Robb v FreshFood Management Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Robb v FreshFood Management Services Pty Ltd [2023] NSWPIC 554
APPLICANT:	Tracy Robb
RESPONDENT:	Freshfood Management Services Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weeklies and medical expenses in respect of a psychological injury; section 11A defence in respect of demotion and provision of employment benefits not made out; Held – award in favour of the applicant for weekly payments for partial incapacity and section 60 expenses.
DETERMINATIONS MADE:	The Commission determines: 1. Respondent to pay the applicant weekly benefits as follows: (a) $2,319.10 from 16 December 2022 to 23 January 2023 pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act); (b) $1,663.60 from 24 January 2023 to 30 January 2023 pursuant to s 36 of the 1987 Act; (c) $1,625.82 From 31 January 2023 to 6 February 2023 pursuant to s 36 of the 1987 Act; (d) $1,805.98 from 7 February 2023 to 17 March 2023 pursuant to s 36 of the 1987 Act; (e) $1,439.81 from 18 March 2023 to 31 March 2023 pursuant to s 37 of the 1987 Act; (f) $1,518.88 from 1 April 2023 to 30 June 2023 pursuant to s 37 of the 1987 Act and (g) $1,474.48 from 1 July 2023 to date and continuing pursuant to s 37 of the 1987 Act. 2. Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

The applicant, Tracy Robb (Ms Robb), was employed by the respondent, Freshfood Management Services Pty Ltd (the respondent), as a Team Facilitator. The respondent was insured by Employers Mutual (NSW) Limited (the insurer) at all relevant times.
Ms Robb alleged that she sustained a primary psychiatric injury in the course of employment. The deemed date of injury was 16 December 2022.
Ms Robb made a claim for weekly benefits and medical expenses on 24 January 2023.
The respondent disputed liability in respect of the claim for weekly benefits and medical expenses in a Section 78 notice dated 18 January 2023 and in the Section 287A Review Notices dated 22 February 2023, and 10 May 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Was Ms Robb’s injury the result of reasonable action with respect to demotion or provision of employment benefits (s 11A of the Workers Compensation Act 1987 (the 1987 Act))?
(b)    Whether Ms Robb had an entitlement to weekly compensation due to partial or total incapacity for work from 17 December 2022 to date excluding 30,
31 January 2023 and 1 February 2023?
(c)    Whether s 60 expenses were reasonably necessary?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via the video platform TEAMS on 5 October 2023. Ms Robb was represented by Ms Lyn Goodman, who was instructed by Mr Sawers of Walker Law Group. The respondent was represented by Mr John Gaitanis, who was instructed by Mr Lichaa of Bartier Perry Lawyers. Mr Rendon from the insurer attended the conference.
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 parties were directed to file additional information about wage rates within seven days following the arbitration on 5 October 2023. Ms Robb’s solicitor, Mr Sawers forwarded that information to the Commission on 10 October 2022. I note that the respondent consented for the information to be sent to the Personal Injury Commission (Commission).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    all documents attached to the Application to Admit Late Documents (AALD) dated 27 September 2023 filed by Ms Robb;
(c)    Reply and attached documents, and
(d)    all documents attached to the AALD dated 27 September 2023 filed by the respondent excluding pages 1-80 of the attachments.

FINDINGS AND REASONS

Submissions

The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submitted that the reasonable actions of the respondent in respect of demotion and provision of employment benefits in December 2022 were the whole or predominant cause of
Ms Robb’s psychological injury.
Ms Robb submitted that the respondent had not acted in a reasonable manner in respect of demotion or the provision of employment benefits in December 2022.

Evidence of Tracy Robb – statement 8 February 2023

In a statement dated 8 February 2023, Ms Robb said that she commenced employment with Bushells Unilever Instant Coffee Processing on 6 January 1993 as a Dryer Operator. She said that she then worked as an Extractor Operator and was promoted to Team Facilitator 14 months later. She stated that in 1998 Bushells Unilever was sold to the respondent.
Ms Robb wrote:
“24.   On 16 December 2022 my last day before the Christmas break, I came across a roster on the lunch table in the Control Room of my workplace. Shows my change in role from Team Facilitator which I have held for 29 continuous years to Extractor Operator.
25.    It was a huge surprise and I was in total shock. I was absolutely devastated, confused and upset. I could hardly breathe asking myself why and how this decision was made. Most hurtful was I had to find out about this significant work change by reading it on a Roster.
26.    More importantly, not one person in Management including my own direct Manager had the decency to speak to me in person about their decision to change my role.
27.    On 16 December 2022 I arranged a meeting with Senior Manager Mr Harry Poeltl. Kapila (Team Facilitator) and Steve Tiberti (Electrician Supervisor) kindly agreed to accompany me for support which was appreciated. They knew I was very upset, inconsolable and were aware of the circumstances.
28.    On arriving at Harry’s office, Steve was immediately asked to leave by Harry as he claimed the matter had nothing to do with him. “What are you doing here Steve, you don’t need to be here, this has nothing to do with your area. If you want me to proceed with the Meeting, you cannot come in”. Steve left.
29.    The purpose of the meeting was to discuss Roster change and to understand why I, out of 4 Team Facilitators, was being rostered on to Extractor Operator role.
30.    I told Mr Poeltl that the Company already had an Extractor Operator (Niranjan) who’d held the role for 3 years. He responded that Niranjan was a Team Facilitator. On hearing this, I knew I was being replaced by Niranjan to fill his prior role continuously. Mr Poeltl refused to make any amendments to the Roster and insisted that I escalate this issue with the Union. The meeting lasted 3 minutes.31. I am extremely disappointed with the meeting. Harry did not explain why I was being impacted by the Roster change.
32.    This unreasonable decision to move me has occurred despite there being no performance related issues or any explanations given to me. After the meeting on the 16 December I ask the guy that was replacing me whether he knew about the change in the roster and he said he was told at the supervisor interview.”
Ms Robb said that a restructure plan discussion was held between the respondent and union delegates in September and October 2022. She stated that the restructure involved reducing rotating shifts from seven days to five days per week (Monday to Friday), with no weekend work. Staff numbers would reduce from 12 to 9, with no redundancies.
Ms Robb wrote:
“42. There were no prior discussions about the change to the Team Facilitator role at these meetings.
43. There was also no consultation process via one-on-ones or Area Department meetings by Management with me about changes to my role as a Team Facilitator as per Roster.
44. I am not aware of any instance during my tenure where there has been a change in role from Team Facilitator (Grade 5) to an Extractor Operator (Grade 4) on a continual basis.”
Ms Robb stated that after the incident on 16 December 2022 she did not return to work until 30 January 2023. She wrote:
“51. On 30 January 2023, I was cleared to return to work 8 hours per day for 3 days a
week. The next day at work, I had meeting with management at their request. I
attended with Graham Findley (Union delegate). At the meeting The Managers
advised me to finish next day and not return to work until I had a clearance to return
to work full-time.
52. I felt devastated by the decision and cried during the Meeting. I felt returning to work on reduced hours was an opportunity to rehabilitate myself mentally and physically. I have witnessed numerous employees that are on work restrictions and get the opportunity to rehabilitate themselves back into company and wondered why I was
being treated differently.
53. I feel discriminated by the restructure. I believe I am being bullied and targeted to leave by a company that does not want my service to continue.”

