Richard Jenkins through the internal work chat function and she says she was not in a good headspace as a few days earlier she had changed her medications. The contents of this message is set out in the letter from the respondent to her dated 26 June 2024.[6]
[5] ARD p 6
[6] ARD p 32.

The respondent regarded this message as serious misconduct. However, clearly this occurred after the applicant was suffering from the psychological injury and therefore, I find it is not a relevant causative event. I note that the respondent, a self-insurer, in its s 78 notice dated 19 September 2024 does not rely upon it.[7] It states that it regards the whole and predominant cause of the injury were the performance management and disciplinary meetings/discussions which took place in January, March and April 2024.
[7] ARD p 39.
Following the issue of this s 78 notice the applicant’s solicitors wrote to the insurer on
[8] ARD p 45.
25 September 2024 seeking a review and making similar points that their counsel raised in the hearing.[8]
On 9 October 2024 the insurer issued a notice pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[9] maintaining the dispute rejecting the opinion of Dr Whetton.
[9] ARD p 49.
I have read the factual investigation report dated 7 November 2024 and the respondent’s witness statements. I do not intend to summarise them in full because the events described by the applicant, which I have listed above did occur. The witnesses have a different perception of those events. However, in Attorney General v K[10] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[10] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Injury has been admitted and what is relevant to the s 11A defence is whether the injury was caused wholly or predominantly by, firstly, one of the aspects in s 11A. I accept the applicant’s submission that a consideration of the events the applicant complains of do not wholly or predominantly fall within the concepts of “discipline” or “performance appraisal”. I find most of the events centre on interpersonal conflict and as quoted from K above it is not necessary for me to find whose perception was rational.
Mr Jenkins states at [17] of his statement that all the applicant wanted to do was have a meeting or conversation about her mental health and sit in the office. Clearly, in my view, this observation demonstrates that the applicant was not coping.[11] Furthermore, his statement supports the conclusion I have reached that the applicant’s condition was not wholly or predominantly caused by discipline because he refers, at times in vague terms, about her interpersonal conflict with various staff members.
[11] Reply p 15.
Paula Leighton in her statement at [17] says that the applicant has never been subject to formal performance management or disciplinary action. She says the applicant could be a bit snappy towards others and often stayed by herself a bit. She says she does not know of any real conflict with anyone in particular.[12] Also at [25] that “I think she just had it in her head that if anyone said anything to her, she was being attacked.”
[12] Reply p 21.
Sam Nixon in his statement at [21] differs to Ms Leighton in that he says the applicant was subject to formal performance management or disciplinary action but he cannot remember what it was about.[13]
[13] Respondent ALAD p 15.
I will briefly deal with the medical evidence before considering the opinions of Dr Whetton and Dr Sahoo and how the concept of wholly or predominantly caused is dealt with:
(a)    Dr Sivaruban, psychiatrist, provided the respondent with a medico-legal report dated 28 September 2023 regarding her first workers compensation claim.[14] As the report pre-dates the events at the Nowra store, while I have read the report I will not summarise it but he did recommend ongoing treatment for another 9 to 12 months to prevent worsening of her symptoms and to remain at work at the alternative location to the Kembla Grange store;
(b)    I have read the reports from Dr Burhan, treating psychiatrist, dating from 10 July 2020 but will not summarise them all. In the report of 10 May 2022 it was recorded that she was working full time at Bunnings and it was going well.[15] However, in the report dated 30 March 2023 the applicant told the doctor about the issues at the Kembla Grange store.[16] The doctor stated then that it was not about who is right or wrong, that the multiple conflicts make returning to the same workplace highly likely to fail and the risk is that she will become more impaired. However, at that time, compared to the past, the doctor found she was much more stable and if the situation was managed well he thought she would likely recover very quickly;
(c)    Dr Wael Wahaib (Al Doorie), treating psychiatrist, reported on 11 March 2024 that the applicant had low mood, felt upset and stressed as she returned back to work in a different place but she felt she was being targeted again and she was having flashbacks of previous trauma;[17]
