Pearl Beach Cafe & General Store Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pearl Beach Cafe & General Store Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 658
APPLICANT:	Pearl Beach Cafe & General Store Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Michelle Fraser
MEMBER:	Gaius Whiffin
DATE OF DECISION:	29 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by uninsured employer pursuant to section 145(3) alleging that it is not liable in respect of the compensation payments made by the first respondent to the second respondent; consideration of statement evidence, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with section 4; consideration of the degree of the second respondent’s current work capacity due to the injury since 26 January 2023 and what medical treatment she has reasonably needed as a result of the injury since 26 January 2023; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K, Wollongong Nursing Home Pty Ltd v Dewar, AV v AW, ACW v ACX, Tubemakers of Australia Ltd v Fernandez, Diab v NRMA Limited, and Rose v Health Commission (NSW) considered; Held – the second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with section 4; the second respondent had no current work capacity between 23 May 2023 and 11 March 2024, and during that period, she was entitled to weekly benefits compensation in accordance with sections 36(1) and 37(1); the second respondent had current work capacity between 11 March 2024 and 8 April 2024, and during that period, she was entitled to weekly benefits compensation in accordance with section 37(2); as a result of her psychological injury, the second respondent required reasonably necessary medical treatment in accordance with section 60 of the Act, her expenses in this regard amounted to $13,859;52; the first respondent has made a payment of $63,182;08 to or in respect of the second respondent in relation to her psychological injury, and has issued a valid notice dated 8 April 2024 to the applicant, in accordance with section 145(1), requiring the applicant to reimburse that amount to it; the amount of $63,182;08 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to her psychological injury; the payment made was both necessary and appropriate; Held – pursuant to section 145(3), the applicant is liable in respect of the payment made of $63,182;08; the order sought by the applicant is refused.
DETERMINATIONS MADE:	The Commission determines: 1. The second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act, regarding that psychological injury. 3. The first respondent has made a payment of $63,182.08 to or in respect of the second respondent in relation to the psychological injury. It has issued a valid notice dated 8 April 2024 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it. 4. The amount of $63,182.08 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to her psychological injury, both in relation to weekly benefits compensation and reasonably necessary treatment expenses in accordance with s 60 of the 1987 Act. 5. Pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $63,182.08. The Commission orders: 6. The order sought by the applicant pursuant to s 145(3) of the 1987 Act, that it is not liable in respect of the payment made by the first respondent to or in respect of the second respondent in the amount of $63,182.08 (as referred to in its notice to the applicant dated 8 April 2024 and issued in accordance with s 145(1) of the 1987 Act), is refused. The applicant is liable to pay the first respondent the amount of $63,182.08.

STATEMENT OF REASONS

BACKGROUND

Michelle Fraser (the second respondent) is 51-years-old and commenced her employment with Pearl Beach Cafe and General Store Pty Ltd (the applicant) in around June 2022. She was employed as a chef.
The second respondent alleges that she sustained a psychological injury due to events which occurred during the course of her employment with the applicant. She last worked for the applicant on 26 January 2023.
It is conceded by the applicant that during the second respondent's employment with it, it was not maintaining in force a policy of insurance in respect of its liability to the second respondent for compensation, in accordance with the Workers Compensation Act 1987 (the 1987 Act).
As a result, the second respondent claimed compensation from the Workers Compensation Nominal Insurer (the first respondent) with respect to her alleged psychological injury, in accordance with s 140(1) of the 1987 Act. The first respondent made payments of compensation in this regard.
By way of a notice (the reimbursement notice) in accordance with s 145(1) of the 1987 Act (dated 8 April 2024), the first respondent has required the applicant to reimburse to it an amount of $63,182.08 (the reimbursement amount), being in relation to compensation payments that it has made to or in respect of the second respondent with regard to her alleged psychological injury.
The applicant seeks a review of the reimbursement notice and has lodged a Miscellaneous Application (the Application) with the Personal Injury Commission (the Commission), seeking a determination as to its liability in respect of the reimbursement amount, in accordance with s 145(3) of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute, the applicant having raised them as issues which it wishes to dispute regarding the reimbursement notice:
(a) did the second respondent sustain a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with s 4 of the 1987 Act;
(b) if so, what has been the degree of her current work capacity due to the injury, since 26 January 2023, and
(c) if so, what medical treatment has she reasonably needed as a result of the injury, since 26 January 2023.

PROCEDURE BEFORE THE 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 dispute was listed for conciliation/arbitration before the Commission on 4 October 2024. On that occasion, the applicant was not legally represented but Mr Troy Rushton (Rushton – its sole director and shareholder) appeared on its behalf. Ms Kavita Balendra of counsel appeared for the first respondent, instructed by Mr Mickleburgh. Ms Sarah Warren of counsel appeared for the second respondent, instructed by Ms Azzopardi. Mr Butcher was also present representing the interests of the first respondent, and the second respondent was further present (and supported by her spouse, Rhys Fraser).
The dispute could not be resolved during the conciliation phase, and it proceeded to an arbitration hearing.
In the Application, the applicant disputed the "merits of the employees claim, its vexatious and baseless", and it requested leniency if "the claim is deemed to be legitimate". It sought that the reimbursement notice be set aside, or the reimbursement amount be reduced.
During the conciliation phase, the applicant advised that it did not dispute the validity of the form and service of the reimbursement notice, and it also did not dispute its lack of insurance in respect of its liability to the second respondent for compensation in accordance with the 1987 Act. It conceded that it employed the second respondent.
The applicant also clarified the statements in its Application in order to confirm that it solely disputed the issues referred to at paragraph 7 above. It did not dispute the first respondent's calculation of the second respondent's pre-injury average weekly earnings (PIAWE) at $1,317.04.
After discussions with the parties, and especially considering the applicant's lack of legal representation, I considered that principles of procedural fairness as well as the Commission's guiding principle (pursuant to s 42 of the Personal Injury Commission Act 2020) to facilitate the just, quick and cost-effective resolution of disputes, meant that the most appropriate path forward at the arbitration hearing was for both respondents to make oral submissions, following which the applicant would have the chance to review and consider those submissions before lodging written submissions in reply. The applicant would as a result have the benefit of access to a recording made of the oral submissions of both respondents. Both respondents would then be given an opportunity to make any further written submissions in reply to the applicant's written submissions.
Both respondents then made oral submissions on 4 October 2024. The applicant was given until 25 October 2024 to lodge with the Commission written submissions in reply to the respondents' submissions, following which both respondents were given liberty to lodge with the Commission written submissions in reply to the applicant's submissions on or before 1 November 2024. This timetable for the lodgement of submissions was included in a direction which I made dated 4 October 2024. The direction also indicated that I would determine the dispute after 1 November 2024.
Following the completion of the oral submissions of the respondents on 4 October 2024, I addressed the applicant confirming that it would have access to a recording of the submissions, which included references (and the relevant citations) to various authorities relied upon by the respondents. I also asked that it avoid requesting leniency in its written submissions as that was not a matter that I could order. I asked that it concentrate in its written submissions on the evidence presented by the respondents and why I would not accept it, especially the statement evidence of the second respondent, as well as the evidence from Dr Eftekar, Dr Khan, and the second respondent’s treating medical practitioners (Dr Popov, Dr Rawat and Trish Stephens).
Unfortunately, it seems that the applicant was not initially notified about or provided with a copy of my 4 October 2024 direction, either by email or through the Commission’s portal. The following emails have since been sent by the Commission to the email address of Rushton ([email protected]):
(a)    29 October 2024:
“Dear Mr Rushton…As per direction dated 4/10/24, the applicant was to lodge written submissions by COB 25/10/24. The submissions are not registered in portal…Please let us know your intent to lodge submissions by COB today.”;
(b)    4 November 2024:
“Dear Mr Rushton…Please advise if you were able to access direction dated 4/10/24 issued by the member in Portal…The Commission would like to know if you wish to provide any submission, noting the submissions were due to be lodged by COB 25/10/24…Please let us know urgently by close of business on 6 November 2024 if you would like an extension of time to provide the submissions…A copy of the Direction given by the member is attached…If you wish to discuss any aspect of the above, you may contact me on 02 8281 6394.”, and
(c)    8 November 2024:
“Dear legal representatives and Mr Rushton…The sealed further Direction of the Commission as given by Member can now be accessed through the online portal…A copy is attached for the applicant who is currently unrepresented. The applicant, Mr Rushton is requested to reply on the following email address [email protected] to discuss any aspect of the attached Direction.”
I determined to forward the further direction of the Commission which was emailed to the applicant on 8 November 2024 in order to provide him with procedural fairness, and to give him a final opportunity to provide submissions. The direction varied the 4 October 2024 direction, and allowed the applicant to lodge written submissions with the Commission by 18 November 2024, following which both respondents were given liberty to lodge with the Commission written submissions in reply to the applicant's submissions, on or before 22 November 2024. The direction also advised all parties that I would determine the dispute by only having regard to the submissions then lodged, after 22 November 2024.
Unfortunately, the applicant still did not lodge any written submissions with the Commission. I propose to therefore now determine the dispute notwithstanding the absence of those written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before me (without objection from any party) and considered by me in making this determination:
(a)    the Application and attached documents;
(b)    the Reply lodged by the first respondent (first Reply) and attached documents, and
(c)    the Reply lodged by the second respondent (second Reply) and attached documents.