Statement of Ramon Alvarez - 21 August 2023

In a statement dated 21 August 2023, Ramon Alvarez, production manager with the respondent stated that he was under the impression that Ms Robb’s claim originally related to “her demotion” which was declined by the insurers. He stated that Ms Robb was the ICP Team Leader in Production, a grade 5 position. He noted that each shift consisted of three staff, including a Team Leader (grade 5), Extractor Operator (Grade 4) and Dryer Operator (Grade 3). He said that Ms Robb reported to him.
Mr Alvarez stated that because he only worked an eight hour shift and the premises ran 24 hours a day management decided to add an afternoon supervisor role to cover the whole site and the periods when he was not at work. The supervisor position was at a higher grade than Team Leader. He stated that Ms Robb did not apply for the position of supervisor. He described her as being very quiet and not talking much. He stated that she was not very social.
In terms of the events leading up to and before Ms Robb was notified of her demotion,
Mr Alvarez stated that the respondent made a decision to change its hours from working 24/7 to 24/5 days a week due to the fact it was not profitable or sustainable to continue production at weekends due to the additional costs of penalty rates and also the unexpected increase in energy costs.
Mr Alvarez stated that due to the restructure only three not four groups were required to run the plant and it meant three people had to be moved to a different position. He stated that the new supervisor position needed to be filled and they interviewed the four Team Leaders who applied for the role. He stated that Ms Robb did not apply for the role. He said that
Mr Mahendran was appointed. He stated that this left two extra persons who had to be moved.
Mr Alvarez wrote:
“39. The General Manager Harry Poeltl had meetings at least in three occasions from September 2022 with the Union Delegates along with me and HR to find a way to keep all our staff employed.
40. During these meetings, Harry explained to the union that we were moving to a 5-day work week and requested feedback from them on how this would be easier for them as we had to choose 2 people that had to rotate into another position.
41. I was short an Extractor Operator as the previous Operator retired. This position was being temporarily managed by Niranjan who was a Team Leader covering the position.
42. I told the team leaders that I would rotate all 4 of them into the extraction role unless one person wanted to take it on a permanent basis. How they wanted to rotate into that position we left up to them. They would remain on the pay grade of a Grade 5 position.”
Mr Alvarez stated that the team leaders did not come back with a decision. He wrote:
“45. We were going to start operations on 10 January 2023 so on 9 December 2023 [sic] we had to set out the rosters for everyone. I had to put someone into the position for the first shift, so I randomly chose to put the claimant as the first one to roster in that role for a 3-week period…
47. I picked the claimant as the first person into the role as I could not choose Kamal who was on leave at the time. Kapila and Robert were Union delegates and would have said that I elected them as they were the Union reps that left the claimant to start the extraction role rotation for 3 weeks.
48. Emails were sent to all relevant parties of this, including the claimant. The first email was on 10 December 2022 which was sent by Harry and was a provisional roster.
49. We always told the team leaders that we were rostering all of them to cover this position and all of them would remain on the same grade 5 salary
…
52. The claimant came to speak to Harry on 16 December 2023 [sic], where she was represented by the Union. She was upset that she was rostered into the role.
53. It is incorrect that the claimant was demoted. Nobody was being demoted. We were covering a position that needed to be covered. We had excess of Team Leaders and not enough Extractor Operators.”
Mr Alvarez stated that Mr Mahendran was a Team Leader from 2013 and often acted in floating positions to cover anyone who was on leave. At [55] of his statement, Mr Alvarez said that “For the first month, because Kamal was on leave, Naranjan was covering Kamal. Niranjan became a Supervisor in December 2022”.
Under a heading in his statement “Information in relation to any performance and conduct issues faced by the worker” Mr Alvarez stated that there were no performance and conduct issue. He then referred to an issue 3-4 years ago when Ms Robb was found with a TV in the control room.

Statement of Carmen Standley – 16 August 2023

In a statement dated 16 August 2023, Ms Carmen Standley, HR manager with the respondent, stated that Ms Robb was part of the union and worked with two other Team Facilitators who were Union Delegates. She wrote: “She was therefore on top of all the discussions that were taking place between the insured and the Union Delegates regarding issues of the insured”.
Ms Standley stated that one could not be a Team Leader without having knowledge on how to perform duties as an Extractor Operator. She wrote:
“38. We might not have directly consulted with the claimant due to the fact they were always on a rotating shift, but we discussed the matter with the union representatives, but we gave notice of this on the Union Boards.”
Ms Standley confirmed that the consultation process started four months before the
10 January 2023 effective date. She stated that two representatives from the Union said they would attend at the meetings. She wrote: “There is documentation that confirms all discussions were had between the insured and the Union Representatives. We also posted the meeting documents on the ICP office board.”
Ms Standley noted that they had a meeting with Ms Robb where they explained to her that it was not possible to give her three days of suitable duties as per her Certificate of Capacity. Ms Standley stated that this department needed a Team Facilitator to work five days on a rotating shift.

Statement of Harry Poeltl – 17 August 2023

In a statement dated 17 August 2023, Harry Poeltl, Business Manager with the respondent, stated that Ms Robb did not directly report to him. He stated:
“21. On 16 December 2022, there was some communications that went out to the ICP team regarding change of operations. We had changed from a 24/7 operation to a 24/5 operation. This therefore meant that the working roster of all individuals in the ICP team was to change.
22. The roster of the Team Leaders was to change to the extent that they would have to cover a shift of an Extractor as we were short an Extractor.
23. I am not aware of where this roster was, but there were rosters sent out to all Team Leaders looking for feedback. There would have also been rosters on the Notice Boards seeking feedback from all team members.
24. The claimant alleges to have come across a roster that she saw in a lunchroom.
…
38. As I did not have control of the communication in respect of this matter. I was of the opinion that it was communicated to all of the individuals and reiterated this to Carmen Standley and Ramon Alvarez.
39. I do know that initial discussions were held with the union representatives.
40. It would only be hearsay, but I would believe that the issues that we discussed with the union reps would have then been relayed to members of their union and team.
…
44. There would be emails and documents to confirm this.”

