Redhead v State of New South Wales (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Redhead v State of New South Wales (Mid North Coast Local Health District) [2022] NSWPIC 430
APPLICANT:	Leanne Redhead
RESPONDENT:	State of New South Wales (Mid North Coast Local Health District)
MEMBER:	John Wynyard
DATE OF DECISION:	2 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed weekly payments for psychological disorder; whether respondent entitled to rely on section 11A of the Workers Compensation Act 1987 (1987 Act); Held — the section 287A of the 1987 Act Notice pleaded section 11A of the 1987 Act and specifically that the respondent’s action was wholly or predominantly the cause of the injury; it had no medical expert advice to that effect and when it was supplied, it contradicted the claim; Hamad v Q Catering applied; award applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission finds: (a) the applicant suffered a psychiatric/psychological injury on a deemed date of 6 December 2021, and (b) her pre-injury average weekly earnings was $1,255.78. 2. The Commission orders: (a) the respondent will pay the applicant weekly compensation as follows: (i) $1,130.20 pursuant to s 36 from 6 December 2021 to 7 March 2022, and (ii) $1,004.62 pursuant to s 37 from 8 March 2022 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Leanne Redhead, the applicant, brings an action for weekly compensation against State of New South Wales (Mid North Coast Local Health District), the respondent, with respect to a psychology injury which occurred on a deemed date of injury of 6 December 2021.
Dispute notices were issued and proceedings were subsequently commenced on the filing of an Application to Resolve a Dispute (ARD) and Reply thereto.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) was the psychological injury wholly or predominantly caused by the actions of the respondent pursuant to s 11A?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was heard by way of a telephone conciliation and arbitration conference on
30 May 2022. The applicant was represented by Mr Jon Trainor instructed by Ms Baiba Thomas from Messrs Hall Payne Solicitors. The respondent was represented by Mr Tom Grimes of counsel, instructed by Najeh Merhaba from Messrs Hicksons Lawyers. Also in attendance until excused was Ms Danyelle Allen from the insurer.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
For the applicant
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) and attached documents, and
(c)    wages schedule.
For the respondent
(a)    Reply and attached documents;
(b)    ALD containing reports of Dr Mallik;
(c)    wages schedule, and
(d)    (Over objection) spreadsheet of earnings.

Oral evidence

An application was made in respect to oral evidence.

FINDINGS AND REASONS

Preliminary

On the applicant’s application I amended the ARD to indicate that the claim for weekly payment was on an ongoing basis. The date “7/03/2022” was deleted and the ongoing box was ticked.
The claim is accordingly for the payment of weekly compensation from 6 December 2021 to date and continuing, as a result of Mr Trainor’s amendment. The applicant’s wages schedule alleged a pre-injury average weekly earnings (PIAWE) of $1,500. The respondent filed a wages schedule dated 30 May 2022 alleging a PIAWE of $1,255.78. A spreadsheet was admitted over objection showing Ms Redhead’s income from 5 December 2020 to
5 December 2021, the day she ceased work.
Mr Trainor submitted that the relevant documents to calculate the PIAWE from were two payslips and that the spreadsheet should be rejected. He made a number of submissions in reply, as the issue of the spreadsheet’s admissibility had not then been decided.
Mr Trainor submitted that I should exercise my discretion against admitting the document, based on the premise that his instructing solicitors had been attempting to obtain these particulars for some time, and it was unfair to expect the applicant to deal with a complicated spreadsheet on the day of the hearing, the spreadsheet having been filed with me by email at the commencement.
I admitted the spreadsheet, but ordered the parties to either lodge an agreed schedule or separate submissions by 13 June 2022.

EVIDENCE

Applicant’s statement

The applicant made a statement dated 7 January 2022. She was born in 1964 and is single. She outlined her background noting that after leaving St Patrick’s Business College with a Stenography diploma she worked as a legal secretary for 16 years until 1996. She then worked in hospitality until 2011 when she began work as Sterilisation Technician in 2011. She worked in a number of different hospitals including Tweed Heads and Darwin.
In her comprehensive and detailed statement she mentioned nine separate incidents as the cause of her eventual psychological decompensation. She said that she had a previous psychological claim which occurred in 2018 when she was working at the Tweed Heads Hospital. This was caused by a colleague abusing her and Ms Redhead said that she had six months off and was prescribed an anti-depressant.[1]
[1] ARD p 14.
The nine incidents that the applicant recounted concerned in the main a personality clash she had with her supervisor Ms Nadine Ironfeld. The applicant said that she had been bullied and mistreated by Ms Ironfeld from the time she commenced employment with the respondent. The applicant also mentioned other employees of the respondent who had issues with her.
It is not necessary to recount all the detail of Ms Redhead’s statement, as both medico-legal specialists made accurate summaries of it, and both specialists were in accord that the conduct of the respondent’s employees had been the cause of a psychological injury. Moreover, the respondent adopted the factual history recorded by Dr Shannon Paisley in its dispute notice.