Oral evidence

No party sought to rely upon any oral evidence.

Documentary evidence relied upon by the applicant

The Application solely attaches the following evidence:
(a)    the reimbursement notice;
(b)    a brief signed statement from Rushton signed 30 April 2024 - he advises:
(i)the second respondent worked for the applicant between 30 June 2022 and 10 February 2023;
(ii)on 26 January 2022 [sic - should be 2023], the second respondent advised him that she would be leaving work early as “the kitchen isn’t big enough for both of us” - he advises that she was implying herself and Peter Greig (Greig – a sous chef employed by the applicant) in this regard;
(iii)on 27 January 2023, he received a text message from the second respondent advising that she would not be working on 28 January 2023 and that her last day of employment would be 29 January 2023;
(iv)on 28 January 2023, he received an email from the second respondent advising:
“I am burnt out. I have high anxiety, and I feel like a fool. The travel is also taking its toll. I honestly don't think you need to be paying two head chefs. With the busiest time over, I believe it will be best, not only for me, but for you, for me to resign. It makes room in the roster to keep more of the team, or hire one of the chefs you have been considering”;
(v)the second respondent did not return to work with the applicant after 26 January 2023;
(vi)on 3 February 2023, he received an email from the second respondent confirming that she resigned on 26 January 2023, claiming payments that were still owed to her, and attaching a medical certificate, and
(vii)the second respondent “never formerly raised any issues relating to unreasonable stress of doing her job” - she did however “several times during January” advise him that she was stressed about legal action being taken against her by a former client of hers, needing to find a place to live, and her overall financial position;
(c)    email correspondence between Rushton and the second respondent - including the two emails referred to in Rushton’s statement, as well as an email from Rushton chasing the second respondent for receipts; an email from the second respondent requesting that Rushton provide a reference for a rental application that she was making, and an email from Rushton to the second respondent dated 3 February 2023, in which he “rejected” the medical certificate sent by her, and requested more details regarding the payments that she claimed were still owing to her;
(d)    a medical certificate from Dr Rawat dated 30 January 2023 – which certified the second respondent with “a medical condition” rendering her unfit for work between 26 January 2023 and 27 February 2023, and
(e)    the text message from the second respondent referred to in Rushton’s statement.

Statement evidence relied upon by the first respondent

The first respondent arranged for AB Investigations to provide it with a factual investigation report (found from page 1 of the first Reply). I do not however accord any weight to the summaries, opinions and findings in the factual investigation report, as it is my function to independently review the evidence before me and make relevant findings. I do not see the report to be of any assistance to me in this regard.
The report does however attach a signed statement from the second respondent, as well as unsigned draft statements from Rushton, Takayla Calthorpe (Calthorpe – a manager employed by the applicant), and Greig.
The second respondent’s signed (on 14 July 2023) statement is found from page 10 of the first Reply.
She says that she was employed by the applicant between June 2022 and 26 January 2023, initially as a chef, then as a sous chef, and finally as a head chef. She says that prior to commencing this employment, she had not been diagnosed with any prior psychological injuries, although she had experienced some anxiety due to “perimenopausal ‘brain fog’” – for which she took medication “to help keep me calm and focused during busy service periods”.
She says that her psychological health was impacted from the beginning of her employment with the applicant, and she specifically mentions:
(a)    being informed by her initial supervisor, Rachael Gan (Gan), that the applicant was not “happy with the sous chef and had concerns about the head chef, and I was to come in and potentially take over the sous chef role and possibly the head chef role” - she felt uncomfortable in this regard especially as she knew the sous chef from previously;
(b)    a lack of respect which was afforded to her by two younger kitchenhands/cooks, who would ignore and contradict her, especially after the applicant terminated the employment of the sous chef and she was transitioned into that role;
(c)    a lack of staffing, which meant that she had to work extra hours, especially when the head chef was in the process of leaving the applicant’s employment – the head chef also did not assist her after he had resigned from his employment, and while she was being transitioned into his role;
(d)    the resignation of the applicant’s front-of-house manager also led to her becoming responsible for some front-of-house duties, which she had no experience in relation to – there was also a general lack of front-of-house staffing;
(e)    she began to work longer and longer hours (almost 70 hours in one particular week), but found it very difficult to communicate with Rushton, who “would fire questions at me but not wait for any answers” – it was also difficult to communicate with Rushton because he was “constantly on the phone for his 5 or so other business’s”;
(f)    there were then issues between her and Rushton regarding the ‘time in lieu’ that she had accrued – and Rushton offered to pay her cash instead of allowing the ‘time in lieu’;
(g)    she then had issues with Greig – who yelled at her and others (on one occasion, “he screamed at me to not touch his knife”), and often left work for an hour or so before returning;
(h)    she was “cut off” from suppliers due to unpaid bills accumulated by the applicant, and
(i)    there were issues with the applicant’s freezer, the small size of its kitchen, and the proper cleaning of its kitchen.

She then says that on 26 January 2023, she was told by a staff member (who had discussed with Greig an issue that the staff member was having with another staff member) that the staff member had done so as Greig was the head chef. She says:
“I was under the impression that I had been the head chef for the previous 3-4 months. I asked her who told her that, and she said Peter and Troy did. This is when I had a breakdown and confronted Troy about it and then walked out. My injury that I have sustained was a build up from the beginning of my employment and the incident on Australia Day was the catalyst.”
The second respondent says that she consulted with her general practitioner, who completed a medical certificate for her. However, when the certificate was emailed to Rushton, he advised that he “didn’t accept” it. She then had issues dealing with Rushton in relation to the payments which the applicant owed her for her accrued ‘time in lieu’. Rushton eventually agreed to pay her less than half of the amount she believes she was entitled to, which made her “feel like I was a joke”.
She began to consult with a psychologist (Trish Stephens) as well as her psychiatrist, Dr Popov.
Rushton’s unsigned statement (which bears a date of 6 July 2023) is found from page 18 of the first Reply. It is specifically identified as being a draft document. There are of course therefore significant restrictions as to the weight that I can afford to the statement in the circumstances.
Nevertheless, I do note the following from the draft document:

(a)    Rushton advises that the second respondent was appointed as the applicant’s head chef from around 1 November 2022 – the person (Greig) that he wanted to appoint in this regard was not then available but later became available and was appointed as a ‘2IC’ - he opines that the second respondent felt threatened by the appointment, but “what we wanted to do as she wasn’t capable in the chef role was appoint her to a private chef role and do private catering out of cafe”;
(b)    Rushton advises that he is aware of “some outside factors that may contribute to this claim”, being the second respondent’s financial position, especially in relation to a separate business run by her and her husband, which was being sued;
(c)    Rushton advises that there was “very rarely” the need for the second respondent to work more than 38 hours per week;
(d)    Rushton advises that the second respondent was “counselled for work performance issues and breaches in company policies/procedures” – she was spoken to about her negative energy in the workplace, her need to reduce food wastage, and her need to keep fridges and freezers stocked – “there was a lot of ongoing feedback and dialogue virtually weekly given to Michelle and I would talk to her directly regarding improvements that needed to be made”;
(e)    Rushton advises that the second respondent was “absolutely out of her depth” in terms of managing people and the “line” of a fast paced cafe – she was lacking in organisational skills, she spent too much time out of the kitchen, and she was not able to manage the applicant’s “market man” software system;
(f)    Rushton advises that the second respondent did not complain to him about any “specific issues” and seemed for the most part to be happy – he felt however that “there was an undertone of pain that she had experienced in life” and “she would pull back into this negative tone a lot”;
(g)    Rushton advises that a week prior to her resignation, the second respondent had asked him to provide her with a rental reference – he then spoke to her about:
“…if there were any issues and she said no, no issues at all I’m going to be here, this is great and I’m excited about the new house, then literally a week to two weeks later she resigned…clearly either something changed within the week, or she had an agenda”;

