Ratawake v Regional Workforce Management Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ratawake v Regional Workforce Management Pty Ltd [2023] NSWPIC 557
APPLICANT:	Navitalai Ratawake
RESPONDENT:	Regional Workforce Management Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A; whether injury wholly or predominantly caused by reasonable action with respect to discipline; Canterbury Bankstown Council v Gazi and Department of Education, Training v Sinclair and Hamad v Q Catering Limited discussed; respondent did not discharge its onus; Held – award for the applicant; comments with respect to two awards of compensation but not appropriate to make determination.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation of $992, being 80% of pre-injury average weekly earnings from 23 February 2023 to date and continuing. 2. The respondent is to pay the applicant’s s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

Navitalai Ratawake was employed by Regional Workforce Management Pty Ltd (RWM) when he suffered a psychological injury on 6 September 2022. He was assigned to work at a meat processing plant operated by Teys Australia (Teys) in Tamworth. He says that the injury occurred when he was subjected to verbal abuse, bullying and racial vilification by his supervisor.
At the time of the injury, Mr Ratawake was working on selected duties as a result of an injury to his left ring finger on 24 September 2021. Since he ceased work, he has been receiving voluntary weekly compensation in respect of that injury at 80% of pre-injury average weekly earnings. Mr Ratawake claims weekly compensation from 28 February 2023 representing the difference between the amount paid and 100% of his pre-injury average weekly earnings.
RWM accepts that Mr Ratawake suffered a psychological injury. The issues that the parties sought be determined are:
(a) whether the injury was wholly or predominantly caused by RWM’s reasonable conduct with respect to discipline – s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) and,
(b) whether any additional compensation is payable, being the difference between 80 and 100 % of pre-injury average weekly earnings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The dispute was listed for conciliation conference and arbitration hearing on 22 September 2023 when Mr Horan of counsel appeared for Mr Ratawake and Ms Balendra of counsel appeared for RWM.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The issue as to whether any further weekly payments were payable arose during conciliation and the discussion about the issue was lengthy. There was inadequate time after conciliation to hear submissions and I directed that written submissions be prepared. The parties filed submissions as directed.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply;
(c)    Mr Ratawake’s Application to Admit Late Documents dated 15 September 2023, and
(d)    RWM’s Application to Admit Late Documents dated 24 August 2023.
There was no oral evidence.
The only statement on which Mr Ratawake relied was prepared by a factual investigator retained by RWM’s insurer and signed on 6 October 2022. He arrived in Australia from Fiji in January 2020 and was assigned to work at Teys as a meat processor. He was transferred to the cleaning department in September 2020. He suffered an injury to his left ring finger on 24 September 2021. At the time he was working night shift. In time, he returned to work on selected duties on day shift, eventually being placed in the laundry.
Mr Ratawake said that he spoke to RWM’s agent, Kaylene, on 5 September 2022 and asked for an annual leave form because he wanted to visit his family in Fiji. The form had to be signed by the cleaning supervisor, Mr Douglas. His housemates also worked as cleaners on nightshift and he asked them to take the form so that Mr Douglas could sign it. He said they told him on the following morning that when Mr Douglas saw the form was from him, he immediately threw it into the bin.
On 6 September 2022 Mr Ratawake went to see Kaylene and told her that Mr Douglas had thrown the form into the bin. She provided another form which Mr Ratawake completed and he went to see Mr Douglas. He found him in the manager’s office and asked him to sign the annual leave form because the first one had been thrown in the bin. Mr Douglas became angry and started shouting that “he didn’t know what I was talking about and he didn’t care.” Mr Douglas said that he had given the form to Kaylene.
Mr Ratawake went back to see Kaylene in the office at the front gate, and she told him that she had not received the form from Mr Douglas. Mr Ratawake returned to see Mr Douglas again, who insisted he had provided the form. Mr Ratawake said that Mr Douglas was loud and aggressive, and he decided to report this to “the HR office”. Mr Ratawake stood at the window and pressed the doorbell to seek attention. He saw Mr Douglas coming toward him yelling “I already told you that I have signed the form and given it to RWM”.
Mr Ratawake said that he told Mr Douglas that he had to sign the form and Mr Douglas shouted violently “I don’t give a fuck you black cunt”. Mr Douglas said those words loudly and clearly and was about 2.5 m away when he said it. Mr Ratawake said this made him angry because it was insulting and he said he didn’t want to hear that word again from his mouth. He said to Mr Douglas words to the effect of “get away from me before I knock you down” and Mr Douglas said “go ahead, go ahead.” Mr Ratawake said there were no other people to witness what he said.
At that time, Michelle from inside the HR office came out with Mr Collier, the HR manager, referred to in the statement as Mel. Mr Collier told both of Mr Ratawake and Mr Douglas to leave. Mr Ratawake said he did not believe that either Ms McInerney or Mr Collier heard what Mr Douglas said to him, but they heard him speaking to Mr Douglas after his racist comment, and they accused him of threatening Mr Douglas. Mr Ratawake said:
“Mel continued to accuse me of threatening Paul Douglas and that I was going to knock him down or kill him and I advised him to get out of my face and it was between me and Paul. I did not tell Mel that Paul Douglas had called me a black cunt and I considered he was on Paul Douglas side and he immediately started to accuse me of threatening Paul and so I felt it was no use trying to tell Mel what had happened.”
Mr Collier telephoned RWM and told Mr Ratawake to go home. Mr Ratawake said that later, that afternoon RWM sent an email attaching a statement by Mr Douglas and saying that if he did not have good grounds for his behaviour, there was likely to be disciplinary action which could include termination of his employment and have ramifications for his visa. The next morning he was told that RWM was going to undertake an investigation. He contacted Mr Collier who confirmed that he had been stood down with pay. On the same day, Mr Ratawake contacted his lawyer and was advised not to go back on site. He said he was supposed to attend a meeting on Friday 9 September but he submitted his workers compensation claim on Wednesday afternoon and therefore did not meet with RWM. He later attended a doctor in Sydney who provided a certificate stating he had no capacity from 6 September 2022 until 6 October 2022.
Jone Ravisoli provided a statement dated 15 September 2023. He said that before he left for work on 5 September 2022 Mr Ratawake asked if he could take his completed annual leave form and give it to Mr Douglas. Mr Ravisoli went to Mr Douglas’s office and asked him to sign the form. Mr Douglas took the form, scrunched it up and threw it in the bin. Mr Ravisoli did not recall what Mr Douglas said but he had an angry look on his face. He said that he had seen Mr Douglas’s statement dated 6 October 2022 and that it was not true that the annual leave form slid across his desk and into the bin. He stressed that Mr Douglas scrunched the form up before throwing it into the bin, and he did not laugh at any point while in the office that night. He said he did not see that the form had been taken out of the bin and placed on Mr Douglas’s desk.