(d)    Corinna Lancaster, psychologist, reported on 15 April 2024 that the applicant presented with acute stress and an exacerbation of her adjustment disorder with mixed anxiety and depression features. The applicant said her anxiety was being triggered every time she has to go to work at the Nowra store as she is being called into the store manager’s office on a frequent basis. She feels unsupported and victimised by the manager. She says he has refused to implement even temporary mental health support strategies at a recent meeting. Ms Lancaster notes the applicant has had to increase her medication to cope with her symptoms and is not sleeping well or eating regularly. She states that the applicant has developed interpersonal sensitivities making it very difficult for her to trust that she will be supported by her managers and colleagues;[18]
(e)    Dr Lal, treating psychiatrist, reported on 30 August 2024 and stated her diagnosis confirmed a Major Depressive Episode.[19] He recommended ongoing psychiatric care monthly initially six sessions;
(f)    the general practitioner records refer on 18 December 2023 to the applicant settling in at the Nowra store and the manager is known to be difficult but it is stated the applicant gets on with the second in charge, Sarah.[20] On 3 January 2024 the doctor recorded that the applicant was not handling Nowra very well, no one was checking on her, she was overwhelmed by the slight differences in the stores, the processes were different. She had a panic attack the day before. It is stated that she cries on the way to and from work. Her usual doctor returned,
Dr Jasim, and he completed the insurer’s questionnaire on 9 February 2024 and advised that her hours had been downgraded by his colleague Dr Gould who had been seeing the applicant. She had certified fitness for nine hours for three days because the applicant was feeling overwhelmed, distressed and anxious and had a few panic attacks. Dr Jasim said that changing the store to Nowra had triggered her anxiety but she was fine now and was working through it with a supportive store manager. He agreed to close the prior claim file. But he recommended psychotherapy and counselling for 12 more sessions, and
(g)    however, from 11 March 2024 Dr Jasim records the deterioration of the applicant’s symptoms and her claim of being bullied and harassed at work.
[14] ARD p 73.
[15] ARD p 84.
[16] ARD p 85.
[17] ARD p 90.
[18] ARD p 92.
[19] ARD p 94.
[20] ARD p 119.
Dr Whetton, psychiatrist, provided the applicant with a medico-legal report dated 18 July 2024.[21] The doctor sets out details of the applicant’s past psychiatric history which is extensive. There is no need for me to recite these details in these reasons. Dr Whetton states that with treatment her underlying psychiatric condition has been brought into a level of reasonable stability. He states that in her employment with the respondent she gives a history of circumstances which have led to the development of marked psychiatric symptomatology in the area of anxiety and depression reaching the point of breakdown. He diagnosed Major Depressive Disorder against the background of Complex Post-Traumatic Stress Disorder. He states that the main contributing factor has been the employment with the respondent and the multiple issues she describes there. Dr Whetton certainly does not support the s 11A defence as he attributes the injury to multiple issues. The respondent was dismissive of his opinion because it did not consider the concept of wholly or predominantly caused. However, this does not matter because it is the respondent who bears the onus of proof in relation to s 11A. I consider the treating medical reports which I have summarised above support the cause of the applicant’s psychological injury is how she perceived she was treated by her managers and colleagues and they do not support that her injury was wholly or predominantly the result of discipline or performance appraisal.
[21] ARD p 60.
Dr Sahoo has provided two reports for the respondent. In the report dated 19 June 2024 the doctor in his history refers to the applicant having significant interpersonal conflicts with the managers.[22] He says she presented with an aggravation of pre-existing adjustment disorder that was diagnosed in September 2023.
[22] Reply p 246.
In answer to question 5 about causation Dr Sahoo states:
“The specific causative events are what she has believed to be the alleged harassment and victimisation by her managers. It is difficult for me to substantiate that, as that is an industrial issue. I also believe that her unique personality structure makes her prone to developing anxiety in the face of perceived stresses.”[23]
[23] Reply p 248.
In answer to the next question the doctor says he cannot comment about the extent of contribution by each incident or event. He later states that “it is possible that the disciplinary discussion meeting that took place in 2024 may have had an impact. However, she believes that these disciplinary discussion meeting were largely a pattern of victimisation.”
I accept the applicant’s submissions that Dr Sahoo’s opinion does not satisfy the principles discussed in Hamad. He does not come close to supporting a s 11A defence. I find the respondent has not discharged its onus of proof in relation to s 11A because of the lack of medical support and also because the facts are such that I have found the injury was predominantly caused by interpersonal conflict. The applicant, when she transitioned to the Nowra store, clearly needed more support and carefully handling when signs of conflict arose and signs of her not coping, such as the panic attack on 2 Janaury 2024. Also her persistent asking about a plan being put into place was not acted upon.