(h)    in relation to the events on 26 January 2023, Rushton advises that the second respondent told him that she was leaving as “there is not enough room in there for two of us”, referring to Greig and her – he opines that she “was starting to feel the consequences of overselling herself in the role, especially as she was running out of product all of the time and generally not leading the kitchen well and the team was seeing it”, and he also opines that “I think the two IC who is experienced was clearly trying to get the standard of the kitchen up to meet client expectations” – he further opines that the second respondent “felt embarrassed about letting the team down constantly”;
(i)    Rushton explains that he considered the second respondent’s claim for payments in relation to her accrued ‘time in lieu’ as a “grab for money“ – after analysing the claim, the applicant paid her “a token amount of about 30% of the time in lieu she was claiming just to try to be good people even though we didn’t agree with what she was claiming”;
(j)    Rushton accuses the second respondent of taking food and drink from the applicant that she had not paid for, and of using the applicant’s credit card for her own purchases, and
(k)    Rushton summarises:
“Simply, I think the whole mental breakdown she is alleging is a vexatious claim, we didn’t fire her, we tried to work with her, and I think she fell on her own sword, went to Japan and had a good time and 4 months later decided to put a claim in against us, this is just how it feels to me.”

Calthorpe’s unsigned statement (which bears a date of 10 July 2023) is found from page 23 of the first Reply. It is also specifically identified as being a draft document. There are of course therefore again significant restrictions as to the weight that I can afford to the statement in the circumstances.
Nevertheless, I do note the following from the draft document:

(a)    Calthorpe advises that in terms of performance issues, Rushton had conversations with the second respondent in around Christmas 2022 regarding issues with the second respondent’s ordering of products for the cafe and the second respondent’s rostering of staff for the cafe;
(b)    Calthorpe advises that she was aware that the second respondent “felt like other people were stepping on her toes as head chef”, and she arranged a meeting between herself, the second respondent, and Rushton in this regard – she opines that the second respondent was frustrated during that meeting but that Rushton “provided her a solution in relation to a position of catering within the company and to my knowledge she was happy to go ahead with that role”;
(c)    Calthorpe advises that she observed the second respondent delegating tasks to younger staff that the second respondent should have been performing in the second respondent’s role as head chef;
(d)    Calthorpe recalls a particular day when the second respondent became frustrated and physically stepped out of the kitchen due to lack of staffing – she explains that the second respondent “would become flustered or frustrated a lot”;
(e)    Calthorpe summarises her opinion:
“In the beginning of Michelle being the head chef, I would say her level of competency of conducting tasks outside of the kitchen itself was very good e.g., ordering, rostering and market man tasks. However, she was not focused on the actual cooking side of things which is the main component of her role. As time further went on, she started neglecting the ordering, rostering and other tasks that she was originally doing very well with.”

– she explains that the second respondent had to seek her help on rostering issues;
(f) in relation to the events of 26 January 2023, Calthorpe advises that it was a particularly busy day for the cafe and the “whole environment in the kitchen was flustered” - a staff member had rebutted an instruction from the second respondent stating “that she is not the head chef, and they didn’t have to listen to her” (which Calthorpe advises was not correct) - after this verbal altercation, she explains that the second respondent had a loud conversation with Rushton “stating that there is no room for two head chefs and that she can’t handle this business the way that it is currently structured”, and
(g) in relation to the second respondent’s claim for payments in relation to her accrued ‘time in lieu’, Calthorpe advises that a meeting was held between herself, Rushton, and the second respondent prior to the second respondent’s resignation, during which discussions took place regarding the second respondent commencing work unnecessarily early and therefore claiming unwarranted ‘time in lieu’ – she opines in relation to the second respondent’s claim in this regard that “I believe her notion around this was just trying to compile time in lieu for her holiday and not because of actual viable tasks being completed within work parameters”.

Greig’s unsigned statement (which bears a date of 10 July 2023) is found from page 28 of the first Reply. It is also specifically identified as being a draft document. There are of course therefore again significant restrictions as to the weight that I can afford to the statement in the circumstances.
Nevertheless, I do note the following from the draft document:
(a)    Greig advises that he has been employed by the applicant since around October 2022 – he says he is “in the role of head chef” but “when I came on initially, we hadn’t exactly agreed on roles yet”;
(b)    Grieg opines that “Michelle seemed like she was having her own personal mental problems outside of the workplace” – he is not however more specific in this regard, referring to her tone as making him believe that she had personal issues;
(c)    Greig opines that the second respondent was not able to handle the pace of a busy kitchen – she got regularly flustered and there were times “where she would leave her station temporarily or get off the line and prep instead of cooking food”;
(d)    Greig concedes that there was tension between him and the second respondent – he explains that:
“At one point she was technically the head chef but a lot of the time when I was working with her, I would be giving her direction on what to do, but I think at this point the way we communicated was because she did need direction in service”;
(e)    in relation to the events of 26 January 2023, Greig advises that when he arrived to work, the second respondent was leaving and told him that there “wasn’t enough room for two head chefs” – he explains that a staff member had been “insubordinate” to her, advising her that he was the head chef, but he also explains that she was already aware that she was “getting a promotion to go into the catering side of the business”, and that he was then becoming the head chef, and
(f)    Greig also mentions that following a complaint from the second respondent that some of the kitchen workers were sexist towards her, he spoke to those workers and found that their communications in this regard “had nothing to do with sexism it was all to do with if she could do her job.”

Statement evidence relied upon by the second respondent

The second respondent relies upon the statement which she signed on 14 July 2023, and which is discussed from paragraph 25 above. She also provides a further statement signed on 29 July 2024 (found at page 8 of the second Reply).
In this further statement, she largely addresses the unsigned draft statements from Rushton, Calthorpe and Greig.
In relation to Rushton’s statement, she specifically:
(a)    says that Rushton’s suggestion that she was not able to manage the applicant’s “market man” software system was untrue as Rushton’s son was originally in charge of implementing the system – she tried to work with him regarding the recipes to input into the system and she entered new menu items into the system, but he did not understand the measurements for recipes and uploaded information incorrectly – she says that she found it difficult to set aside times to discuss the system with him, and that she was not able to manage the system herself due to all her other duties;
(b)    fervently denies Rushton’s suggestion that she did not need to work more than 38 hours per week for the applicant;
(c)    denies Rushton’s suggestion that she felt threatened by Greig – she says that she enjoyed working with Greig sometimes, “but was rather upset that I had to constantly deal with his inappropriate workplace actions”, which included yelling at her on at least three occasions, leaving work on several occasions, often speaking about his mental illness, and turning up to work late or not at all on a few occasions;
(d)    advises that there were “only a handful of times when we ran out of products”;
(e)    maintains that her claim for payments in relation to her accrued ‘time in lieu’ was a valid claim and that she should have been paid 100% of the claim rather than 30% of the claim – she says that she has a report explaining the number of hours she accrued and she accuses Rushton of changing her timesheets in order to justify only paying 30% of the claim, and
(f)    fervently denies stealing from the applicant – she attaches bank statements demonstrating payments which she made to the applicant for food and drink purchased from it, and she attaches Costco receipts in relation to purchases that she made on behalf of the applicant with its credit card.
The second respondent does concede however that she was slower ‘on the line’ than others in the applicant’s kitchen, and that she often therefore stepped aside and performed other tasks during busy service periods. She says that she was open to the applicant about this “weakness” of hers, and as a result, “tried to work with my team’s strengths”. She summarises:
“Anything that went wrong was blamed on me. I tried every day to support the team, but I was never respected. I know my weakness was on the pass and that is why the team didn’t support me. I was capable on many occasions of working the dockets but I also believed that you should encourage your team’s strengths, so I stepped aside to let the stronger line cooks take over when it was really busy. I felt the tension every day, but I continued every day to support my team by doing everything else associated with the role of a head chef to the best of my ability. I did not stop. I wasn’t accepted by my peers, so it was basically impossible to feel part of the team…It wasn’t just the kitchen I was trying to keep going. There was no front of house manager for quite some time. The owners introduced all sorts of extra things that we had to deal with – adding pizza nights, and a grocery store. We were understaffed often and I didn’t have the support of my team most of the time. The lack of respect despite my efforts then affected my moods. I tried every day to prove myself, but it was futile…I felt ridiculed when my instructions were ignored, when I turned to see one of the kitchenhands making gestures behind my back, when some kitchen staff immediately showed respect to a casual cook who came in while still behaving disrespectfully to me (she was quick, but she also had very questionable hygiene standards), when I was yelled at by Pete, and when Tris told me on Australia Day that she was speaking to Pete about an issue with a fellow employee because she had been told by both Pete and Troy that he was the Head Chef.”
The second respondent then addresses Calthorpe’s statement:
(a)    she says that during her discussions with Rushton regarding issues with her ordering of products for the cafe, she was blamed for the cafe running out of milk, but at the time the cafe did not have a front-of-house manager, and it had previously been the responsibility of the front-of-house manager to let the head chef know how much milk to order;
(b)    she says that she was unable to delegate tasks which would have been more suited to younger staff as the “younger staff either didn’t have time or refused to learn how to do several tasks in the kitchen”;
(c)    she denies that she started neglecting ordering and rostering tasks, and says:
“There weren’t enough hours in the day to make Pearly’s function with the staffing issues we had. Troy offered to show me a way of doing the rostering. It sounded good in theory, but completely fell apart. We had some very unreliable staff. I did not neglect the ordering.”, and
(d)    she denies that she commenced work unnecessarily early and therefore claimed unwarranted ‘time in lieu’ – she lists 29 tasks that she was required to perform before service started on a particular day, and which required her to commence work as early as she did.
Finally, the second respondent addresses Greig’s statement, advising that:
“There was a plan discussed regarding me introducing a catering arm to the business and Pete taking over the short-order side. This was not a ‘promotion’. I was very keen to do this but it was far from written in stone and I was still doing all of the other tasks associated with running the kitchen. I had not been told that Pete was Head Chef, but I did agree that he could oversee the pass so that I could concentrate on every other aspect of running the kitchen. I didn’t have the respect of my team. I was battling the impossible.”
The second Reply also attaches (at page 21) the second respondent’s compensation claim form that was provided to the first respondent. In the claim form, the second respondent is asked to describe firstly her injury and then her condition. She does so as follows:
“The injury was the result of months of stressful and unfair work conditions and expectations which came to a head on Australia Day, when an incident left me too anxious, humiliated, and disillusioned to continue working at the venue…After months of working long hours with excessive responsibilities under stressful conditions through multiple major workplace changes including becoming Head Chef, a fellow employee informed me that they and other employees had been told by the owner that someone else (who had very little responsibility) was in fact head chef.”

