Russo-Crates v State of New South Wales (Mid North Coast Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Russo-Crates v State of New South Wales (Mid North Coast Local Health District) [2023] NSWPIC 194
APPLICANT:	Donna Russo-Crates
RESPONDENT:	State of New South Wales (Mid North Coast Local Health District)
Member:	Michael Moore
DATE OF DECISION:	1 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and reasonably necessary medical and related treatment expenses for a psychological injury where the principal issue raised by the section 78 notice and reply was a defence under section 11A as to whether the applicant’s admitted psychological injury was wholly or predominantly caused by reasonable action taken on behalf of the respondent in relation to the provision of employment benefits to the applicant; Held – that a full review of the evidentiary statements contemporaneous medical records and qualified doctors reports established on the balance of probabilities that the respondent failed to discharge its onus under section 11A; further held that in any event the psychological injury was predominantly caused by problems the applicant experienced with the computer and IT systems operated by the employer; further held that the actions relied upon by the respondent were not reasonable in any event; Pirie v Franklins Ltd applied; Department of Education and Training v Sinclair applied in relation to onus and Irwin v Director General of Education applied on issue of reasonableness.
determinations made:

The Commission determines:

The applicant suffered an admitted psychological injury arising out of or in the course of her employment to which the employment was the main contributing factor.
The psychological injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
Since 1 February 2022 the applicant has been incapacitated for work and has possessed no current work capacity as a consequence of the injury received on that date.
The applicant is entitled to have her reasonably necessary treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act) paid by the respondent.

The Commission Orders:

There will be an award that the respondent pay the applicant weekly compensation pursuant to s37(1) of the 1987 Act from 17 October 2022 to date and on a continuing basis, at the rate of $590.82 (as adjusted if necessary applying relevant indexing) per week.
There will be an award that the respondent pay the applicants reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Donna Russo-Crates (the applicant) was born in 1965 and is presently 58 years of age. She was employed by State of New South Wales (Mid North Coast Local Health District) (the respondent) as a registered nurse.
In February 2021 the applicant commenced working at Coffs Harbour Hospital two days per week while also continuing to work on a part time basis at Tweed Heads Hospital where she had already been working. Both hospitals are operated by the respondent.
The applicant alleges that when she started at Coffs Harbour Hospital she had to organise access to the computers at Coffs Harbour Hospital to perform her work duties. It appears that the access to the computers at Coffs Harbour Hospital was complicated by the fact that she was already accessing (and for some considerable time continued to access) the computer system at Tweed Heads Hospital.
The applicant experienced great difficulty in using the computers and the fax and photocopying equipment at Coffs Harbour Hospital and it appears that there are significant challenges for all uses of the IT facilities and the fax and photocopiers at Coffs Harbour Hospital.
The applicant perceived that other staff at Coffs Harbour Hospital were ignoring her or not treating her with respect at the same time as she was experiencing her difficulties with the computers and photocopier and fax equipment.
At the time the applicant commenced work at Coffs Harbour Hospital she was living in Coffs Harbour but travelling to work at Tweed Heads Hospital. For sometime she was working two days per week in Coffs Harbour and two days per week in Tweed Heads.
Approximately one year after commencing work at Coffs Harbour Hospital the applicant requested extra shifts at Coffs Harbour Hospital and was provided with same over a four to six week period. On the basis that extra shifts would be forthcoming on a regular basis the applicant resigned from her position at Tweed Heads Hospital.
The roster that came out following her resignation from Tweed Heads Hospital did not contain extra shifts.
The applicant alleges that as a consequence of the difficulties she was experiencing with the computers and the fax and photocopiers together with her treatment by other staff members she has suffered a psychological injury being a major depressive disorder with anxious distress or an adjustment disorder.
A claim for workers compensation benefits was lodged by the applicant with the respondent on 15 February 2022 with a nominated date of injury of 1 February 2022.
Provisional liability for the applicant’s claim was accepted and the applicant was paid benefits for the first entitlement period under s 36 of the Workers Compensation Act 1987 (the 1987 Act) and on 27 April 2022 the applicant was advised of acceptance of her claim after provisional liability.[1]
[1] Application pp 49-54.
The applicant subsequently underwent an independent medical examination with Dr Lucas Murphy, psychiatrist, at the request of the respondent on 9 June 2022.
On 21 October 2022 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the applicant’s entitlement to compensation because
“… your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to provision of employment benefits under section 11A of the Workers Compensation Act 1987.
We also do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.”
The applicant sought a review pursuant to s 287A of the 1998 Act of the respondent’s decision to decline liability by a request dated 9 November 2022.
It is unclear what the exact sequence of events was immediately following that request.
On 21 December 2022 the respondent gave notice that the dispute was maintained and reference was made in that notice to a request for a review dated 14 December 2022 and information supplied in support of the request for a review being a report of Dr Nabil Malik psychiatrist dated 9 December 2022.
I do not think anything of significance hangs on the sequence of those events as the evidence establishes that the final position of the respondent as set out in the notice of 21 December 2022 was that the earlier decision to decline the claim on the grounds set out in the s 78 notice dated 21 October 2022 was maintained. Further no additional ground to decline the claim was raised in the s 287A notice issued by the respondent.
By an Application to Resolve a Dispute (the Application) filed in the Personal Injury Commission (Commission) on 16 February 2023 the applicant seeks weekly compensation from 18 October 2022 and payment of medical hospital and related treatment expenses.
By a Reply (the Reply) to the Application dated 10 March 2023 the respondent confirmed that the matters in dispute were as per the dispute notice(s) attached to the application.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to the provision of employment benefits.
(b) Whether the applicant is entitled to weekly payments of compensation because she suffers from total or partial incapacity for work resulting from an injury as required by s 33 of the 1987 Act.
(c) Whether the applicant is entitled to payment of her medical hospital and related treatment expenses as being reasonably necessary as required by ss 59 and 60 of the 1987 Act

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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:
(a) the Application, and
(b) Reply to the Application and attached documents.