The dispute notice

On 7 April 2022, the respondent issued a dispute notice pursuant to s 287A of the Workers Compensation Act 1987 (the 1987 Act). In discussing the issues relevant to the dispute, the notice referred to a report by Dr Paisley dated 10 March 2022. It said:
“In support of your request for a review you have submitted the medical report of Dr Shannon Paisley dated 10 March 2022. As was reported by Dr Paisley you alleged that you were bullied from the time you commenced employment with Mid North Coast Local Health District (MNCLHD). The main perpetrator of your treatment was a supervisor named Nadine Ironfield.
You felt you were being micromanaged and excessively scrutinised. Your
mental state deteriorated in April 2021, and you left work early because you were feeling unwell. You were asked by management to explain your absences and they accused you of abandoning the workplace.
You were issued with a misconduct allegation and received a formal notice that you breached your employer’s code of conduct due to recording colleagues’ conversations. You were then issued with another misconduct allegation which suggested that you left work prematurely without permission and had not been wearing a mask properly. You felt targeted and lost all trust in management at work.
Dr Paisley considered your symptoms satisfied the criteria for a diagnosis of recurrent Major Depressive Disorder as determined by the criteria in DSM-5. You were experiencing a depressed mood most of the time, an inability to experience pleasure, fatigue, suicidal thoughts, and impaired concentration. It was determined that antidepressant medication and counselling sessions were reasonably necessary to improve your condition.
Dr Paisley considered that the events you described in the workplace were sufficiently distressing to cause a psychiatric injury. …”
The notice then explained why the claim was being denied. It said:
“Whilst Dr Paisley considered the events in the workplace caused you to decompensate, it was not considered whether your condition was caused by the actions of management...”
The notice then referred to the actions the respondent had taken, and said:
“We consider that your condition was wholly or predominantly caused by MNCLHD actions in terms of the management of complaints against you.”

Dr Nabil Malik

The respondent retained the services of Dr Nabil Malik, psychiatrist. In a report dated
19 April 2022 (that is to say, after the date of the dispute notice of 7 April 2022), Dr Malik took a history of the onset of Ms Redhead’s disorder that was consistent with her statement, and the history accepted by the respondent in its dispute notice of 7 April 2022.
Dr Malik noted the applicant’s past psychiatric history when she was diagnosed with major depression in 2011 in the context of some difficulty at the workplace. This was when she was in Darwin. She was prescribed an antidepressant which she thought was Zoloft, and after three to four years she recovered.[2] As to diagnosis, Dr Malik said:
“The history provided during the assessment and mental state examination indicated and fulfilled the DSM – 5 diagnostic criteria of Major depressive disorder with anxious distress and alcohol use disorder.”
[2] Respondent application to admit late documents (ALD) p 4.
When asked to consider the question of causation, Dr Malik said:[3]
“In my professional opinion, on the balance of probabilities I believe workplace stressors caused the worker’s psychological condition. She has a history of depression for which she was medicated, she tells me her mental health was stable and at its baseline when she joined the workplace and it was the workplace stressors that led to a decline in her mental health and she subsequently developing the psychological condition.”
[3] Respondent ALD p 7.
In answer to a question as to whether the condition had been caused by “any aspect of the worker’s employment”, Dr Malik said:
“In my professional opinion, on the balance of probabilities I believe her psychological condition was caused by workplace stressors that included facing harassment and bullying from colleagues and her perceived lack of support from management. There was no specific aspect of employment but in fact the interpersonal dynamics at the workplace that led to a decline in her mental health and her developing the psychological injury.
….
I have taken into account all the factors mentioned above and in my professional opinion, on the balance of probabilities I believe Ms Redhead’s employment was a substantial contributing factor in her developing the psychological injury. She has a history of depression for which she was medicated, she tells me her mental health was stable and at its baseline when she joined the workplace, and it was the workplace stressors that led to a decline in her mental health and she subsequently
developing the psychological condition.
…”
When asked to advise as to whether the actions taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline had caused
Ms Redhead’s disorder, Dr Malik said:
“No. In my professional opinion, on the balance of probabilities I do not believe
Ms Redhead’s psychological injury was wholly or predominantly caused by the action taken or proposed to be taken or on behalf of Mid North Coast Local Health District with respect to performance appraisal and/or discipline.
Ms Redhead was issued two warning letters but her symptoms pre-date that and as mentioned in my report she saw her GP in July 2021 who did change her medication as she had symptoms of depression and anxiety.”
Dr Mallick did not think that the applicant had any capacity for employment.
Not surprisingly, the respondent sought clarification and a further report was obtained, dated 27 May 2022. Dr Malik confirmed the diagnosis and said:
“In my professional opinion, on the balance of probabilities I believe Ms Redhead’s prognosis is guarded, she has a previous history of major depression, and this episode is an aggravation of same; she is abusing alcohol, she so far has had poor response to treatment, her employment was terminated, she feels mistreated and targeted, this all points to a guarded prognosis.”
Dr Malik was asked whether, if Ms Redhead’s evidence was “not accepted,” he would consider that performance appraisal and discipline action was the whole or predominant cause of the worker’s history. Dr Malik repeated his opinion that Ms Redhead’s psychological symptoms pre-dated the performance appraisal and disciplinary action, although they contributed to her stress and psychological condition.
He then said that if Ms Redhead’s evidence were not accepted in terms of the stressors that predominantly caused the aggravation of her pre-existing condition, then the performance appraisal and disciplinary action would be the only stressor left and thus would have to be the whole cause, as I read his advice.
Dr Malik further confirmed that Ms Redhead remained symptomatic from her attendance on her general practitioner (GP) in July 2021, and that she worsened until she had to cease work. He was then asked to address the question of whether the disciplinary and performance related actions aggravated Ms Redhead’s symptoms. Dr Malik responded:
“Ms Redhead has a history of major depression; she was diagnosed initially in 2011 and was treated for the same. At the time of working with MNCLHD, and before her current episode, she was on an antidepressant. In my professional opinion, on the balance of probabilities, I believe her current symptoms are an aggravation of the pre-existing condition. in terms of what caused that aggravation, as per my initial report, this was predominantly caused by workplace stressors, however, if Ms Redhead’s evidence of those stressors are not accepted then disciplinary and
performance-related actions of the insured are the predominant cause of this aggravation.”

