PS v Lan
[2024] NSWPIC 12
•9 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | PS v LAN [2024] NSWPIC 12 |
| APPLICANT: | PS |
| RESPONDENT: | LAN |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 9 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; dispute as to whether applicant sustained psychological injury in the nature of a disease in the course of her employment and the applicant’s employment was the main contributing factor to the disease; further issue of whether respondent established defence under section 11A; claim for weekly benefits compensation; whether applicant has current work capacity; Held – the applicant sustained psychological injury arising out of and in the course of employment; the applicant’s employment was the main contributing factor to the disease; the respondent has not established a defence under section 11A; the applicant has no current work capacity from 23 May 2022 ongoing; the respondent is to pay the applicant weekly compensation pursuant to sections 33, 36 and 37; the Certificate of Determination and statement of reasons to be de-identified. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained psychological injury in the nature of a disease arising out of and in the course of her employment with the respondent, with a deemed date of injury of 4 May 2022. 2. The applicant’s employment with the respondent was the main contributing factor to the psychological injury. 3. The respondent has not established a defence pursuant to s 11A of the Workers Compensation Act 1987 (1987 Act). 4. The applicant had no current work capacity as a result of the psychological injury from 23 May 2022 ongoing. The Commission orders: 5. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the 1987 Act as follows: (a) $2,740.38 per week from 23 May 2022 to 22 August 2022. 6. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows: (a) $2,307.68 per week from 23 August 2022 to 3 October 2022; (b) $2,331.22 per week from 4 October 2022 to 3 April 2023, and (c) $2,384.61 per week from 4 April 2023 ongoing. 7. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts. 8. The Certificate of Determination and statement of reasons issued by the Personal Injury Commission is to be de-identified. |
STATEMENT OF REASONS
BACKGROUND
The Certificate of Determination and statement of reasons issued by the Personal Injury Commission have been de-identified.
PS (the applicant) was employed by LAN (the respondent) as the general manager of an aged care facility.
On or about 23 May 2022, the applicant initiated a claim for weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) in relation to psychological injury (in the nature of a disease) sustained in the course of her employment with the respondent, with a deemed date of injury of 4 May 2022.
The respondent’s insurer denied liability for weekly compensation by notices dated 31 May 2022, 12 July 2022 27 April 2023 and 5 September 2023 issued pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer relied on the grounds that:
(a) it disputed that the applicant sustained an injury pursuant to ss 4 and 9A of the 1987 Act;
(b) it relied on a defence pursuant to s 11A of the 1987 Act on the basis that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or dismissal, and
(c) it disputed the applicant had total or partial incapacity as a result of any workplace injury and on that basis that the applicant had any entitlement to weekly compensation pursuant to s 33 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated the present proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute (ARD) lodged on 15 August 2023, which claims weekly compensation:
(a) pursuant to ss 33 and 36 of the 1987 Act from 23 May 2022 to 22 August 2022, and
(b) pursuant to ss 33 and 37 of the 1987 Act from 23 August 2022 ongoing,
calculated on pre-injury average weekly earnings (PIAWE) of $2,884.61.
The respondent lodged a Reply to the ARD (Reply) on 7 September 2023.
At a conciliation/arbitration hearing, conducted by MS Teams on 1 November 2023 and 28 November 2023, Mr Ryan Brown, counsel, appeared for the applicant, instructed by Mr Legzdin of AC Lawyers. Mr David Baran, counsel, appeared for the respondent, instructed by Mr Van der Hout of BBW Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
INTERLOCUTORY MATTERS
Application by applicant to admit late documents
At the conciliation/arbitration hearing on 28 November 2023, on behalf of the applicant, Mr Brown sought leave to admit late evidence, being a further report of Dr Saboor. Mr Brown stated that the report was recently obtained in relation to a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act, made by the applicant against the respondent on 27 November 2023. Although the claim for permanent impairment compensation arose from the same alleged injury as the present proceedings, Mr Brown conceded that the report was not directly relevant to the issues in dispute in the present proceedings.
On behalf of the respondent, Mr Baran objected to admission of that further report of Dr Saboor into evidence on the grounds that the respondent is prejudiced by its lateness and that it is not relevant to the present proceedings.
I note that, as the further report of Dr Saboor was not filed in accordance with the requirements of rule 67(1) of the Personal Injury Commission Rules 2021 (PIC Rules), it cannot be admitted into evidence unless leave is given pursuant to rule 67(4).
I have had regard to the parties’ submissions, the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020 (PIC Act) the provisions of s 290 of the 1998 Act, rule 67 of the PIC Rules and the various matters required to be considered by paragraph 18 of Procedural Direction PIC3 – Documents and late documents.
I determined to refuse the admission of that further report of Dr Saboor into evidence for the following reasons:
(a) it is not directly relevant to the issues in dispute in the present proceedings;
(b) it does not significantly change Dr Saboor’s other evidence in the present proceedings;
(c) accordingly, the applicant would not particularly benefit from the admission of the document into evidence nor suffer any particular prejudice from its non-admission into evidence;
(d) the respondent may be prejudiced by the admission of the document into evidence because, due to its lateness, the respondent’s lawyer has not had a sufficient opportunity to obtain instructions and provide advice;
(e) whilst no adjournment was sought by either party to deal with the further report of Dr Sabhoor, the granting of an adjournment to enable the respondent to obtain instructions and advice would result in further delay of these proceedings and the timely resolution of the dispute, and
(f) on balance, I am not satisfied that the interests of justice would be served by the admission of the further report of Dr Saboor into evidence.
Application by the respondent to strike out proceedings
Further, at the conciliation/arbitration hearing on 28 November 2023, on behalf of the respondent, Mr Baran made application to strike out the proceedings on the ground that, on 27 November 2023, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act. Mr Baran submitted that the Commission has power to dismiss the proceedings pursuant to s 54 of the PIC Act and rule 77(a) of the PIC Rules because the applicant has failed to prosecute the proceedings with due despatch. Mr Baran submitted that the current proceedings are misconceived because all heads of claim should have been dealt with at the same time. Mr Baran submitted that determination of the claim for weekly compensation separately to the claim for permanent impairment compensation would be inconsistent with the objects of the Commission provided by s 3 of the PIC Act, which particularly requires the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. Further, Mr Baran submitted that the respondent will suffer a gross injustice by the claims being determined separately.