Oral evidence

No oral evidence was given at the hearing.

FINDINGS AND REASONS

At the hearing Mr Beran of counsel appeared on behalf of the applicant and Mr Halligan of counsel appeared on behalf of the respondent.
Mr Beran essentially submitted that a review of the evidence established that there can be no dispute that the applicant suffered a psychological injury (being a major depressive disorder) arising out of or in the course of the applicant’s employment , that the applicant at all relevant times from the date the claim was declined to date had no current work capacity and that the defence under s 11A of the 1987 Act was the only issue raised by the s 78 notice.
Mr Beran pointed out that no issue had been raised under s 4 or s 9A in the s 78 notice, the the s 287A notice or the Reply. (I note that given the fact that the applicant was alleging a disease injury under s 4(b) of the 1987 Act the comment in relation to s 9A of the 1987 Act was irrelevant.) He further argued that the respondent bore the onus to establish a defence under s 11A which, he submitted, the respondent failed to do in the present proceedings. Mr Beran argued that for the s 11A defence to succeed the respondent had to establish that the applicant’s psychological injury had to have been wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to the provision of employment benefits. Mr Beran submitted that the evidence overwhelmingly established that the applicant’s condition was not caused wholly or predominantly by such action by the employer.
Mr Beran pointed out that the respondent was relying on medical evidence from Dr Lucas Murphy as the basis of the decision to decline the applicant’s claim relying on s 11A of the 1987 Act and Mr Beran submitted that opinion was based on an incorrect history and that no “fair climate” for the opinion was established and that accordingly little to no weight should be given to that opinion.
Mr Beran also submitted that even if the applicant’s condition had been wholly or predominantly caused by actions taken by the employer with respect to the provision of employment benefits those actions were not reasonable.
In his submissions for the respondent Mr Halligan submitted that the performance issues the applicant experienced in relation to the IT systems at Coffs Harbour Hospital needed to be understood in the context of the limited resources of the NSW health system and that in relation to those performance issues the respondent had acted reasonably. He further submitted that there was a lack of support for the applicant’s allegations of bullying. Mr Halligan also argued that the opinion of Dr Lucas Murphy could be accepted and that the respondent had acted reasonably in relation to the provision of work at Coffs Harbour Hospital and on that basis the respondent should succeed in its defence under s 11A of the 1987 Act.
In my view Mr Halligan had a difficult case to argue and as a consequence a considerable number of his submissions were inapplicable to the case before me.

THE S 11A ISSUE

As Mr Beran pointed out the respondent had the onus of establishing a defence under s 11A of the 1987 Act to the applicant’s claim for workers compensation benefits. That statement is clearly a correct statement of the law.[2]
[2] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
Section 11A of the 1987 Act relevantly provides as follows;
“s.11A(1) No compensation is payable under this Act in respect of an injury that is a psychological injury, if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The s 78 notice