RWM’s evidence

Kaylene Alley is employed by RWM at the Teys site and her role as a Value Partner, includes overseeing return to work administration and liaising with Teys supervisors. Mr Ratawake asked her for an annual leave form on 5 September 2022, and she told him to ask his supervisor to sign the form. The next morning Mr Douglas brought two or three forms to her and Ms McInerney was also present. Ms McInerney said that she required the forms and she would pass them on to Ms Alley. Mr Ratawake told her that Mr Douglas had thrown his application in the bin, so she gave him another form. She said:
“Navitalai Ratawake then took the annual leave form away and came back a little later and he was a little aggressive with me and said that Paul Douglas had advised that he had given the leave form to me. I advised Navitalai that I did not have the leave form and he needed to go and talk to his supervisor. Navitalai was becoming a little aggressive and he appeared not to be believing what I was telling him. I did hear that Navitalai had a verbal altercation with Paul Douglas and when Navitalai was aggressive with me, I don't know if that was before or after his altercation with Paul.
I did not see Navitalai Ratawake again on Tuesday 6 September 2022 but I did meet with him the following morning, Wednesday 7 September 2022, when I was in a meeting with Mal Collier who is Teys Tamworth HR Manager and Andrew Partridge. Mal Collier indicated that Navatalai was to be stood down pending an investigation and Navitalai reacted calmly to that. He was concerned about whether he was going to get paid. Mal Collier advised Navatalai that he would be paid whilst he was stood down however when I was preparing the payroll for that week, I raised a questioned and Mal had rung a work colleague of mine, Luke Bailey (HR colleague), and he advised that Navatalai was not to be paid as he had been stood down.”
Malcolm Collier provided a statement dated 10 October 2022 in which he said that he was the HR manager for Teys Australia. He said:
“On 6 September 2022 at approximately 6:15am the HR Officer, Michele McInerney called me from where she was standing at the HR window. She indicated there was a verbal altercation between Paul Douglas and Navitalai Ratawake.
I walked to the HR office window where I heard Paul Douglas and Navitalai having a verbal disagreement about an annual leave form. Their voices were getting louder and I could not determine what was actually being said at that point.
I then walked to where both Paul Douglas and Navitalai Ratawake were standing and by the time I got to the location Navitalai was pointing at Paul and saying something but I could not understand what he was saying.
Paul was saying words similar to 'don't threaten me' and 'I have not said anything to you' and 'HR and RWM have got your annual leave form'. I am not aware what started the altercation but at that point I stood in front of Navitalai and asked him to come away with me and Paul started to walk towards the locker rooms.
As Paul was walking away Navitalai said to Paul 'get fucked' and I asked Navitalai if he had threatened Paul and he did not respond verbally, however, he had a smirk on his face and nodded his head. I asked him again if he had threatened Paul and he said words similar to 'I could knock him out'.”
Mr Collier said Mr Ratawake did not say why he had threatened Mr Douglas, and Mr Collier did not pursue that line of questioning at the time. He said that Mr Ratawake came to work the following day and presented to the HR office, when Mr Collier informed him that he was stood down pending investigation. He said that the investigation is “now in the hands of RWM”.
Mr Collier said:
“Navitalai Ratawake actually came to work the following day, he presented to the Teys HR office where I informed him that he was stood down pending investigation. I explained that if it was a Teys employee that was stood down, they would be stood down with full pay. Andrew Partridge escorted Navitalai to his locker then off site. I was unaware of where the RWM investigation was up to at this point.”
Mr Collier prepared a file note in which he said:
“I Malcolm Collier, Today 6 Sept 2022 at approximately 6:15am, was called from the Human Resources office by Michele McInerney (Teys Tamworth HR Officer) to sort out altercation between Paul Douglas ('Paul') (Cleaning Manager) and Navitalai Ratawake ('Navi') (RWM Employee).
I walked to the office window where I heard Paul Douglas and Navi having a disagreement about an annual leave form. Their voices were getting louder I could not make out exact words that were said so I went out to where they both were. By the time I had got out to the front of the HR building Navi was pointing at Paul and saying something, but I could not understand, and Paul was saying words to the effect ‘Don't threaten me, I have not said anything to you. HR and RWM have got your annual leave form.’ At this point I stood in front of Navi and asked him to come away with me and Paul started to walk away. As Paul was walking away Navi said to Paul word to the effect ‘Get F .... d’. I asked Navi if he had indeed threatened Paul, Navi did not say anything but smirked and nodded his head. I asked Navi again if he threatened Paul and he said words to the effect ‘I could knock him out’.
I took Navi away with me to the Regional Workforce Management ('RWM') office where I explained to Gail Nankivell (RWM operations manager) what had happened and took Navi from there.”
Michelle McInerney signed a statement on 11 October 2022. She is employed as an HR officer at the Tamworth site of Teys Australia. On 6 September 2022, Mr Ratawake walked up to the HR window at about 6.15am and handed her an annual leave form. She told him that she had already been given the form by Mr Douglas at about 5.00am. She said that she had provided a copy of the leave form to the RWM representative. Ms McInerney saw Mr Douglas “a little way away” and heard him call out to Mr Ratawake to say he had given a copy of the form to HR. Mr Ratawake then said something words to the effect of “well, why was it in the bin” and verbal altercation ensued “and they were having a verbal go at each other”. She asked Mr Collier to go out because “it seemed to be getting a bit heated” and she heard Mr Ratawake say words similar to “I could knock you out any time” and Mr Douglas responded “don’t threaten me”. She said she did not hear Mr Douglas racially vilify Mr Ratawake.
Ms McInerney sent Mr Collier an email at 6.32 am on 6 September 2023. It read:
“Hey Mal,
Navi approached me this morning showing me his annual leave form, I told him I had already received it. Paul Douglas called out to Navi and said he had already Given it to me. Navi asked why it was in the bin. Bit of chat back at each other and Navi said I could knock you out anytime. There was more talk between them and Paul said don't threaten me. At this stage I called out to Mal to come and deal with it.” [sic]
Andrew Partridge is the employee well-being manager for Teys. He said in his statement dated 10 October 2022, that Ms McInerney called for Mr Collier to come to the scene. Mr Partridge heard “a ruckus” and he heard Mr Ratawake say something about Mr Douglas, throwing out an annual leave form. He heard voices escalate and saw Mr Ratawake pointing at Mr Douglas, but could not hear what was said. As he walked closer, he heard Mr Douglas say “don’t threaten me”. He denied that Mr Douglas racially abused Mr Ratawake. Mr Partridge made a file note which is consistent with his statement.
On 6 September 2022, Mr Douglas provided a statement when he was interviewed by Mr Collier. The statement says “the interviewer has confirmed this interview has been conducted because you Paul Douglas have been threatened by Navitalai Ratawake out the front of the HR building.” The statement reads:
“I Paul Douglas at approximately 6: 10am today, 6 September 2022 was confronted by Navitalai Ratawake (Navi) whilst I was sitting in the main Reception area, outside Michael Wells' (General Manager) office, Navi came in with an annual leave form in his hand and without speaking he waved the form at me and I said ‘I have already done it, RWM (Regional Workforce Management) and Michele (Michele McInerney HR Administration) have already got a copy’.
I went and had my meeting with Michael Wells and when I was walking towards the HR building, I saw Navi standing at the HR Return to work station, I said again ‘I have already given a copy to Michele and RWM’. I was walking away to got to the locker room when Navi started saying that I had thrown his annual leave form in the bin, I did not say anymore and went to walk away when I heard Navi say words to the effect of ‘I will knock you out’. I responded by saying ‘Do not threaten me’ and at this point Malcolm Collier (HR Manager) came out of the HR office and stood in front of Navi and I walked away to get changed. Whilst I was walking away I heard Navi tell me words to the effect ‘Get F .... d’ ".
Paul Douglas signed a statement for RWM’s factual investigator on 11 October 2022. He said:
“On 5 September 2022 one of the Fijian workers, Jone, handed me an annual leave application form and indicated it was from Nav Ratawake. I acknowledged the form and then just slid it across my desk and beside my desk there is a bin and it fell into the bin and Jone had a laugh about that.
Jone came back later and noticed that I had taken the form out of the bin and it was sitting on my desk. I was not comfortable approving the annual leave until I had spoken to our HR department and a representative from RWM because Nav had a current workers compensation claim and I was not sure if it was the same process for approving leave for a person who had a current claim.
The following morning, Tuesday 6 September 2022 (same shift) there is a little tent set up outside where all the RWM employees are signed in. I went to the tent and spoke to the Teys HR Officer, Michele McInerney and the RWM representative, who I think was Kaylene Alley but I am not one hundred percent sure it was Kaylene, and discussed Nav Ratawake's leave application with them.
The RWM representative advised it was fine for me to sign off authorising the leave and so I signed the application form and handed it to them.”
After describing his meeting with the plant manager, Mr Douglas said:
“I then started to walk towards the plant and there is a window at the HR office and I noticed that Nav was standing at the window talking to Michele McInerney. I approached Nav and said 'Nav, it has been approved, you don't have to worry about it, it is all done' and Nav started swearing and so I decided to walk away from the scene.
…
I decided that I would not worry about what had happened and so I started to walk away and I heard Nav say words similar to 'I will fucking knock you out'. That stopped me in my tracks and I turned around and went back and said to Nav 'don't ever threaten me Nav'.”
Mr Douglas denied that he was shouting at Mr Ratawake, and he “totally refuted” that he said the words that Mr Ratawake attributed to him. He said:
“If what Nav Ratawake alleges I said is true, and I note he says I shouted it whilst I was walking towards him, then I am sure Michele and possible Mai Collier and Andrew Partridge would have heard me say it. Michele was standing on the other side of an open window all the time that I was walking towards the HR office.”