Statement Niranjan Mahendran - 16 August 2023

In a statement dated 16 August 2023, Niranjan Mahendran stated that he was employed by the respondent as an ICP supervisor. He said that he commenced his role as a supervisor on 10 January 2023 and prior to that was the ICP Facilitator from 2013. He described the facilitator as a Grade 5 floating position that required him to cover for anyone who was on annual leave from Team Leaders, Extractor Operators or Dryer Operators.
He described Ms Robb as very quiet. He wrote: “We received an email some time last year in December 2022 when they told us we have to work shifts in the Excavator Operator Position. …It was not a demotion in any way.”
Mr Mahendran stated that he was a member of the union but when the shift change situation was discussed with the respondent “we did not have discussions with our Union”. He noted that the supervision role as advertised and he discussed it with Ms Robb who said she did not want to apply for the position.
Mr Mahnedran stated that on 16 December 2022 Ms Robb was working day shift. He wrote:
“35. In the morning she saw the roster, and I believe this was the first time that she saw the email.
36. She asked me about it, and I told her that as far as I know we were being rostered into the role for 3 weeks at a time.
37. She got very angry and then went to speak to management.
38. I spoke to her again at around lunch time after her meeting with management and she agreed with me and understood that she was only working the shift of 3 weeks.”
Mr Mahendran described Ms Robb as a “very helpful person and not like the others. She is very quiet and does not get involved in gossip or office politics.”

Supplementary Statement of Tracy Robb – 18 September 2023

In a supplementary statement dated 18 September 2023, Ms Robb stated that she understood that the company had to restructure. She said that the issue was that the changes were not effectively communicated to all staff and no one on one meetings were held or a consultative process held with her.
She noted that Mr Ramon Alvarez explained the process of filling the supervisor role but stated that she had no desire to apply for the role. She wrote: “At point 42 Ramon says ‘I told the Team Leaders that I would rotate all 4 of them into the extraction role unless one person wanted to take it on a permanent basis. How they wanted to rotate into that position we left up to them.’ That’s a lie, he did not tell me. He mentions 4 Team Facilitators when there are 5, so he missed me out”.
Ms Robb noted that Mr Alvarez wrote “this role was not something that they were not unfamiliar with as they are required to cover the role if someone’s sick”. Ms Robb stated that she had only covered two times in my whole time at FFMS as a last resort. She wrote: “FFMS should also know the safety compliances on an Extractor plant, it has cells that are under pressure at 1100kpa. Safety should never be comprised. I was not trained for that role”.

Ms Robb referred to Mr Alvarez’s rationale for demoting her. She wrote:
“He wrote that Kamal was on leave and Kapila and Robert were Union Delegates, so he didn’t want to pick them. I maintain that I was not consulted about this. A three-week period doesn’t seem like a quick rotation, and it wasn’t communication to me that it wouldn’t be ongoing indefinitely at any point. I felt targeted because I wasn’t protected by being a Union delegate.”
Ms Robb noted that Mr Alvarez reported that emails had been sent regarding this but there had been ongoing password issues with her email, and when she reset it, it did not save. She said that this had been referred to IT multiple times for years and they would fix it, it would last for several days and then it would stop. She stated that she relied on her co-workers for all information because of this. Ms Robb wrote: “I have not seen email sent 10 December if it was. Between 10-13 December I was on night shift. 14 & 15 December were my days off and I returned to work 16th December”.
Ms Robb stated that an Extractor Operator was a lower graded role with much less responsibility than a Team Facilitator. She wrote: “There is no comparison. The Extractor role also reports to a Team Facilitator the minutes 10th October ICP Consultation - Tom Addy union representative asked if relevant training would be provided for employees to move up to various levels and Harry Poeltl stated that all relevant training will be provided if employees are moving up to different grades with the example if 2 team leaders volunteered to leave then an addition employee will be trained to become a Team Leader. She said that it was made clear that no employee will be moving down levels the only positions available are higher”.
Ms Robb stated that the Team Facilitator was a supervisory role responsible for multiple areas of the ICP process and did not have the same skill set as an Extractor Role. She noted that Mr Alvarez had stated that she would have been employed as an Extractor at one point. Ms Robb stated that she had been a Team Facilitator for approximately 27/30 years and suggested that she had not completed that Extractor role more than twice since becoming a Team facilitator.
Ms Robb referred to Mr Alvarez describing an issue three or four years ago, where he said that she was found with a tv in the control room where she was given a final warning in respect to Ms Robb provide different account of the events. She wrote:
“There was an issue with the grout system. I had worked tirelessly from 2pm when my shift began till 8pm to resolve the issue. It involved running between 3 floors troubleshooting and unblocking pipes which is not easy. If our Maintenance team were on site, it would have taken 3 people to fix same issue. My intention was to fix the problem otherwise all areas on the 3rd floor would have to be shut down. I was absolutely exhausted. In addition to the grout system there are multiple areas of the process that need to be checked and monitored to ensure it’s running smoothly. Our control room is also our lunchroom. I took the opportunity to take my break once everything had returned to normal. I removed my boots from my very sore feet near TV, when Management (Harry Poetl and Paul Doulton who no longer works there) walked in. The TV was already on, I did not remove the TV from the locker where the TV is stored as I do not have a key. The outcome is that I was suspended for 2 weeks with pay and given a first and final warning which I refused to sign. I recall writing words to the effect of ‘if you fire me, I will take legal action.”
Ms Robb referred to Harry Poeltl’s statement and the minutes of a meeting on
10 October 2022 where Harry made it clear that “no employee will be moving down levels the only positions available are higher grades.” She said that it was not true that Mr Poeltl sent rosters out to the Team Leaders looking for feedback. She said that none of her colleagues said to her, hey have you seen the rosters. She stated that no rosters were put up in the ICP Control room and there would have been some sort of conversation had the rosters been distributed or seen like Mr Poeltl said they were.
Ms Robb stated that she had been through a restructure before and effective communication was demonstrated through all phases of the restructure for shift workers. She stated that when it came to votes for passing the negotiations about the EBA, Management made sure that all the votes were covered with names ticked off but they did not apply this process with the restructure.
Ms Robb noted that Mr Poeltl wrote that discussions were held by Union reps and he believed the things he discussed would have been relayed to the team. Ms Robb stated that it was not appropriate to hear of the changes regarding a restructure along the grapevine. She believed that management had a responsibility to ensure effective communication was provided to her, with supporting documentation.
In relation to the statement by Carmen Standley, Ms Robb noted that Ms Standley said
Ms Robb was able to work as an Extractor operator. Ms Robb stated that the only individuals that would be able to fulfil the Extractor Operator competently were Niranjan, Anil, Shane and Roshan. She stated that overseeing the extractor plant as a Team Facilitator and knowing the process end to end were completely different. She said that bearing in mind the safety aspects of the role, full training would be required.
Ms Robb noted that Ms Standley referred to the meeting in January 2022 where they refused to provide her with three days of suitable duties. Ms Robb said that she cried during this meeting and was devastated by the decision. She felt returning to work was hard enough but working on reduced hours was an opportunity to rehabilitate myself mentally and physically. She said that she had witnessed numerous employees that were on work restrictions, and they got the opportunity to rehabilitate themselves.
Ms Robb referred to the statement of Niranjan Mahendran and noted that he had written that her demotion was “not a demotion at all”. She said that Niranjan’s role was to float from job to job but she had been a Team Facilitator for 27 years. She wrote: “It is a demotion when the role is a lower grade along with the Dryer Operator and both report into the Team Facilitator on shift”.
Ms Robb noted that Mr Mahendran wrote that he spoken with her around lunch time, and she understood and agreed I would only be working a lower grade for three weeks. She stated that this was not true.
Ms Robb referred to Mr Mahendran describing her as a helpful person who did not get involved in gossip or politics and gossip and “was not like the others’’. She stated that she got along and respected Mr Mahendran although he was not well-liked universally among the staff.