Medical evidence relied upon by the first respondent

The first respondent arranged for the second respondent to be medically examined by Dr Eftekar. His report dated 15 September 2023 in this regard is found at page 34 of the first Reply.

The doctor obtains a history of the second respondent’s employment issues with the applicant that is consistent with her statement evidence in detailing the difficulties that she had working with various staff members (especially with regard to them not respecting her and making gestures behind her back); her stressful working environment because of the implementation of multiple changes and because of bills not being paid; the long hours that she worked; the reluctance of the applicant to compensate her for ‘time in lieu’, and the events on 26 January 2023 when it was conveyed to her by a staff member that both Rushton and Greig had informed the staff member that Greig was the head chef. The doctor records that the second respondent “regarded this [the 26 January 2023 events] as the final stressor that prompted her to resign and leave her employment”.
The doctor then records:
“Mrs Fraser reports that after leaving work she was feeling ‘a mess’ [emphasis in original]. She states that she felt her chest was going to explode. She had ‘lost faith’ [emphasis in original] in herself. She states she developed mouth ulcers because of stress. She was very worried about bumping into her boss so was very anxious about seeing black cars when she was outside the home. She found it difficult to sleep. Her psychiatrist put her on melatonin which helped her sleep. She did not have suicidal ideation and she was able to enjoy some parts of the travel to Japan. She felt very anxious when she thought about the work-related injury.”
The doctor notes that the second respondent had an episode of depression when she was 18-years-old and took medication for two weeks. She was then prescribed with anti-anxiety medication by her general practitioner to deal with ‘brain fog’ prior to commencing her employment with the applicant. She and her mother also had some personal health issues while she was working for the applicant, which led to her consulting a psychiatrist, Dr Popov.

The doctor records that the second respondent continued seeing Dr Popov after resigning from her employment with the applicant. She was prescribed medication to manage her anxiety attacks and help her sleep. She also began seeing a psychologist initially weekly, and then two-weekly. The doctor opines:
“I believe the provided treatments in general have been effective in managing Mrs Fraser’s frequent anxiety episodes. I would propose continuing psychological treatment every 1-2 weeks for another three months. I would specifically suggest CBT or ACT treatment to manage anxiety episodes. This will help Mrs Fraser to get engaged in the workforce again.”
The doctor then obtains a history regarding the second respondent’s anxiety improving significantly since 26 January 2023. She had not had panic attacks for a long time and her sleep had improved. However, she still felt overwhelmed, she had lost confidence, and she felt low in mood on some days. She was able to attend to housework, and look after her mother, and attend medical appointments with her daughter. She was looking for work.
Following a mental state examination, the doctor diagnoses the second respondent as sustaining an adjustment disorder with anxious mood “following the work-related injury”. That diagnosis would have been valid for around six months, but the current diagnosis would be that of other specified trauma and stress-related disorder. In relation to causation, and in answer to specific questioning, the doctor opines:
“As mentioned earlier, Mrs Fraser’s psychological condition was multifactorial, partially due to the work related stressors. Based on her report, being bullied at work, lack of clarity around her title and responsibilities, lack of clear plans regarding the time in leu [sic] were affecting Mrs Fraser’s mental state…I believe the episode of Adjustment Disorder was multifactorial stemming from the work-related injury, the diagnosis of cancer of Mrs Fraser’s mother and her own health condition (fistula). However, I believe the role of the work-related injury was heavier compared with the other two. I would estimate 60% of the symptoms were related to the work-related injury.”
The doctor also opines that while the second respondent has significantly improved, she has not fully recovered, and he estimates that such a full recovery should occur in around three months “with adequate support”.
He advises against a return to the second respondent’s pre-injury role, and proposes that she return to work four hours per day three days per week as a “reasonable starting point”. She would hopefully be able to gradually increase her working hours as she built up her confidence again, and “return to her full level of function in three months”.