Gail Nankivell, RWM’s operations manager prepared a form headed “Record of Interview – Respondent” as a result of an “interview” on 6 September 2022 at 6.40am. The handwritten part of the form reads:
“came to work, and boys said supervisor put the form in bin
Asked supervisor, and he said he didn’t know
Supervisor, swear at me.
Leave early today to have zoom for my lawyer for my injury.”
RWM did not rely on a statement from Ms Nankivell and the investigation report shows that no statement was obtained.
A letter dated 7 September 2022 was emailed to Mr Ratawake by Ms McIlveen of RWM in Brisbane headed Show Cause and Stand Down in respect of alleged misconduct in threatening Mr Douglas. Mr Ratawake was asked to attend a meeting on September 9 September 2022. A further letter was sent on 11 September, asking him to attend a meeting on 14 September.

Medical evidence

Mr Ratawake consulted Dr Marcus in Sydney from about December 2021 in respect of his finger injury. On 5 September 2022 Dr Marcus had a telehealth consultation in which he recorded that Mr Ratawake wanted an updated certificate of capacity “has to go see his family in Fiji”. He noted that Mr Ratawake was awaiting scans and an appointment with a specialist in respect of his physical injury.
The next recorded consultation took place on 21 September 2022 in person. After discussing Mr Ratawake’s physical injuries, Dr Marcus recorded:
“Unfortunately had a terrible falling out at work
Wanted to go visit his family in Fiji
needed his supervisor to sign the form.
Supervisor took the form from him and put it in the bin
the next day he took another form and gave it to his supervisor
who got very angry with him and started cursing him with some terrible derogatory comments
states that his supervisor called him a ‘black cunt’ and told him ‘he does not give a F’
tried telling his supervisor not to use that language, but kept on going
told supervisor that he better stop otherwise he would knock him out
staff at work in HR came to the room and told him to go home
has been not paid since
Extremely down and devastated by those comments
very anxious and depressed
feels racially vilified
work has not been in contact with him
Very upset and down in himself
looks reserved today but anxious
Appearance and behaviour: Dressed normally, maintains normal eye contact, calm - no restlessness seen
Speech: Normal
Mood: Feels anxious, stressed, depressed
Affect: Appropriate/normal
Thought form/content: Normal form, no delusional thoughts or pre-occupations, no overvalued ideas
Perception: No hallucinations/illusions
Risk: Low risk, denies any suicidal or self harm ideation
Cognition: Orientated to time/place/person, normal memory
Insight: Good level of insight
Advised i am not an investigator and will take his story at face value.
Advised insurer may wish to investigate the above
Advised him to see a psychologist and psychiatrist
referral given”
Dr Marcus referred Mr Ratawake to Dr Mukherjee, psychologist, and Dr Rastogi, psychiatrist.
On 12 October 2022, Dr Marcus recorded that Mr Ratawake was “feeling down in himself… can’t believe someone in Australia could speak like that”.
Dr Marcus prepared a report dated 1 July 2023. He said:
“Mr Ratawake reported that he had a falling out at work, following which his mental health significantly deteriorated. He stated that he wanted to visit his family in Fiji and required a signature from his supervisor to do so. However, the supervisor responded negatively, discarding the form, and subsequently made racially derogatory remarks and verbally abused him. This resulted in a severe emotional disturbance for Mr Ratawake, causing him to feel anxious, depressed, and racially vilified. He has not been contacted by his workplace since the incident and has not received any payment.”
Asked if the injury was a result of action taken by his employer with respect to discipline, Dr Marcus said:
“Based on the information provided by Mr Ratawake and my subsequent assessment, I am of the opinion that his psychiatric injury is not the result of any disciplinary action taken by his employer. Instead, it appears to be directly linked to the workplace harassment and racially charged verbal abuse he endured. This type of severe emotional distress can precipitate mental health conditions such as Generalised Anxiety & Depression, as in Mr Ratawake's case.”
The certificates of capacity, which Dr Marcus provided, said that the stated date of injury was 6 September 2022 and that Mr Ratawake had first been seen in respect of the injury on 21 September 2022. The cause the injury in the certificates is Mr Douglas’s words.
Dr Mukherjee is Mr Ratawake’s treating psychologist. She saw him for the first time on 17 October 2022 and then on 11 further occasions before preparing a report dated 5 May 2023. She recorded that when Mr Ratawake asked his supervisor to sign a new leave form:
“His supervisor was verbally abusive and refused to sign it and lied to him. He felt dismissed and the supervisor was berating him, made racist discriminatory comments and he followed Navitalai to HR, when he wanted to raise grievances.”
Dr Mukherjee said that Mr Ratawake’s injury was not due to a disciplinary action, but due to harassing and bullying behaviours at work by his supervisor.
Dr Rastogi reported to Dr Marcus on 20 October 2022, noting the same history of the injury as Dr Mukherjee. She diagnosed adjustment disorder with mixed distress associated with bullying and harassment. She said that Mr Ratawake remained unfit for work due to anxiety and poor vulnerability and prescribed medication.
Mr Ratawake’s solicitors qualified Dr Kumagaya, psychiatrist, who provided a report dated 11 May 2023. He obtained the history that Mr Ratawake experienced workplace stressors, following his finger injury, and that Mr Ratawake experienced the gradual onset of depressive and anxious symptoms from May 2022. Dr Kumagaya described the incident on 6 September 2022 consistent with Mr Ratawake’s statement and said that Mr Ratawake described to him how it resulted in a sizable destabilisation of his mental state. Dr Kumagaya diagnosed major depressive disorder with anxious distress.
Dr Kumagaya said that Mr Ratawake reported the onset of depressive and anxious symptoms in about May 2022 in the context of his experience of being assigned work roles, which were not in keeping with the restrictions in the certificate of capacity after his ring finger injury. The events of 5 and 6 September 2022 served to further destabilise Mr Ratawake’s mental state. He said:
“It is noted that the proposed disciplinary of his employer only commenced only after this incident. Hence it is my opinion that Mr Ratawake’s psychiatric injury was not a result of action taken by his employer with respect to disciplinary action. The subsequent actions taken by Mr Ratawake’s employer with respect to disciplinary action only served to further destabilise Mr Ratawake’s already unstable mental state.”

