Phua v Charles Sturt University

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Phua v Charles Sturt University [2024] NSWPIC 2
APPLICANT:	Chiu Wooi Phua
RESPONDENT:	Charles Sturt University
MEMBER:	John Isaksen
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation as a result of a psychological injury; respondent relies upon section 11A defence that injury was predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal; reference to Hamad v Q Catering and Irwin v Director General of School Education; dispute as to the extent of the worker’s incapacity; reference to Wollongong Nursing Home v Dewar and Husnain P/L v Workers Compensation Nominal Insurer & Anor; Held – the respondent has failed to establish a defence pursuant to section 11A because the injury was not wholly or predominantly caused by action taken by employer with respect to performance appraisal and the action taken by the respondent was not reasonable; worker had no current work capacity for about 2 months following his cessation of work with the respondent and the worker has had a partial incapacity thereafter; award of weekly payments of compensation for periods of total and partial incapacity.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987 (the 1987 Act). 2. The deemed date of injury is 23 June 2022. 3. The applicant had no current work capacity from 23 June 2022 to 17 August 2022. 4. The applicant has had a partial incapacity for work since 18 August 2022. The Commission orders: 5. The respondent is to pay to the applicant $1,738.80 per week from 23 June 2022 to 17 August 2022 pursuant to s 36 (1) of the 1987 Act. 6. The respondent is to pay to the applicant $1,428.30 per week from 18 August 2022 to 22 September 2022 pursuant to s 36 (2) of the 1987 Act. 7. The respondent is to pay weekly payments of compensation to the applicant pursuant to s 37 (3) of the 1987 Act as follows: (a) $1,153.70 per week from 23 September 2022 to 30 September 2022; (b) $1,203 per week from 1 October 2022 to 31 March 2023; (c) $1,265.50 per week from 1 April 2023 to 30 June 2023; (d) $1,252 per week from 1 July 2023 to 30 September 2023, and (e) $1,289.40 per week from 1 October 2023 to date and continuing. 8. The respondent is to have credit for any sick leave paid to the applicant pursuant to s 50 of the 1987 Act for the period during which weekly payments of compensation are to be paid.

STATEMENT OF REASONS

BACKGROUND

Chiu Wooi Phua, the applicant in these proceedings, claims that he sustained a psychological injury in the course of his employment as a lecturer with the respondent, Charles Sturt University, as a result of experiencing bullying and undue pressure by his managers.
Mr Phua ceased work on or about 23 June 2022 after attending his general practitioner and being issued with a Certificate of Capacity. Mr Phua has not returned to any work since 23 June 2022.
A dispute notice was issued by icare on behalf of the respondent on 28 October 2022 wherein it was not disputed that Mr Phua sustained a psychological injury in the course of his employment with the respondent, but liability was disputed on the grounds that Mr Phua’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and discipline.
Liability was also disputed on the grounds that Mr Phua does not have any total or partial incapacity for work as a result of an injury and that medical treatment is not reasonably necessary as a result of an injury.
Mr Phua claims weekly payments of compensation from 23 June 2022 onwards.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline (s 11A (1) of the Workers Compensation Act 1987 (the 1987 Act), and
(b) the extent of the applicant’s incapacity for work as a result of any psychological injury (ss 32A, 33, 36, and 37 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 7 December 2023. 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.
Mr Ty Hickey appeared for the applicant, instructed by Ms Kakala. Mr Hanrahan appeared for the respondent, instructed by Ms Lungtok.
Mr Hickey objected to a statement from Dr Julia Lynch, which was contained in the Reply because it was not signed. The respondent agreed to withdraw that statement from the evidence before the Personal Injury Commission (Commission).
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,830.30.
The hearing could not be completed on 7 December and a timetable was set for the applicant to file and serve written submissions on the issue of incapacity for work, and for the respondent to file and serve any written submissions in response to the applicant’s submissions. Both sets of written submissions have been received by the Commission.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, except for the statement of Dr Julia Lynch, and
(c)    Application to Admit Late Documents filed by the respondent on 1 December 2023.

Oral evidence

There was no application to adduce oral evidence or cross examine Mr Phua or any other witnesses who have provided statements.