Medical evidence relied upon by the second respondent

The second respondent’s solicitors arranged for her to be medically examined by Dr Khan. His report dated 18 July 2024 in this regard is found at page 45 of the second Reply.
The doctor also obtains a history of the second respondent’s employment issues with the applicant that is consistent with her statement evidence in detailing how “she struggled from the outset” with that employment. She described the work environment as “very much a boys club” (especially with two kitchen hands repeatedly ignoring her direction), and she described understaffing issues which led to her taking on an extra workload and being blamed for issues that were not her responsibility (especially in relation to front-of-house issues following the resignation of the applicant’s front-of-house manager). She described being told by the applicant that she had too much ‘time in lieu’. She became increasingly anxious when attending her workplace and then “an incident on 26 January 2023 triggered her already fragile mental set and led her to eventually stop working”. When it was conveyed to her by a staff member that Greig was the head chef, she suffered acute symptoms of anxiety and panic, she felt invalidated by the applicant, and she resigned from her employment with it. The doctor records:
“As a result of these aforementioned work-related stressors, Ms Fraser experienced gradual deterioration in her mental state characterised by low mood, anxious ruminations, panic attacks, agitation, reduced motivation, reduced energy, reduced enjoyment in activities, social withdrawal, sleep disturbance with poor sleep maintenance and appetite disturbance with weight gain of approximately 10kg. She also struggled with impaired attention, impaired concentration, impaired memory, feelings of hopelessness and worthlessness, impaired self-confidence, impaired self-esteem and difficulties with trust in interpersonal relationships.”
The doctor also records that the second respondent continued to experience enduring symptoms of depression and anxiety, for which she was taking medication and being treated by her general practitioner, a psychologist, and a psychiatrist. On mental state examination, he finds evidence of psychomotor restlessness, anxious mood, thought content comprising of enduring symptoms of depression and anxiety, as well as impairment in attention, concentration and memory.
The doctor notes that the second respondent had a period of depression in her late teenage years for which she took medication for a brief period. She also consulted with her general practitioner just before she commenced working with the applicant in relation to ‘brain fog’ which she believed to be peri-menopausal. She denied any other pre-existing psychiatric history or other significant recent psychosocial stressors, and the doctor opines that prior to her employment with the applicant, her mental state was stable and she was not experiencing any enduring symptoms of depression or anxiety.
The doctor diagnoses the second respondent as sustaining a major depressive disorder with anxious distress, as well as an alcohol use disorder. He opines that this injury was caused by her exposure to protracted workplace stressors, not solely the events of 26 January 2023. Her employment with the applicant was the main contributing factor to the injury.
The doctor sees a “generally positive” prognosis for the second respondent, and in relation to her employment capacity, he opines:
“From a psychiatric perspective, Ms Fraser is not able to resume her pre-accident occupation as a head chef due to the ongoing impact of her psychiatric/psychological injury on her mood regulation, motivation, energy, sleep patterns, cognition, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust in interpersonal relationships…She commenced casual employment as a hotel receptionist around March 2024 and she has been working on average 24 hours per week. Ms Fraser has experienced some challenges transitioning into this new employment position due to her impaired self-confidence, impaired self-esteem and difficulties trusting people since her workplace psychiatric/psychological injury. That said, she has been able to sustain her employment to date.”
Finally, the doctor recommends ongoing treatment in the forms of general practitioner’s appointments, psychologist’s appointments, psychiatrist’s appointments, psychotropic medication, and consideration of day patient private psychiatric hospital mood/anxiety programs. He confirms that her treatment so far (as recorded by him – see paragraph 55 above) has been reasonably necessary treatment, and “considered to be appropriate, accepted and efficacious evidence-based mental health treatment for her diagnosed psychiatric/psychological condition”.
The second respondent also relies upon a report from her treating general practitioner, Dr Rawat, dated 24 July 2024, which is found at page 54 of the second Reply.
The doctor advises regarding the history recorded by her of the second respondent having “a stressful term at work in 2022”. She specifically mentions the second respondent’s workload, the impact of weather conditions on the applicant’s business, administration changes in the applicant’s business, the second respondent working long hours, shortage of staff in the applicant’s business, and the low wages being paid to the second respondent. She then mentions the final incident occurring on 26 January 2023 when the second respondent “was notified that she had been downgraded in her role”.
The doctor diagnoses the second respondent with a mixed anxiety disorder, and opines that the second respondent’s “work environment at her previous employer for a significant duration has been a major contributing factor to her injury, resulting in her incapacity to work”.
When specifically requested (by the second respondent’s solicitors) to provide opinions regarding the extent of the second respondent’s incapacity for work and the appropriateness of the restrictions on that capacity referred to in the certificates of capacity issued by the doctor, she opines:
“Yes, from having no capacity to work until 06/06/2023. She started a modified working role and hours from June 6, 2023, to March 26, 2024. She worked per week, which increased hours / per to 40 / week. She worked full-time from March 2024 until recent changes affected her, leading to a reduction in hours to up to per week starting in June 2024, up to 24 hours/week…Yes, as she has not fully recovered and will need more time. Return-to-work plans have been guided by a multidisciplinary team comprising a psychiatrist, psychologist, and exercise physiologist.”
When specifically requested (by the second respondent’s solicitors) to provide opinions regarding the reasonableness of the treatment undertaken by the second respondent, the doctor opines:
“Yes, for her mental health injury, she did see a psychiatrist Psychiatrist psychologist Psychologist CBT/trauma therapy/EMDR and is therapy / EMDR and gradually improving. She found a new job and is gradually working towards her pre-injury roles and goals. She has been involved in exercise physiology for mental health recovery as well.”
Dr Rawat also completed a questionnaire for the first respondent (found at page 38 of the second Reply) on 19 July 2023. The questionnaire responses are consistent with the history and the diagnosis referred to in the doctor’s 24 July 2024 report, and she confirms that the second respondent’s employment was the main contributing factor to “an aggravation, exacerbation, acceleration of [sic] deterioration of the injury”. The doctor also confirms:
“Patient had anxiety for which she was under management and was able to perform the duties well until injury happened”.
In the questionnaire, the doctor also advises that the second respondent had a modified capacity for work and could undergo a “gradual return with ongoing therapy”. The second respondent was not fit however for a return to her previous employment with the applicant. The second respondent required fortnightly psychological therapy, fortnightly exercise physiology, and psychiatrist’s reviews every two to three months.
The second Reply also contains a large number of certificates of capacity issued by Dr Rawat, from page 56. The certificates are consistent (except for two certificates dated 10 October 2023 and 7 November 2023 describing a “Stress Related Disorder”) in describing the second respondent’s diagnosis as – “Adjustment disorder: Mixed anxiety and Depression”. The certificates are also consistent with the history recorded by the doctor in her 24 July 2024 report, in describing how the second respondent’s injury related to her work with the applicant.
The certificates certified the second respondent as having no current work capacity until 6 June 2023, then having 12 hours per week work capacity until 12 September 2023, and then having 16 hours per week work capacity until 5 December 2023. There are no certificates covering the period after 5 December 2023. The certificates also variously referred to the second respondent’s ongoing treatment needs, in the forms of appointments with her psychologist, appointments with her psychologist, exercise physiology, medication (Propranolol and Prazosin), cognitive behavioral therapy (CBT) therapy, and the need for a rehabilitation provider to assist her return-to-work. These treatment needs were still recorded in the last certificate in evidence, dated 7 November 2023.
Finally, there are clinical notes from Dr Rawat also attached to the second Reply, from page 160. I have considered these notes but do not intend to outline them further unless specifically referred to aspects of them during the parties’ submissions. I otherwise do not find that the notes add any further evidence to the evidence contained in the doctor’s 24 July 2024 report, 19 July 2023 questionnaire, and the certificates of capacity issued by her.
The second Reply also contains reports from the second respondent’s treating psychiatrist, Dr Popov:
(a)    report dated 30 August 2022 (at page 28) – second respondent had had a medication change which had reduced side-effects upon her, improved her distress and emotional dysregulation, as well as improved her eating disorder;
(b)    report dated 29 November 2022 (at page 29) – second respondent’s symptoms had largely resolved but “stress of work and relationship problems remained” – she was experiencing a particularly busy time at work;
(c)    report dated 31 January 2023 (at page 30) – “Michelle was primarily stressed by recent resignation from her job under stressful circumstances. By all accounts it sounded like a toxic workplace where she was not appreciated. Her low self-esteem fed the feelings of guilt and anxiety further” – CBT provided as well as a treatment plan involving medication (Escitalopram), sourcing a new psychologist, and a further psychiatrist’s appointment in six weeks;
(d)    report dated 14 March 2023 (at page 31) – second respondent improved but continued to struggle by not looking after her own needs – CBT provided as well as a treatment plan involving reduced medication, sourcing a new psychologist, and a further psychiatrist’s appointment in two months;
(e)    report dated 9 May 2023 (at page 32) – second respondent quite distressed and it was “clear that she was still severely affected by her previous work situation and was showing several symptoms of PTSD” - CBT provided as well as a treatment plan involving new medication (Propranolol), continuation of psychologist’s appointments, and a further psychiatrist’s appointment in one month;
(f)    report dated 9 June 2023 (at page 33) – CBT provided as well as a treatment plan involving increased medication, continuation of psychologist’s appointments, and a further psychiatrist’s appointment in two months;
(g)    report dated 7 August 2023 (at page 34) – second respondent “struggling with agitation and avoidance of PTSD” – she was experiencing vivid nightmares and “fear and triggering response to thoughts of former boss” – CBT provided as well as a treatment plan involving medication (Propranolol and Prazosin now), continuation of psychologist’s appointments, and a further psychiatrist’s appointment in six weeks;
(h)    report dated 20 September 2023 (at page 42) – second respondent remained depressed and emotionally dysregulated, with low self-esteem and “fear and triggering response to thoughts of former boss” – CBT provided as well as a treatment plan involving medication, continuation of psychologist’s appointments, and a further psychiatrist’s appointment in 12 weeks, and
(i)    report dated 3 August 2023 (at page 43) – confirms a diagnosis of the second respondent’s post-traumatic stress disorder and that there “was a clear deterioration in her mental state and emergence of PTSD symptoms following the workplace injury” – the second respondent was unable to work “in pre-injury capacity”.
The second Reply finally contains reports from the second respondent’s treating psychologist, Trish Stephens:
(a) report dated 12 July 2023 (at page 35) – she had seen the second respondent on four occasions since 26 April 2023 – she diagnosed the second respondent with a severe generalised anxiety disorder as well as severe stress – she believed this to be due to the second respondent’s workplace, specifically mentioning aspects such as staff shortages, working more hours, not being paid for ‘time in lieu’, and “an anxiety attack on Anzac Day after one of the staff screamed at her which resulted in her walking out feeling that she was unable to work in these working conditions any longer” – she recommended treatment including learning mindfulness, breathing techniques, sleep improvement strategies, CBT, and eye movement desensitization and reprocessing (EMDR), and
(b) report dated 23 July 2023 (at page 37) – the second respondent was progressing well but still experiencing anxiety and distress – further treatment including EMDR was recommended.