The July 2021 clinical note

The note referred to by the respondent appeared on 29 July 2021. The clinical notes from Ms Redhead’s treating medical practitioners, Hastings Medical Centre, showed that
Ms Redhead consulted Dr Mainak Nag. Dr Nag recorded:[4]
[4] Applicant ALD p 204.
“Leanne
Issue wth MH
Lexapro 20mg
Not happy with workplace
Left work yesterday earlier.
Feeling tired as well.
Sartetd lexapro 3 years ago.
Would like to increase.
Nil sefl harm
Reason for visit:
Tiredness, depression
…
Diagnosis:
Depression.”

Dr Paisley

Dr Shannon Paisley, consultant psychiatrist, was qualified by the applicant’s solicitors. She reported on 10 March 2022[5] and on 24 May 2022[6].
[5] ARD p 97.
[6] ALD p 1.

10 March 2022

Dr Paisley took a history that Ms Redhead lived on her own at Port Macquarie and that she was single and had no children. The history taken by Dr Paisley was that the applicant had been bullied from the time she commenced employment and that the main perpetrator was Nadine Ironfeld, with involvement from other work colleagues, who spoke poorly about
Ms Redhead. Ms Redhead said that she clashed with Ms Ironfeld from the beginning and she felt she was micromanaged and excessively scrutinised.
Dr Paisley took a history that was broadly consistent with the applicant’s statement, the
s 287A notice, and Dr Malik’s opinions. She noted that Ms Redhead sometimes left work early because she was unwell and was asked to explain her absences by management.
Ms Redhead had been abused by a colleague for putting a load on for sterilisation that would finish by 10pm which is when staff was meant to finish the shift, but there is a culture of staff leaving early at about 9:30pm and the supervisor usually left at 9pm.
The actions referred to by the respondent in the dispute notice of 7 April 2020 were discussed. Dr Paisley took a history of Ms Redhead recording a conversation amongst her colleagues when she was not in the room, including hearing somebody say “I’m fuckin’ done with Leanne”. She reported this to management and felt she was persecuted as a result. She was issued with a misconduct notice, and she apologised, acknowledging that she had done the wrong thing.
Dr Paisley also took a history of the second misconduct notice which was issued alleging that she had left work without permission and had not been wearing a mask properly. This arose out of an incident where a close contact within the unit, with whom Ms Redhead had been working for the past three days, had tested positive for Covid. She informed the Nurse Unit Manager and, because she was receiving conflicting directions from management whether she should stay in the department or go to the respiratory clinic, she left the unit to get tested.
Dr Paisley recorded[7]:
“Ms Redhead said that she was asked to show cause why she should not be terminated. She felt targeted and lost all trust in management at work.”
[7] ARD p 102.
Dr Paisley reported that the applicant’s mental health gradually declined from 2019 when she started working with the respondent.
Dr Paisley noted that the applicant saw her GP in July 2021 and that her antidepressant was changed from sertraline to desvenlafaxine 50 mg per day. She noted that the next attendance on the GP was on 6 December 2021 and that she had six sessions with a psychologist from the Employee Assistance Program in December 2021.
Dr Paisley took a history of the applicant’s past psychiatric history which first occurred in 2012 as a result of a physical injury and she was prescribed an antidepressant. That antidepressant was changed to sertraline 50 mg in the morning in 2017 while she was working at Tweed Heads. She remained on that antidepressant at that dose at the time she commenced employment at Port Macquarie. At that stage she did not feel depressed and was excited to begin work. Dr Paisley reported that Ms Redhead’s mother may also have suffered from depression.
Dr Paisley noted that the applicant was drinking alcohol in modest amounts before the problems occurred and she has since been drinking 8 to 10 standard drinks per day and she smoked 30 cigarettes per day.
Dr Paisley’s opinion was that Ms Redhead was suffering from a current major depression disorder. She found that she was not able to work in any capacity because of the severity of the symptoms. She said:[8]
“There was a pre-existing history of recurrent Major Depressive Disorder which predisposed her to developing this episode. However, her current episode was not a continuation of a pre-existing condition, and she was reportedly asymptomatic at the time she commenced her employment with the insured.
Therefore, I consider that her employment with Port Macquarie Base Hospital was a
substantial contributing factor to her psychiatric injury.”
[8] ARD p 107.