The s 78 notice issued by the respondent and confirmed by the s 287A notice set out as the reasons for the decision the following statement:
“You assert you sustained a psychological injury as a result of your employment with a deemed date of injury of 1 February 2022.
You rely on a SIRA certificate of capacity dated 15 February 2022 which diagnosed you with psychological stress from alleged bullying at work.
To assist with the determination of your claim, you provided with a statement(sic) which recorded the following:
·You noted that you commenced working as an RN at the Coffs Harbour Hospital in February 2021 and were contracted for two shifts per week. You listed a number of incidents which reportedly were causative of your condition.
·You noted that when you came from Tweed Heads Hospital there were issues with access to the computer. You illustrated that it would take two hours to set everything up and would take five minutes to twenty minutes per patient. Consequently, computer issues were reportedly stressing you out and making your job more difficult. You noted there were also issues with the fax and printer which caused significant issues and distress.
·You alleged that you completed the request form to change your hard drive from Tweed Heads to Coffs Harbour approximately four times. You observed the NUM to be frustrated at your request.
·You reported that other staff both nursing and clerical would ignore you and on occasions, was blatantly obvious(sic). You reported that you felt excluded, and that staff were talking about you.
·On 1 February 2022, you became increasingly frustrated and overwhelmed with IT regarding computer issues. You also reported events where you felt you were undermined by colleagues.
We note that further statements were obtained from colleagues which were unable to support your allegations that you were bullied, treated unfairly, and harassed by colleagues. It was noted that you did not complain of bullying, or a lack of support from management.
To further assist with determination of your claim, an independent medical report was obtained from Dr Lucas Murphy dated 20 June 2022. Dr Murphy reported that there were discussions between the hospital of you picking up an additional two days per week.
Coffs Harbour Hospital reportedly offered you extra days and as a result you resigned from your position at Tweed Heads Hospital. You illustrated to Dr Murphy tat the additional two days at Coffs Harbour did not eventuate leaving you ‘very distressed about money’.
Dr Murphy opined that on the background of low job satisfaction , the financial stress caused your mental health to decline sharply in late January/ early February.
To this effect, Dr Murphy opined that ‘the main contributing factor seemed to be the difficulty in securing an additional two days per week.’
Therefore we confirm that any psychological injury has been caused by the reasonable actions taken by your employer in relation provision of employment benefits [sic].
Accordingly, liability is disputed on the following basis:
We do not agree that you are entitled to compensation because your psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to provision of employment benefits under section 11A of the Workers Compensation Act 1987.
We also do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.”[3]
[3] Application pp 35-36.
As noted at point 19 above the reply confirmed that the matters in dispute were as set out in the s 78 and s 287A notices and no new issue was raised.
A review of the content of the s 78 notice as set out above makes clear the following matters are raised;
a. The allegations of bullying, unfair treatment and harassment by colleagues were disputed.
b. The failure to be granted extra shifts at Coffs Harbour Hospital and associated financial stress was the main contributing factor to the applicant’s psychological injury.
The denial of liability under s 11A of the 1987 Act is stated to be because the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to the provision of employment benefits.
Reading the s 78 notice (from which I have repeated the relevant parts verbatim above) it is my view that the only action taken on the part of the employer in respect to the provision of “employment benefits” that is identified in the notice as forming the basis of the defence under s 11A of the 1987 Act is the failure to provide extra shifts at Coffs Harbour Hospital which action was stated by Dr Murphy to be the “main contributing factor” to the applicant’s injury.
Accordingly the s 11A defence in this case depends on the respondent establishing a number of factors the first of which is that the applicant’s psychological injury was caused wholly or predominantly by the failure of the respondent to provide extra shifts at Coffs Harbour Hospital despite a promise to do so. If the respondent fails to establish on the balance of probabilities that the applicant’s psychological injury was wholly or predominantly caused by the alleged failure to provide extra shifts at Coffs Harbour Hospital the defence under s 11A of the 1987 Act must fail without considering other factors such as whether the action was reasonable or whether the rostering of shifts should be regarded as an “employment benefit”.

Summary of evidence to be considered

The evidence in relation to causation of the applicant’s injury consists of statements from the applicant, statements of fellow employees, the medical records of her treating general practitioner, medical reports from her treating doctors and psychologist, certificates of capacity and the reports of the qualified independent medical examiners retained by the applicant and respondent.

Evidentiary statements

The applicant’s initial statement which appears in the application was obtained by the respondent and is dated 5 April 2022.[4]

In her initial statement the applicant sets out five headings of “incidents” which she alleges occurred in the course of her employment.

[4] Application pp 3-12.