FINDINGS AND REASONS

Whether the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline

The applicant’s evidence

Mr Phua has provided statements dated 20 July 2022 and 11 September 2023.
Mr Phua states that he commenced employment as a lecturer with the respondent in 2011.
Mr Phua states that he had experienced anxiety and stress as result of his work with respondent going back to 2016. He states that in 2016 he was directed by the respondent to work 80% of the time in teaching and 20% of the time in administration, with no time allowed for research. He states that the time allowed for research would have assisted him to complete a PhD in accounting. Mr Phua states that he kept on working but felt a lot of discontent because of the actions of the respondent.
Mr Phua states that he was asked to teach subjects and courses which were not really in his field of expertise, such as financial management and tax law, and this contributed to his stress. He states that he feels he was made to teach subjects that no one else wanted to teach.
Mr Phua states that he was paid at a level A position as an associate lecturer, whereas the duties he did perform were that of a level B lecturer. There are emails from Mr Phua to officers to the respondent in March 2018 wherein Mr Phua seeks advice on the boundaries between a level A and level B lecturer and that he plans to work to rule.
Mr Phua states that he raised concerns with the respondent in October 2016 regarding the limited time required to mark lengthy assignments.
Mr Phua states that his father passed away in August 2021 and he was inundated with work upon return to his duties with the respondent. He states that he was allocated to teach three subjects and to mark for five subjects, but the marking could be done ahead of time. He states that the time allocated for marking each subject is 1.5 hours, irrespective of the number of assessments, word limit or complexity of marking. Mr Phua states that he was working 14 to 16 hours per day for seven days per week and was extremely stressed.
Mr Phua states that he sent an email to his supervisor, Julia Lynch, and she took one of his marking subjects from his workload, but he still had a heavy workload and did not tell Ms Lynch this.
Mr Phua states that there were times when several subjects had to be marked concurrently which caused “a bottleneck” in addition to his teaching duties. He states that this was most extreme during Session 3 of 2021. He states that he did not lodge official complaints regarding this as he did not want to make too many waves and feared losing his job and being reprimanded. He states that at one point his wife helped him with some marking because she could see how stressed he was, but he also states that his wife had been a convener for the particular subject which she helped to mark.
Mr Phua concedes that he has had negative reviews, but that is not easy to please everyone. He also states that he has had good feedback on many occasions and his teaching has been commended to the Dean.
Mr Phua states that he received an email from Dianne McGrath in March or April 2022 stating that he was performing unsatisfactorily and that this would be discussed with him in a meeting. He states that he requested an agenda for the meeting but was not given any details and was not given “any heads up” as to why he was not performing well enough. He states that this came as a shock, and he began to feel anxious.
Mr Phua states that he was told by Ms McGrath at the meeting in April 2022 that he was underperforming when he did not return marks on time and did not respond to students on time. He states that Ms McGrath also said that his work was of a poor quality. Mr Phua states that this made him feel hopeless, but he did not want to respond to anything in case he did something wrong.
Mr Phua states that another meeting was postponed a couple of times because he felt too emotional. He states that his worries came back every time he saw the invitation to another meeting and he began to feel more anxious.
Mr Phua states that a friend told him that he could seek a workers compensation claim if he was injured. He states that he lodged a claim on the online portal in May 2022.
Mr Phua states in his statement dated 11 September 2023 that his current symptoms include feelings of frustration, decreased memory, increased anxiety and lethargy.

The respondent’s lay evidence

Dianne McGrath has provided a statement dated 29 August 2022. Ms McGrath states that she was appointed Associate Head of School in mid-2021.
Ms McGrath states that Mr Phua’s father had already passed away when she started as Associate Head. She states that she did an analysis of Mr Phua’s workload after he had sent an email to her querying his workload. She states that her analysis showed that it was possible for him to do his work in the time allocated to him and that he was not being overburdened in a particular week and there was ample time to do his work.
Ms McGrath also states that her analysis revealed that some of Mr Phua’s allocated work was being marked by someone else without there being approval for this.
Ms McGrath states that from her analysis that Mr Phua was working overnight but he did not work more than 40 hours per week. She states that Mr Phua logged in the system that he spent 15.8 hours to mark 25 exams, which should have taken 12.5 hours. She states that there were other people marking that exam within that timeframe. Ms McGrath also states that another academic had to re-mark the exams in one subject because Mr Phua had marked so poorly, and that this re-marking was done within the standard time.
Ms McGrath states that she brought her concerns to Matthew Hansen in Human Resources (HR) and a meeting was arranged with Mr Phua by Zoom on 1 June 2022, with the opportunity for Mr Phua to bring a support person.
Ms McGrath states that during the meeting she referred to previous concerns regarding Mr Phua’s work performance which had been raised by Dr Julia Lynch, and that Mr Phua had not met some of those goals. She states that Mr Phua said that he did not want to make a comment at that time on the issues which were being raised in the meeting. Ms McGrath states that she concluded the meeting by saying that she would prepare a performance improvement plan and she would set up a meeting to discuss that plan.
Ms McGrath states that she was never able to do the follow up meeting with Mr Phua because Mr Phua was on leave each time a meeting was set up. Ms McGrath states: “The moment the Performance Improvement Plan came on the table he started putting in sick leave”.
Matthew Hansen has provided a statement dated 26 August 2022. Mr Hansen states that he looks after the HR functions of various faculties at Charles Sturt University.
Mr Hansen states that Dr Lynch raised concerns about Mr Phua’s performance around October 2021. He recommended to Dr Lynch that this should be discussed at the next Employment Development and Review Scheme (EDRS) meeting with Mr Phua. He states that he understands that this occurred at an EDRS meeting between Dr Lynch and Mr Phua in late 2021.
Mr Hansen states that Ms McGrath took over the Acting Head of School role in early 2022 and they discussed performance concerns regarding Mr Phua including meeting deadlines, the quality of his work, and concerns about his claims of excess workload. Mr Hansen states that a decision was made to meet with Mr Phua. He states:
“Clause 37 of the enterprise agreement refers to unsatisfactory performance to which we decided to schedule a meeting with Chiu in accordance with Clause 37….This invitation sets out the reason for the meeting and provides at least 2 working days notice. It also states that Chiu may bring a support person”.
Mr Hansen states that Mr Phua declined one or two meetings due to being unwell, before a meeting was conducted with him and with a support person on 1 June 2022. Mr Hansen states that performance concerns were discussed with Mr Phua and his response to all those performance concerns was that he would get back to them. He states that the meeting concluded with a Performance Improvement Plan (PIP) to be prepared for Mr Phua. Mr Hansen states that he has notes of this meeting.
Mr Hansen states a follow up meeting was set for 9 June 2022, but Mr Phua sent an email that he was unwell. Mr Hansen states that a PIP has not been provided to Mr Phua because there has been no follow up meeting.