On behalf of the applicant, Mr Brown opposed the application to strike out the proceedings. Mr Brown submitted that the hearing of the matter, originally listed on 1 November 2023, was previously delayed by the respondent’s appeal against an earlier determination not to grant an adjournment. Mr Brown submitted that the applicant has been deprived of weekly compensation since the onset of her psychological condition, in circumstances where there is consistent medical opinion that the applicant suffered a psychological injury and the only issue effectively in dispute is a potential defence pursuant to s 11A of the 1987 Act, which is a significant strain on her. Mr Brown submitted that the applicant could not have brought a claim for permanent impairment compensation at an earlier time because there was no evidence that the applicant’s psychological condition had stabilised such that it could give rise to an assessment of whole person impairment. Mr Brown submitted that, although it is generally desirable that all claims be heard and determined together, in the present case to do so would result in unacceptable delay of determination of the applicant’s claim for weekly compensation that would be inconsistent with the objectives of the Commission. Further, Mr Brown submitted that determination of the present proceedings at this time would likely assist the effective and efficient resolution of the claim for permanent impairment compensation in any event.
I determined to refuse the application to strike out the proceedings for the following reasons:
(a) I am not satisfied that the applicant failed to prosecute the proceedings with due despatch. The applicant initiated a claim for weekly compensation by way of a Certificate of Capacity dated 23 May 2022, which stated a dated a date of injury of 28 February 2022. As noted above, the respondent’s insurer denied liability for weekly compensation by notices dated 31 May 2022, 12 July 2022 27 April 2023 and 5 September 2023 issued pursuant to ss 78 and 287A of the 1998 Act. The respondent substantially relied on a defence pursuant to s 11A of the 1987 Act. The present proceedings were initiated by an ARD lodged on 15 August 2023. These proceedings were the subject of a preliminary conference on 12 September 2023. When the matter was initially scheduled for conciliation/arbitration hearing on 1 November 2023, both parties sought an adjournment which was refused, however the proceedings were stayed on the basis that the respondent stated an intention to appeal that determination. The Division Head subsequently revoked the stay and the proceedings were listed for conciliation/arbitration hearing on 28 November 2023. On that basis, I am not satisfied that the applicant failed to prosecute the present proceedings with due despatch;
(b) to the extent that it is relevant, on the evidence before me, I am not satisfied that the applicant failed to prosecute any claim for permanent impairment compensation with due despatch. Whilst the claim for permanent impairment compensation was served on the respondent on 27 November 2023, there is no evidence before me that it was not made appropriately having regard to the need for the applicant to obtain relevant medical opinion including that the applicant’s psychological condition had reached maximum medical improvement, and
(c) whilst the objects of the PIC Act are served by claims being heard and determined together when appropriate, in this case that would likely require determination of the applicant’s claim for weekly compensation being delayed by several months. I do not consider that it is in the interests of justice that determination of the applicant’s claim for weekly compensation is delayed in the circumstances of the present case. I am of the view that the applicant is entitled to have her claim for weekly compensation heard and determined at this time.
ISSUES FOR DETERMINATION
The parties agreed that PIAWE of $2,884.61 is applicable for the purposes of calculating any entitlement to weekly compensation.
The following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury in the nature of a disease, arising out of or in the course of her employment and her employment was the main contributing factor to the injury, pursuant to s 4(b)(i) of the 1987 Act;
(b) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to:
(i)performance appraisal;
(ii)discipline, or
(iii)dismissal,
pursuant to s 11A of the 1987 Act, and
(c) the extent and quantification of the applicant’s entitlement to weekly compensation, pursuant to ss 33, 36 and 37 of the 1987 Act.
EVIDENCE
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) dated 19 October 2023, lodged by the applicant;
(d) AALD dated 27 October 2023, lodged by the respondent;
(e) AALD dated 13 November 2023, lodged by the respondent, and
(f) AALD dated 17 November 2023, lodged by the applicant.
Lay evidence
The lay evidence is extensive and includes numerous signed and unsigned witness statements.
The lay evidence also includes various correspondence, the applicant’s employment contract and various other documents related to the applicant’s employment.
Treating medical evidence
The treating medical evidence includes Certificates of Capacity, reports and various clinical records of the applicant’s treating general practitioner, Dr Rajesh Dinakar, and treating psychologist, Chi Morris.
Independent medical evidence
Dr Peter Young provided an independent medical opinion, qualified by the respondent, by way of reports dated 21 June 2022, 17 July 2023 and 23 August 2023.
Dr Assad Saboor provided an independent medical opinion, qualified by the applicant, by way of a report dated 15 December 2022.
SUBMISSIONS
Counsels’ submissions were recorded and have been considered in full.