Claim Form and other documents

In the “Minutes of Meeting - ICP Consultation” dated 10 October 2022, attended by Harry Poeltl, Carmen Standley, Ramon Alvarez, Claudia Falcone, Tom Addy (Union Representative United Workers Union), Robert Oberman (Union representative BOU Manufacturing and Team Leader ICP) and Kapila Mendis Union representative BOU Manufacturing and Team Leader ICP) reference was made to feedback by union members and concern as to the process regarding the three excess ICP employees who would be moved within the business. Mr Poeltl stated that all relevant training would be provided if employees were up to different grades. Further “it was made clear that no employee will be moving down levels the only positions available are higher grades.” Mr Addy wanted to know what the criteria would be if there were no volunteers. Mr Poeltl said that they would need to follow the EBA and create a criterion. “They first need to determine the people needed to run ICP before they can consider who can be re-deployed.” Mr Addy added that once people knew what job opportunities were available they would get a rough idea on who would be volunteering. It was noted that “we need to develop a fair process through consultation.”
In a Claim Form dated 24 January 2023, Ms Robb under “Incident and worker’s injury details” stated that she had been diagnosed with an adjustment disorder after “being demoted from my position without warning”.
The roster headed “January 9/01/2023 to February 5/2/2023” showed that Kapila, Robert and Niranjan were rostered as Team Leaders for the shifts in this period and Ms Robb was rostered on as “Extraction”. There was no notation on the roster to the effect that her position as Extractor was for this three week period and she be then rostered again as a Team Leader.
In the minutes of the meeting on 31 January 2023, it was noted that Harry Poeltl stated that the respondent could not accommodate three days for her position and they would accommodate it for that week only. Mr Poelhl suggested that Ms Robb take time off until she got better and once she felt she was able to work full time she needed to let management know and they would put her back on the roster.

Medical reports

Medico-Legal Reports

In a report dated 21 April 2023, Dr David Kumagaya, consultant psychiatrist, noted that
Ms Robb described how, on 16 December 2022, she was advised by her manager that she was to receive a demotion from her role as team facilitator to a lower graded role as an extractor operator, effective from 10 January 2023 onwards. He reported that Ms Robb stated that she had not been consulted about this change, and that she did not have the requisite experience in the role as Extractor Operator. Ms Robb noted that she was the only Team Facilitator, out of five, who was to be transitioned to a lower grade role. Ms Robb also stated that she came to know that other employees within her organisation had known of this change in her role prior to this being conveyed to her.
Dr Kumagaya noted that in the context of such workplace stressors, Ms Robb described the onset of depressive and anxious symptoms, which included low mood, decreased interest and engagement in activities, sleep disturbance, concentration difficulties, problems with decreased energy levels, and anxiety. Ms Robb subsequently attended treatment through her general practitioner and psychologist. Following such treatment, Ms Robb returned to work on 30 January 2023 as a team facilitator on eight hours per day, three days a week. On the second day of her return to work however, Ms Robb stated that she was required to attend a meeting with management who told her to finish working the following day and not to return to work till she had clearance to return to work full-time. Ms Robb stated that this further destabilised her mental state and she had been unbale to return to work since.
Dr Kumagaya noted that Ms Robb had attended treatment for her psychiatric symptoms through her general practitioner and had attended one psychological therapy session before further sessions were suspended owing to financial constraints.
Dr Kumagaya made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. He considered that this condition was a primary psychological injury sustained as a result of her employment with the respondent and that her work was a substantial contributing factor to her psychological condition.
Dr Kumagaya wrote: “Owing to the severity of her depressive and anxious symptoms, Ms Robb currently does not have a work capacity, including for her pre-injury duties and jobs / duties in her recent employment history”.
Dr Kumagaya considered that Ms Robb’s enduring incapacity for work resulted from her work-related primary psychological injury, adjustment disorder with mixed anxiety and depressed mood. He was of the view that Ms Robb required ongoing treatment through her general practitioner and further psychological therapy through her psychologist but should her mental state not improve with psychological therapy, it was likely that Ms Robb would require consultations with a psychiatrist for consideration of a trial of psychotropic medications.
In a supplementary report dated 20 September 2023, Dr Kumagaya stated that he had reviewed the statements of Ms Robb, the report of Dr Ahmed dated 8 September 2023 and the statements of Harry Poeltl, Carmen Standley, Ramon Alvarez and Niranjan Mahendran. He noted that Dr Ahmed acknowledged Ms Robb’s diagnosis with adjustment disorder with mixed anxiety and depressed mood and acknowledged her employment as being the main contributing factor to her psychological injury and agreed with Dr Ahmed’s opinions in this regard.
Dr Kumagaya noted that the primary points of difference with Dr Ahmed’s opinion and his own opinion, were with respect to the causation of Ms Robb’s psychological injury.
Dr Ahmed, whilst acknowledging that Ms Robb “was not adequately informed” of the changes to her employment role, concluded that the events around such were “questionable” as to whether they represented a form of bullying. He states that Ms Robb’s “psychological injury can be predominantly linked to demotion and the provision of employment benefits. It is almost entirely industrial in nature and not a form of bullying in my opinion.” Dr Kumagaya expressed the view that such opinions differed from the available evidence, as well as his views.
Dr Kumagaya wrote:
“Whilst it is acknowledged that Ms Robb experienced a change in her role on 16 December 2022, it was not necessarily the change itself, which was predominantly contributory to Ms Robb’s psychological injury, but the manner in which it occurred, which Ms Robb found most unreasonable.
Ms Robb draws particular attention to the fact that she was not made aware of the changes to her role prior to seeing a roster on a lunch table on 16 December 2022. This is particularly significant in light of Ms Robb’s 29-year tenure as a team facilitator. Ms Robb also came to know that other colleagues had known of her role change prior to this being made known to her. Ms Robb stated that when she arranged a meeting with her senior manager on 16 December 2022, her support person was dismissed, and her concerns were not addressed. Ms Robb described that the meeting lasted approximately three minutes, and she was advised to escalate the matter with her union. She states that she was not provided with sufficient explanation of why, out of the five team facilitators, she had been assigned the lower grade role of extractor operator, when she did not have a history of performance related issues.
Ms Robb felt such aspects of her role change within her organisation to be most unreasonable, and representative of differential and unsupportive treatment by her employer. It was her experience of such, which was the predominant precipitant of her psychological injury, and not the “demotion and the provision of employment benefits”, as Dr Ahmed so opines”.
In a report dated 8 September 2023, Dr Tanveer Ahmed, consultant psychiatrist, noted that due to a restructure, Ms Robb went off on workers compensation upset about the restructure and the manner in which it was done. He wrote: “The correspondence confirms that appropriate communications were made, and the workers were aware of the changes. This is confirmed in the Minutes of Meeting held in January. Further such communications were made in the latter part of 2022”.
Dr Ahmed made a diagnosis of adjustment disorder with mixed anxiety and depressed mood and noted that the condition appeared to be a direct response to the changes and did not arise slowly. He considered that the substantial factor contributing to the injury was her perception of being mistreated within the workplace where she claims she was not adequately informed, and she was also upset about a co-worker having been given a position above her. She interpreted some of the structural changes as a form of bullying, which he said was questionable. He noted that there are no reports of any other regular criticism or broader intent to demean or exclude her in a repetitive manner from the correspondence.
Dr Ahmed saw no evidence for her having a pre-existing condition. He wrote:
“As a result, her sense of injustice regarding the work-related events is the substantial contributing factor. The factors outlined in the correspondence are what she alludes to especially the co-worker being placed in a position that she felt was rightfully hers. It is questionable the restructure can be considered as a form of bullying. I note in the correspondence she was informed about this and that she was competent about fulfilling the role of Extractor Operator. There was also disagreement about the hours she would like to work and ultimately the role required five days a week.”
Dr Ahmed concluded Ms Robb’s perceptions of feeling mistreated in the workplace is the key contributing factor. He wrote:
“In my opinion her psychological injury can be predominantly linked to demotion and the provision of employment benefits. It is almost entirely industrial in nature and not a form of bullying in my opinion. The co-worker that was appointed to the position.
Ms Robb did not agree and felt diminished. This, from the information before me, is the substantial cause of her psychological decline.”