The first “incident” sets out problems she experienced in use of the computers at Coffs Harbour Hospital noting a range of problems including difficulties logging on, delays in setting up each time a new computer was used, difficulties accessing the relevant calendar, the need to constantly seek help from the IT department and problems printing.
The second “incident” sets out problems experienced by the applicant when the section of the hospital where she worked had to be moved due to renovations. Those problems were described by the applicant as being again computer related because of the lengthy periods she had to spend setting up new computers including having to do connection of hardware. The applicant alleged that even when she spent the time trying to set up the computers they would not necessarily work and that sometimes it could take as much as week for a new computer to be set up.
The third “incident” relates to difficulties the applicant had getting a request to change her hard drive from Tweed Heads Hospital where she experienced problems completing the paperwork properly. This was another problem related to the IT difficulties she said she was experiencing and the applicant perceived that her manager Margaret Laidley was angry with the applicant because of the need to keep signing new forms.
The fourth “incident” set out in the applicant’s statement is an allegation by the applicant that other staff both nursing and clerical were ignoring her, laughing amongst themselves and talking abruptly to her.
The fifth “incident” sets out details of events that occurred on 1 February 2022 when she experienced difficulties accessing the internet and could not access the computer system. As she described it “The computer issues had just caught up with me. The constant issues were so frustrating, and I just couldn’t cope anymore.”[5]
[5] Application p 10.
There is no reference in the applicant’s statement dated 5 April 2022 to any failure of Coffs Harbour Hospital to provide extra shifts for her to work.
Attached to the application is a statement dated 30 August 2022 from the applicant’s manager Margaret Laidley that provides a response to the applicant’s statement concerning her injury.
Ms Laidley does not challenge the applicant’s version in “Incident 1” of having problems with the IT system and in fact Ms Laidley stated:
“I.T. issues in this facility are extraordinarily challenging and difficult for everyone due to a lack of resources.”[6]
[6] Application p 17.
Ms Laidley noted in relation to the fax/photocopier machine,
“In the pre-admission clinic, the fax/photocopier machine was terrible and hard to use for everybody not just Donna.
The issue had been raised many times by staff and either could not be fixed or as we were moving again was not high on the list of priorities despite the fact it affected direct patient care.
… No-one could apparently address the issue.”[7]
[7] Application p 18.
Ms Laidley further commented:
“It would have been more frustrating for Donna as she still had the Tweed Heads profile.”[8]
[8] Application p 18.
In relation to the second “incident” described by the applicant Ms Laidley confirms that there were IT issues in the old ED building and she stated in relation to the applicant’s claim of difficulties logging in
“I think with Donna having 2 profiles being Tweed Heads and Coffs Harbour this may have made it harder for Donna to log in.”[9]
[9] Application p 18.
In relation to the applicant’s suggestion that Ms Laidley was angry with her when the applicant kept asking her to sign forms Ms Laidley commented as follows:
“I don’t specifically recall Donna bringing the form for me to sign but it would be typical of our I.T. forms and the hoops you have to jump through.
I would have had to sign the form, but I have over a hundred staff across many departments, and sign this form many times a week.
I can’t comment if I was angry towards Donna or not. I just don’t recall. Why would I be angry as it was just another form to sign.”[10]
[10] Application p 19.
In relation to the fourth “incident” described by the applicant (of being ignored, laughing amongst themselves and speaking abruptly) Ms Laidley simply states she was not aware of such issues and that the applicant made no complaint about same to her.
Finally in relation to the fifth of the “incidents” described by the applicant Ms Laidley states that she was told by another staff member that the applicant had walked out but also stated:
“I agree that it is frustrating talking to our I.T. section.
I have also needed to climb under desks to rearrange computer cords.”[11]
[11] Application p 19.
Ms Laidley statement also deals with the issue of provision of extra shifts,
“I offered her some extra shifts in the day surgery/short stay unit. Donna appeared happy with this.
I organised the NUM to come around and we added some extra shifts for Donna.
I was of the opinion that Donna was happy with this arrangement and the extra shifts.
Donna never did any of the extra shifts as she went off sick on Workcover.”[12]
[12] Application p 20.
Ms Laidley went on to state:
“Donna never complained about only working 2 days per week as she was going to work another 2 days at Tweed Heads.
I was worried about her driving up to Tweed Heads on a weekly basis and this is why I suggested the extra Coffs Harbour shifts.”[13]
[13] Application p 21.
In my view the statement of Ms Laidley strongly corroborates the applicant’s complaints in relation to the difficulties in relation to the IT system and the other office equipment (fax/photocopiers) used in the course of her employment with the respondent at Coffs Harbour Hospital.
In relation to the issue of the provision of extra shifts it seems the respondent via Ms Laidley made the suggestion in an attempt to reduce the applicant’s fatigue and that some extra shifts were provided but not worked.
On Ms Laidley’s version of events the provision of extra shifts would have been appreciated by the applicant even if there was some initial problem in having all the extra shifts provided as expected.
The applicant has also attached to the application a statement dated 30 August 2022 from an Amanda Maree Gear who was an enrolled nurse who worked with the applicant. Ms Gear’s statement was also one obtained by the respondent.
In a similar fashion to the statement provided by Ms Laidley the statement from Ms Gear deals with a number of the “incidents” raised by the applicant her statement.
Ms Gear does not comment on the first and third “incidents” described by the applicant.
In relation to “Incident 2” Ms Gear relevantly comments,
“ … everyone had issues with sending faxes. I and other staff had to go to another section to send them.
There were also issues with logging into the computer.
I was aware that Donna was also having problems with logging into the computers as Donna told me that she had two profiles being Tweed Heads and Coffs Harbour and this was making things worse for her logging in.”[14]
[14] Application pp 23-24.
In relation to “Incident 4” Ms Gear stated that she was not aware of any staff ignoring, laughing at or disrespecting the applicant and further states that the applicant was invited to social events such as the movies and breakfast but also states that the opportunities for socialization at work were limited.
In relation to “Incident 5” which covers the events on the day when the applicant left the hospital Ms Gear relevantly stated:
“On Tuesday 1 February 2022 at approx. 0900I was sharing my workplace with Donna Crates. That morning she was expressing her frustrations (complaining in conversation) with her computer not being able to access the internet and log in issues. She said she was sick of coming to work and having to sort out her computer before she could start doing any work and that she had spent an hour and a half trying to sort out things this morning. I heard her speaking with IT trying to sort things out. She became very frustrated with them telling them that she was over all these issues, and that she couldn’t speak with them anymore and needed to hang up which she did. She was not yelling at them but was annoyed. She said to me that they were really rude and that she was over it and couldn’t keep doing this with the computer all the time and that she was going. I was on the phone to patients during most of this time and wasn’t fully concentrating on her conversation with IT as to any specifics. Donna started to pack up her belongings banging things around and upset. She looked on the verge of tears. I asked her if I could do anything to help and she replied ‘No thank you and I’m sorry about this Amanda’ and then walked out.”[15]
[15] Application pp 24-25.
Ms Gear also stated:
“I am aware that other staff at the time were having computer issues as well.”[16]
[16] Application p 25.
Of significance Ms Gear also stated:
“Donna did mention that she was upset that due to covid she couldn’t see her grand kids during lockdown. Apart from this I don’t know of anything out of work that could attribute [sic] to her current injury.”[17]
[17] Application p 25.
The statement of Ms Gear is supportive of the applicant’s complaints of problems with IT and other office equipment.
There is no mention in the statement of the applicant having ever communicated any dissatisfaction about her rostered shifts to Ms Gear despite other matters such as Covid restrictions being raised in addition to the problems with IT and other office equipment.
Further the proximate events leading up to the applicant being unable to continue at work are clearly the frustrations and distress the applicant was experiencing on 1 February 2021 with her computer.
The only other statement in evidence is a supplementary statement from the applicant dated 27 January 2023.
In her statement of 27 January 2023 the applicant detailed some more issues she experienced in relation to computer and IT issues and also provided some comments about being bullied or disrespected such as a suggestion that Krishna the in-charge nurse would move her to a new computer regularly knowing it would create difficulties.
In relation to the issue of the provision of extra shifts the following comments are recorded in the applicant’s statement:
“Further to reference the statement of Margaret Laidley, in relation to point 53 I wished to return to 32 hours per week and requested extra shifts. Krishna told me that there were no extra shifts.
I had checked with Human Resources and it was possible for me to work 2 days at Tweed Heads and 2 days at Coffs Harbour.
Krishna advised that I was not allowed to work the 2 days at Tweed Heads and I had to have a meeting with Margaret.
I had a meeting with Margaret and she arranged the additional 2 days at Coffs Harbour in the DSU.
I had this 4-day roster for 4 to 6 weeks.
I was advised that the roster was not guaranteed to have 4 days every week though I would get at least 7 days per fortnight.
I was asked if I was happy with the 7 days per fortnight would hand in my notice to Tweed Heads [sic].
I handed in my notice to Tweed Heads.
When the next roster came out there were no extra shifts for me.
I had email [sic] the ‘in charge’ regarding the lack of shifts and received no response.
I visited the ‘in charge’ in person and she apologised and said she had no re extra shifts to give me.
I had explained that I had given notice at Tweed Heads, and was just told ‘sorry’.”[18]
[18] Application p 1.
In my view the statements of Ms Laidley and Ms Gear appear to have been given honestly and without any animus towards the applicant. Both of those witnesses confirm the applicant’s complaints of continual difficulties with the IT system at Coffs Harbour Hospital and the difficulties complained of in relation to the operation of other equipment such as photocopiers and fax machines.
Both Ms Laidley and Ms Gear confirm that the applicant experienced even more difficulty than other staff members because she had two profiles one at Tweed Heads Hospital and one at Coffs Harbour Hospital.
Both of the witnesses confirm that the IT department failed to rectify problems even when asked to do so.
Neither witness gives any history of the applicant being distressed by the failure to obtain extra shifts despite a promise of same.
In relation to the applicant’s claim of bullying I am prepared to accept the statements of Ms Laidley and Ms Gear that there was no complaint made by the applicant of bullying behaviour by other staff members and that at least as far as those two witnesses were concerned there were no incidents of ignoring the applicant, laughing at her and disrespecting her.
As submitted by Mr Beran for the applicant the “bullying” may actually be a case of misperception of actual events but in any event the “bullying” allegations appear to form a relatively small part of the matters that the applicant identified as being work place stressors.
There is no evidence of any other stressor in the applicant’s life at that time other than Ms Gear’s comment about the applicant being unhappy with Covid restrictions.
The applicant’s supplementary statement does confirm that she was unhappy with the failure of the respondent to provide extra shifts in the roster after what the applicant says was a promise of at least seven shifts a fortnight which induced her to resign from Tweed Heads Hospital.
I note however that the incident in relation to the roster appears to have arisen on only one occasion apparently not long before she ceased work at Coffs Harbour Hospital and it further appears that extra shifts would have been forthcoming as Ms Laidley suggests that the applicant was unable to work the extra shifts due to her injury. I assume that means that the next roster may have addressed the applicant’s concerns in that regard however that is somewhat speculative.