Respondent’s submissions
In summary, Mr Baran submitted on behalf of the respondent:
(a) the provisions of the applicant’s contract of employment are relevant to determination of the s 11A defence. In particular, a probationary period gave the respondent the right to terminate the applicant’s employment at any time. Further, the contract provided that the applicant may be required to work reasonable additional hours in addition to her set hours;
(b) also relevant to determination of the s 11A defence is the serious ultimate responsibility that the applicant had as manager of a residential aged care facility, which included many clients who suffered from dementia, during the period of the COVID-19 pandemic;
(c) to the extent of inconsistency, the evidence of Ms Adams should be preferred to the evidence of the applicant as it is supported by contemporaneous documentary evidence;
(d) the evidence of Dr Peter Young supports a finding that the predominant cause of the applicant’s psychological condition is action or proposed action by the respondent in relation to performance appraisal, discipline or dismissal, and
(e) the evidence as a whole supports a finding that the actions or proposed actions taken by or on behalf of the respondent were reasonable;
Applicant’s submissions
In summary, Mr Brown submitted on behalf of the applicant:
(a) there is no basis for a s 11A defence to apply on the ground of dismissal because the applicant had no capacity for work as a result of a psychological condition from 19 May 2022, which was prior to the recommendation for termination of the applicant’s employment on 26 May 2022. The reality is that the applicant was affected by a psychological condition for many weeks prior to 19 May 2022;
(b) there is no basis for a s 11A defence to apply on the ground of performance appraisal because the first suggestion of any performance appraisal was in an Ms Adam’s email to the applicant sent at 12.31am on 19 May 2022, which was the last day that the applicant worked;
(c) the evidence as a whole supports a finding that there were a number of causes of the applicant’s psychological injury, which are outside of a s 11A defence. These included: the applicant’s personal interactions with Ms Adams, which the applicant perceived as abusive, confrontational, nasty and inappropriate; Ms Adams’ regular calls to the applicant outside of work hours; the manner in which Ms Adams spoke to the applicant; pressure applied to the applicant to work outside normal hours; the applicant perceived that she was micromanaged by Ms Adams; sarcastic remarks made to the applicant by Ms Adams; the manner in which the applicant’s complaint on 10 April 2022 was handled; Ms Adams bullying of the applicant; and, failure to acknowledge the applicant’s good work performance;
(d) the applicant’s evidence is corroborated by other lay evidence and should be accepted;
(e) Dr Saboor’s evidence should be preferred and accepted and it supports a finding that the applicant’s psychological condition was caused by workplace bullying and was not wholly or predominantly caused by performance appraisal, discipline or dismissal;
(f) the evidence supports a finding that the respondent’s actions in relation to performance appraisal, discipline or dismissal were not reasonable, and
(g) the medical evidence supports a finding the applicant had no work capacity during the relevant periods.
Respondent’s submissions in reply
In summary, Mr Baran submitted on behalf of the respondent in reply:
(a) the respondent agrees that PIAWE is $2,884.61. Given the complexity of calculating any weekly compensation, it would be appropriate for the parties to be given seven days’ liberty to apply in respect of any calculation of weekly compensation awarded to the applicant;
(b) the unsigned record of interview of the applicant has not been challenged and should be accepted, and
(c) there is evidence of numerous performance issues raised against the applicant prior to 19 May 202.
FINDINGS AND REASONS
Injury
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is relevantly defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means 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, and
(c) ...”
The applicant has the onus of proof in establishing that there is an injury within the terms of
s 4 of the 1987 Act.A psychological injury can be viewed as coming under s 4(a) or s 4(b) of the 1987 Act. If the injury is to be viewed under s 4(a), then s 9A of the 1987 Act requires that the employment was a “substantial contributing factor” to the injury. If the injury is to be viewed under s 4(b), then that provision requires that the employment was the “main contributing factor” to the injury.
The ARD makes it clear that the applicant alleges psychological injury in the nature of a disease, in which case s 4(b)(i) is applicable. (However, I note that the insurer’s dispute notices referred to ss 4 and 9A of the 1987 Act.)
In AV v AW,[1] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“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.”
[1] [2020] NSWWCCPD 9.
Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[2] Roche DP (as he then was), summarised the principles to be applied:[3]
[2] [2020] NSWCCPD 76.
[3] [2020] NSWCCPD 76, at [52].
“(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 Chelmer 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 a ‘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. (at [52])”.
And said:[4]
“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 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...”
[4] [2020] NSWCCPD 76, at [54].
To discharge the onus of proof in relation to the alleged injury, I “must feel an actual persuasion of the existence of that fact”.[5]
[5] Department of Education & Training v Ireland [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
The relevant factual events
The applicant’s evidence is that she suffered psychological injury as a result of being subjected to various treatment at work, particularly by her immediate manager (the Regional Manager), which began almost immediately after the applicant commenced employment with the respondent on a probationary basis on 31 January 2022. The applicant’s evidence is that the Regional Manager’s treatment of her was worse when there were no apparent witnesses and, to that extent, it was careful and calculated abuse.
The Regional Manager being abusive, confrontational, nasty and inappropriate towards the applicant
Generally
The applicant stated that the Regional Manager regularly treated the applicant in an abusive, confrontational, nasty and inappropriate manner, and spoke to the applicant in an aggressive, loud, rude, bulling, sarcastic and belittling manner. The applicant stated that the Regional Manager would talk “at her” and she could rarely get a word in.
The applicant stated that she was intimidated and frightened by the Regional Manager’s manner towards her. The applicant stated that she did not feel that she could raise anything with the Regional Manager because of concern that she would be subjected to another tirade of abuse.
The Regional Manager generally denied ever bullying, harassing, intimidating, abusing or inappropriately treating the applicant. The Regional Manager denied acting in an aggressive, rude or disrespectful manner towards the applicant at any time.
The applicant also gave the following particular examples of alleged inappropriate treatment by the Regional Manager.
28 February 2022
The applicant stated that on 28 February 2022, the Regional Manager was verbally unpleasant, obnoxious and nasty towards her in a telephone conversation as the applicant was driving to work at about 8.30am. The telephone conversation occurred in the context that the Regional Manager had tried unsuccessfully to contact the applicant by telephone from about 7.00am that morning concerned about flooding damage at the facility.
I note that in her unsigned statement, the applicant reiterated that the Regional Manager was “abusive” towards her in the telephone conversation on 28 February 2022, however the applicant failed to provide any detail of what the Regional Manager said that was abusive.
The Regional Manager agreed that she and the applicant likely had a telephone conversation on or about 28 February 2023 regarding flooding from a serious rain event, but denied being abusive, loud, obnoxious, rude and nasty towards the applicant in that telephone conversation.
However, the applicant’s former work colleague (the Former Colleague) corroborated the applicant’s evidence in relation to the telephone conversation on 28 February 2022, to the extent that the Former Colleague stated that she overheard a female voice that was loud and aggressive and was yelling at the applicant in an unpleasant and threatening manner and the applicant later advised that was the Regional Manager who regularly spoke to her in that manner.
18 March 2022
The applicant stated that on or about 18 March 2022, the Regional Manager was angry and screamed at the applicant over the telephone regarding the applicant failing to contact her regarding an entertainment event.