Records and reports of treating doctors and health professionals

In a report dated 20 January 2023, Dr Eric Lim, Nominated Treating Doctor (NTD), noted under “History”:
“Psychological injury from the workplace. She was demoted from her position without warning. On 16/12/22 she was advised by her manager that she had been demoted. She organised a meeting with her manager and he advised that her demotion would not be changed. She reports that she previously had no workplace issues.”
Dr Lim made a diagnosis of an adjustment disorder. Under “Functional Capabilities” he noted modified work for 8 hrs/ day 3 days/week. He wrote: “She does have the capacity to trial light work, and this is the best thing for her.”
In a report dated 7 February 2023, Mr Carl Nielsen, psychologist, noted that Ms Robb reported that on 16 December 2022 and whilst at her place of work, she was “advised by her manager (HP) that she was to receive a demotion despite there being no performance related issues or justifiable explanation”. He noted that Ms Robb was unable to continue working beyond 16 December 2022 but returned to work on 30 January 2023 completing pre-injury duties on reduced hours, eight hours per day, three days per week.
Mr Neilsen expressed the view that Ms Robb sustained adjustment disorder with depressed and anxious mood due to her work related injury where her employment was the main contributing factor to her sustaining the adjustment disorder condition. He considered that
Ms Robb currently had capacity for eight hours per day, three days per week, with restrictions.
In the clinical notes of Glenwood Medical Practice, Dr Jean Claude Huynh, general practitioner, made the following entries:
(a) an entry dated 10 January 2023 recorded:
“At work she is running all the process for making instant coffee processing plant (Fresh foods services) On 16/12/22, she was told at a meeting that she had to call when she noticed that the roster was changing so that she was working another job below her position. At the meeting they told her that she was demoted to a lower position. she left the meeting and finished her shift and could not return to work since. She is feeling down and depressed and anxious. Could sleep, did not go on her holidays because she was upset, srying upseting [sic] got up 2am this morning. nothing is resolved since the Christmas break. Diagnosis: depression/anxiety”, and
(b) in an entry dated 9 May 2023 Dr Huynh wrote:
“History: Seeing Dr Lim and started her legal representation. Saw psychologist still emotionally labile. Unable to work need updated medical certificate, said that the decision on her case will be out soon. Dr Lim told her to come back to us for the certificates.”
In the NSW SIRA – Certificate of Capacity dated10 January 2023, Dr Huynh certified
Ms Robb as having no current work capacity for employment from 16 December 2022 to
30 January 2023. Dr Huynh made a diagnosis of depression/anxiety. He noted: “She was sidelined and told of her demotion at work without any consultation.”