Medical records

The applicant’s general practitioner’s records are reproduced in the application at pages 153 to 257.
Between January 2021 and 6 January 2022 the applicant appears to have seen doctors at her regular general practice on around 17 occasions and during that period no mention is made of any problems at work nor is there any complaint of psychological type problems.
On 6 January 2022 the applicant saw her doctor complaining of stress.
On 5 February 2022 the applicant again saw her general practitioner and gave a history of having lots of stresses at work.
On 15 February 2022 the applicant gave a more detailed history which was summarised by Dr Regina Garde as including:
“alleged bullying from co-workers, …stressed everytime [sic] she goes to work, being treated as a child at work , not being listened to, has no support from manager, struggling with work, developed pani [sic] attacks everytime [sic] she has to deal with her manager and co-workers.”[19]
[19] Application p 169.
The applicant was seen again by her general practitioner on 28 February 2022 when no history of the injury was recorded.
When seen by Dr Luke Johnson at the same practice as Dr Garde on 14 March 2022 a more detailed history was again recorded which included the following notations “work place bullying, supervisor at work making her feel incompetent, not supported working with the IT infrastructure, was not supported in handover and orientation to the computer system”.[20]
[20] Application pp170-171
On the 11 April 2022 the applicant was again seen by Dr Luke Johnson. Dr Johnson carried out what he describes in the notes as a “very very long work cover mental health consult.”[21]
[21] Application p171
In his notes covering that consultation Dr Johnson recorded the following:
“(example of bullying is – she can’t really tell me a certain thing, says it is lots of small things, like being disrespected, example being people laughing in hallways, being asked if she wants cake, ‘I don’t want your cake’, again rumination about computer issues at work where she was not supported but rather people laughing about her trouble, being excluded, people saying merry \christmas [sic] to everyone but her, felt people were rude to her.”[22]
[22] Application p171
There were eight further attendances at the applicant’s general practice between 11 April 2022 and 6 September 2022 where there is no further history recorded by the relevant doctor dealing with the circumstances of the development of her psychological condition.
Significantly in my view there was no history recorded by the doctors who saw the applicant at the general practice of the applicant having been distressed by the failure of the respondent to provide extra shifts at the Coffs Harbour Hospital.

Medical reports – claims management and treating.