24 May 2022

In a supplementary report of 24 May 2022[9] Dr Paisley was advised by her retaining solicitors:
“1. Your report does not adequately provide reasoning as to the relationship between the respective allegations by our client as set out in her statement and the psychological injury. We require a more detailed summary of the events and your opinion on causation.”
[9] ALD p 1.
Dr Paisley said:
“Ms Redhead detailed statement dated 27 January 2022, detailed 9 incidents which upset her at work. She described Nadine disregarding her physical restrictions which were in place because of a shoulder injury. She said that Nadine monitored her excessively to the point where she felt micromanaged and intimidated. She described others noticing how badly Nadine treated her and others. She alleged that Nadine yelled at her in front of others. She alleged another colleague named Christine yelled at her and called her a ‘selfish child.’
In summary, she described a persistent pattern of behaviours from several of her colleagues in her workplace which amounted to bullying and harassment. This made her feel humiliated, angry, fearful and belittled. She felt emotionally unsafe in the workplace and unsupported and vulnerable. It is understandable that these experiences could cause a psychological injury. There was no evidence of any non-work related stressors during this time which may have contributed to her injury. Therefore, these events at work were the main contributing factor to her current psychological condition.”

The second question asked of Dr Paisley was:[10]
“2. Ms Redhead had a prior psychiatric injury as a result of bullying at Tweed Head Hospital in 2018. She was still on medication at the time of these subject events. Do you consider that the disease process has been aggravated by the more recent events? If so, please provide your opinion on that and indicate whether employment is the main contributing factor to the aggravation.”
[10] ALD p 2.
Dr Paisley said:[11]
“The documentation from her psychologist at The Shrink Company and Kennedy Drive Medical Centre note that she was diagnosed with an Adjustment Disorder secondary to bullying at work. This was the subject of a WorkCover claim. She had returned to her preinjury duties and hours by 5 April 2019. On 11 June 2019, prior to her commencing employment at Port Macquarie Base Hospital, her psychologist noted that – “her adjustment disorder remains in remission.” She continued to take an antidepressant named Lexapro at a dose of 30mg in the mornings
She also had a pre-existing history of depression secondary to her physical injuries at Royal Darwin Hospital before she moved to Tweed Heads.
Given her significant past history of depression, it is reasonable to consider that her current condition is an exacerbation of a pre-existing condition. The evidence suggests a deterioration in her mental state whilst working at Port Macquarie Base Hospital. Her employment during this time is the main contributing factor to the aggravation.”
[11] ALD p 2.

The respondent’s actions

The specific charges made against Ms Redhead were contained in letters dated
[12] Reply pp 7 and 10 respectively.
29 October 2021 and 25 November 2021 from the Nurse Manager Per-operative Services (acting).[12]
The first letter alleged:
“It is alleged that on or around Thursday 7 October 2021 you left your mobile phone on record in the CSSD packing room for the purpose of recording staff conversations without their consent. You later admitted you had recorded these conversations to the CSSD Manager.”
The second letter made two allegations. The first was:
“It is alleged that on Thursday 4 November 21, after being informed a colleague had tested positive for COVID you left the department against advice to be rapid swabbed in ED, where you were instructed to go back to CSSD. You later again left the department of your own accord, without permission and against advice to get swabbed at the drive thru facility, leaving your work team short.”
The second was:
“It is alleged that on and around early November 2021, you have been non-compliant with the mandatory wearing of PPE as per CEC guidelines.”