The Regional Manager generally denied ever speaking to the applicant in an inappropriate manner.
A clinical care manager employed by the respondent (the Clinical Care Manager) corroborated the applicant’s evidence that a telephone conversation occurred between the Regional Manager and the applicant on that occasion however could not say or confirm whether the Regional Manager screamed at the applicant.
The applicant named other employees who were likely to have witnessed the event however neither the applicant nor the respondent called those witnesses.
Telephone conversation in relation to recruitment of new employees
The applicant stated that the Regional Manager screamed at the applicant during a telephone conversation regarding the need to recruit new employees. It is unclear when this conversation is alleged to have occurred but, in the context of the other evidence, it seems likely that it is alleged to have occurred in about March 2022.
The Regional Manager conceded that she had a conversation with the applicant about that issue but denied speaking to the applicant in a rude or disrespectful manner.
The applicant named another employee who was likely to have witnessed the event however neither the applicant nor the respondent called that witness.
7 April 2022
The applicant stated that on 7 April 2022, the Regional Manager made a sarcastic remark “I thought you were both doing afternoon” to the applicant and another employee as they arrived to work at about 8.50am.
The Regional Manager conceded making that statement but stated that she made the statement in a joking manner. The Regional Manager conceded, in retrospect, that the statement was probably not appropriate.
Other evidence
The following witnesses gave evidence that they never witnessed the Regional Manager acting unprofessionally towards the applicant or at all: the workforce and resourcing coordinator employed by the respondent (the Workforce and Resourcing Coordinator); the respondent’s regional general manager Aged Care NSW/Qld (the Regional General Manager Aged Care NSW/Qld); and a clinical care manager employed by the respondent (the Clinical Care Manager).
However, a kitchen manager (the Kitchen Manager) corroborated the applicant’s evidence to the extent that he recalled once overhearing the Regional Manager, in a very angry and aggressive tone, challenging the applicant and scolding her within the earshot of staff about spending time working in her office. The Kitchen Manager considered the Regional Manager’s behaviour towards the applicant in that regard to be unfair and inappropriate. The Kitchen Manager observed the applicant to be upset by the Regional Manager’s behaviour.
Consideration
I note that there is various evidence, including that of the Regional Manager, which corroborates the applicant’s evidence that the applicant and the Regional Manager did in fact communicate about specific matters on a number of the various occasions alleged.
I note that the applicant’s evidence of such treatment by the Regional Manager is generally consistent with her reported history contained in various treating and independent medical reports and records.
The evidence of the Former Colleague and the Kitchen Manager specifically corroborates the applicant’s evidence about the manner in which the Regional Manager treated her on two particular occasions.
On balance, I consider it likely that various alleged conversations and interactions did occur between the applicant and the Regional Manager, in which the applicant perceived that the Regional Manager treated her in an abusive, confrontational, nasty and inappropriate manner, and spoke to the applicant in an aggressive, loud, rude, bulling, sarcastic and belittling manner.
The Regional Manager micromanaging the applicant
The applicant alleged that the Regional Manager effectively micro-managed the applicant in her role.
The applicant gave the following examples of such alleged treatment.
The applicant stated that every time the Regional Manager came to the facility, she regularly asked the staff and residents how the applicant was doing.
The applicant stated that the Regional Manager would regularly spot minor flaws which she raised with the applicant in an aggressive manner. The applicant believed that the Regional Manager did this as a way of showing her power and authority over the applicant.
The applicant stated that on or about 18 March 2022, the Regional Manager was angry and screamed at the applicant over the telephone because the applicant had contacted the quality team and not the Regional Manager regarding a decision about scheduled entertainment and COVID-19 management protocols.
The applicant stated that on 22 March 2022, the Regional Manager was overbearing and directed her to speak with an employee about being two minutes late for work, rather than allowing the applicant to determine for herself whether it was appropriate to raise the issue with the employee.
The applicant stated that on 7 April 2022, the Regional Manager questioned the applicant about why she did not commence a recruitment process sooner. The applicant stated that the Regional Manager also criticised her for not being visible on the floor and for closing her office door. The Regional Manager conceded that she had a conversation with the applicant regarding those matters generally.
The applicant stated that the Regional Manager’s rude and controlling manner made the applicant feel inadequate and underperforming, yet also made it impossible for the applicant to actually make a decision relevant to the facility. The applicant stated that she sent the Regional Manager an email, requesting that she let staff come to her with issues, but nothing changed.
The applicant stated that the Regional Manager also undermined and took over the applicant’s role on various occasions by directly bypassing the applicant in various communications with other staff and directly micromanaging those staff.
The Regional Manager agreed that on one occasion, she had engaged with a maintenance officer at the facility about maintenance issues. However, the Regional Manager denied that she encouraged any staff bypass the applicant and denied that she did not respect the applicant’s role as general manager of the facility.
The Regional Manager conceded that she regularly spoke with staff and residents but denied that she would regularly question staff and residents as to how the applicant was progressing in her role.
However, the Kitchen Manager corroborated the applicant’s evidence to the extent that he stated that the Regional Manager had a “strong personality” and “micromanaged everybody” and that he overheard the Regional Manager scolding the applicant for working in her office. The Kitchen Manager also stated that the Regional Manager would come around to staff, asking what the applicant was doing and whether she was coming out of her office.
The Workforce and Resourcing Coordinator also stated that the Regional Manager would regularly question staff about how they felt about the applicant in her role.
I note that the applicant’s evidence of such treatment by the Regional Manager is generally consistent with her reported history contained in various treating and independent medical reports and records.
The evidence of the Kitchen Manager and the Workforce and Resourcing Coordinator specifically corroborates at least some of the applicant’s evidence in this regard.
On balance, I consider it likely that the Regional Manager did engage in conduct which the applicant perceived as micromanaging the applicant in her role.
The Regional Manager failing to acknowledge the applicant for her good performance at work
The applicant alleged that the Regional Manager failed to acknowledge the applicant for her good performance at work.
By way of example, the applicant stated that on or about 10 May 2022, the Regional Manager congratulated the chef manager for a good outcome of a food audit, however the Regional Manager failed to acknowledge the applicant for her contribution.