Capacity for employment

The applicant relies upon the opinion of Dr Whetton who finds she has no capacity for work. The doctor described the applicant as a well-motivated person who said she was bored and wished she could work and the doctor anticipated a return to work. the applicant’s counsel submits even though Dr Whetton referred to a possible return to work in the months after his report, that has not come to fruition and the applicant relies on the certificates from her general practitioner which certify her without capacity for employment.
The applicant’s counsel also referred to the reports of Dr Lal, treating psychiatrist, who he submits acknowledged what Dr Whetton stated and the doctor considered that she needed ongoing psychiatric care and he was seeking approval from the insurer for that. Reference was made to the second report of 11 November 2024 where it is found that the applicant has difficulty with reading and absorbing information.
The respondent relies on the opinion of Dr Sahoo who provided the opinion that the applicant was fit to work at Bunnings as long as there is an industrial mediation between herself and her employers and she is able to work with supportive management. The respondent submits that Dr Sahoo also supports that she can work outside Bunnings with a full capacity to work her substantive hours and duties. It was submitted that it is not her condition which has prevented her from working but it has been her industrial conflict with her managers.
The respondent also submitted that an adjustment disorder typically lasts for six months and the basis for the adjustment disorder is her workplace environment with her colleagues and that has ceased since she has stopped work. The respondent said based on Dr Whetton’s opinion the applicant’s incapacity should have resolved.
The respondent submitted that since the agreed psychological injury is an aggravation of a pre-existing condition the Commission needs to determine what are the effects of the aggravation, if any, and what is the inability to work. He submitted the report of Dr Lal of
11 November 2024 describes the applicant as sleeping a lot better and explores the possibility of an ADHD diagnosis. He submits that Dr Lal states that despite her concentration issues the applicant did well in her customer service. The respondent argues that treatment seems to have moved on from whatever the aggravation was to some other pre-existing condition. The respondent argues this supports his submission that the effects of the aggravation are no longer continuing.
I do not accept the respondent’s submission that the effects of the aggravation have resolved. Dr Jasim has seen the applicant many times and provided multiple certificates that she has no capacity for employment including after Dr Lal’s last report. While Dr Whetton was hopeful of a recovery, that has not eventuated. Hopefully it will in the future. I prefer the opinion of Dr Whetton to Dr Sahoo because Dr Sahoo’s opinion was contingent on an industrial mediation and supportive management. The respondent also submitted that an adjustment disorder typically lasts six months. However, a diagnosis of an adjustment disorder is time limited if the psychological condition continues beyond six months the DSM considers that another diagnosis be considered.[24] Dr Whetton diagnosed a Major Depressive Disorder against the background of Complex Post-Traumatic Stress Disorder. I consider that Dr Whetton’s diagnosis and opinion should be preferred because I consider his opinion is more thoroughly reasoned, and expressed, and is more consistent with the treating medical evidence.
[24] See State of New South Wales V Wright [2025] NSWPICMP 34 at [142].
I find that the applicant from 22 October 2024 has had no current capacity for employment as defined in sch 3, cl 9(2) of the 1987 Act. Accepting the evidence in the medical certificates she cannot work in her pre-injury employment or in suitable employment. Pursuant to s 37(1) of the 1987 Act I find she is entitled to weekly compensation at the agreed PIAWE rate of $867 per week, as indexed from time to time, to date and continuing.

[2025] NSWPIC 114

27 March 2025