Respondent statements

The respondent lodged statements from Mr Anthony James Montgomery dated
[13] Reply p 15.
[14] ARD p 19.
19 January 2022[13] and from Ms Teremoana Barnes dated 1 February 2022[14].

Mr Montgomery

Mr Montgomery referred to an incident described by the applicant as occurring on
2 December 2020 after she had returned from leave after time off for a broken leg. The applicant said in her statement that she had been closely watched by Ms Ironfeld, who had interrupted her whilst she had been showing a new staff member, Patrick McQuaid, the LMA process. Ms Ironfeld told Mr McQuaid to go to another area as there wasn’t enough work in the applicant’s section.
Mr Montgomery said:[15]
“11.   This incident did occur as explained by Leanne. It was obvious that Nadine was watching Leanne closely.
12.    l could tell by Nadine’s body language that she was getting agitated.
13.    She did come out and tell Patrick to go next door.
14.    There was enough work for Patrick to be there.
15.    It was obvious to me that Nadine was micro-managing Leanne.
16.    Nadine would not do this to other staff members.
17.    I did make a comment to Leanne that Nadine just couldn’t help herself.”
[15] Reply p 16.
Mr Montgomery also described another occasion which occurred “just after I stepped down from management” when he was speaking to Ms Barnes and Belinda Geary, who was the nurse manager. He said that he was explaining that Ms Ironfeld was not suitable in a supervisor’s role due to her attitude and interactions with other staff which included
Ms Redhead. He said that he had witnessed an interaction between Ms Ironfeld and the applicant when the applicant was printing a ticket out on the computer. When asked why she was doing that by Ms Ironfeld the applicant said it was easier than using folders. At the time there were plenty of other computers not being used and available but nonetheless
Ms Ironfeld said:
“Well what if other people need to use the computer.”
Mr Montgomery described Ms Ironfeld’s tone of voice as “slightly aggressive towards Leanne and in my opinion unnecessary”.
Mr Montgomery said that “it was common knowledge” that Ms Ironfeld and the applicant did not get on. He said:[16]
“Leanne is very blunt and calls a spade a spade which contributed to a breakdown in the relationship between Nadine and her but in my opinion Nadine had more of a responsibility to try and improve the relationship.”
[16] Reply p 17 [27].

Ms Barnes

Ms Barnes gave a comprehensive statement which also referred to the applicant’s statement. Ms Barnes said she was the Network CSSD Manager and that the applicant was one of her staff members.
Ms Barnes recalled a situation where there was conversation in the packing room and that there was some feeling in the workplace. Ms Barnes said:[17]
“24.   There was some animosity in the workplace. It was like they were looking at a staff member to vent. The staff member in question would then get a [consciousness] that everyone was against them and in this case it was Leanne.
25.    I believe that Leanne was overacting about trivial things.
26.    I believe that Leanne was already in a bad head space and was not coping in the work environment.”
[17] Reply p 21.
Ms Barnes said there was division in the workplace in that some staff tolerated Ms Redhead, but others did not. She said:
“27.   I did do an assessment on Leanne. She does work better on her own and I believe she prefers this….
28.    Leanne is not very chatty or good at being around others.
29.    Leanne doesn't realise that there needs to be a bit of give and take with other staff members.
30.    I recall Shijo coming to see me telling me that he liked working with Leanne as you know where you stand but he told me that others didn't get on with Leanne. There was nothing specific said about Leanne apart from there was talk about her. He didn't tell what the actual conversations were about.
31.    At this point there was a division in the work place. Some staff were tolerating her, but others weren't. Leanne was also playing on this and pushing back.”
Ms Barnes commented on what she had heard about the other incidents reported by
Ms Redhead, but she did not witness them. She referred to another incident, saying:
“41.   lt was all about Leanne's attitude. Christine was strong enough to stand up to Leanne and Leanne did not like this.
42.    It was an unnecessary blow up caused by the fact that Leanne cannot get on with other staff.
43.    At the end of the day, it was an unnecessary trivial matter.”
Ms Barnes said she “couldn’t believe” that Ms Redhead had been secretly recording conversations between other staff. She said at [52]:
“I didn’t know what Leanne was trying to do.”
Ms Barnes further confirmed that an episode of Ms Ironfeld’s smirking at Ms Redhead at a meeting about the cigarette smell in the change room where Ms Redhead (who smokes 30 cigarettes per day) would have a smoke. However Ms Barnes spoke to Ms Ironfeld about it and “from memory” Ms Ironfeld said it was reciprocated in that Ms Redhead as making faces at Ms Ironfeld.
Ms Barnes said she could not get the full picture even though she spoke to other staff members. She said no-one actually witnessed the behaviour, so she was unable to do anything about it.
Ms Barnes also referred to the Covid test warning, saying that Ms Redhead had completely disregarded management instruction and would have put the entire hospital at risk, had she tested positive.
Under a heading of “other matters,” Ms Barnes said that there was a strained relationship between Ms Redhead and Ms Ironfeld with a history of a couple of years that Ms Barnes was not privy to. Ms Barnes said that she did not believe “this” was all Ms Redhead’s fault.