I note that in an email from the respondent’s National General Manager (the National General Manager) to the applicant sent on 2 May 2022, the applicant had raised as an issue that the Regional Manager only provided negative feedback.
There is no evidence that the Regional Manager received any formal positive feedback or acknowledgement for her good performance at work.
On balance, I consider it likely that the Regional Manager did fail to acknowledge the applicant for her good performance at work.
The Regional Manager contacting the applicant outside of standard work hours and pressuring the applicant to work outside of standard work hours
The applicant stated that the Regional Manager regularly contacted her by email and telephone outside of standard work hours, particularly in the early morning and the evening.
The applicant stated that the Regional Manager also pressured her to work outside of standard work hours. The applicant stated that the Regional Manager seemed to expect her to start work before 9.00am and be responsive to the Regional Manager’s calls and emails at all hours.
By way of example, the applicant stated that on 28 February 2022, the Regional Manager tried unsuccessfully to contact the applicant by telephone on a couple of occasions from about 7.00am. The applicant stated that the Regional Manager was verbally unpleasant, obnoxious and nasty towards her in a telephone conversation as the applicant was driving to work at about 8.30am and was critical of the applicant not answering the Regional Manager’s earlier calls.
The applicant stated that on 7 April 2022, the Regional Manager made a sarcastic remark “I thought you were both doing afternoon” to the applicant and another employee as they arrived to work at about 8.50am. The applicant felt the remark was sarcastic because the Regional Manager’s expectation was that the applicant should be at work by 7.00am. The Regional Manager conceded that she made such a statement but stated that it was made in a joking manner although, on reflection, she acknowledged that the statement was probably not appropriate.
The applicant stated that also on 7 April 2022, in a telephone conversation, the Regional Manager stated that the position does not run from 9.00am to 5.00pm. The applicant stated that although her contract requires that she is available from 9.00am to 5.00pm, she is on call 24 hours a day, seven days a week and she is required do respond and answer calls at any time of the day.
The applicant stated that the Regional Manager also told the applicant that she needed to start work between 6.00am and 7.00am and that “I do not actually care what’s happening in your life. You need to get someone to drop your daughter off at school”.
The Regional Manager stated that the facility operated on a 24 hour basis and that general managers such as the applicant were expected to self-manage their time and also to work on occasion outside of standard work hours to manage their team. The Regional Manager referred to the applicant’s contract of employment. The Regional Manager stated that the applicant did mention at the interview that she dropped her daughter off to school but denied that there was any specific agreement regarding the applicant’s starting time.
The Regional Manager confirmed that she sent emails at various times which included in the early morning and in the evening, however she stated that her emails explicitly stated that was no requirement for the recipient to respond outside of business hours.
The Workforce and Resourcing Coordinator stated that she had personally experienced the Regional Manager often sending work emails from as early as 7.00am and as late as 7.00pm, which she responded to during standard work hours. The Workforce and Resourcing Coordinator also stated that the core work hours of the senior management team were 8.30am to 4.30pm with some flexibility, however the applicant arrived to work late most days but prior to 9.30am and regularly left at 4.30pm.
The Regional General Manager Aged Care NSW/Qld stated that the Regional Manager was required to issue emails outside of standard business hours, however her emails listed a disclaimer that she works outside of business hours and that no response is required at the time communications are received. He could not recall the applicant stating at her interview that she required to drop her daughter to school before she could attend work.
The Clinical Care Manager stated that it was likely that the Regional Manager sent emails at all hours of the day, from early in the morning to late at night.
Considering the evidence as a whole, I consider it likely that the Regional Manager did contact the applicant by email and telephone on occasion outside of standard work hours. Further, I consider it likely that the Regional Manager did act in such a manner that the applicant perceived pressure for the applicant to work outside of standard work hours.
The manner in which a complaint made by the applicant on 19 April 2022 was handled
The applicant stated that on or about 11 April 2022, she raised her concern with the National General Manager about the manner in which she was being treated and he told her that she needed to follow Human Resources (HR) processes.
It is not in dispute that on 19 April 2022, the applicant lodged a formal complaint that the Regional Manager had been abusive, confrontational, nasty, and inappropriate towards the applicant.
The applicant stated that she had various discussions with the respondent’s HR manager (the HR Manager) and the National General Manager regarding her formal complaint and she requested that it be escalated and formally dealt with.
It is not in dispute that on or about 3 May 2022, the applicant advised the National General Manager by email that she was unable to meet with the regional general manager regarding the complaint because it would be too stressful.
The applicant stated that on or about 4 May 2022, the HR Manager advised by email that the applicant was required to meet with the regional general manager and resolve the complaint and that failure to do so would jeopardise her position as general manager. The applicant stated that she then completed a Hazard report which reported bullying, harassment and threats to her employment.
The applicant stated that on 9 May 2022, in a telephone conversation, the National General Manager, insisted that the applicant meet with the Regional Manager to resolve her complaint however the applicant maintained that she was unable to do so.
The applicant stated that on 12 May 2022, she attended a Teams meeting with the National General Manager and the Regional Manager and discussed the applicant’s complaint. The applicant stated that she regarded the meeting had a positive outcome, which included a proposal that she and the Regional Manager would meet weekly and that the applicant would want to know specifically what was to be discussed at each meeting. The Regional Manager agreed that such a meeting occurred although she denied making specific statements alleged by the applicant.
The applicant stated that on Friday 13 May 2022, the Regional Manager requested to meet with her on Monday 16 May 2022. The applicant stated that she declined the meeting because it was inadequate notice for her to provide various clinical and facility information requested by the Regional Manager. The Regional Manager stated that she did request the applicant to attend that meeting and to provide various information, which was standard information and should have been available to the applicant and was required for regular reporting.
The applicant stated that on Monday 16 May 2022, the Regional Manager nevertheless insisted that they meet immediately and sought to discuss various matters about the facility and the applicant did so. The applicant indicated that in the meeting, the Regional Manager continued to treat the applicant in an inappropriate, disrespectful and undermining manner. The Regional Manager stated that she and the applicant did meet on 16 May 2022 at her request.