Other evidence from the respondent

There is a letter from A/Prof Michael Kiernan, Acting Executive Dean, dated 11 October 2017 addressed to Mr Phua wherein A/Prof Kiernan states that he is unwilling to support Mr Phua with Higher Degree by Research (HDR) study as part of Mr Phua’s workload allocation. The letter also raises concerns about Mr Phua’s overall performance and that the respondent has made a decision to initiate Clause 37 – Unsatisfactory Performance of the Charles Sturt University Enterprise Agreement.
There is an email from Dr Lynch to Mr Phua dated 6 May 2021 wherein Dr Lynch refers to a meeting between them on the previous day and Dr Lynch sets out a “baseline” of activities to enhance student learning and satisfaction. Dr Lynch writes that this is being provided to Mr Phua because Mr Phua had asked for assistance improve to “efficacy on teaching”. Mr Phua replies by email four days later by thanking Dr Lynch for taking the time to provide him with some guidance to improve his teaching and that he will take note of her recommendations to improve his teaching.
There is an email from Mr Phua to Dr Lynch on 2 December 2021 wherein Mr Phua writes that he is marking five subjects for Session 3 and that he is concerned that he might not be able to fulfil the schedules. He writes: “I understand that I am underload this session but I think I should pre-empt you about my concern”.
Dr Lynch replies the following day that she has reviewed the situation and set out the due dates for assessment and considers there is ample time for Mr Phua to mark and return the assessments within normal work hours. Mr Phua responds that same day: “Thank you for mapping out and a consistent flow has taken out my anxiety of not achieving the deadlines”.
There is a document from “EDRS manager” for Mr Phua for the years 2021 and 2022.
The “EDRS manager” document for the period from 18 February 2021 to 17 January 2022 includes Mr Phua stating that it was hard to teach a finance subject for the first time and not being able to reach out to all students. The document includes Mr Phua’s “final comments” which refer to 2021 being very challenging due to a lot of uncertainties. The supervisor’s “final comments” include Mr Chua’s teaching performance being “again problematic” with low levels of student satisfaction.
The “EDRS manager” document for the period from 1 January 2022 to 31 December 2022 includes Mr Phua referring to “Management of mental health”. The supervisor’s “initial comments” include reference to a previous email in 2021 outlining ways that Mr Phua can access support and resources, and that Mr Phua has been encouraged to take care of himself and support his goals related to managing his stress.

The medical evidence

The clinical notes from St George Family Medical Centre from 15 February 2012 are in evidence.
There is an entry made by Dr Chan on 24 May 2016 of “work stress”.
There is an entry made by Dr Jeong on 12 April 2017 which includes: “under lots of stress - work - study PhD - not good support at work; too much load - work situation not functional”. The notes also record that a Mental Health Plan is prepared.
There is an entry made by Dr Jeong on 8 September 2017 which includes: “anxious, stressed about work situation”.
There is an entry made by Dr Jeong on 13 October 2017 which includes: “stress going for a while – worse this year” and “pt feeling too excessive work load and not having enough support”.
There is an entry made by Michael McSweeny, social worker, on 16 October 2017 that Mr Phua is suffering stress and depressive symptoms and the main feature is “burnout”.
There is an entry made by Dr Jeong on 8 November 2018 which includes: “has had some issue with his work for last 4-5 years” regarding the respondent not being supportive of Mr Phua taking leave to finish his PhD.
There is a diagnosis made by Dr Siu on 6 January 2021 of adjustment disorder with anxiety, with a record of Mr Phua’s father just being diagnosed with prostate cancer and Mr Phua “in tears”.
There is an entry made by Dr Abdou on 18 May 2022 of Mr Phua feeling stress and anxiety and a medical certificate is issued that Mr Phua is unfit for work for three days.
There are then some notes of attendances by Mr Phua for pathology tests. Dr Abdou then records on 10 June 2022: “feels stress and anxiety”, and there is a note regarding advice for a mental health care plan.
Mr Phua attends Dr Abdou again on 22 June 2022 for “stress and anxiety”, but the following day the notes from another doctor at the practice, Dr Ochoa, includes the following:
“Patient states that after returning back from compassionate leave he receive an email followed by a meeting where he felt he was unfairly assessed in his performance and the comments did not reflect favourably on his capacity to work and how he feels he actually delivers his work. Since those episodes he started showing anxiety and panic attacks, and has also had seizures that were attributable to a psychogenic factor.”
Dr Ochoa makes a diagnosis of an adjustment disorder with anxiety. His notes refer to a Certificate of Capacity being written for Mr Phua.
Dr Ochoa has provided a report to Mr Phua’s lawyers dated 9 December 2022. Dr Ochoa writes that he considers that Mr Phua’s employment with the respondent is the main contributing factor to the injury reported to him by Mr Phua.