SUBMISSIONS

Mr Trainor

Mr Trainor submitted correctly that there was a consensus between the medico-legal experts on either side of the record that the applicant both suffered a psychological condition and that she was totally incapacitated.
The only issue for determination was therefore the respondent’s reliance on the provisions of section 11A. Mr Trainor submitted that the actions relied on by the respondent were far from clear, but he opened his address by stating that he would not be addressing whether those actions had been reasonable.
Mr Trainor observed the “truism” that the onus of proof was on the respondent to establish the defence under s 11A. Mr Trainor said that the issue for examination was whether the actions by the respondent were wholly or predominantly the cause of Ms Redhead’s condition.
Mr Trainor addressed the facts, submitting in effect that they were uncontestable.
It was accepted, Mr Trainor said, that when the applicant commenced her employment in June 2019 that she had a psychiatric condition that was in remission.
He submitted that the various stresses aggravated her previously asymptomatic condition. Her condition was well in existence at the time of the misconduct investigation.
Further, Mr Trainor submitted the respondent was unable to prove its defence because the reports of Dr Malik did not establish that the cause of Ms Redhead’s injury was wholly or predominantly its actions. Dr Malik’s reports were supportive of the applicant’s case and made the totality of the employment and toxic relationships amongst the workers the cause of the disorder. The second report of 27 May 2022 was, Mr Trainor said, an attempt to repair that deficiency by raising the doubt as to the applicant’s credit in saying that if the applicant’s evidence was rejected, then it could be said that her condition had been caused wholly or predominantly by the respondent’s actions.
However Mr Trainor said, the evidence established the case, and again referred in detail to the evidence he relied on.
Mr Trainor submitted that the evidence corroborated the applicant’s evidence and thus fundamentally undermined the interpretation the respondent wished to place on Dr Mallick’s evidence.
Mr Trainor submitted that it would be “idle” for the respondent to submit that the work place was anything but toxic. All the witnesses who gave evidence for the respondent confirmed a toxic work environment well before the disciplinary actions were taken. Ms Ironfeld’s statement was conspicuous by its absence, he submitted.

Mr Grimes

Mr Grimes argued, by reference to authority, that the word “predominantly” should be interpreted as meaning “stronger, and something that would prevail over any other cause or causes”.
I was also referred to Department of Education & Training v Sinclair.[18]
[18] (2005) NSWCA 465.
Mr Grimes said that Ms Redhead’s complaints to her GP in July 2021 as reported by Dr Nag were not probative of a continuing symptomatic condition thereafter.
There was scant evidence to accept that the other events relied on by Mr Trainor were causative, he submitted. It was after the disciplinary notices were issued on
6 December 2021 that the applicant obtained medical treatment. He submitted that the entry in the clinical notes on 22 November 2021 made no reference to work, it simply noted that the applicant was suffering from headaches and migraines. However, he said, on
6 December 2021 the disciplinary notices made the applicant seek medical attention.
What was noted in July 2021 was a minor problem, Mr Grimes submitted, notwithstanding there had been an alteration in her anti-depressant medication.
Mr Grimes said there was no dispute that the applicant had surreptitiously recorded conversations staff were having by leaving her iphone switched on. Neither was there any dispute about the other allegations made in the further letters the applicant received.
He submitted that there was a strong temporal connection that substantiated the s 11A defence and accordingly the predominant cause of the applicant’s psychiatric condition was the actions by the respondent.
Mr Grimes emphasized that it was on 6 December 2021 that the applicant saw Dr Nag and related that the reason for doing so was the multitude of disciplinary issues that occurred in a really short period of time.