Discussion

Section 11A Defence

The issue to be determined is whether the actions taken by the respondent in respect to demotion and the provision of employment benefits, were reasonable in all the circumstances of Ms Robb’s employment.
There was no issue that Ms Robb suffered injury, that is, an adjustment disorder with mixed anxiety and depressed mood, this being a recognised psychiatric condition. In making this finding I have relied on the evidence of Dr Kumagaya, Dr Ahmed and Mr Neilsen.
The respondent contended that Ms Robb’s injury was caused by reasonable action taken by the respondent with respect to demotion and the provision of employment benefits. The demotion and the provision of employment benefits relied on by the respondent were the actions related to the rostering of Ms Robb as an Extractor Operator 9 January 2023 to
5 February 2023.
Section 11A (1) provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
In State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler) Spigelman CJ said a perception of real events, which are not external events, can satisfy the test of injury. Chemler also made it clear the eggshell skull rule applies in a general sense and in psychiatric cases, in particular, with Spigelman CJ using the phrase “’eggshell psyche’ principle”.
In Attorney General’s Department v K [2010] NSWWCCPD 76, Roche DP, in considering the issue of establishing psychological injury in circumstances of a worker’s perception of real events at work, provided the following summary of relevant authorities on this issue at [52(a)–(f)]:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate_’ before compensation can be recovered.” (at [52])”
Adopting the approach of Roche DP, the test that should be applied is, firstly, whether the events within the workplace were real, rather than imaginary. Secondly, it does not matter that the events affected the worker’s psyche because of a flawed perception of events because of a disordered mind.
The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as a “demotion”, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was “rational, reasonable and proportional”.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Roche DP said at [113]-[114]:
“... to the extent that the Arbitrator based his conclusions on a finding that ‘fundamental facts were not proved’, he was wrong. The respondent’s witnesses established the ‘fundamental facts’. They established that real events occurred at work and that Mr Baker perceived those events as creating a hostile work environment. Given the large number of events complained of by Mr Baker, it does not matter that some of the events may not have occurred, or that some did not occur in the way related by Mr Baker...”
And at [129]
“… Whether, in the documents Dr Newlyn reviewed, those events were described as ‘substantiated indications of workplace bullying and harassment’ was irrelevant. The issue was whether Mr Baker suffered a psychological injury as a result of the events that occurred at work, however those events were described.”
The respondent was required to establish that the action with respect to demotion and the provision of employment benefits was the whole or predominant cause of Ms Robb’s psychological injury and that the actions with respect to demotion and the provision of performance benefits were reasonable.
Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 considered the proper construction of s 11A with particular attention given to the meaning of the word “predominantly”. Handley ADP stated that the word “predominantly” meant “mainly or principally caused”.
In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) the arbitrator made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the respondent employer. Snell ADP considered the meaning of the term “predominantly” as it appears in s 11A(1) and said at [31]:
“I accept ‘mainly or principally caused’ is the meaning that should be ascribed to the word ‘predominantly’ in section 11A(1). The test on causation to be applied, as was observed in Temelkov, is the test enunciated in Kooragang Cement Pty Limited v Bates.”
Snell ADP also said at [62] that the concepts “wholly” and “predominantly” were different concepts and if such findings were to be made “it needed to be one or the other”.
The first matter to be determined was whether the action with respect to demotion and the provision of employment benefits was the whole or predominant cause of Ms Robb’s psychological injury.
Ms Robb said that on 16 December 2022, the last day before the Christmas break, she came across a roster on the lunch table in the Control Room. She stated that the roster showed that her role had been changed from that of Team Facilitator which she had been for
29 continuous years to Extractor Operator. She said that this was a huge surprise and she was in total shock. She said that she was absolutely devastated, confused and upset and could hardly breathe.
Dr Kumagaya, in his report of 29 September 2023, was of the view that the manner in which the change in Ms Robb’s role on 16 December 2022 occurred was predominantly contributory to Ms Robb’s psychological injury. He noted that Ms Robb said that she was not made aware of the changes to her role prior to seeing a roster on a lunch table on
16 December 2022 and this was particularly significant in light of Ms Robb’s 29-year tenure as a team facilitator. He noted that Ms Robb also came to know that other colleagues had known of her role change prior to this being made known to her. Further, Ms Robb stated that when she arranged a meeting with her senior manager on 16 December 2022, that her support person was dismissed, and her concerns were not addressed. She told
Dr Kumagaya that the meeting lasted approximately three minutes, and she was advised to escalate the matter with her union.
The respondent submitted that the history taken by Dr Kumagaya in his first report dated
21 April 2023 contained a history of Ms Robb being advised by her manager on
16 December 2022 that she was to receive a demotion which was inconsistent with the history given by Ms Robb in her statement. Dr Kumagaya appears to have obtained an incomplete history when preparing this first report, but that history was corrected in his supplementary report of 29 September 2023. I do not consider the omission in the first report in relation to seeing the roster on the lunch table before the meeting with her manager was of any great significance or impacts of the weight to be placed on Dr Kumagaya’s opinions.
Dr Ahmed in his report of 8 September 2023 noted that due to a restructure, Ms Robb went off on workers compensation upset about the restructure and the manner in which it was done. He noted that her condition appeared to be a direct response to the changes and did not arise slowly. He considered that the substantial factor contributing to the injury was her perception of being mistreated within the workplace where she claims she was not adequately informed, and she was also upset about a co-worker having been given a position above her. She interpreted some of the structural changes as a form of bullying.
Dr Ahmed concluded Ms Robb’s perceptions of feeling mistreated in the workplace was the key contributing factor and her psychological injury could be predominantly linked to demotion and the provision of employment benefits. Dr Ahmed considered that Ms Robb did not agree with the appointment of a co-worker to the position and felt diminished and that was the substantial cause of her psychological decline.
It was not clear from Dr Ahmed’s report if the reference to a worker being appointed to the position was a reference to Mr Mahendran being appointed to a supervisor role or to the Team Facilitator role. The evidence established that Mr Mahendran had been a Team Facilitator for some years. If this was a reference to the position of Supervisor, Ms Robb did not apply for the supervisor role and Dr Ahmed’s history was incorrect on that issue. Further, Dr Ahmed did not really consider whether it was being rostered on the Extractor Operator role and only discovering that when she saw a roster on the lunch room table was a causative factor.
I accept that Ms Robb described some problems in communication and relations with management for some years preceding the events on 16 December 22, and an event some years before when she was given a warning for watching TV in August 2017, I do not consider that these events were causative of any psychological injury. I am satisfied that the events on 16 December 2022 were the cause of Ms Robb’s psychological condition.