A questionnaire that is undated but was completed by Dr Saboor, psychiatrist, on a date around 26 May 2022 as an independent medical examiner qualified for the insurer of the respondent is found a page 90 of the application and in terms of history Dr Saboor recorded complaints of workplace bullying, lack of support and computer difficulties. There is no history recorded by Dr Saboor of the applicant being distressed by a failure on the part of the respondent to provide extra shifts.
On the basis of the recorded history and the findings on examination Dr Saboor diagnosed the applicant as suffering from an adjustment disorder with depressed mood.
The applicant’s treating psychologist Carl Nielsen has provided a report dated 8 November 2022 which appears at pages 93 and 94 of the Application.
In his report under the heading “Dates, timeline of stressors” Mr Nielsen recorded (inter alia),
“Ms Russo reported that issues arose at her place of work when she commenced working at Coffs Harbour in approximately February 2021. Ms Russo reported an unsupportive working environment due to her receiving little to no support regarding the IT system. Ms Russo also reported that she was isolated by her co-workers which caused a deterioration in her mental state and her last date of work was 1 February 2022.” [23]
[23] Application p 93.
There is no mention in the history recorded by Mr Nielsen of the applicant identifying as a stressor the failure by the respondent to provide extra work shifts as promised.
Mr Nielsen diagnosed the applicant as suffering from a Major Depressive Disorder related to her work.
Dr Eric Lim is the applicant’s treating psychiatrist and a report dated 4 October 2022 prepared by Dr Lim is found at pages 83 and 84 of the Application. Under the heading “History of Injury” Dr Lim recorded as follows,
“Psychological injury from the workplace. She felt excluded, isolated and lack of support from her co-workers.
She had problems with her computer for several months and never received adequate IT support. On 01/02/2022, she had waited 2 hours for assistance with her computer. She felt she was spoken to in demeaning way and become frustrated. She left work early that day and has not returned to work since 01/02/2022.”[24]
[24] Application p 83.
There is no mention in that history of the applicant complaining of the failure of the respondent to provide extra work shifts despite a promise to do so.
Dr Lim diagnosed an Adjustment Disorder with aggravation of Atrial Fibrillation which he related to the conditions of her employment as set out in her history.

Qualified medical reports

In terms of qualified medical expert reports the applicant has relied upon the opinion of Dr Nabil Malik, psychiatrist, who has provided a report dated 9 December 2022 which appears at pages 75 to 82 of the Application.
Under the heading “History of Presenting Complaint” Dr Malik recorded:
“Ms Russo-Crates tells me when she joined Coffs Harbour hospital she had no psychological symptoms, she tells me she was working pre-admission. She explained the circumstances of her injury, she tells me it was due to cumulative effects of work stressors, she tells me when she moved, she could not fit in at Coffs Harbour, she tells me she was having IT problems and despite asking for support no solution was provided. She tells me she would spend more time trying to access the computer and login than writing notes. Ms Russo-Crates tells me the department moved in late November/December and at the time she spent long hours trying to fix IT, she tells me she would have to go under the desk and fix wires, she tells me it was embarrassing, and this was causing stress and anxiety.
Ms Russo-Crates tells me in addition, she was also having issues with staff, she tells me she was never accepted and was made to feel isolated; she tells me the staff would freeze her out and not engage with her.
Ms Russo-Crates tells me in February 2022 this all came to a point that she was having anxiety and depressive symptoms, she tells me on the day she had to work her symptoms were worse, she tells me she was having changes in her sleep and appetite. Ms Russo-Crates tells me she was trying to cope but an incident tipped her over, she tells me on the day she stopped working she was having IT difficulties and was feeling frustrated, she tells me she raised this again with her manager who was rude and disrespectful, she tells me this worsened her anxiety, and she was in tears, she tells me she walked out from that place emotional.”[25]
[25] Application pp 75-76.

There is no mention in the history obtained by Dr Malik of the applicant being stressed by the failure of the respondent to provide extra work shifts as promised.
Dr Malik diagnosed the applicant as suffering from a major depressive disorder with anxious distress caused by the factors described in the history he was given.
The final qualified medical reports that require consideration are a report dated 20 June 2022 and a supplementary report dated 25 January 2023 prepared by Dr Lucas Murphy who had been retained by the respondent.
In his report dated 20 June 2022 Dr Murphy recorded reviewing the treating general practitioner notes from 5 February 2022 to 11 April 2022 and also recorded having conducted a Telehealth interview which he described in the following terms,
“Ms Russo-Crates participated to the best of her ability. She appeared on time. She was initially polite and cooperative, but she quickly became emotionally dysregulated and volatile. At times, she did not like being interrupted or to bring her back on topic. Towards the end of the assessment, she became agitated, irritable, and overwhelmed. She started losing her temper with me, (raising her voice),’ I DON’T KNOW WHY YOU THINK THIS ISN’T IMPORTANT!! THIS IS WHAT BROKE ME …”.[26]
[26] Reply p 14.
Under the heading “History of Claim” Dr Murphy recorded the following,
“Ms Russo-Crates mental health seems to have collapsed in late January/ early February 2022.
Now aged 57, she cannot afford to retire. She needs to work four days per week.
Her job at Coffs Harbour Pre-Admission Clinic was only two days per week.
Ms Russo-Crates was in discussion with both Tweed Heads and Coffs Harbour about the additional two days per week. She had the option of commuting to Tweed Heads, staying with her mum, and working two days a week there.
After Coffs Harbour offered her an additional two days per week, Ms Russo-Crates elected to resign her position at Tweed Heads.
She was left with the impression that the Nursing Unit Manager in Tweed Heads was upset and worries that she might not be welcome back.
The additional two days a week at Coffs Harbour did not materialise, leaving Ms Russo-Crates very distressed about money.
On the background of low job satisfaction, the financial stress caused Ms Russo-Crates
Mental health to decline sharply in late January/early February.”[27]
[27] Reply p 15.
Dr Murphy does not make any mention of having received any history of the applicant being stressed by IT issues, problems with other office machinery or of perceived bullying by other staff members.
It is unclear why Dr Murphy did not receive any history of IT problems, perceived bullying and other issues that all other medical practitioners record and which form such a large part of the applicant’s statement to the respondent’s investigator. It may be that there was a failure on the part of the doctor to establish a proper rapport with the applicant or that he simply did not listen to what she was saying. The description of the consultation repeated at point 108 above certainly suggests that the doctor interrupted the applicant when she was trying to tell him things and she seems to have felt that he was not listening to what she regarded as the important matters that “broke me.”
On the basis of the history he obtained Dr Murphy expressed the view that the main contributing factor to the Major Depressive Disorder that he diagnosed was the “difficulty securing an additional two days per week.”[28]
[28] Reply p 20.
Dr Murphy was asked to provide a supplementary report after he was provided with additional material including the statements of the applicant, Ms Laidley and Ms Gear and some records from the general practitioner.
After apparently reviewing that material Dr Murphy provided the supplementary report dated 25 January 2023 which simply confirms the opinions set out in “my indexed report”.[29] No reasoning underpinning the confirmation of his opinion is disclosed.
[29] Reply pp 27-29.