The applicant stated that on 19 May 2022, the Regional Manager requested to meet that afternoon with the applicant regarding a complaint about a serious incident on 17 May 2022 when the wrong patient had been sent to hospital and the patient who had been required to go to hospital became palliative and very unwell. The applicant responded that she could not attend the meeting. The Regional Manager agreed that she requested the applicant to meet with her that day because of the seriousness of the incident, however the applicant subsequently declined to attend the meeting because she felt it was going to be a performance management meeting.
The applicant was absent from work on sick leave from 20 May 2022 until the respondent terminated her employment on or about 17 June 2022.
The respondent’s evidence includes various correspondence exchanged between the applicant and the respondent in relation to the applicant’s complaint and attempts to resolve the complaint.
The respondent’s head of workplace relations (the head of workplace relations) stated that various documents support that the applicant was, at least between 21 April 2022 and 2 May 2022, content for her complaint about the Regional Manager’s treatment of her, to be dealt with on an informal basis. The head of workplace relations noted that the HR Manager denied threatening the applicant and indicated that she considered that the applicant’s complaint was handled reasonably by the respondent in the circumstances.
Considering the evidence as a whole, I accept that on 12 May 2022, the applicant attended a Teams meeting with the National General Manager and the Regional Manager and discussed the applicant’s complaint and that the applicant regarded the meeting had a positive outcome, which included a proposal that she and the Regional Manager would meet weekly and that the applicant would want to know specifically what was to be discussed at each meeting.
Whilst it is somewhat unclear from the applicant’s evidence what is the grounds on which the applicant considered that her complaint on 19 April 2022 was inappropriately handled, it appears from the documents that the applicant was unsatisfied that the Regional Manager subsequently acted in accordance with what was agreed at the meeting on 12 May 2022.
It does appear clear from the evidence that, following the meeting on 12 May 2022, there were subsequent interactions between the applicant and the Regional Manager when the Regional Manager requested the applicant to meet more frequently that on a weekly basis and with less than 7 days’ notice.
On that basis, I consider it likely that there were real events which the applicant perceived that her complaint on 19 April 2022 was inappropriately handled because the agreed outcome of the meeting on 12 May 2022 was not upheld.
Having regard to the various matters set out above, I accept on the balance of probability, that there were various real events at work which the applicant perceived as bullying and harassing treatment.
The applicant’s psychological condition
The applicant’s evidence is that the various factual events caused her to experience tension and anxiety. The applicant stated that she began to feel scared when driving to work and was fearful, anxious, panicky and feel threatened every time she interacted with the Regional Manager. The applicant stated that she would have a feeling of dread as she was travelling to work because she felt anxious about the Regional Manager’s behaviour towards her.
The applicant stated that she was unwell on 25 March 2022 as a result of a build-up of stress caused by the Regional Manager’s abusive behaviour towards her. The applicant stated that she “couldn’t take it anymore”.
The applicant stated that, following her making a formal complaint on 19 April 2022, she felt anxious and stressed and experienced heart palpitations when the Regional Manager tried to contact the applicant. The applicant stated that she requested that the Regional Manager contact her by email or text message.
The applicant stated that on 7 and 8 May 2022, she took two days off as “wellbeing” days because she did not feel well enough to attend work due to anxiety in the context of her being required to personally meet with the Regional Manager to resolve her formal complaint.
It is not in dispute that the applicant did not attend work from 20 May 2022 when she took a day of sick leave. The applicant was issued with various Certificates of Capacity that certified that she had no capacity for any work from 23 May 2022.
A Benestar Profile Report dated 24 May 2022 recorded that the applicant reported feeling increasingly anxious in the context of the Regional Manager speaking to the applicant with a raised voice, interrupting her in front of other staff, micromanaging, bullying and verbally abusing the applicant. The applicant reported being pressured to work outside the hours of 9.00am to 5.00pm despite having made it clear she could not do so due to family responsibilities. The applicant also reported that she did not feel supported by the workplace.
On 27 July 2022, the applicant’s treating general practitioner, Dr Rajesh Dinakar referred the applicant to Chi Morris, registered psychologist for treatment. Dr Dinakar also completed a Mental Health Treatment Plan which recorded “work related stress and anxiety” and “Regional manager always bullying and harassing all the times [sic]. Tied [sic] to resolve the matter internally but it doesn’t work”.
In a report dated 18 December 2022, Mr Morris reported that the applicant initially sought therapy on 25 August 2022. Mr Morris stated a diagnosis of adjustment disorder with mixed Anxiety and Depression. Mr Morris expressed the opinion that the applicant’s employment was the substantial contributing factor to her psychological condition.
Dr Peter Young, psychiatrist, provided independent medical evidence, qualified by the respondent. In a report dated 21 June 2022, Dr Young stated that the applicant reported distress in relation to perceived bullying by her manager, including being spoken to rudely and being unfairly criticised, as well as threatened with disciplinary actions. Dr Young noted a discrepancy between the applicant’s reported symptoms and her observed effect and the severity of her symptoms on examination. On that basis, Dr Young was of the opinion that the applicant’s current symptoms did not meet the diagnostic criteria for a psychological diagnosis.
In a report dated 17 July 2023, Dr Young stated that the applicant reported that her condition had progressively deteriorated over the last 12 months due to financial stressors. Dr Young diagnosed Major Depressive Disorder in the context of prolonged adjustment symptoms, exacerbated by, in particular, significant financial difficulties.
In a report dated 23 August 2023, based on consideration of various additional material, Dr Young stated that, on the assumption that the applicant was genuinely reporting her symptoms and the causal events as she experienced them, he was of the opinion that the applicant’s psychological condition could be wholly and predominantly attributed to the work events and interactions which she perceived as bullying (which he considered occurred predominantly within the informal and formal disciplinary management processes).
It appears to me that there is a degree of inconsistency in the various reports of Dr Young that is not adequately explained in his reports. Specifically, in relation to causation, Dr Young does not explain the reason why he assessed the applicant initially did not meet the diagnostic criteria for psychological diagnosis however subsequently did meet such diagnostic criteria and the applicant’s psychological condition could be attributed to the work events and interactions which the applicant perceived as bullying.