Dr Lugg

RWM’s insurer qualified Dr Lugg, psychiatrist, who reported on 14 November 2022. He set out the information provided which appears to have been limited to “ICare documentation including claimant details, ‘background information about the Claim’, treatments dates and names; no date”, a certificate of capacity dated 21 September 2022, an allied health recovery request dated 17 October 2022 and Dr Marcus’ referrals to Dr Mukherjee and Dr Rastogi dated 21 September 2022. The letter of instructions does not appear in the Reply.
He set out a history of the incident substantially consistent with Mr Ratawake’s statement. He was told that Mr Ratawake contacted his general practitioner by phone on 7 September and sought some advice then contacted his lawyer. On 13 September Mr Ratawake saw his general practitioner with respect to his left shoulder, relating to his previous injury and forms were completed for a new claim. Dr Lugg said:
“On clarification, Mr Ratawake confirmed the new claim was relating to the single incident that had occurred between he and Mr Douglas and did not relate to any prior incidents of bullying or harassment, discrimination, unfairness, verbal or other abuse. He denied having ever been racially vilified before at that workplace and denied having been insulted or attacked in any other way. Regarding Mr Douglas, Mr Ratawake reported that although he generally had a reputation for being disagreeable and ‘getting angry easily’, there had never been any significant issues between them personally. He denied that Mr Douglas had ever been racist toward him before.”
Dr Lugg recorded:
“At the immediate time of being told to leave the workplace, Mr Ratawake described feeling severely distressed. He reported feeling intensely ‘emotional’, ‘totally lost’, ‘anxious’ and ‘isolated’. He reported a range of psychological and physical panic symptoms including shortness of breath, chest tightness, tremulousness, dry mouth and an overwhelming sense of catastrophe and loss. His family was ‘going through his mind’ as he believed he had lost his job, lost his income and lost his ability to work and live in Australia, and therefore move his family to Australia. Mr Ratawake reported that he also financially supports his parents (who are in Fiji), and he suddenly felt he would no longer be able to do this either - driving further feelings of shame and failure.”
Dr Lugg noted that Mr Ratawake’s symptoms were improving by the time of his examination. He said:
“The key driver behind his more proximal suffering appears to be the explicit, and ongoing, threat to his work contract (and therefore his Australian work visa) and the potential consequences of this to both he and his family - rather than the altercation itself per se (which was indeed immensely distressing, but does not appear to be the ongoing driver of his current symptoms). The precipitating incident that occurred on the 6th of September 2022 may, superficially, seem disproportionate in its severity and rapidity of escalation - it was, after all, a dispute over nothing more than an annual leave form. It is possible, however, that a) Mr Douglas' response to the annual leave request was not routine (as it was indicated in the provided documentation that he was ‘not sure about the process of approving leave for employees who were on modified duties’) and that; b) Mr Ratawake's reaction to Mr Douglas, in context of Mr Douglas' uncertain response, was heightened by his understandably desperate wish to have his annual leave form signed such that he could travel home and see his family for the first time in nearly three years.”
Dr Lugg went on to explain that he considered that Mr Ratawake “appears particularly sensitised to the threat to his contract and visa for three key reasons” being the likelihood of having to return to Fiji thus thwarting life opportunities for himself and his family, the fact that he had made an enormous socioemotional sacrifice in pursuing work in Australia and the likelihood that the sense of shame, defeat and perceived inability to provide for his family, would present a challenging psychological state for him to overcome.
Dr Lugg’s diagnosis was adjustment disorder with mixed disturbance of emotions and conduct. He said that Mr Ratawake’s reaction to the workplace event was disproportionate to the nature of the stressor, referring again to the reasons why he was “likely sensitised” to the threat to his work that resulted from the incident.
The supplementary report dated 14 November 2022 Dr Lugg said that the predominant cause of Mr Ratawake’s symptoms was:
“As mentioned in the formulation part of my report, the predominant cause of Navitalai's symptoms appeared to be the threats to his work contract, and therefore visa and, consequently, opportunities for both himself and his family in Australia that had arisen as a consequence of the confrontation that occurred on 6 September 2022. Whilst the confrontation with Mr Douglas did cause Navitalai a significant deal of distress at the time, it did not appear to be the predominant cause of his presenting symptomatology and functional impairment. It was the occupational consequences of that confrontation that appeared to be most material to his emotional and functional decline - he himself volunteered this. I note the factual report provided. If it is true that he returned to work the following day (under the impression he would carry on his normal duties), then this adds further weight to the aforementioned hypothesis that it was the consequences of the confrontation, and not the confrontation itself, that was the predominant cause of Navitalai's symptoms. If the confrontation itself was the predominant cause, it would have been reasonable to have expected him to have been unable to return to work the day following the confrontation.”
When asked if the date of injury was 6 September 2022, due to the confrontation or 7 September 2022 to the stand down pending investigations, Dr Lugg said that though Mr Ratawake felt immensely distressed on the day of the confrontation, which should not be dismissed, he did not consider the distress constituted a diagnosable mental disorder. He said the fact that Mr Ratawake returned to work the next day, supported the assessment that the injury was a result of being stood down pending investigations. In response to a specific question, Dr Locke said that Mr Ratawake suffered adjustment disorder that was predominantly caused by the actions taken by the employer in standing him down pending investigations.
RWM’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 3 February 2023 informing Mr Ratawake that payments would cease on 28 February 2023 and relying on s 11A.