Section 11A defence – findings and reasons

As noted earlier the respondent has not raised any issue under s 4 of the 1987 Act and accordingly has admitted that the applicant suffered a disease injury to which the applicant’s employment was the main contributing factor.
The s 78 notice does raise a defence under s 11A of the 1987 Act and as noted at point 31thee respondent bears the onus of establishing that defence.
As was also noted earlier at points 37 and 38the respondent’s case is that the failure to provide extra shifts at Coffs Harbour was either wholly or predominantly the cause of the applicant’s injury and that the failure to provide those extra shifts was reasonable action taken or proposed to be taken on the part of the employer.
The only evidence that the respondent can point to that would establish that the applicant’s injury was either wholly or predominantly caused by the failure to provide extra shifts at Coffs Harbour Hospital is the opinion of Dr Murphy based upon the history he obtained.
On the balance of probabilities, the respondent does not establish that the injury was wholly or predominantly caused by the failure by the respondent to provide extra shifts as was promised and accordingly the respondent’s defence under s 11A of the 1987 Act must fail without needing to consider whether the failure to provide the extra shifts was reasonable.
In my view the opinion of Dr Murphy on causation of the applicant’s injury cannot be accepted as he appears to have failed at the time of his consultation to obtain a proper history from the applicant of her employment circumstances at Coffs Harbour Hospital and he does not appear to have properly considered the material provided for his supplementary opinion when providing that supplementary report.
Other than the reports of Dr Murphy all the other histories given by the applicant in her statements or in the doctors’ notes or the medical reports record the applicant as being distressed at work by IT issues, problems with office equipment and perceptions of being “bullied”.
Further the claims made by the applicant in relation to her problems with the IT and computer systems and the office equipment are all corroborated by other witnesses.
I consider it totally improbable that the applicant would not have mentioned such issues to Dr Murphy if given the chance and in my view the portion of his report cited at point 108above suggests that he simply was not prepared to listen to a full history of her work issues to the extent that she became quite distressed by his failure to listen.
In relation to the supplementary report I have already commented about the failure to provide any evidence of consideration of the material that Dr Murphy was invited to consider and the failure to set out any reasoning in his supplementary report as to why he confirmed his earlier opinion despite the material he had been asked to consider. Accordingly the supplementary report should be given little or no weight in relation to the views expressed on causation of the applicant’s injury.
Other than the opinion of Dr Murphy there is no other evidence before me that could be relied upon to establish that the applicant’s psychological injury was either wholly or predominantly caused by the failure to provide extra shifts as promised.
While strictly speaking it is not necessary for my decision given the failure of the respondent to discharge the onus of proving the defence under s 11A of the 1987 Act in my view on the balance of probabilities the predominant and main cause of the applicant’s psychological injury were the difficulties she was experiencing throughout her time at Coffs Harbour Hospital with the computer and IT systems and the other office equipment.
Despite Mr Halligan’s submission it is irrelevant whether the problems with the computer and IT systems and the office equipment were understandable given the circumstances of hospital administration in New South Wales. Section 11A does not operate as a defence in respect of all “reasonable” action by an employer – it only applies to reasonable action in relation to a number of specific circumstances[30] and the only circumstance raised by the respondent in the proceedings as falling within s 11A of the 1987 Act was the failure to provide extra shifts which the respondent suggested constituted the provision of employee benefits.
[30] Smith v Roads and Traffic Authority of NSW (2008) NSWWCCPD 130.
Drs Malik, Sim, Lim and Saboor together with Mr Neilsen express a similar view to mine on causation of the applicant’s injury.
I do not believe that the applicant was “bullied” in the sense that other staff members sought to deliberately harm intimidate or coerce her however I do accept that she developed a perception of actual events that others were ignoring or excluding her and that perception was a lesser though still contributory factor in the development of her injury.
I accept that the failure to provide the extra shifts as promised could have been a further stressor however in my view the overwhelming evidence is to the effect that the failure to provide extra shifts was a relatively minor issue in the overall development of the applicant’s injury.
Again while strictly speaking it is not a necessary finding for my decision it is my view that even if the respondent had established that the applicant’s psychological injury was either wholly or predominantly caused by the failure to provide extra work shifts as promised that failure to provide the shifts could not be regarded as “reasonable”.
As was noted by Geraghty CCJ in Irwin v Director General of Education:[31]
“… the question of reasonableness is one of fact, weighing all the relevant factors . That test is less demanding than the test of necessity but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[31] NSWCC 14068/97.
In my view it is difficult to see how suggesting that someone should cease employment at another site on the basis that extra shifts will be provided and then fail to provide those shifts as represented could be regarded as fair to that person.