Taking a broad view of the term “demotion”, I am satisfied that the events can be described as actions relating to demotion. I accept that Mr Alvarez and Mr Poeltl stated that Ms Robb was not being demoted and was merely required to perform the duties of an Extractor Operation, that being a lower graded role, for three weeks on a rotation with other facilitators and that she would be still paid at the rate for a facilitator. However, Ms Robb perceived that as a result of the events on 16 December 2022 that she had been demoted without warning. Mr Alvarez, stated that he was under the impression that Ms Robb’s claim originally related to “her demotion”. Demotion in my view, can involve a reduction in rank or job title as well and/or a reduction in salary and benefits. In this case, Ms Robb was effectively demoted as there was a change in the roster she saw on 16 December 2022 to her job title to a lower grade role.
Further I am satisfied that these actions relating to the change of roster and events on
16 December 2022 were the predominant cause of Ms Robb’s psychological condition.
The respondent has the onus of proving that the actions with respect to demotion and provision of employment benefits were reasonable.
The respondent’s actions or proposed actions do not need to be perfect to be reasonable: in this regard, the respondent relied on Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49. Phillips P noted in that case at [178] that it was common ground that the manner in which the termination was conveyed to the appellant was imperfect. He noted at [182] that the Member found that the termination was imperfect, but in the circumstances reasonable. Phillips P found that there was no error in this approach and the Member had correctly considered all of the circumstances of the case, as the authorities required, in reaching a view about the reasonableness of the process adopted by the respondent.
The next matter that needs to be considered was whether the actions taken by the respondent in respect of demotion and the provision of employment benefits were reasonable. I noted that the submissions by the respondent were made in relation to action taken in respect of demotion and there was no specific reference to the provision of employment benefits or submissions made identifying the employments benefits provided.
Ms Robb did not dispute that the restructure being undertaken by the respondent was reasonable. The real question was the reasonableness of the process, and, in particular, whether the actions of the respondent in communicating the change in the roster were reasonable.
Ms Robb stated that she was unaware of the roster change that showed her that her role had been changed from that of Team Facilitator to an Extractor Operator until she came across a roster on the lunch table in the Control Room on 16 December 2022. She had performed the role of Team Facilitator at the plant for 29 years and was shocked by the change. Ms Robb was aware that there was to be a restructure but said that the only discussions had been between management and union representatives. She said that there was no consultation process via one-on-ones or Area Department Meetings with Management with her about changes to her role as shown in the Roster.
I accept the evidence of Ms Robb and, in particular, her evidence that she only became aware of the change in roster and shift when she saw the roster on the lunchroom table on 16 December 2022. Mr Mahendran stated that when he saw her on 16 December 2022, he believed that it was the first time she had seen the roster. The actions of Ms Robb in seeking a meeting Mr Poeltl that same day were consistent with Ms Robb not having seen the roster before 16 December 2022.
Mr Alvarez said that he and Harry Poeltl had meetings at least in three occasions from September 2022 to find a way to keep staff employed. Mr Alvarez stated that emails were sent to all relevant parties concerning the roster changes, including Ms Robb, with the first email, a provisional roster, being sent on 10 December 2022 by Harry Poeltl.
Mr Poeltl stated that communications went out on 16 December 2022, regarding change of operations and change of roster. However, Mr Poeltl stated that he did not have control of the communication but was of “the opinion that it was communicated to all of the individuals” and there would be emails and documents to confirm this.
Ms Standley conceded that they may have not directly consulted with Ms Robb due to the fact she was always on a rotating shift. Ms Standley stated that because Ms Robb was a member of the union and worked with union delegates, she would have been aware of the changes. This assumption by Ms Standley was not supported by Mr Mahendran, who stated that although a member of the union, he did not have discussions with the union about the shift changes.
I accept that there were discussions with union representatives about the restructure. However, I am satisfied that there were no meetings or discussions with Ms Robb, who was the first of the Team Facilitators to be rostered on to perform the lower graded duties of an Extractor Operator. The failure to have a meeting or discussion with Ms Robb was particularly significant as she had been performing the role of a Team Facilitator at the plant for 29 years.
There were inconsistencies between the evidence of Mr Alvarez and Mr Poeltl as to who had sent the emails to staff about the roster changes. Mr Alvarez stated that Mr Poeltl sent an email on 10 December 2022 and Mr Poeltl stated that he did not have control of the communications but assumed the changes were communicated to all individuals. I considered it very significant that no copies of the emails that Mr Alvarez and Mr Poeltl referred to were attached to their statements or filed as evidence by the respondent in the proceedings. I accept that Mr Mahendran stated that he received an email some time in December 2022 concerning the need to work the Extractor Operator position but again no copy of that email has been produced by Mr Mahendran or the respondent. There was no evidence that the email Mr Mahendran stated he had received was sent to Ms Robb.
Ms Robb had given evidence that she had problems receiving emails from the respondent and had contacted the IT section on many occasions, but the problems had not been resolved satisfactorily. In circumstances where a major restructure was being undertaken which impacted the employees it would, in my view, be necessary to communicate those changes to the employees effected, especially when they were required to perform duties at a lower grade.
I am satisfied from the evidence of Ms Robb, Mr Poeltl, Mr Alvarez and Ms Standley that the respondent’s management had no meetings with staff who would be impacted by the changes and management chose only to hold meetings with the union representatives. The respondent assumed that other workers in the factory would be informed as to the proposed changes by the union delegates. However, that assumption, in my view, was not reasonable. Mr Mahendran stated that the union delegates did not inform him of any changes in the shifts. Further, employees including Ms Robb, worked shifts and would not always see each other. Ms Robb was also described by Mr Mahendran as being very quiet and not involved in gossip or office politics. Mr Alvarez described Ms Robb as very quiet and not very social.
Ms Robb stated that she had felt discriminated against by being rostered as an Extractor Operator. Mr Alvarez stated that the operations were to start on 10 January 2023 so that on 9 December 2022 rosters had to be set out. He said that he had to put someone into the position for the first shift, so “randomly” chose to put Ms Robb as the first one to roster in that role for a three week period. Having described the choice as random, Mr Alvarez the stated that he picked Ms Robb as the first to transfer to the role as I could not choose Kamal who was on leave at the time. He stated that Kapila and Robert were Union delegates and would have said that he elected them as they were the Union delegates so that that left Ms Robb to start the extraction role rotation for three weeks. Mr Alvarez did not explain why
Mr Mahendran who had already been appointed as a Supervisor in December 2022 was selected to fill Kamal’s role while Kamal was on leave.
The selection of Ms Robb as the first Team Facilitator cannot, in my view, be described as random. Mr Alvarez had made the choice to exclude the Union delegates and chose
Mr Mahendran to fill Kamal’s position as a Team Facilitator despite Mr Mahendran already having been appointed to the new role of supervisor. The fact that Mr Alvarez was nor prepared to rotate one of the Union delegates into the role of Extractor Operator first suggests that he anticipated objections being made. In those circumstances, it was surprising that he did not make sure that he discussed the change with Ms Robb before the roster was issued and made sure that she understood that it was a three week rotating shift and she would work the other shift in her normal Grade 5 role as a Team Facilitator.
Ms Robb stated that in the meeting with management on 16 December 2022 Mr Poeltl refused to change the roster and did not explain why she was impacted by the roster change. She said the meeting lasted three minutes. Mr Poeltl did not refer to this meeting in his statement.