SUBMISSIONS

Section 11A

Mr Horan said that Mr Ratawake suffered a psychological injury as a result of the altercation on 6 September 2022. He summarised the opinion of Dr Marcus, in his report dated 1 July 2023 and that of his psychologist, Dr Mukherjee, who said on 5 May 2023 that the injury was due to bullying and harassment. Mr Horan said that was consistent with the opinion of Dr Rastogi, Mr Ratawake’s’ treating psychiatrist in her report dated 20 October 2022, and the report of the doctor qualified on his on his behalf, Dr Kumagaya who reported on 11 May 2023.
Mr Horan noted that RWM’s case was that the injury was suffered as a result of the letter dated 7 September 2022, Mr Horan said that the act of sending the letter was not an act of discipline because the letter expressly stated that Mr Ratawake’s responses to the allegations would be considered before any disciplinary action and that “the period of stand down is not disciplinary action”.
While the course of an investigation can be part of the disciplinary process, Mr Horan said that all that had happened by that time was that a statement had been taken from Mr Douglas had a short record of interview from Mr Ratawake. Both of those statements were taken on 6 September and the meeting was arranged for 9 September to allow Mr Ratawake to give his version of events. Mr Horan said that if Ms Nankivell had recorded details of what was said – rather than “supervisor swear at me” – the matter would more likely have been dealt with under the company’s grievance resolution policy as a dispute between co-workers. He said that Ms Nankivell’s actions were unreasonable, because it would have been no effort to record the words actually said, which would have cast the dispute in a different light.
Mr Horan noted that all of the material from Mr Ratawake’s treating doctors attributed the cause of the injury to the incident on 6 September 2022, and did not mention the letter on the following day and/or the threats to work and visa issues raised by Dr Lugg. He said that the predominant cause of the injury was the incident rather than the disciplinary action.
Ms Balendra said that there was no dispute that Mr Ratawake and Mr Douglas were involved in an altercation on 6 September 2022, but there is a dispute as to what occurred during that altercation. Specifically, Mr Ratawake alleges that Mr Douglas shouted at him loudly and clearly near the HR window. That is disputed by Mr Douglas and by each of the witnesses who denied hearing the words. Ms Balendra said that in the absence of evidence supporting Mr Ratawake’s allegation, it could not be accepted that Mr Douglas had called Mr Ratawake a “black cunt” or words to that affect. She said it was not disputed that Mr Ratawake then spoke to Mr Douglas in a threatening manner and was asked to go home which he did. A letter was emailed to Mr Ratawake and he described himself as being “angry and sad” when he received the email. He contacted his solicitors on 7 September 2022, and was advised not to go back on site. He submitted his claim on 7 September 2022 and did not seek medical advice, until after he had submitted that claim, the first certificate of capacity being provided on 21 September 2022.
Ms Balendra said that RWM bears the onus to establish that:
(a) the employer took or proposed to take one of the categories of actions identified in s11A(1);
(b) the worker’s injury was wholly or predominantly caused by that action, and
(c) the employer’s actions were reasonable.
Referring to Department of Education and Training v Sinclair[1] (Sinclair), Ms Balendra said that discipline extends to the entire process, including the course of the investigation. She said that the first limb was satisfied because the claim was made after an email from his employer. Indicating that action was proposed to be taken with respect to discipline. Given the timing of the first consultation with his doctor, any incapacity arose after receipt of the email. That contention was supported by the report of Dr Lugg.
[1] [2005] NSWCA 465.
With respect to reasonableness, Ms Balendra cited Irwin v Director-General of Education[2] in which Geraghty CCJ said the question of reasonableness is one of fact, weighing all the relevant factors and that the rights of the employee must be weighed against the objective of the employer. She said that the only actions taken before the claim was made were asking Mr Ratawake to go home after the incident and sending him a letter. In the circumstances, of an altercation between a worker and his supervisor those actions were reasonable.
[2] NSWCC 14068/97, 18 June 1998.

Entitlement to weekly benefits

Mr Horan referred to the decision in Djordjevic v Blacktown City Council[3] (Djordjevic) in which Member Young held that a worker, who had suffered two separate injuries and incapacities was entitled to two awards but, in aggregate, not exceeding 80% of pre-injury average weekly earnings. Member Young discussed cases under earlier versions of the legislation including Cordina Chicken Farms Pty Limited v Thoa Hong Le[4] (Cordina) and Alcan Australia Ltd v Jordan (Jordan).[5]
[3] [2023] NSWPIC 2.
[4] [2008] NSWWCCPD 125.
[5] [1995] NSWCA 12.
Mr Horan submitted that the principles in Jordan remained relevant, despite amendments to the weekly payments provisions of the 1987 Act. The case concerned separate awards for distinct incapacities from separate injuries under the former s 40(1) of the 1987 Act. He noted that Handley JA (with whom Gleeson CJ and Meagher JA agreed) said:
“This test was applied by Sugerman JA, speaking for the Court, in Australian Iron and Steel v Elliott (1966) 67 SR (NSW) 87. As his Honour said at 93-4: ‘At this stage the inquiry is factual, and it becomes necessary to ascertain what loss the injured worker has in fact sustained by reason of his partial incapacity’.
His Honour must have overlooked this principle when making the subject award because he clearly overcompensated the worker who, on His Honour’s findings was better off financially than if he had never been injured”.
And:
“The worker has two distinct partial incapacities resulting from separate injuries and is entitled to separate awards under s40(1). See Sydney City Council v Ince (1989) 16 NSWLR 690 at 697-698, 701. This entitlement has significant practical consequences, not only for the reasons explained in Ince’s case but also because of the indexed statutory cap in s40(1)(a). This cap may cause under compensation but its effects will be diminished or removed if a worker is entitled to separate awards.”