Mr Trainor in reply

Mr Trainor restated that the reasonableness of the actions taken by the respondent was not challenged. He submitted that there were a number of cases similar to those cited by
Mr Grimes, but ultimately the issue was whether the respondent had satisfied its onus of proof, of which, Mr Trainor said, the respondent had none, due to the content of its expert evidence.
The Commission was being asked to accept a gloss on the facts that had been made by counsel from the bar table, Mr Trainor said. It had no evidence to satisfy its onus of proof.
Mr Trainor then sought leave to make further submissions. As far as the prior psychological condition was concerned I was referred to the treatment notes of psychologist Ms Bishop that confirmed Ms Redhead’s prior adjustment disorder whilst she was working in Tweed Heads.
Whilst there was no medical attention between commencement in June 2019 and when the applicant saw Dr Nag in July 2021, that did not mean that the applicant’s condition had been asymptomatic over that time, Mr Trainor said. That proposition was established by the evidence of Ms Barnes when she said on 11 April 2021 the applicant was “not in a good headspace”. It was clear that she was having psychological problems at that time.
The juxtaposition of these matters could only lead to the conclusion that Ms Redhead had been symptomatic and her prior condition had been exacerbated.

DISCUSSION

I observe that the respondent appears to have based its declinature on a psychiatric diagnosis of the cause of Ms Redhead’s injury, without the benefit of either legal or medical expert opinion. When it belatedly obtained Dr Nabil Malik’s opinion, the medical basis for the denial of liability was not only unsupported, it was contradicted.
In any event, the legal basis of the declinature was flawed. Whether the injury had been wholly or predominantly caused by respondent’s actions was not a relevant fact for the applicant to prove. The contention in the s 287A Notice of 7 April 2022 stating that
Dr Paisley did not consider whether the actions of the respondent had caused Ms Redhead’s injury was misconceived. It was for the respondent to prove that it was entitled to the statutory protection of s 11A of the 1987 Act.
Section 11A (1) provides relevantly:
“(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.”
In Hamad v Q Catering Ltd[19] DP Snell said:
“45. The causal test in s 11A(1) is “different, and more difficult”, in that the test does not involve proof of “personal injury arising out of or in the course of employment” (the s 4(a) test), or that employment was a “substantial contributing factor” to the injury (the s 9A test), but rather whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
…….
88. 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.”
[19] [2017] NSWCCPD 6.
Mr Grimes submitted all he could in support of the decision by the insurer to rely on s 11A. However, the evidence he relied on had already been considered by his own medical expert, Dr Malik, who was uncompromising in his opinion that Ms Redhead’s psychological disorder was already extant at the time the respondent first took action in the form of the letter of
29 October 2021.
A consideration of Ms Redhead’s offence that provoked that letter is useful, as it underlines the conclusion both Dr Malik and Dr Paisely came to regarding whether the disorder was wholly or predominantly caused by the actions taken on and after 29 October 2021.
Ms Redhead admitted that she had left her mobile phone on ‘record’ in the CSSD packing room for the purpose of recording staff conversations without their consent. As was pointed out to Ms Redhead, such conduct was contrary to the respondent’s Code of Conduct, and indeed might have been an offence under the NSW Surveillance Devices Act 2007. This behaviour demonstrated two things:
(a) firstly, Ms Redhead was so distracted by the hostility that she was encountering that she determined to obtain the recording to demonstrate her point, and
(b) secondly, the fact that she could do so showed the extent of her distress and is some corroboration, if corroboration were needed, of her already present symptoms.
Assuming, without deciding, that Mr Grime’s interpretation of the word “predominantly” was correct, he was still unable to establish that the actions taken as illustrated by its letters of
29 October 2021 and 25 November 2021 were stronger than, and prevailed over other causes of Ms Redhead’s disorder.
Both Dr Paisley and Dr Malik were fully appraised of the relevant facts, and it was not submitted that either expert had failed to consider any of the issues raised by Mr Grimes. Indeed Mr Grimes turned a blind eye to his own expert’s unequivocal opinion. I read
Dr Malik’s concession that the relevant actions might have constituted the whole and predominant cause of Ms Redhead’s disorder as an unrealistic assumption to expect him to make. His logic that if every other workplace stressor was “not accepted” then he would have to say that the respondent’s actions were wholly and predominantly the cause – simply because no other causes were left – demonstrated that Dr Mailk was dismissive of the assumption he had to consider.
That assumption - that Ms Redhead’s evidence was “not accepted” - logically meant that the evidence of Mr Montgomery, who confirmed the inappropriate conduct of Ms Ironfeld, also had to be “not accepted”. Further, the evidence of Ms Barnes, who also confirmed that there was animosity in the workplace, and that Ms Redhead was the object of her colleagues “venting,” had to be “not accepted”.