Section 33 issue – findings and reasons

In addition to the defence under s 11A of the 1987 Act the respondent’s s 78 notice disputed liability for weekly payments under s 33 of the 1987 Act on the basis that the applicant did not suffer from total or partial incapacity for work as a result of an injury.
As noted the respondent did not raise any issue under s 4 of the 1987 Act so in my view there is no dispute that the applicant suffered an injury arising out of or in the course of her employment and that the employment was the main contributing factor to that injury.
Accordingly the only basis to dispute that the applicant does not have an entitlement to weekly compensation under s 33 of the 1987 Act is that the applicant does not suffer from either total or partial incapacity for work as a result of that injury.
There is a general agreement in the various diagnoses suggested by the doctors and psychologist who have seen the applicant that she suffers from an adjustment disorder with depression or a major depressive condition.
All of the medical evidence that is before me confirms that at the present time the applicant is totally unfit for work.
Dr Malik stated “I believe currently she is totally incapacitated to work in any role with any employer”.[32]
[32] Application p 81.
Dr Lim certified her as unfit for work and noted that a return to work was unlikely at this stage.[33]
[33] Application p 84.
Dr Saboor noted that it was uncertain as to when the applicant would be able to upgrade to suitable duties much less to return to her pre-injury duties.[34]
[34] Application p 91.
Mr Neilsen stated “Ms Russo is unfit for work duties.”[35]
[35] Application p 94.
All the certificates of capacity attached to the application certify the applicant as having no current work capacity.[36]
[36] Application pp 95-152.
Dr Murphy stated “At this stage, Ms Russo-Crates is not well enough to work as a nurse.”[37] Dr Murphy suggested that with a change in treatment there was a potential for improvement and a subsequent return to work elsewhere but he does not certify any current work capacity.
[37] Reply p 20.
There is no other evidence before me that suggests the applicant has any current capacity for work.
I find on the balance of probabilities that at all relevant times for the purposes of this claim the applicant has been totally incapacitated for work as a consequence of a psychological injury received in or arising out of the course of her employment and is entitled to an award of weekly compensation as required by s 33 of the 1987 Act.
The applicant’s pre-injury average weekly earnings as at the date of her injury are agreed to be $738.52 per week which amount will be subject to indexation from time to time as appropriate.

Sections 59 and 60 issue – findings and reasons

The respondent’s s 78 notice also disputed liability for payment of medical hospital and related treatment expenses on the basis that the treatment was not reasonably necessary as a result of an injury as required by ss 59 and 60 of the 1987 Act.
I again note that there is no dispute that the applicant has suffered an injury in or arising out of the course of her employment to which the employment was the main contributing factor.
The only basis that liability for payment of medical hospital or related expenses could be disputed by the respondent is that such treatment is not “reasonably necessary”.
There is no evidence before me that disputes there is a need for treatment of the applicant’s injury.
The medical evidence before me confirms that the applicant has required treatment for her psychological injury and that there will be an ongoing need for treatment of that injury.
Dr Malik stated:
“In my professional opinion, on the balance of probabilities I believe she will need ongoing treatment by her GP, Psychologist and Psychiatrist for next 6 to 12 months. I suggest continuing same medication at this stage.”[38]
[38] Application p 82.
Dr Lim stated:
“She will require further psychological therapy to stabilise her condition.”[39]
[39] Application p 84.
Dr Saboor stated:
“She needs further specialist (psychiatric input) in regards to this.”[40]
[40] Application p 91.
Mr Nielsen stated:
“Ms Russo should continue with Psychological therapy and GP consultations.”[41]
[41] Application p 94.
The respondent’s qualified doctor, Dr Murphy also supported the need for ongoing treatment stating that there needed to be an increase in medication and that the applicant needed weekly psychotherapy.
As stated there is no material before me that medical and related treatment is not reasonably necessary for the applicant’s injury and on the balance of probabilities the applicant is entitled to an award under s60 of the 1987 Act.

SUMMARY

The applicant suffered an admitted psychological injury arising out of on in the course of her employment with the respondent on 1 February 2022.
I find that the psychological injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, or dismissal of workers or provision of employment benefits to workers.
I find that since 1 February 2022 the applicant has been incapacitated for work and has possessed no current work capacity as a result of the injury received on that date.
The applicant has been paid weekly compensation from 1 February 2022 to 17 October 2022.
I find that the applicant’s pre-injury average weekly earnings at the date of injury to be $738.52 per week.
I find that the applicant is entitled to have her reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 18 October 2022 to date and on a continuing basis, at the rate of $590.82 (as adjusted if necessary applying relevant indexing) per week
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 194

1 May 2023