Mr Horan submitted that the statutory cap referred to by Handley JA is the equivalent of the maximum weekly compensation amount in s 34 of the 1987 Act. Mr Horan said that the worker should not be overcompensated, in that the two awards of weekly compensation must not exceed the amount he would have earned had he remained uninjured, as long as the indexed statutory cap is not exceeded. In this case pre-injury average weekly earnings (PIAWE) were $1,240, which is less than the current indexed statutory cap, so that the separate weekly payments awards should not exceed PIAWE.
Mr Horan submitted that Djordjevic was wrongly decided. He noted that the definition of second entitlement period in s 32A of the 1987 Act which applied to “a claim for compensation in the form of weekly payments made by a worker” but said that in this case there were two claims. He said that the legislation was beneficial to workers and when it was construed in that way, a worker can be awarded 100% of PIAWE, consistent with the principles in Jordan.
Noting that pre-injury average weekly earnings were $1,240 and that Mr Ratawake is being paid $992 per week in respect of his left ring finger injury, Mr Horan said that he should receive an additional weekly payment of $248 per week from 28 February 2023.
Ms Balendra agreed that PIAWE were $1,240. She said that the principles of comity mean that Member Young’s findings should apply. She noted that Member Young expressly distinguished the decision in Jordan, saying:
“…That decision expressed the view, as I understand it, that weekly compensation cannot result in a worker being in the result better off financially than if he or she had been uninjured. This principle of over-compensation followed a decision of Kitto J in Thompson, in which his Honour referred to s 11 of the 1926 Act. However, both ss 36 and 37 of the 1987 Act provide statutory commands as to the calculation of the ‘maximum weekly compensation amount’. That relies on an interpretation for ‘AWE’ in accordance with s 35 (1) of the 1987 Act, namely the worker’s pre-injury average weekly earnings.”
Ms Balendra said that the list of payments shows that Mr Ratawake has continued to receive his maximum weekly entitlement to compensation in relation to his physical injuries, that he has no further entitlement to weekly compensation and that any future entitlements weekly benefits will be capped at 80% of PIAWE across both claims.
The direction made at the arbitration hearing allowed for submissions in reply on behalf of Mr Ratawake but none were filed.

FINDINGS AND REASONS

Section 11A

Section 11A(1) provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The onus of proving all of the elements of the section falls on RWM. The relevant conduct in this case is discipline.
In Canterbury Bankstown Council v Gazi[6] (Gazi) Phillips P said that to succeed in a defence under s 11A the employer must prove the relevant injury, that the injury was wholly or predominantly caused by certain action (b) and that the action taken or proposed was objectively reasonable (c). His Honour said:
“It is only if ‘injury’ is established that it is necessary to consider whether s 11A(1) of the 1987 Act provides the employer with a defence (as set out in (b) and (c) above).
If either (b) or (c) is answered in the negative, the worker is entitled to succeed. That is, if the employer cannot show that the psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to the transfer, the worker succeeds. If the employer cannot prove that the actions taken by it in the context of the transfer were reasonable, the worker will also succeed. Whether the injury was wholly or predominantly caused by reasonable action with respect to transfer is a question of fact to be determined on the evidence in each case.”[7]
[6] [2019] NSWWCCPD 14.
[7] At [144]-[145].
The President said:
“The first limb of s 11A(1) of the 1987 Act requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s action with respect to, in this case, transfer. This requires consideration of the nature of the psychological injury and the extent that employment contributed to the injury. The causal test in s 11A(1) is whether the injury was ‘wholly or predominantly caused’ by the relevant action, in the present case with respect to transfer. In determining that question the phrase ‘predominantly caused’ means ‘mainly or principally caused’.”[8]
[8] At [146].
In Sinclair to which Ms Balendra referred, Spigelman CJ, with who the other members of the court agreed, said:[9]
“Furthermore, the case … primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s9A. His Honour appeared to approach the s11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’.”
[9] At [96]-[97].
In Northern NSW Local Health Network v Heggie[10]. Sackville AJA summarised the effect of the authorities with respect to s 11A[11]. His Honour said:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
[10] [2013] NSWCA 255.
[11] At [59].