First respondent’s submissions

These submissions have been recorded and they form part of the Commission’s record. I will not therefore outline them in detail.
The first respondent submits that Rushton’s 30 April 2024 signed statement largely accords with his unsigned statement, as well as the signed statements of the second respondent, in identifying events which occurred during the second respondent’s employment with the applicant and which created a stressful work environment that the second respondent could not cope with. These events caused a reaction in the second respondent sufficient to give rise to an injury. The events may be considered to be “relatively innocuous”, but they were sufficient to give rise to an “eggshell psyche type claim”, in accordance with State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 (Chemler).
In relation to the second respondent’s work capacity, the first respondent notes that weekly benefits compensation payments were made by it between 23 May 2023 and 8 April 2024. It concedes that the payments made were not always reflective of the second respondent’s actual capacity, as reflected in her certificates of capacity. However, it argues that the applicant was not working and actively job seeking during the relevant period.

Second respondent’s submissions

These submissions have also been recorded and they also form part of the Commission’s record. I will not therefore outline them in detail.
The second respondent draws my attention to the evidence of Dr Khan in establishing that she sustained a psychological injury in accordance with s 4 of the 1987 Act. The doctor diagnoses a major depressive disorder, which is a psychological or psychiatric disorder within the meaning of s 11(3) of the 1987 Act, and he concludes that her employment with the respondent was the main contributing factor to the contraction (rather than an aggravation) of that disease. He does not believe the second respondent’s pre-existing peri-menopausal condition to have played a part in the contraction of the disease.
The doctor provides detailed reasoning, and the history obtained by him is consistent with the histories obtained from the second respondent by her treating practitioners.
The second respondent then draws my attention to her signed statement evidence, and she submits that limited to no weight should be given to the unsigned statement evidence of Rushton, Calthorpe, and Greig. In any case, that unsigned statement evidence has been addressed in the second respondent’s signed 29 July 2024 statement, in which she refutes where necessary the material in the unsigned statements that she disputes. Further, there is in fact no material in the unsigned statement evidence to detract from the second respondent’s position that real events occurred during the course of her employment with the applicant which led to her psychological injury.
In relation to causation of the second respondent’s psychological injury, she also draws my attention to reports from her treating practitioners (particularly Dr Popov’s reports dated 31 January 2023, 9 May 2023, and 3 August 2023; Trish Stephens’ report dated 12 July 2023, and Dr Rawat’s report dated 24 July 2024), as well as the authority of Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General).

In relation to the second respondent’s medical treatment for her psychological injury, she submits that Dr Khan’s opinion is specific that it has all been reasonably necessary. In fact, there is no evidence to detract from this opinion, which is supported by the second respondent’s treating practitioners.
In relation to the second respondent’s incapacity as a result of her psychological injury, she draws my attention to the extract from Dr Khan’s report that I have quoted at paragraph 58 above. She is still not fit for her pre-injury employment and she has experienced challenges transitioning into her new part-time hotel receptionist role since March 2024.
She submits that although the certificates of capacity completed by her treating general practitioner referred to increases in her capacity over time, this fact does not necessarily mean that the payments made by the first respondent to her were inappropriate. There is no vocational evidence identifying suitable employment options for her, and without the identification of such suitable employment options, she should be found to have no current work capacity. In this regard, she refers to the authority of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), and submits that no real job was available for her prior to her commencing her part-time hotel receptionist role in March 2024.

FINDINGS AND REASONS

Did the second respondent sustain a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with s 4 of the 1987 Act

‘Injury’ is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”.
Section 11A(3) of the 1987 Act then requires a psychological injury to be “a psychological or psychiatric disorder”.
The second respondent has provided signed statement evidence (see especially paragraph 27 above) as to the various stressors which affected her after she commenced her employment with the applicant in June 2022. She says (see paragraph 28 above) that the incident on 26 January 2023 (when she was told by a staff member that she was not the applicant’s head chef, but Greig was) was the “catalyst” for her injury, but that the injury had been building up from the beginning of her employment with the applicant.
There is no signed statement evidence contradicting the second respondent’s account of the events which occurred during the course of her employment with the applicant, and which she says impacted her psychologically. The only signed statement evidence before me other than that signed by the second respondent is Rushton’s brief 30 April 2024 statement (see paragraph 22 above), which is in fact consistent with an interpersonal conflict incident between the second respondent and Greig occurring on 26 January 2023, following which the second respondent ceased work. Rushton’s 30 April 2024 statement also confirms that the second respondent advised him as to being burnt out and having high anxiety, on 28 January 2023.
In the circumstances, I have no difficulty accepting the signed statement evidence of the second respondent in explaining the stressful events which occurred during the course of her employment with the applicant.
There are unsigned statements from Rushton, Calthorpe, and Greig, which contradict some aspects of the second respondent’s statement evidence, but I do not intend to afford weight to those contradictory aspects, having regard to the statements not having been signed or otherwise adopted by their alleged authors, and having regard to the second respondent addressing those contradictory aspects in a supplementary signed statement dated 29 July 2024 (see paragraphs 38-42 above). As a result, I find the unsigned statements to contain less reliable evidence than the second respondent’s signed statement evidence.
In any case, it is necessary to note that the unsigned statements refer to potentially stressful events. Rushton (see paragraph 32(d) above) refers to the second respondent being counselled for work performance issues (specifically regarding food wastage and stock requirements) with “virtually weekly” dialogue regarding necessary improvements. He also refers to disputes regarding her claim for accrued ‘time in lieu’ (see paragraph 32(i) above). Calthorpe also refers (see paragraph 34(a) above) to conversations between Rushton and the second respondent regarding performance issues, and she details (at paragraph 34(d) above) an instance when the second respondent became frustrated due to lack of staffing. She also says (see paragraph 34(e) above) that the second respondent needed to seek her help with rostering issues. Greig concedes (see paragraph 36(d) above) that there was tension between himself and the second respondent, and advises that (see paragraph 36(c) above) the second respondent regularly got flustered and left her “station temporarily”.
The unsigned statements otherwise seem to justify the applicant’s actions in dealing with the second respondent. Whether those actions were justified however is not an issue for me to determine. The issue that I need to determine is whether those actions and the other stressful events complained about by the second respondent (and which I have accepted occurred) led to the second respondent developing a psychological or psychiatric disorder to which her employment with the applicant was the main contributing factor.
In Attorney General, Roche DP applies Chemler and discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
The Deputy President also said (at [54]):
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’, as Ms Smuts has submitted.”
The second respondent’s reaction to her workplace events was necessarily subjective, but it was based upon her perception of real events. Her exposure to her general working environment, which she also perceived to be stressful, was of course also a real event. In these circumstances, I am satisfied that there were real events that occurred at work, as a result of which the second respondent perceived “stressful and unfair work conditions and expectations which came to a head on Australia Day, when an incident left me too anxious, humiliated, and disillusioned to continue working” (quoted from her compensation claim form – see paragraph 43 above).
Turning to the medical evidence presented by the parties, it is unanimously accepted that the second respondent suffers from a “psychological or psychiatric disorder”, diagnosed by Dr Eftekar initially as an adjustment disorder with anxious mood, and by Dr Khan (who consulted with her around 10 months after Dr Eftekar) as a major depressive disorder with anxious distress as well as an alcohol use disorder. The second respondent’s treating general practitioner (Dr Rawat) variously diagnoses her with a mixed anxiety disorder, an adjustment disorder, and a stress related disorder. Her treating psychiatrist (Dr Popov) diagnoses her with post-traumatic stress disorder. These different diagnoses do not detract from an acceptance of a “psychological or psychiatric disorder”, and I do not believe that is necessary for me to determine the precise disorder in this regard.
It is however necessary for me to determine whether the real workplace events explained by the second respondent in her statement evidence (and accepted by me to have occurred) was the main contributing factor to the contraction of her psychological injury, in accordance with s 4 of the 1987 Act.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77-78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The second respondent concedes that prior to her employment with the applicant, she had experienced anxiety as a result of a peri-menopausal condition, in relation to which she took medication and had consulted with Dr Popov.
Dr Eftekar obtains this history, as well as a history of personal health issues affecting both the second respondent and her mother. He nevertheless opines (see paragraph 50 above) that 60% of her symptoms were related to her work with the applicant.
Dr Khan (see paragraphs 56-57 above) also obtains a history of the second respondent’s peri-menopausal condition, as well as a period of depression in her late teenage years, but accepts that her mental state was stable prior to her employment with the applicant. He also opines that her employment was the main contributing factor to her psychological injury.
Dr Khan’s acceptance of the second respondent’s mental state being stable prior to her employment with the applicant is consistent with the reports of the applicant’s treating psychiatrist, Dr Popov. In this regard, Dr Popov explains (see paragraph 70 above) that:
(a)    as at 30 August 2022 (soon after commencing her employment with the applicant), her pre-existing psychological symptoms had improved;
(b)    as at 29 November 2022, those symptoms had largely resolved but she remained with work stress;
(c)    as at 31 January 2023, she was primarily [my emphasis] stressed by the stressful circumstances of her recent resignation from her employment with the applicant;
(d)    as at 9 May 2023, he considered that it was “clear that she was still severely affected by her previous work situation”, and
(e)    as at 3 August 2023, he considered there was a “clear deterioration in her mental state and emergence of PTSD symptoms following the workplace injury”.
The second respondent’s treating psychologist (Trish Stephens) also opines that her psychological disorder was due to her workplace (see paragraph 71 above), and her treating general practitioner (Dr Rawat) further opines that her work environment with the applicant was a major (see paragraph 62 above) or the main (see paragraph 65 above) contributing factor to her psychological injury.
The evidence from Drs Eftekar, Khan, Popov and Rawat, as well as Trish Stephens, is therefore consistent in my opinion in agreeing that events which occurred during the course of the second respondent’s employment with the applicant was the main contributing factor to her psychological injury. There is no medical evidence to the contrary. Further, in my opinion, all four doctors were well aware of the second respondent’s pre-existing peri-menopausal condition, and they had obtained histories in relation to both that condition and her work stressors, that are consistent with her signed statement evidence.
In his signed statement dated 30 April 2024, Rushton (see paragraph 22(b)(vii) above) raises other potential non-work stressors as causes of the second respondent’s psychological injury. There is no other reliable evidence however provided regarding whether these stressors existed, or whether (if they did) they were in any way relevant to the causation of the injury. I find Rushton’s comments in this regard to be no more than unwarranted speculation.
In summary, having regard to my acceptance of the second respondent’s statement evidence, as well as the overwhelmingly consistent medical evidence regarding the causation of her psychological injury, I find that her employment with the applicant and the real events that occurred during the course of it, was the main contributing factor to the contraction of the injury.