Dr Assad Saboor, consultant psychiatrist, provided independent medical evidence, qualified by the applicant. In a report dated 15 December 2022, Dr Saboor recorded that the applicant reported that “her anxiety started from 28 February 2022” in the context of the Regional Manager’s verbally abusive, bullying, harassing and micromanaging treatment of her. Dr Saboor stated that the applicant reported that her anxiety started from 28 February 2022 however the applicant also put the date of injury on 4 May 2022 when she was required to attend a meeting and she lodged a formal incident report about being bullied and harassed. Dr Saboor diagnosed Depression with anxiety features. Dr Saboor stated his opinion that the applicant’s employment was the substantial contributing factor for the applicant’s psychological injury and subsequent work incapacity.
I note that there is no evidence of any non-work psychological stressors (apart from financial stressors after the applicant ceased to work for the respondent).
On balance, I prefer and accept the evidence of Dr Saboor because, in the context of the evidence as a whole, I consider that it provides a logical and likely explanation for the applicant’s symptoms and diagnosis. Further, I consider that it is largely consistent with the treating medical evidence.
Considering the evidence as a whole, I feel an actual sense of persuasion, and I find, that the applicant does suffer psychological injury in the nature of a disease arising out of and in the course of her employment with the respondent, and that the applicant’s employment was the main contributing factor to that injury pursuant to s 4(b)(i) of the 1987 Act.
Further, I find that the applicant has a psychological injury pursuant to s 11A(3) of the 1987 Act.
Defence pursuant to s 11A of the 1987 Act
Section 11A(1) of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent maintains a defence pursuant to s 11A(1) of the 1987 Act on the grounds that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to:
(a) performance appraisal;
(b) discipline, or
(c) dismissal.
The respondent has the onus of establishing such defence.
Wholly or predominantly caused by performance appraisal, discipline or dismissal
Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions with respect to performance appraisal, discipline or dismissal.
In Hamad v Q Catering Limited,[6] the Commission suggested that medical evidence is necessary to determine the causation issue. In Smith v Roads and Traffic Authority of NSW,[7] Snell ADP accepted “wholly” and “predominantly” are different concepts.
[6] [2017] NSWWCCPD 6.
[7] [2008] NSWWCCPD 130.
In relation to the term “performance appraisal”, in Irwin v Director-General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998 unreported), Geraghty J stated:
“It is important to consider the meaning of the term ‘performance appraisal’. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes like ‘transfer’, ‘demotion’, ‘promotion’, retrenchment or ‘dismissal’ of workers. It must be seen in this context. Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged. ‘Performance appraisal’ is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”
In relation to the term “discipline”, in Kushwaha v Queanbeyan City Council,[8] the Court said that:[9]
“... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”
[8] [2002] NSWCC 25; 23 NSWCCR 329.
[9] [2002] NSWCC 25; 23 NSWCCR 329, at [152].
In Northern NSW Local Health Network v Heggie,[10] (Heggie) the Court of Appeal said that a broad approach is to be taken to the expression “action with respect to discipline” in
s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action.[10] [2013] NSWCA 255; 12 DDCR 95.
It is not disputed that at all times during the relevant period, the applicant’s employment was on an initial probationary basis under the terms of her employment contract.
The Regional Manager’s evidence is that no formal disciplinary action was in place in relation to the applicant, however there were numerous areas of concern about the applicant’s work performance that the respondent was trying to address. The Regional Manager referred to the applicant’s contractual obligations, position description, various policies and procedures and attached various email correspondence in relation to the applicant’s employment and concerns in relation to the applicant’s work performance.
The head of workplace relations stated that, in or about 22 May 2023 the workplace relations team was asked to look into performance issues raised by the Regional Manager in relation to the applicant, and she then documented relevant facts in relation to those performance issues including an assessment of the reasonableness of the underperformance claims. The head of workplace relations stated that, after more information was gathered, on 14 June 2022, the respondent sent a letter to the applicant which proposed the termination of her employment and offered her an opportunity to respond. The head of workplace relations stated that the applicant did not respond and her employment was terminated on 16 June 2022.
The applicant denied that any performance concerns, disciplinary action or performance issues were formally raised with her prior to her initiating a formal complaint about the Regional Manager’s treatment of her in or about 19 April 2022. The applicant alleged that performance concerns were subsequently formally raised against her in retaliation for the complaint that she made.
The applicant stated that her psychological condition and ongoing disabilities arose as a result of abusive treatment that she received from the Regional Manager, and not as a result of any performance appraisal, discipline or dismissal.
A Benestar Profile Report dated 24 May 2022 recorded that the applicant reported feeling increasingly anxious in the context of the Regional Manager speaking to the applicant with a raised voice, interrupting her in front of other staff, micromanaging, bullying and verbally abusing the applicant. The applicant reported being pressured to work outside the hours of 9.00am to 5.00pm despite having made it clear she could not do so due to family responsibilities. The applicant also reported that she did not feel supported by the workplace.
As noted above the Mental Health Plan completed by the applicant’s treating practitioner on 27 July 2022 recorded psychological stressors of “work related stress and anxiety” and “Regional manager always bullying and harassing all the times [sic]. Tied [sic] to resolve the matter internally but it doesn’t work”.
The applicant’s treating psychologist, Mr Morris, stated that there appeared to be a correlation between the applicant’s anxiety and depression and bullying and harassment she sustained at work. Mr Morris expressed the opinion that the applicant’s reporting of how the injury occurred is consistent with her presenting symptoms. Mr Morris stated that:
“... it is difficult to ascertain if [the applicant’s] condition was wholly or predominantly caused by performance management and disciplinary processes conducted by [her] employer. However, from what [the applicant] reported, it appears that employment is the main contributing factor to the aggravation, exacerbation or deterioration of [the applicant’s] psychological condition...”.
I note that there is no evidence of any psychological condition prior to the applicant commencing employment with the respondent.