Statement evidence

Mr Ratawake’s case is that the injury was caused by the interaction with Mr Douglas on 6 September 2022 and the fact that Mr Douglas used words which made him feel racially vilified. The evidence that there was a pattern of bullying and harassment was not relied on in the submissions made.
Mr Ratawake does not deny that he threatened to knock Mr Douglas down. Disciplinary action against Mr Ratawake ensued because of his threat to Mr Douglas. There is no suggestion that the disciplinary action was not reasonable – the dispute lies in whether Mr Ratawake’s injury was wholly or predominantly caused by that action or by words used in the altercation. A substantial difficulty with the evidence is that the relevant disciplinary action was taken by RWM, Mr Ratawake’s employer and it is RWM who carries the onus of showing it was reasonable. Apart from Ms Alley, whose evidence is limited as to time, all of the witnesses who provided statements are employed by Teys.
Mr Ratawake was clearly keen to have leave approved so he could see his family and Dr Marcus’ note of 5 September supports that. Mr Ratawake said that he obtained a form from Ms Alley on 5 September and asked Mr Ravisoli to give it to Mr Douglas to sign because Mr Ratawake was working selected duties on day shift.
I am satisfied that there was an altercation on 6 September 2022. It occurred because of a series of misunderstandings and began because Mr Ratawake believed that Mr Douglas had thrown his annual leave form into the bin. That belief was based on his conversation with Mr Ravisoli. It is clear that Mr Ratawake was angry about the way he thought Mr Douglas had handled the form. Regardless of whether the form had slipped into the bin – as Mr Douglas said – or whether Mr Douglas scrunched it and threw it there – as Mr Ravisoli said – it was not correct that Mr Douglas had left the form in the bin.
The statements support the conclusion that Mr Douglas had spoken to a representative of RWM at about 5.00am. Mr Douglas said he sought advice as to whether he could sign Mr Ratawake’s form when he had a current claim. He signed the form and gave it to the RWM representative who may have been Ms Alley.
Ms Alley did not say that she had a conversation with Mr Douglas about whether he could sign the form but said that Mr Douglas gave her two or three forms on the morning of 6 September and she gave them to Ms McInerney of Teys. Ms Alley’s evidence suggests that she did not look at the individual forms at that time, and there was no reason for her to do so if she was expecting to process them when Ms McInerney had dealt with them.
Mr Ratawake, believing that Mr Douglas had thrown his form away, spoke to Ms Alley and asked for a new form and she gave it to him. He said he told her that Mr Douglas had thrown the first one away and Ms Alley’s statement confirms that.
Ms McInerney said that when Mr Ratawake gave the new form to her, she told him that Mr Douglas had already given her a signed form. Mr Ratawake’s statement does not mention an interaction with Ms McInerney.
Mr Ratawake said that he found Mr Douglas at the manager’s office and asked him to sign the new form and that Mr Douglas became angry and started shouting that he didn’t know what Mr Ratawake was talking about. However, he said that he had given the form to RWM. Mr Ratawake said that he spoke to Ms Alley again who said that she did not have the form and her statement supports that she did not have it at that time. Ms Alley said that Mr Ratawake was “a little aggressive.”
Mr Ratawake returned to speak to Mr Douglas and told him that Ms Alley did not have the form. He said that Mr Douglas was aggressive; he decided to report him to HR and he began to walk back to the HR window.
Mr Douglas’ statements down play the incident. In the short statement prepared for Mr Collier on 6 September he said that Mr Ratawake waved the form at him without saying anything outside the manager’s office then accused him of throwing the form in the bin and threatened him as he walked to the locker room. He said Mr Ratawake started swearing at him when he said that he had given the form to RWM.
In his statement to RWM’s investigator, Mr Douglas said that he saw Mr Ratawake outside the HR window, Mr Ratawake swore at him and he walked away. He said that anything he had said to Mr Ratawake would have been heard by Ms McInerney, Mr Collier and Mr Partridge.
The evidence of Ms McInerney, Mr Collier and Mr Partridge is consistent that they heard an argument between Mr Ratawake and Mr Douglas with raised voices. Apart from Mr Ratawake’s threat, no one heard the words which were said. Mr Ratawake said that he did not tell Mr Collier what was said because he thought that Mr Collier would take Mr Douglas’ side.
Ms Nankivell’s file note is important because it was completed at 6.40am on 6 September. She recorded “Supervisor swear at me.” That note confirms that Mr Ratawake was provoked by something that Mr Douglas said.
I accept that Mr Douglas and Mr Ratawake did have an argument in raised voices and I do not accept Mr Douglas’ evidence which denies that an argument occurred. I accept that the words attributed to Mr Douglas – or something very similar – were said.
The interview with Ms Nankivell was the start of a disciplinary process and the authorities confirm that the whole of the disciplinary process is relevant from the beginning of an investigation, I am unable to draw conclusions about what took place without a detailed statement from her.
The fact that Mr Ratawake went to work on the following day until he was informed that he had been stood down is neutral with respect to causation. So too is the fact that Mr Ratawake spoke to his solicitor on the day of the injury. Ms Nankivell recorded at 6.40am that Mr Ratawake was planning to leave early for a Zoom call with his solicitor “for my injury”. It is likely that the arrangement to speak to his solicitor had already been made and related to his physical injury. There is no evidence as to when the claim for compensation was in fact made.

Medical evidence

The issue of whether an injury is wholly or predominantly caused by reasonable action with respect to discipline requires the consideration of medical evidence. The fact that Mr Ratawake did not seek medical advice until after he had received letters from his employer is relevant but not determinative.
In Hamad v Q Catering Limited, Snell DP said:[12]
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.
This is particularly so, given that the available medical evidence, …, was consistent with causes in addition to matters alleged to constitute ‘discipline’.”
[12] At [88]-[89].
Though the earliest descriptions of the incident from Mr Ratawake are two weeks or more after the incident, they are consistent that the cause of his psychological injury was the words spoken by Mr Douglas. Any telephone conversation that Mr Ratawake had with Dr Marcus on 13 September 2022 was not recorded in his notes.
Dr Marcus made a careful note of the history Mr Ratawake gave him on 21 September when he saw him in person. The note makes clear that it was what Mr Douglas said that caused the psychological injury for which Dr Marcus recommended treatment. He recorded what Mr Ratawake told him in a detailed and vivid manner, conveying the impact of the words on Mr Ratawake. Dr Marcus noted that Mr Ratawake had been told to go home and that RWM had not contacted him but did not otherwise refer to the investigation or letters from RWM.
Dr Marcus confirmed that was his opinion in the report dated 1 July 2023 when he said the racially charged, verbal abuse, and mistreatment resulted in significant psychological distress, anxiety and depression.
Mr Ratawake stressed the effect of Mr Douglas’ words in his statement dated 6 October 2022 and the history is consistent with that obtained by Dr Mukherjee and Dr Rastogi in mid October 2022.
In May 2023 Dr Kumagaya obtained a different history, stressing a background of bullying and harassment from May 2022 though he recorded that the words spoken by Mr Douglas caused a sizeable destabilisation of Mr Ratawake’s mental state, and which prevented him returning to work. He said that the disciplinary action only served to destabilise, his already unstable mental state.
The medical evidence on which Mr Ratawake relies all attributes the cause of the injury to the altercation with Mr Douglas and to the words that were said.
Dr Lugg characterised the injury differently. He appears to have been provided with very limited information and not to have seen the statements when he prepared his first report. Dr Lugg did record a history of the incident and the altercation between Mr Ratawake and Mr Douglas and quoted the words said but he stressed the beginning of disciplinary action. He recorded how Mr Ratawake felt “at the immediate time of being told to leave the workplace” rather than when Mr Douglas swore at him. At the time he was told to leave, “his family was going through his mind.”
When recording his impression and formulating his opinion, Dr Lugg said that “it was, after all, a dispute over nothing more than an annual leave form”. He said that the precipitating incident seemed superficially disproportionate in its severity and rapidity of escalation. He suggested that may have been caused by Mr Douglas’ response not being routine because he was unsure of the process for approving leave for workers on modified duties, and in the context of uncertain responses, Mr Ratawake’s reaction was heightened by his understandably, desperate wish to see his family for the first time in nearly three years. The difficulty with that opinion is that it is speculation rather than a consideration of Mr Ratawake’s response to the words that Mr Douglas said.
Dr Lugg’s opinion is that the threat to Mr Ratawake’s work contract and visa appeared to be the key driver causing the injury, based on an assumption that was the possible outcome of the disciplinary process. Dr Lugg went on to explain why he considered Mr Ratawake was “particularly sensitised” to the threat to his contract and visa. That opinion appears based on the conclusions Dr Lugg drew as to why the loss of Mr Ratawake’s contract and potentially his visa might be stressful rather than what Mr Ratawake told him and is speculative. He said, for example, that Mr Ratawake is “likely to question” the sacrifice he made coming to Australia and “potentially suffer a great deal of regret and loss”. He also said that the inability to provide for his family “would present an immensely challenging psychological state for him to overcome.”
In his second report, when it appears that he had more information, Dr Lugg said that Mr Ratawake told him it was the occupational consequences of the confrontation that appeared to be most material to the injury. That history contrasts with that which Mr Ratawake provided to other practitioners that it was what Mr Douglas said which caused the injury.
Dr Lugg also said that even though Mr Ratawake was immensely distressed on the day of the confrontation, that distress was not a diagnosable medical disorder and that the fact that he presented for work the next day suggested that the cause of injury was being stood down. The medical question of whether the injury was wholly or predominantly caused by conduct is not determined on the basis of the chronology. It is not resolved merely by considering if Mr Ratawake to have suffered a diagnosable injury before he was stood down.
I prefer the evidence of Mr Ratawake’s treating practitioners and Dr Kumagaya as to the cause of the injury. Dr Lugg’s opinion does not persuade me that the injury was wholly or predominantly caused by any action taken by RWM.
For those reasons, I am not satisfied that RWM has proved that the injury suffered by Mr Ratawake was wholly or predominantly caused by reasonable action with respect to discipline.
Mr Ratawake is not working and there is no evidence that he has current work capacity as a result of the psychological injury, nor were any submissions made to that effect. He is entitled to an award of compensation at 80% of PIAWE or $992 per week in respect of that injury from 23 February 2023. It follows that RWM should pay Mr Ratawake’s s 60 expenses.