Mr Mahendran stated that he spoke to Ms Robb around lunch time after her meeting with management and she agreed with him and understood that she was only working the shift of three weeks. Ms Robb denied this was said. It appears that Ms Robb did see Mr Mahendran after the meeting with Mr Poeltl but she stated that she asked him if he knew about the change in the roster and he said that he had been told at the supervisor role interview. I am not persuaded that Ms Robb did tell Mr Mahendran that she understood that it was a three week rotating shift. In my view, the meeting with Mr Poeltl was so brief that it was likely
Mr Poeltl did not explain about the rotating shifts but merely said that the roster could not be changed. Mr Poeltl failed to address Ms Robb’s concerns in that meeting and really appeared to have made no adequate attempt to address her concerns.
Having considered the evidence in this matter as set out above, I am satisfied that the actions of the respondent taken in communicating the roster changes to Ms Robb were not, in all the circumstances, reasonable.
In my view, the respondent has not established, on the basis of probabilities, that the action taken or proposed to be taken by the employer with respect to demotion or provision of employment benefits was reasonable. The section 11A defence is not made out.

Weekly benefits

Ms Robb has not worked since 16 December 2022 apart from the three day period performing suitable duties starting 30 January 2023. The respondent in a meeting on
31 January 2023 told Ms Robb that there were not suitable duties available three days a week and she was not to return to work the following week unless she was able to work her pre-injury hours.
In the NSW SIRA – Certificate of Capacity dated 10 January 2023, Dr Huynh certified
Ms Robb as having no current work capacity for employment from 16 December 2022 to
30 January 2023.
In the NSW SIRA – Certificates of Capacity dated 20 January 2023 and 16 February 2023, Dr Lim certified Ms Robb as having capacity for some work eight hours a day, three days a week for the period 20 January 2023 to 2 March 2023 and from 16 February 2023 to
11 May 2023.
In the undated NSW SIRA – Certificate of Capacity, Dr Lim certified Ms Robb as having capacity for some work eight hours a day, three days a week. from 16 February 2023 to
11 May 2023.
Dr Lim, in a report dated 20 January 2023, expressed the view that Ms Robb had the capacity to trial light work, eight hours a day, three days a week from 20 January 2023 to
2 March 2023.
Dr Lim in a clinical note dated 16 February 2023 noted that Ms Robb returned to work for three days and “felt OK” but “duties have been withdrawn”.
Mr Neilsen, in a report dated 7 February 2023, considered that Ms Robb had capacity to work eight hours a day, three days a week with restrictions.
Dr Kumagaya, in his report of 21 April 2023, expressed the opinion that due to the severity of her depressive and anxious symptoms, Ms Robb currently did not have any work capacity.
Dr Huynh, in his clinical notes dated 9 May 2023, noted that Ms Robb was unable to work and needed an updated medical certificate. In his clinical notes dated 8 June 2023, Dr Hunyh noted that Ms Robb required a medical certificate for “WC”.
Ms Robb submitted that she had no current work capacity and the opinions of Dr Kumagaya on work capacity should be preferred. The respondent noted that Dr Kumagaya did not address the “s 32A issues” and that after 30 January 2023 Ms Robb was certified as fit to work eight hours a day, three days a week.
In my view, Ms Robb had limited transferrable skills particularly as she had worked in the same factory for over 30 years. She is 59 and her age and work experience was likely to limit the opportunities for work on the open labour market. However, I was satisfied that she still had some capacity for suitable work on the open labour market.
The only NSW SIRA – Certificates of Capacity all certified Ms Robb as having capacity for some work eight hours a day, three days a week. Drs Lim and Hunyh, who provided those certificates, saw Ms Robb and numerous occasions and were in a position where they could assess her capacity to work on a regular basis. Although I accept that Dr Kamagaya is a psychiatrist, he only saw Ms Robb on one occasion. On balance, I accept Ms Robb had some current work capacity for suitable employment.
Ms Robb was certified as having the capacity to work eight hours a day, three days a week from 20 January 2023 to 11 May 2023. There were no medical certificates for the period after 11 May 2023.
Ms Robb claimed weekly benefits from 16 December 2022 to date and ongoing. She was certified as unfit for work from 16 December 2022 to 30 January 2023 by Dr Huynh although Dr Lim certified her fit for a work trial on 20 January 2023. I therefore find that Ms Robb had no work capacity for the period 16 December 2022 to 24 January 2023. PIAWE was agreed at $2,441.16, so Ms Robb is entitled to weekly payments pursuant to s 36 at the rate of $2,319.10 for the period 16 December 2022 to 24 January 2023.
It appears from Ms Robb’s wages schedule that during the period 24 January 2023 to
30 January 2023 she earned or was able to earn $655.50 per week and from 31 January 2023 to 6 February 2023 she was able to earn $693.28 per week. During this period
Ms Robb was entitled to weekly payments pursuant to s 36 of the 1987 Act. For the period 24 January to 30 January 2023, she was entitled to weekly payments at the rate of $1,663.60 and from 31 January 2023 to 6 February 2023, she was entitled to weekly payments at the rate of $1,625.82.
From 7 February 2023 to 18 March 2023 Ms Robb would be entitled to payments pursuant to s 36 of the 1987 Act. Having regard to the matters set out above, I am satisfied that Ms Robb had the capacity to work 24 hours a week in some form of casual employment since
7 February 2023. The parties agreed that the national minimum hourly wage before
1 July 2023 was $21.38 per hour and after 1 July 2023 the rate increased to $23.23 per hour. Therefore, I consider that Ms Robb had the capacity to earn $513.12 per week from
7 February 2023 to 17 March 2023. Ms Robb is therefore entitled to weekly payments at the rate of $1,805.98 for the period from 7 February 2023 to 17 March 2023 pursuant to s 36 of the 1987 Act.
From 18 March 2023 to 30 June and from 1 July 2023 to date and ongoing, Ms Robb is entitled to payments pursuant to s 37 of the 1987 Act. On 31 March 2023, 80% of the agreed PIAWE was $1,952.93. Therefore, Ms Robb was entitled to payments of $1,439.81 pursuant to s 37 of the 1998 Act from 18 March 2023 to 31 March 2021. The PIAWE rates are indexed on 1 April and 1 October annually and the increase in PIAWE from 1 April 2023 resulted in the agreed 80% figure of $2,032. The national minimum hourly wage rate increased to $23.23 from 1 July 2023. Therefore, Ms Robb had the capacity to earn $557.52 per week from 1 July 2023 to date. Ms Robb was entitled to weekly payments of $1,518.88 for the period 1 April 2023 to 30 June 2023 pursuant to s 37 of the 1987 Act. Ms Robb was entitled to weekly payments of $1,474.48 for the period 1 July 2023 to date and continuing pursuant to s 37 of the 1987 Act.

Section 60 expenses

In view of the findings made above, a general order will be made for s 60 expenses.

Summary

Respondent to pay the applicant weekly benefits as follows:
(a) $2,319.10 from 16 December 2022 to 23 January 2023 pursuant to s 36 of the 1987 Act;
(b) $1,663.60 from 24 January 2023 to 30 January 2023 pursuant to s 36 of the 1987 Act;
(c) $1,625.82 From 31 January 2023 to 6 February 2023 pursuant to s 36 of the 1987 Act;
(d) $1,805.98 from 7 February 2023 to 17 March 2023 pursuant to s 36 of the 1987 Act;
(e)    $1,439.81 from 18 March 2023 to 31 March 2023 pursuant to s 37 of the 1987 Act;
(f)    $1,518.88 from 1 April 2023 to 30 June 2023 pursuant to s 37 of the 1987 Act, and
(g)    $1,474.48 from 1 July 2023 to date and continuing pursuant to s 37 of the 1987 Act.
Respondent to pay the applicant’s reasonably necessary s 60 expenses on production of accounts, receipts and /or Medicare Notice of Charge.

[2023] NSWPIC 554

20 October 2023