Mr Phua also attended another general practice, Kincaid Medical and Dental Centre. There is a record made by Dr Siu on 16 March 2017 of “Stress Up” due to a forced change in Mr Phua’s contract from lecture and research to only lecture work.
There is a record made by John Sheppard, psychologist, at that practice on 13 April 2017 of a discussion with Mr Phua regarding problems at work which he is struggling to deal with.
There are no further consultation notes from that practice until 20 June 2022 when Dr Punitharajah records that Mr Phua has had a recent emergency department (ED) admission with seizure, with a note that Mr Phua has had epilepsy since childhood. The notes also include:
“teaching in CSU
increasing stress and workload
poor sleep
couldn’t concentrate”
There are clinical notes in evidence from Joe Wopenka from Thrive Psychology. The handwritten notes for the first consultation that Mr Phua has with Mr Wopenka on 18 July 2022 identify “a lot of stress” from death of Mr Phua’s father, the effect of covid at the university, and having to make up time due to leave taken for Mr Phua to grieve for his late father. The notes also include a record of Mr Phua having to teach classes that “he’s not suppose to”, and anxiety about being performance managed.
There is a discharge summary from Wagga Wagga Base Hospital dated 8 June 2022 wherein it is stated that Mr Phua presents with several episodes of chest tightening and palpitations in the past few weeks. The summary includes: “The episodes are provoked by stressful stimuli in the context of ongoing workplace challenges”.
There is another document from Dr Ryan at Wagga Wagga Base Hospital dated 15 June 2022 which refers to recurrent clusters of very short seizures. The document also states: “Last significant episodes were overseas last year, associated with the death of his father” and “reports ongoing anxiety assoc w job performance review”.
Dr Virk, psychiatrist, has provided reports at the request of the respondent dated 17 October 2022 and 30 November 2023.
In his report dated 17 October 2022, Dr Virk records that Mr Phua’s workload was merely postponed until after his compassionate leave for his late father was completed, and Mr Phua’s work quality was then compromised in trying to finish his workload within tight timeframes set by the respondent. Dr Virk records that Mr Phua considered that he had been asked to do more in his role then he was qualified for with a number of the subjects which he taught.
Dr Virk records that Mr Phua was not told that he was being placed on performance management until he received an email from Ms McGrath in March 2022. Dr Virk records that the subsequent meeting which Mr Phua had with Ms McGrath affected Mr Phua’s sense of self-worth and that Mr Phua was very distressed following this meeting. Dr Virk records that Mr Phua continued to postpone a second meeting, and when that second meeting did occur in June 2022, Mr Phua was told he would be placed on a performance management plan.
Dr Virk records that Mr Phua was very distressed upon learning about the performance management plan and subsequently developed seizures, which resulted in an admission to hospital.
Dr Virk makes a diagnosis of adjustment disorder with mixed anxiety and depression.
Dr Virk concludes:
“In my professional opinion, on the balance of probabilities, Mr Phua’s adjustment disorder with mixed anxiety and depression arose out of his employment with CSU. The basis for my opinion is that Mr Phua described the development of subthreshold anxiety and depressive symptoms during the marking period in late 2021 when he felt he was overwhelmed with the amount of work that he was required to complete. These symptoms were then exacerbated by performance management meetings, particularly the meeting that occurred on June 1^st 2022, when he was advised that he would be placed on a formal performance management plan. This incident instilled feelings of worthlessness and caused him significant emotional distress which later manifested as psychogenic seizures and subsequent impairment in his occupational functioning.”
Dr Virk opines that the performance meetings which Mr Phua attended were the predominant cause of his psychiatric symptoms because Mr Phua did not develop any impairment in his social and occupational functioning until after those meetings, even though prior to those meetings Mr Phua had subthreshold anxiety and depressive symptoms due to his perception that he was being overworked. Dr Virk also bases his opinion on Mr Phua not seeking medical treatment until after those meetings, and that the meeting on 1 June 2022 “being proximate to the development of his psychogenic seizures is supportive of it being the predominant cause for the psychological symptoms”.
Dr Virk records that Mr Phua had some subthreshold depressive symptoms in November 2018 when the respondent would not support him taking leave to complete his PhD, but that Mr Phua recovered within a short period of time.
In a supplementary report dated 30 November 2023, Dr Virk states that he has not altered his previous opinion. Dr Virk refers to the record made by Mr Ochoa on 22 June 2022 that “Since those episodes” of an email and meeting where Mr Phua felt his performance was unfairly assessed, Mr Phua started to show anxiety and panic. Dr Virk refers to the record made by Dr Abdou on 18 May 2022 of “stress and anxiety” as possibly occurring in the context of being subjected to a difficult performance review in March 2022. Dr Virk then concludes:
“Thus, considering the temporal association between the performance meetings and Mr Phua’s presentation with symptoms of “anxiety and stress”, I maintain that Mr Phua’s employment to his adjustment disorder with mixed anxiety and depression, and that, on the balance of probabilities, performance appraisal appears to have been the predominant cause of his psychological symptoms.”
Dr Virk also considers that the psychological symptoms recorded by Dr Jeong in 2017 and 2018 spontaneously resolved, based upon subsequent reviews with general practitioners and Mr Phua “describing himself settling into his role”. Dr Virk also considers that the psychological symptoms recorded by Dr Siu in January 2021 were primarily due to the ill health of the parents of Mr Phua.
Dr Argyle, consultant psychiatrist, has provided as report at the request of Mr Phua’s lawyers dated 4 May 2023.
Dr Argyle records Mr Phua being overworked and harassed by his management. He records that this became worse during 2021 and 2022. Dr Argyle records that Mr Phua had a very stressful meeting in May 2021 and then took six weeks of sick leave because his father was ill and dying in Malaysia. He records that Mr Phua experienced another unfair assessment upon his returned to work in June 2021, which did not allow for him to catch up on the work he would have done during the time that he took sick leave.
Dr Argyle records that Mr Phua had another difficult performance review in March 2022 and that Mr Phua experienced panic attacks related to these meetings. He records that Mr Phua stop working in April 2022 and “return to work in August 2022”, although the respondent did not send him any work.
Dr Argyle diagnoses Mr Phua as having an adjustment disorder with anxious and depressed mood related to workplace stressors, and a secondary diagnosis of aggravation of pre-existing startle seizures.
Dr Argyle opines that Mr Phua experienced some degree of stress at work over a number of years and that Mr Phua developed higher levels of anxiety since 2021 with regard to his work. Dr Argyle concludes:
“Mr Phua’s employment with the Charles Sturt University has been a substantial contributing factor to the Adjustment Disorder with anxious and depressed mood. This appears to have been present on and off for some years, but increasingly so since 2021.”