In case there was any doubt about Dr Malik’s opinion, he made it abundantly clear, when, as indicated above, (but to repeat) he said:
“Ms Redhead has a history of major depression; she was diagnosed initially in 2011 and was treated for the same. At the time of working with MNCLHD, and before her current episode, she was on an antidepressant. In my professional opinion, on the balance of probabilities, I believe her current symptoms are an aggravation of the pre-existing condition. in terms of what caused that aggravation, as per my initial report, this was predominantly caused by workplace stressor, however, if Ms Redhead’s evidence of those stressors are not accepted then disciplinary and
performance-related actions of the insured are the predominant cause of this aggravation.”
The inanity of that assumption demonstrated that the respondent was attempting to patch up its medical case, which had been contradicted by the opinion of its own expert medical specialist. Its adoption in the s 287A Notice of 7 April 2022 of Dr Paisley’s history of bullying from the time the applicant commenced work and its naming of Ms Nadine Ironfeld as the main perpetrator has not been withdrawn. Its denial has been on the basis of s 11A, but, as indicated above, the reliance on that statutory defence has been misconceived and made without the benefit of a proper appreciation of the consequences thereof.
There is also the question of Ms Nadine Ironfeld to consider. She was identified by
Ms Redhead and Mr Montgomery, as being the focus of the discontent in the workplace.
Ms Barnes was also aware of the animosity, but said she was unable to get to the bottom of it.
The inference that is available from this body of evidence is that Ms Ironfeld’s conduct was such as to cause the aggravation of Ms Redhead’s previously asymptomatic psychological disorder. Mr Montgomery’s view was certainly indicative that Ms Ironfeld’s conduct in micro-managing and overbearing Ms Redhead in the workplace amounted to bullying. I note his comment that Ms Ironfeld did not do this to other staff members.
No explanation was given for the lack of any evidence from Ms Ironfeld, and I infer that we have nothing from her because her evidence would not assist the respondent’s case.
Ms Ironfeld was indeed conspicuous by her absence.
I accept Mr Trainor’s submissions that the evidence adduced by the respondent’s witnesses confirm that Ms Redhead was a target for conduct by Ms Ironfeld that amounted to a lack of support and a somewhat malicious tendency to denigrate her behind her back.
It is not unusual for there to be personality clashes with the workplace, and it may be that the applicant herself has a somewhat abrasive character. However, an employer is obliged to take its worker as it finds him/her. That did not entitle its supervisor to treat Ms Redhead with such disdain by bullying her as Ms Ironfeld did.
Both medical experts were of the same mind. I have not dealt with Dr Paisley’s opinion in any detail, or indeed that of the applicant’s statement, for that reason.
There will accordingly be an award for the applicant.
As indicated, on 30 May 2020 I issued the following direction:
“I direct the parties to lodge an Agreed Wages Schedule by 13 June 2022. In default thereof, each party is to lodge and serve a submission as to the appropriate PIAWE.”
Submissions were duly lodged by the applicant. The respondent did not put on any written submissions, but simply refiled its wages schedule.
The applicant submitted that on her return to work after recovering for five months from her broken leg, she was doing graduated restricted duties for three months. She accordingly could not earn penalty rates from June 2020 to February 2021. This accounted for the lower PIAWE assessed by the respondent, and the provisions of Schedule 3, cl 2(3)(a) of the 1987 Act and Regulation 8C of the Workers Compensation Regulation 2016 applied, as there had been a material change in the applicant’s earnings.
Schedule 3, clause 2(3)(a) provides:
“(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)-
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, …”
Regulation 8C provides:
“8C ADJUSTMENT FOR FINANCIALLY MATERIAL CHANGE TO EARNINGS--SCHEDULE 3, CLAUSE 2(3)(A) OF 1987 ACT
(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
The relevant period is from 5 December 2020 to 5 December 2021 and the spreadsheet showed that 60 hours of penalty rates at 10% were accrued between 30 November 2020 and 21 February 2021, and that some further penalty rates accrued at 12.5% after
14 December 2020. Accordingly I am not satisfied that there was a change of an ongoing nature to the employment arrangement.
I accept that the spreadsheet accurately sets out the statutory entitlement of Ms Redhead.
I find, in accordance with the medical evidence on both sides of the record, that she has no current work capacity. Accordingly I make the following determination:
The Commission finds:
(a) the applicant suffered a psychiatric/psychological injury on a deemed date of
6 December 2021, and
(b) her PIAWE was $1,255.78.
The Commission orders:
(a) the respondent will pay the applicant weekly compensation as follows:
(i)$1,130.20 pursuant to s 36 from 6 December 2021 to 7 March 2022, and
(ii)$1,004.62 pursuant to s 37 from 8 March 2022 to date and continuing.

[2022] NSWPIC 430

2 August 2022