In a report dated 21 June 2022, Dr Young stated that the applicant reported distress in relation to perceived bullying by her manager, including being spoken to rudely and being unfairly criticised, as well as threatened with disciplinary actions. In his further report dated 23 August 2023, based on consideration of various additional material, Dr Young stated that, on the assumption that the applicant was genuinely reporting her symptoms and the causal events as she experienced them, he was of the opinion that the applicant’s psychological condition could be wholly and predominantly attributed to the work events and interactions which she perceived as bullying (which he considered occurred predominantly within the informal and formal disciplinary management processes).
Dr Saboor stated his opinion that the alleged bullying and harassment by the Regional Manager contributed to the development of the applicant’s psychological condition. Dr Saboor stated that in his opinion, whilst the performance management and disciplinary process conducted by the respondent “had some negative impact leading to further deterioration of her psychological injury; however, it was not the whole or predominant cause of her psychological injury”. Dr Saboor noted that the applicant “reported experiencing psychological symptoms since 20 February 2022 in that Ms Adams had been rude and unfairly critical”.
As I noted above, I prefer and accept Dr Saboor’s evidence in relation to diagnosis and the issue of causation.
Having regard to the medical and other evidence, I feel a real sense of persuasion and I am satisfied that the cause of the applicant’s psychological condition was multi-factorial. I am satisfied that at least a significant cause of the applicant’s psychological injury was the various real events at work which the applicant perceived as bullying and harassing treatment and which were not related to performance appraisal, discipline or dismissal.
Accordingly in my view, the respondent has not established, on the basis of probabilities, that the applicant’s injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to performance appraisal, discipline or dismissal. On that basis, the respondent has not established a defence pursuant to s 11A of the 1987 Act.
Reasonableness
Having regard to my finding above, I am not required to address the issue of reasonableness of the relevant actions of the employer.
Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
….”
Work capacity
Section 32A defines “current work capacity”, “no current work capacity” and “suitable employment” as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”
“no current work capacity, in relation to a worker, means 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”
“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 relevant period during which the applicant seeks weekly compensation is from
23 May 2022 ongoing.As noted above, it is not in dispute that the applicant did not attend work from 20 May 2022 when she took a day of sick leave. Various Certificates of Capacity certified that the applicant had no capacity for any work from 23 May 2022 to 25 July 2023.
A further Certificate of Capacity, issued by Dr Dinakar on 25 October 2023, stated that the applicant had no current capacity for any work from 25 October 2023 to 25 November 2023 with a diagnosis of anxiety and depression secondary to workplace harassment and alleged bullying, with a stated date of injury of 28 February 2022.
Dr Dinakar’s clinical records indicate that the applicant had depression, remained out of work and was issued with various medical certificates between August 2022 and July 2023.
In his report dated 18 December 2022, the applicant’s treating psychologist, Mr Morris, noted that whilst the applicant’s work capacity was yet to be ascertained, anxiety and depression appeared to have reduced the applicant’s functional endurance and capacity to work.
In his report dated 15 December 2022, Dr Saboor responded to a question whether the applicant had suffered an incapacity to work as a result of her psychological injuries “From the date of injury to date”. Dr Saboor responded that “Based on her presentation [the applicant] was incapacitated from a psychological perspective”. Dr Saboor expressly disagreed with Dr Young’s opinion that the applicant was able to participate in a graded return to work. Dr Saboor stated that in his opinion the applicant’s psychosocial functioning has been severely affected, she had been severely depressed, she had frequent suicidal ideation, no motivation and difficulty concentrating. On that basis, Dr Saboor expressed the opinion that the applicant “is totally incapacitated at the present time”.
In a report dated 17 July 2023, Dr Young stated that the applicant was not fit for pre-injury duties and hours and would not be psychologically fit to work at 10 hours per week in an alternative job.
Having regard to the evidence as a whole, I am satisfied the applicant had an inability arising from the psychological injury such that she was not able to return to work, either in her pre-injury employment or in suitable employment during the period from 23 May 2022 ongoing.
The award to be entered in respect of weekly compensation
Section 36 of the 1987 Act states:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(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 states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The parties agreed that initial PIAWE of $2,884.61 is applicable for the purposes of calculating any entitlement to weekly compensation.
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 23 May 2022 to 22 August 2022, pursuant to ss 33 and 36 of 1987 Act as follows:
Date from
Date to
Weeks
PIAWE
Rate Claimed
Weekly Amount
Actual Earnings
Entitlement
23.05.22
22.08.22
1 – 13
$2,884.61
95%
$2,740.38
Nil
$2,740.38
Further, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 23 August 2022 ongoing, pursuant to ss 33 and 37 of 1987 Act as follows:
23.08.22
03.10.22
$2,884.61
80%
$2,307.68
Nil
$2,307.68
04.10.22
03.04.23
$2,914.03
80%
$2,331.22
Nil
$2,331.22
04.04.23
Ongoing
$2,980.76
80%
$2,384.61
Nil
$2,384.61
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
De-identification
Both counsel for the applicant and the respondent submitted that it is appropriate for the proceedings to be de-identified on the public record. Having regard to the circumstances of this matter, I consider that it is indeed appropriate that the Certificate of Determination and statement of reasons issued by the Commission is to be de-identified.
SUMMARY
The Commission determines:
The applicant sustained psychological injury in the nature of a disease arising out of and in the course of her employment with the respondent, with a deemed date of injury of 4 May 2022.
The applicant’s employment with the respondent was the main contributing factor to the psychological injury.
The respondent has not established a defence pursuant to s 11A of the 1987 Act.
The applicant had no current work capacity as a result of the psychological injury from 23 May 2022 ongoing.
The Commission orders:
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 36 of the 1987 Act as follows:
(a) $2,740.38 per week from 23 May 2022 to 22 August 2022.
The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(a) $2,307.68 per week from 23 August 2022 to 3 October 2022;
(b) $2,331.22 per week from 4 October 2022 to 3 April 2023, and
(c) $2,384.61 per week from 4 April 2023 ongoing.
Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.
The Certificate of Determination and statement of reasons issued by the Commission is to be de-identified.
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