A summary of submissions by the parties to the dispute

The respondent bears the onus of proof in establishing a defence pursuant to s 11A (1) of the 1987 Act. Mr Hanrahan for the respondent submits that it was entirely reasonable for the respondent to raise with Mr Phua the failure of meeting assessment deadlines, the poorly marking of exams and having another person mark exams. The need by the respondent to address these issues was both to enhance the standing of the respondent and to ensure that Mr Phua was properly performing his work duties.
Mr Hanrahan submits that Mr Phua has not made a frank disclosure to Dr Argyle of issues that he was having at work, such as allegations of poor marking. He submits that Dr Virk records a more detailed history and that the opinion of Dr Virk should be preferred. The opinion of Dr Virk supports a finding that the predominant cause of Mr Phua’s injury is the reasonable action taken by the respondent with respect to performance appraisal.
Mr Hickey submits that the evidence discloses that Mr Phua had been experiencing stress since 2016 due to overwork, lack of support by the respondent and being required to teach subjects which were not within his qualifications. He points out that Mr Phua was attending his general practitioner for stress and anxiety two weeks before the meeting on 1 June 2022. Mr Hickey submits that the action taken with respect to the meeting on 1 June 2022 could not have the predominant cause of Mr Phua’s psychological injury after consideration of all of the evidence in this dispute.
Mr Hickey submits that if he were to be found to be wrong on this submission then the respondent’s defence must also fail because the action taken by the respondent was not reasonable. He submits that the meeting arranged by the respondent was not to discuss certain workplace issues with Mr Phua because the respondent had already decided that Mr Phua would be subject to a performance improvement plan. Mr Hickey submits that the action taken by the respondent was not in accordance with Clause 37 of the Charles Sturt University Enterprise Agreement and therefore did not amount to action which was reasonable.

Determination

Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
I accept from a review of the evidence that Mr Phua experienced stress and anxiety from events which occurred in the course of his employment with the respondent from 2016 until June 2022.
Mr Phua states that he experienced stress in 2016 by being required to teach subjects that were not within his fields of expertise and which appeared to him to be subjects that no one else wanted to teach, being given limited time to mark lengthy assignments, and not being provided with time within his workload to complete a PhD.
That stress experienced by Mr Phua is confirmed in notes made by his general practitioners in 2016 and 2017. Dr Chan records Mr Phua having “work stress” in May 2016. Dr Siu records in March 2017 that Mr Phua had increased stress when forced to change from lecture and research work to only lecture work. Mr Sheppard, psychologist, records in April 2017 that Mr Phua was struggling at work.
Dr Jeong records Mr Phua being “under lots of stress” in April 2017 due to a lack of support at work and being overloaded with work. A similar note is made by Dr Jeong in October 2017. A year later Dr Jeong records that Mr Phua feels quite often in a low mood and has had the same issue with his work for the last four or five years.
I do not agree with the opinion of Dr Virk that Mr Phua’s psychological symptoms “spontaneously resolved” after these attendances on his general practitioners and that he recovered from perceived lack of support from the respondent “within a short period of time”. Those attendances upon general practitioners occurred over a period of almost three years. That is not indicative of a psychological condition that was brief and transitory.
I also could not identify in the reports of Dr Virk any details which allowed him to conclude that Mr Phua’s psychological symptoms resolved after “settling into his role”. That opinion is not consistent with Mr Phua’s evidence that from 2016 he kept on working but felt a lot of discontent, and that the issues of teaching subjects that were not in his area of expertise and having excessive workload due to having to mark lengthy assignments remained unresolved. That opinion is not consistent with the emails sent by Mr Phua in March 2018 wherein he asks for advice on the boundaries between a level A and level B lecturer and that he plans to work to rule.
The record made by Dr Siu on 6 January 2021 of Mr Phua being in tears due to the poor prognosis of his father allows Dr Virk to opine that Mr Phua’s symptoms throughout 2021 were primarily due to his parents’ ill health. However, while that may be so, there is also evidence that Mr Phua was continuing to experience difficulties in the workplace during 2021 which remained a source of stress and anxiety for him.
There is the email correspondence between Dr Lynch and Mr Phua in May 2021 when Mr Phua acknowledges the need for guidance to improve his teaching. There is the email from Mr Phua to Dr Lynch in December 2021 where Mr Phua specifically refers to his anxiety in not meeting deadlines. There is the “EDRS manager” document for the period from 18 February 2021 to 17 January 2022 which includes Mr Phua stating that it was hard to teach a finance subject for the first time and not being able to reach out to all students.
The “EDRS manager” document for the period from 1 January 2022 to 31 December 2022 includes Mr Phua referring to “Management of mental health”. I consider it reasonable to infer that this comment was made by Mr Phua in the first half of 2022 because Mr Phua has not worked for the respondent since 23 June 2022 and there are no “final comments” in that document from Mr Phua or his supervisor. The reference to “Management of mental health” reinforces a conclusion that Mr Phua was continuing to experience stress and anxiety in undertaking his work duties for the respondent.
The notes made by Mr Wopenka from his initial consultation with Mr Phua in July 2022 list several factors affecting Mr Phua’s psychological condition including the effect of covid at the university, taking classes that Mr Phua should not be teaching and being performance managed.
There is therefore a substantial amount of evidence which supports a finding that Mr Phua experienced stress and anxiety as a result of his employment from 2016 until the meeting on 1 June 2022, and that the action with respect to that meeting was not the predominant cause of his psychological injury. However, as was observed by DP Snell in Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), this issue must also be addressed by expert evidence. Deputy President Snell said at [88]:
“…There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
Dr Argyle does not set out in any detail the events at work before 2021 which Mr Phua identifies as being stressful for him. Dr Argyle does record a stressful meeting in May 2021, which would appear to be the meeting which is referred to in the correspondence from Dr Lynch at that time. Dr Argyle records another unfair assessment and Mr Phua having to catch up with work after he returned from leave in June 2021. This would appear to relate to the correspondence between Mr Phua and Dr Lynch towards the end of 2021. Dr Argyle does record a difficult performance review in March 2022, which would appear to be, and which I am prepared to accept, is a reference to the meeting on 1 June 2022.
Mr Hanrahan is critical of the report from Dr Argyle because there is a lack of details of the issues that Mr Phua was having at work, such as allegations of poor marking. However, while I agree that there could have been more detail and accuracy in the report provided by Dr Argyle, his understanding that Mr Phua “experienced some degree of stress over a number of years” and that this stress was heightened in 2021 and 2022 is consistent with the events which I have referred to.
I prefer the opinion of Dr Argyle because his understanding that Mr Phua “experienced some degree of stress over a number of years” and then developed higher levels of anxiety since 2021, is consistent with the evidence from Mr Phua, the documentary evidence from the respondent, and the contemporaneous medical records which I have referred to.
Dr Argyle does not specifically address the provisions of s 11A (1) of the 1987 Act, but it is apparent that Dr Argyle does not regard Mr Phua’s psychological injury as being predominantly caused by action taken with respect to performance appraisal in mid-2022, but instead has been due to stress and anxiety for several years and “increasingly so since 2021”.
I prefer the opinion of Dr Argyle over the opinion from Dr Virk. I have already set out my reasons as to why I do not accept Dr Virk’s conclusion that the stress experienced by Mr Phua between 2016 and 2018 “spontaneously resolved”, and why Mr Phua continued to experience stress from the work he was doing throughout 2021 despite Dr Virk’s opinion that Mr Phua’s psychological symptoms during that year were primarily related to his parent’s ill health.
I also do not agree with Dr Virk’s opinion that Mr Phua did not develop any impairment in his social and occupational functioning until after the meeting on 1 June 2022 and that Mr Phua only had “subthreshold anxiety and depressive symptoms” due to a perception that he was being overworked.
Firstly, Dr Virk does not adequately explain what he means by “subthreshold anxiety and depressive symptoms”, and why such symptoms should be excluded from his conclusion as to what is the predominant cause of the psychological injury sustained by Mr Phua.
Secondly, Dr Virk places particular emphasis on the record made by Dr Ochoa on 23 June 2022 that “since those episodes” of the email from Ms McGrath informing Mr Phua of the meeting and the meeting itself on 1 June 2022, Mr Phua “started showing anxiety and panic attacks”. However, I have already referred to the evidence from Mr Phua, the documentary evidence from the respondent, and the contemporaneous medical records which confirm that Mr Phua had been experiencing anxiety for several years due to various work duties he was required to undertake.
In Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92, ADP Handley said at [24] that “predominantly caused” is to mean mainly or principally caused.
From my review of both the lay and medical evidence in this dispute dating back to 2016, and my preference for the opinion of Dr Argyle over that of Dr Virk, I am not satisfied that action taken with respect to the meeting on 1 June 2022 regarding performance appraisal of Mr Phua has been the main or principal cause of the Mr Phua’s psychological injury. The s 11A defence relied upon by the respondent must therefore fail.