What has been the degree of the second respondent’s current work capacity due to her psychological injury, since 26 January 2023

The reimbursement notice (found at page 1 of the Application) refers to the first respondent paying the second respondent the total amount of $49,322.56 in weekly benefits compensation, as follows (based upon a PIAWE of $1,317.04 agreed to by the applicant - see paragraph 13 above):
(a)    $1,251.19 per week pursuant to s 36 of the 1987 Act from 23 May 2023 to 21 August 2023;
(b)    $1,053.63 per week pursuant to s 37 of the 1987 Act from 22 August 2023 to 30 September 2023;
(c)    $1,080 per week pursuant to s 37 of the 1987 Act (based upon an adjusted PIAWE) from 1 October 2023 to 11 March 2024;
(d)    $724.64 per week pursuant to s 37 of the 1987 Act (after the second respondent commenced her employment as a hotel receptionist) from 12 March 2024 to 25 March 2024, and
(e)    $219.25 per week pursuant to s 37 of the 1987 Act from 26 March 2024 to 8 April 2024.
Section 36 of the 1987 Act reads as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b)the maximum weekly compensation amount, less the worker's current weekly earnings.”
Section 37 of the 1987 Act reads as follows:
“(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
It is therefore necessary to determine the second respondent’s current work capacity for the period during which she was paid weekly benefits compensation by the first respondent, between 23 May 2023 and 8 April 2024.
Clause 9(1) of Schedule 3 to the 1987 Act provides:
“An injured worker has ‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“‘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.”

I am satisfied that the second respondent had no current work capacity until 6 June 2023, as certified by her treating general practitioner, Dr Rawat – see paragraphs 63 and 68 above. The weekly benefits compensation payments therefore made to her during this period by the first respondent were necessary and appropriate, pursuant to s 36(1) of the 1987 Act. The applicant will be required to reimburse them to the first respondent.
After 6 June 2023, the following medical opinions are in evidence before me:
(a)    Dr Eftekar (at 15 September 2023) – the second respondent had significantly improved since 26 January 2023 but was not fully recovered and would only fully recover in around three months if provided with adequate support – she was not fit for her pre-injury role – a return to 12 hours work per week was a “reasonable starting point”;
(b)    Dr Khan (at 18 July 2024) – the second respondent was still not fit to resume her pre-injury role – she was working 24 hours per week as a hotel receptionist but had been experiencing challenges due to her impaired self-confidence, impaired self-esteem, and trust issues;
(c)    Dr Rawat – the doctor’s certificates of capacity certify the second respondent as fit for 12 hours work per week between 6 June 2023 and 12 September 2023, and then 16 hours work per week between 12 September 2023 and 5 December 2023 – the doctor’s 24 July 2024 report considered that she had not fully recovered but it opined that she was fit for increasing work hours per week between 6 June 2023 and 26 March 2024 – the doctor’s 19 July 2023 questionnaire confirmed that she was not fit for her pre-injury role and only had a modified capacity for work;
(d)    Dr Popov (at 3 August 2023) – the second respondent was unable to work in her pre-injury capacity - she still required significant treatment and remained depressed and emotionally dysregulated as at 20 September 2023, and
(e)    Trish Stephens (at 23 July 2023) – the second respondent was progressing well but still experiencing anxiety and distress.
There is therefore no evidence before me of the second respondent being fit for her pre-injury employment, even to date. In fact, the evidence is directly to the contrary. In accordance with cl 9(1) of Schedule 3 to the 1987 Act however, it still needs to be determined whether she was capable of suitable employment within the meaning of s 32A of the 1987 Act, between 6 June 2023 and 11 March 2024, having regard specifically to the opinions of Drs Eftekar and Rawat.
To determine this, I will consider the authority of Dewar, in order to ascertain if there is evidence before me of a “real job” that the second respondent (between 6 June 2023 and 11 March 2024) was “fit and qualified for, and be expected to secure and retain”.
In Dewar, Deputy President Roche discussed s 32A of the 1987 Act:
“58.   However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
59.   The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
60.   Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
and:
“63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
I have come to the conclusion that there were no “real jobs” that the second respondent was able to perform between 6 June 2023 and 11 March 2024. I accept her submissions in this regard at paragraph 82 above.
While she may have had a theoretical capacity for work in accordance with the opinions of Drs Eftekar and Rawat, she still had significant restrictions on her employability. Dr Eftekar (see paragraphs 48-49 above) records that she lacked confidence, felt overwhelmed, and was low in mood on some days. He also proposed significant ongoing psychological treatment. Dr Rawat also refers to the second respondent’s need for significant ongoing psychological treatment, and that she had not recovered, even at 24 July 2024. Dr Popov actually increased her medication on 9 June 2023, and noted her complaints of agitation, vivid nightmares, fear, triggering responses, depression, and low self-esteem, in August/September 2023.
These restrictions would have clearly interfered with the second respondent’s employment options between 6 June 2023 and 11 March 2024. There is no evidence before me that a “real job” that accommodated the restrictions would have been available to the her during this period, especially considering the other limitation on such employment that the second respondent was (according to both Drs Eftekar and Rawat) significantly restricted in the number of hours which she could theoretically work per week.
Without any vocational evidence before me; without the identification by Drs Eftekar and Rawat in more specific terms as to the nature of the employment that the second respondent could reasonably expect to obtain having regard to her theoretical capacity for work certified by them; and without any submissions being made by the applicant to the contrary as to the identification of a “real job” which accommodated all her restrictions, I am satisfied that the second respondent had no current work capacity between 6 June 2023 and 11 March 2024.
In considering the matters prescribed by s 32A of the 1987 Act:
(a)    I am unable to identify any “real job” suitable for the second respondent prior to 11 March 2024, having regard to the nature and extent of her medically certified incapacity and other restrictions;
(b)    in my opinion, the second respondent’s age, education, skills and work experience were all against her in her attempts to find suitable employment prior to 11 March 2024 – there is no evidence before me of any particular skills of hers or any particular academic qualifications of hers – her 14 July 2023 signed statement refers (see page 11 of the first Reply) to her employment prior to her employment with the applicant as involving at different times assisting with her husband’s business, compiling crosswords, working for a spice company, managing a daycare centre, managing a school canteen, and administrative roles with Centrelink – in my opinion, aside from potentially again assisting with her husband’s business, none of these employments were ”real job” options for the second respondent prior to 11 March 2024 due to her lack of self-esteem and confidence, as well as her low mood and her inability to work more than a certain number of hours per week, and
(c)    there is no evidence before me of any return to work plans or rehabilitation/vocational reports.
As no party relies on any evidence from a vocational expert, in those circumstances, it is for me to use common knowledge or experience to determine whether any of the second respondent’s previous employments were “real job” options for her prior to 11 March 2024. As Deputy President Snell observed in ACW v ACX [2020] NSWPICPD 19 (at [109]), applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720:
“A fact finder is entitled to make commonsense findings, provided these are ‘within the realm of common knowledge or experience’”.
In all the circumstances, I consider the opinions of Drs Eftekar and Rawat as to the second respondent’s capacity to work on a part-time basis between 6 June 2023 and 11 March 2024, to be very much theoretical opinions. I find that she was unfit for her pre-injury employment as well as suitable employment within the meaning of s 32A of the 1987 Act during that period. The weekly benefits compensation payments therefore made to her during the period by the first respondent were necessary and appropriate, pursuant to ss 36(1) and 37(1) of the 1987 Act. The applicant will be required to reimburse them to the first respondent.
Finally, I have to consider the period between 11 March 2024 and 8 April 2024 when the second respondent received reduced weekly benefits compensation payments from the first respondent after commencing her employment as a hotel receptionist. It appears that she was paid under s 37(2) of the 1987 Act in this regard as she had returned to work for not less than 15 hours per week, and was therefore entitled to be compensated according to the monetary weekly difference between 95% of her adjusted PIAWE and her earnings as a hotel receptionist. She still had a restricted capacity to work during this period, and according to Dr Khan, experienced “challenges transitioning into this new employment position” because of her psychological injury. I accept that her earnings in this period represented the extent of her current work capacity. The weekly benefits compensation payments therefore made to her during the period by the first respondent were necessary and appropriate, pursuant to s 37(2) of the 1987 Act. The applicant will be required to reimburse them to the first respondent.