Rate of weekly compensation.

Mr Ratawake remains in receipt of weekly payments of compensation in respect of the injury to his finger in September 2021. Those payments are currently made at 80% of PIAWE. Mr Horan submitted that he should be entitled to a separate additional weekly payment of $248 per week from 23 February 2023, bringing his combined weekly payment up to 100% of PIAWE. I do not interpret that submission as seeking an award of $248 per week because the compensation in respect of the other injury is paid on a voluntary basis and therefore subject to decisions made by the insurer. As the parties have made submissions, I will consider them but the only award I believe I can make is that set out above.
The parties referred to Djordjevic. That case is different to the present because the worker was not in receipt of any weekly compensation and his entitlement as a result of two injuries was before the Commission. I therefore cannot accept Mr Horan’s invitation to determine that the case was wrongly decided. Member Young found that the worker was entitled to two awards and that the contribution from each to the worker’s incapacity was 50% and that he had no current work capacity as a result of the aggregate.
There is nothing in the legislation that expressly deals with the question of the extent of compensation payable when a worker suffers two incapacities. Section 33 of the 1987 Act provides that if incapacity results from an injury, a worker is entitled to a weekly payment of compensation. Section 34 provides that a weekly payment of compensation is not to exceed the maximum compensation amount, which is a monetary amount, subject to indexation. Generally, the maximum weekly compensation amount has the effect of limiting the compensation recovered by highly paid workers.
Section 37 which provides for the amount payable as compensation after the first 13 weeks and says in sub-s (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.”
The entitlement of workers with current work capacity is measured by reference to the maximum weekly compensation amount.
The worker in Cordina suffered a crush injury to her non-dominant hand. While on selected duties, she developed carpal tunnel syndrome. In a case determined in 2008, before the 2012 amendments to the legislation, Roche DP considered a series of authorities and said:[13]
“The effect of the above authorities may be summarised as follows:
(a)     a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity (Doudie, Holmes and Ince);
(b)     the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);
(c)     whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 40 for the initial partial incapacity calls for the application of the discretion in section 40(1) (Holmes at 592) in determining the amount of compensation that is ‘proper in the circumstances of the case’ (Australian Wire Industries Pty Ltd v Nicholson(1985) 1 NSWCCR 50). The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case, and
(d)     an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured (Alcan Australia Ltd v Jordan(1995) 11 NSWCCR 475 at 482E (‘Jordan’)). This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for ‘any period of partial incapacity’ as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
The determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to work or to look for work. It will be a question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities.”
[13] At [59]-[60].
Roche DP determined that the worker in Cordina suffered two injuries but only one incapacity, distinguishing the decision in Jordan. In that case, decided in 1995, the worker suffered two incapacities. The first was “pot room asthma” as a result of exposure to fumes in 1982. He returned to work on selected duties and suffered orthopaedic injuries in 1986 and 1989. He ceased work when his asthma worse in 1990. The trial judge awarded compensation under s 11(2) of the Workers Compensation Act 1926 (the 1926 Act) in respect of asthma and the second under s 40 of the 1987 Act for the orthopaedic injuries. The Court of Appeal held that the orthopaedic injuries extinguished the obligation on the employer to provide suitable duties as a result of the asthma injury, so that the award under s 11(2) must be set aside. The award under s 40 was also set aside because the combination of the awards plus residual capacity resulted in the worker being better off financially than if he had not been injured. The worker cross-appealed arguing that he should receive separate awards under s 40 for two separate orthopaedic injuries. That cross-appeal was dismissed because they were, under the transitional provisions of the legislation, one injury. The matter was remitted to the Compensation Court for the making of fresh awards under s 11(1) of the 1926 Act in respect of asthma and s 40 of the 1987 Act respect of the incapacity arising from the orthopaedic injuries. Both of those sections dealt with partial incapacity.
In all of those cases, including Djordjevic, the Court or Commission was determining the appropriate payment in respect of both incapacities because the worker was not receiving weekly compensation under an award or on a voluntary basis. In this case, I know very little about Mr Ratawake’s physical injury, except that he was performing selected duties at the time of the injury which is the subject of these proceedings, suggesting that his incapacity in respect of the physical injury was at that time, partial. There is no current dispute about his entitlement. As a result of this injury, he has no current work capacity.
I am inclined to agree with Member Young that compensation is limited by pre-injury average weekly earnings, particularly where one of the injuries results in the worker having no current work capacity.
However, any determination of the issue is more appropriately dealt with in a case where the matter is squarely before the Commission and proper consideration is given in submissions to the relevance of the cases decided when compensation was assessed by reference to statutory rates to the current position where compensation is assessed by reference to pre-injury average weekly earnings. I decline to make any further order about the quantum of weekly compensation.

[2023] NSWPIC 557

20 October 2023