If I am found to be wrong on this issue, I also do not consider that the action taken by the respondent was reasonable.
In Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin), Geraghty CCJ said:
“The test of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
More recently in Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWWCCPD 49 (Van Vliet), President Phillips said (at [179]) that: “the reasonableness in s 11A (1) does not, with respect, require a counsel of perfection”.
In this dispute there is an Enterprise Agreement which sets out specific steps which must be taken by the respondent where a supervisor is of the view that the performance of an employee is unsatisfactory. Relevant parts of Clause 37 of the Charles Sturt University Enterprise Agreement as it applies to this dispute are:
“37.1 Where a supervisor is of the view that the performance of an employee is unsatisfactory, the supervisor will:
(i) arrange a meeting, with notice of at least two (2) working days, to discuss the employee’s performance;
(ii) advise the employee in writing of the reason for the meeting and who will be attending; and
(iii) advise the employee that they may bring a support person to the meeting.
37.2 Following a meeting conducted pursuant to sub-clause 37.1, the supervisor will develop a document that:
(i) outlines the specific aspects of the employee's performance deemed to be unsatisfactory;
(ii) outlines the nature of the improvements required of the employee;
(iii) outlines the support that will be provided; and
(iv) specifies a reasonable period within which these improvements are expected.”
Mr Phua received an email on 30 May 2022 from Ms McGrath advising him of a meeting to be conducted on 1 June 2022 in accordance with Clause 37 of the Charles Sturt University Enterprise Agreement to discuss concerns regarding Mr Phua’s performance as an Associate Lecturer. Mr Phua requested a detailed agenda for the meeting and Ms McGrath responded:
“The purpose of the meeting is to discuss areas of concern regarding performance in your position. During the meeting you will have an opportunity to respond. In the meeting I will go through the areas of concern in more detail with you. If a decision is made to proceed with Clause 37.2 of the Enterprise Agreement, we will provide appropriate documentation.”
The minutes of the meeting conducted on 1 June 2022, and which were prepared by Mr Hansen, are in evidence. Those minutes record that Ms McGrath raised with Mr Phua the issues of not meeting deadlines, the poor quality of his work, and the marking of an exam by Mr Phua’s wife when that marking had been assigned to him.
I agree with the submissions made by Mr Hickey that the action taken by the respondent with respect to this meeting was not reasonable when the rights of Mr Phua as an employee are weighed against the objective of the employer. Mr Phua asked for an agenda for the meeting, presumably so that he could prepare for the serious allegations of unsatisfactory performance that were to be made by the respondent, but the respondent did not adhere to what was a reasonable request.
Furthermore, the action taken with respect to the meeting cannot be regarded as reasonable because it is apparent from the minutes of the meeting that the respondent had already made a decision that Mr Phua’s performance was unsatisfactory without Mr Phua being given an adequate opportunity to respond.
Although President Phillips cautioned in Van Vliet that reasonable action does not have to be perfect, there is an Enterprise Agreement which both employee and employer are required to abide by. The action taken by the respondent in regard to the meeting arranged for 1 June 2022 did not adhere to those requirements and therefore such action cannot be considered to be reasonable.
The respondent therefore also fails to establish a s 11A defence because the action taken by the respondent with respect to performance appraisal was not reasonable.