What medical treatment has the second respondent reasonably needed as a result of her psychological injury, since 26 January 2023

Section 60 (1) of the 1987 Act provides as follows:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that--
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
Section 59 of the 1987 Act then defines ‘medical or related treatment’ as including:
“(a)    treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b)     therapeutic treatment given by direction of a medical practitioner,
(d)     the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e)     any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,
(f)      care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity,
(f1)    domestic assistance services,
(g)     the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,”.
The reimbursement notice (found at page 1 of the Application) refers to the first respondent paying to or on behalf of the second respondent the total amount of $13,859.52 in medical expenses pursuant to s 60 of the 1987 Act. The payments are itemised and relate to treatment costs incurred between 9 May 2023 and 30 March 2024.
From perusing the itemised list of payments, I am satisfied that they all relate to medication costs (paid to the second respondent), rehabilitation costs (Konekt), psychologist’s appointments (Star Health, Richard Otoba, and Choice Point Psychology), psychiatrist’s appointments (Dr Popov at Berkeley Vale Private Hospital), general practitioner’s appointments (Reliance Medical Practice), and exercise physiology treatment (Physio Connex).
On my calculations, the respondent has paid for:
(a)    the second respondent’s medication costs of $288.20;
(b)    12 appointments for the second respondent to attend a psychologist;
(c)    7 appointments for the second respondent to attend Dr Popov (psychiatrist) at Berkeley Vale Private Hospital – costs of $340 per appointment re-imbursed to the second respondent on 6 of these 7 occasions;
(d)    the second respondent’s rehabilitation costs of $6,227.02;
(e)    8 appointments for the second respondent to attend her general practitioner, and
(f)    14 appointments for the second respondent to attend exercise physiology.
I find all of these treatment costs to be reasonably necessary treatment for the second respondent as a result of her psychological injury. The need for medication, psychologist’s appointments, and psychiatrist’s appointments are supported by Dr Eftekar (see paragraph 48 above), Dr Khan (see paragraphs 55 and 59 above), Dr Rawat (see paragraphs 64, 66, and 68 above), Dr Popov (see paragraph 70 above), and Trish Stephens (see paragraph 71 above). The need for exercise physiology is supported by Dr Rawat, and the subject of a referral from the doctor on 18 July 2023 (found at page 169 of the second Reply within the doctor’s clinical notes). The need for the rehabilitation costs is reasonable in order to prepare the second respondent for a return to work (which eventuated from March 2024), and is also supported by Dr Rawat (see paragraph 68 above). The need for 8 general practitioner’s appointments over a period of almost 11 months is also reasonable in my opinion.
In determining the reasonableness of these treatment costs, I have considered the authority of Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab), in which Roche DP considered Rose v Health Commission (NSW) (1986) 2 NSWCCR 2, and concluded (at [86-89]):
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.
Giles JA added (at [49] in O’Shea) that the qualification whereby the necessity must be reasonable calls for an assessment of the necessity having regard to all relevant matters, according to the criteria of reasonableness. His Honour was talking in the context of whether an easement should be granted under s 88K of the Conveyancing Act 1919, which provides that ‘the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement’. However, his Honour’s observations are applicable in the present matter and are clearly consistent with Clampett.
In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
·(a) the appropriateness of the particular treatment;
·(b) the availability of alternative treatment, and its potential effectiveness;
·(c) the cost of the treatment;
·(d) the actual or potential effectiveness of the treatment, and
·(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Having regard to the consistent and overwhelmingly supportive medical evidence relied upon by both respondents, I find that the treatment referred to in paragraph 128 above was appropriate for the second respondent; was the only reasonable treatment available to her; was cost-effective; was effective in reducing her symptoms and allowing an eventual return to work, and was accepted by medical experts as being appropriate. It was reasonably necessary treatment for her, and the payments therefore made by the first respondent in relation to it were necessary and appropriate, pursuant to s 60 of the 1987 Act. The applicant will be required to reimburse them to the first respondent.

SUMMARY

I therefore find that the second respondent sustained a psychological injury to which her employment with the applicant was the main contributing factor, in accordance with s 4 of the 1987 Act.
I find that as a result of the psychological injury, she had no current work capacity between 23 May 2023 and 11 March 2024. During that period, she was entitled to weekly benefits compensation in accordance with ss 36(1) and 37(1) of the 1987 Act, her entitlement being calculated in accordance with her PIAWE of $1,317.04.
I find that as a result of the psychological injury, she had current work capacity between 11 March 2024 and 8 April 2024. During that period, she was entitled to weekly benefits compensation in accordance with s 37(2) of the 1987 Act, her entitlement being calculated in accordance with her PIAWE of $1,317.04 (as adjusted), and with her current weekly earnings being her actual earnings as a hotel receptionist during that period.
I find that as a result of the psychological injury, she required reasonably necessary medical treatment in accordance with s 60 of the 1987 Act. Her expenses in this regard amounted to $13,859.52.
I find (with the agreement of the applicant) that it was not insured in respect of its liability to compensate the second respondent in accordance with the 1987 Act, regarding her psychological injury.
I find that the first respondent has compensated the second respondent in relation to her entitlements, as described in paragraphs 133-135 above. The first respondent has made a total payment of $63,182.08 in this regard. It has issued a valid notice dated 8 April 2024 to the applicant, in accordance with s 145(1) of the 1987 Act, requiring the applicant to reimburse that amount to it.

I find the amount of $63,182.08 paid by the first respondent in this regard reflects the valid and legitimate entitlements of the second respondent to compensation with respect to her psychological injury. I find the payment made to be both necessary and appropriate.
I therefore find that pursuant to s 145(3) of the 1987 Act, the applicant is liable in respect of the payment made of $63,182.08.
The applicant’s request for an order from the Commission pursuant to s 145(3) of the 1987 Act, that it is not liable to reimburse the amount of $63,182.08 to the first respondent, is as a result refused.
The applicant is to pay the first respondent the amount of $63,182.08.

[2024] NSWPIC 658

29 November 2024