The claim for weekly payments of compensation

The applicant’s evidence

In his statement dated 6 August 2022, Mr Phua states that he is feeling a lot better, but he is concerned about going back to work.
In his statement dated 11 September 2023, Mr Phua states that his current symptoms include decreased memory, increased anxiety and lethargy. He states that he has not returned to work with the respondent and that he has “not had capacity until recently”. He states that he has been looking online for alternative employment but has not found anything that is suitable with his current capacity.
A Curriculum Vitae provided by Mr Phua as part of his application for employment with the respondent states that he has tertiary qualifications in accounting, and that he worked in several jobs in accounts and audits from 1990 to 2007.

The medical evidence

Dr Ochoa issued Certificates of Capacity on 18 August 2022, 8 September 2022 and 6 October 2022 certifying that Mr Phua had capacity to work 4.5 hours per day for three days per week doing marking duties.
On 26 September 2022, Dr Ochoa provided signed confirmation that the full time jobs of accounts clerk and retail assistant were suitable for Mr Phua. On 4 October 2022, Dr Ochoa provided signed confirmation that the full time job of warehouse administrator was suitable for Mr Phua. The capacity to perform those jobs is confirmed in a vocational assessment report from Daniel Ponepaseut from Rehab Co dated 11 October 2022.
Dr Ochoa writes in a report dated 9 December 2022 that Mr Phua had no capacity for work between 23 June 2022 and 18 August 2022, but that Mr Phua was given capacity for restricted/suitable duties on 18 August 2022. Dr Ochoa states that Mr Phua had yet to be given capacity for his pre-injury duties.
Dr Ochoa issued a Certificate of Capacity on 11 August 2023 certifying that Mr Phua was still fit to work for 4.5 hours per day for three days per week doing marking duties.
Dr Virk found Mr Phua in October 2022 to be alert and orientated in terms of cognition. He found Mr Phua’s speech to be spontaneous and coherent. He considered Mr Phua’s affect to be dysthymic and restricted.
Dr Virk did not consider at that time that Mr Phua was fit to return to his pre-injury employment. Dr Virk opined that Mr Phua had capacity to participate in a graded return to work plan and that he concurred with the evaluation made by Dr Ochoa that Mr Phua could work 13.5 hours per week doing suitable duties. Dr Virk states:
“The basis for my opinion, is while there has been an improvement in his psychological symptoms since the index event, he described persisting deficits in concentration and fatigue, resulting in him needing to take frequent breaks to complete his work”.
Dr Virk considered that a return to pre-injury and full-time duties by Mr Phua would require successful mediation between Mr Phua and the respondent with regard to performance management concerns and clear expectations of the work which the respondent expected from him.
Dr Argyle found Mr Phua in May 2023 to have speech that was normal in speed and volume, and that his thinking was quite coherent. Dr Argyle records that Mr Phua expressed anxiety about his ability to resolve his differences with the respondent and his ability to endure the stress of working in the future.
Dr Argyle opined that working part-time for one third of the week was an appropriate restriction for Mr Phua at that time. Dr Argyle states:
“He may be able to find work on the open labour market in the future, but he first needs to disentangle himself from his current employers as his relationship with them has itself become a great source of stress. He has good academic qualifications and experience in accounting and business and could potentially find work of a less stressful nature or part-time work which would be suitable for him”.
Dr Argyle opines that Mr Phua needs to avoid excessive levels of stress and excessive work demands. He states that he is not aware of Mr Phua having any physical restrictions.

A summary of submissions by the parties to the dispute

Mr Hickey relies upon what was said by DP Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) at [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’.”
Mr Hickey submits that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work, and if there are no such real jobs then the worker will not have current work capacity.
Mr Hickey submits that the evidence is clear Mr Phua has reduced capacity for employment involving stress, pressure and cognitive demand. He submits that Dr Virk’s requirement for a graded return to work suggests that any ‘assessed’ capacity for work is no more than theoretical and does not represent a real exercisable capacity for work.
Mr Hanrahan submits that Mr Phua has been able to return to suitable work since a case conference was held with Dr Ochoa, Mr Phua and a rehabilitation provider on 18 August 2022.
Mr Hanrahan submits that there are real jobs that Mr Phua could have performed since 18 August 2022 and that Mr Phua could do a wide variety of tasks both within and without his field of education using his skills, resources and experience in the financial and warehouse industries.
Mr Hanrahan submits that Mr Phua could do any or all of the jobs of auditor, accounts clerk, sales assistant or sales manager referred to in the vocational assessment report from Mr Ponepaseut. Mr Hanrahan submits that Mr Phua could have resumed full-time employment following a gradual return to work during the six months after his injury, and that Mr Phua could earn $35 per hour in accordance with the details of earnings set out in the report from Mr Ponepaseut.

Determination

“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The medical evidence supports a finding that Mr Phua had no current work capacity from 23 June 2022 to 17 August 2022, and there will be an award made in favour of Mr Phua for this period pursuant to s 36 (1) of the 1987 Act.
The deemed date of injury should be 23 June 2022 because that is the date when Mr Phua attends Dr Ochoa and ceases work due to his psychological injury.
The question then becomes whether Mr Phua has been able to return to suitable employment at any time since 18 August 2022, which is the date when Dr Ochoa issued a Certificate of Capacity certifying that Mr Phua had capacity to work 4.5 hours per day for three days per week doing marking duties.
Mr Hanrahan noted in his submissions the recent decision of Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another [2023] NSWPICPD 65 (Husnain) wherein DP Snell said at [86]:
“The Senior Member was under no compulsion to simply accept that the suggested roles constituted ‘suitable employment’. Consistent with the passages from South Australian Fire and Pikus quoted above, it was necessary that she, as the tribunal of fact, use her knowledge and experience to weigh up the whole of the evidence to determine this factual issue.”
Mr Phua has a variety of skills that would allow him to work in various jobs within the restrictions on his employment which have been set out by Dr Ochoa, Dr Virk and Dr Argyle.
Mr Phua’s experience in accounting and auditing and then tertiary education allows me to draw a reasonable inference that he has good computer skills. That same work experience also allows me to conclude that Mr Phua would have sound literacy, communication and organisational skills.
Those skills mean that Mr Phua can at the very least work in clerical and administrative jobs of a menial nature which would include basic duties such as photocopying, collating, archiving, distributing mail, recording and matching accounts, and answering telephone enquiries.
Other jobs which would be within Mr Phua’s skills and experience would be as a meter reader, courier driver, pathology collection driver, and cleaner. Another suitable job of retail assistant is identified in the report of Mr Ponepaseut and has been confirmed as being suitable for Mr Phua by Dr Ochoa.
I do not agree with the submission made by Mr Hickey that cognitive demands reduce Mr Phua’s capacity for employment. Both Dr Virk and Dr Argyle found Mr Phua to have good cognitive function. Dr Virk refers to Mr Phua describing persisting deficits in concentration and fatigue, but that is different to cognition. Persisting deficits in concentration and fatigue would justify a reduction in the hours of work Mr Phua could undertake each week, which is consistent with the restrictions on hours of work recommended by Dr Ochoa, Dr Virk and Dr Argyle, but not a total incapacity for any form of suitable employment.
Dr Virk’s opinion on Mr Phua’s ability to return to suitable employment is very much contingent upon Mr Phua dealing with concentration and fatigue, whereas Dr Argyle’s opinion on Mr Phua’s capacity for work centres on his ability to handle stress and pressure in a work environment.
I acknowledge that even the jobs which I have referred to as being suitable within the skills which Mr Phua possesses can involve stress and pressure. A meter reader may be required to read a certain amount of meters per day. A cleaner may be required to clean a specific amount of rooms within a certain period of time. A retail assistant may be required to meet certain sales targets. Failure to meet such requirements might carry the threat of disciplinary action and termination of employment.
However, the recommendation that Mr Phua is able to work 4.5 hours per day for three days per week and which has been made by Dr Ochoa for over a year now and endorsed by Dr Virk, strikes a balance between the ongoing problems which Mr Phua has in dealing with concentration, stress and pressure, and the ability to use his skills in jobs which he is capable of performing on the open labour market. It allows Mr Phua to return to the workplace without the stress and extended concentration required of a full time job and at a much lower level of responsibility.
The recommendation that Mr Phua is able to work 4.5 hours per day for three days per week in the jobs which I have referred is consistent with the graded return to work envisaged by Dr Virk, and it is part time work which would be suitable for Mr Phua in accordance with the opinion of Dr Argyle.
However, I do not agree with the submission made by Mr Hanrahan that the relevant rate should be around $35 per hour as referred to in the report from Mr Ponepaseut. Because Mr Phua has been working in the specialised area of tertiary education for over 10 years now, it is more realistic that Mr Phua would have to start from quite basic levels of work duties in the jobs which I consider which he is suited for and be restricted to an award rate of pay in those jobs.
The award rates for an entry level clerk (Clerks – Private Sector Award), cleaner (Cleaning Services Award), meter reader (Gas Industry Award) or courier driver (Road Transport and Distribution Award) were around $23 per hour as at 18 August 2022 and $24 per hour from July 2023. Mr Phua’s ability to earn in suitable employment will be based on 13.5 hours per week for those hourly rates.
Ninety-five percent of $1,830.30 equates to $1,738.80. Eighty percent of $1,830.30 equates to $1,464.20. Mr Phua is entitled to indexation of PIAWE as provided for by s 82A of the 1987 Act.
The awards for partial incapacity to be made in favour of Mr Phua from 18 August 2022 are as follows:
Period  PIAWE (indexed)       PIAWE (% for award) Ability to earn Award
18/8/22-22/9/22            $1,830.30                   $1,738.80                   $310.50          $1,428.30
23/9/22-30/9/22            $1,830.30                   $1,464.20                   $310.50          $1,153.70
1/10/22-31/3/23            $1,892  $1,513.50                   $310.50          $1,203
1/4/23-30/6/23              $1,970  $1,576  $310.50          $1,265.50
1/7/23-30/9/23              $1,970  $1,576  $324               $1,252
1/10/23 onwards           $2,016.70                   $1,613.40                   $324               $1,289.40
Mr Hanrahan submits that there should be an order that the respondent be given credit for any sick leave and salary paid to Mr Phua during the period of the claim.
An order can be made that the respondent is to have credit for any sick leave paid to Mr Phua during the period of the claim because that is allowed for pursuant to s 50 of the 1987 Act.
However, there is no provision in the 1987 Act for an employer to be given credit merely for salary paid to an injured worker during any period that weekly payments of compensation are paid to the injured worker.
The orders are as set out in the Certificate of Determination.

[2024] NSWPIC 2

8 January 2024