Ryan v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ryan v Secretary, Department of Education [2024] NSWPIC 186
APPLICANT:	Tammy Ryan
RESPONDENT:	Secretary, Department of Education
MEMBER:	Jacqueline Snell
DATE OF DECISION:	12 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly benefits resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to discipline and/or performance appraisal; the applicant’s capacity for work is also in issue; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or performance appraisal; the applicant has had no capacity for work and has entitlement to weekly compensation payable under section 37(1).
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s primary psychological injury, with a deemed date of injury of 31 August 2022, was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or the discipline of workers. 2. The applicant has had no current work capacity for work resulting from the injury and has entitlement to weekly compensation payable under the s 37 of the Workers Compensation Act 1987 from 25 May 2023 ongoing at the rate of $1,878.46 (as indexed).

STATEMENT OF REASONS

BACKGROUND

Tammy Ryan (Ms Ryan) the applicant sustained primary psychological injury in the course of her employment with the Department of Education (the Department) with the deemed date of injury of 31 August 2022, with her employment being the main contributing factor to injury.
Ms Ryan claims weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 25 May 2023 on the basis she has had and continues to have no current work capacity resulting from the injury.
In these proceedings Ms Ryan describes the circumstances of injury in the following terms:
“The Applicant was unfairly targeted and excluded from meetings by the Principal. The Applicant was intimidated and harassed by the school Principal and Deputy Principal from 2021 and was not provided with appropriate resources or feedback. Over time the Applicant was required to work with unrealistic timeframes and guidelines and her relationship with the school Principal and Deputy Principal deteriorated which resulted in the Applicant suffering a progressive psychiatric injury. Further, the Applicant was the victim of false allegations regarding her work performance and was then subject to unreasonable and inappropriate disciplinary processes. The entirety of these events over time resulted in the Applicant suffering a progressive psychiatric disease with a deemed date of injury of 31 August 2022.”
Ms Ryan’s claim for weekly compensation payable under s 37 of the 1987 Act is declined and she has been issued with notices dated 1 May 2023 and 11 June 2023 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.

ISSUES FOR DETERMINATION

The Department does not dispute Ms Ryan sustained primary psychological injury in the course of her employment with the Department with deemed date of injury of 31 August 2022 and that her employment was the main contributing factor to injury.
The parties agree that Ms Ryan’s pre-injury average weekly earnings (PIAWE) are $2,348.08 (indexed).
The parties agree that the following issues remain in dispute:
(a) whether Ms Ryan’s 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 performance appraisal and/or discipline of workers, and if not,
(b) whether Ms Ryan suffers an incapacity for work resulting from injury and has entitlement to weekly compensation payable under s 37 of the 1987 Act from
25 May 2023 ongoing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 17 January 2024 and with Ms Ryan’s claim remaining unresolved, these proceedings came before for conciliation/arbitration hearing on 27 February 2024. Mr McManamey of counsel appeared on behalf of Ms Ryan and Mr Coombes of counsel appeared on behalf of the Department. Mr McManamey’s instructing solicitor and Mr Coombes’ instructing solicitors were present. It was disappointing there was neither a representative of the Department or a representative of the scheme agent was present.
Following my discussions with counsel 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 Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 31 January 2024 and attached documents lodged on behalf of Ms Ryan,
(d)    Application to Admit Late Documents dated 20 February 2024 and attached documents lodged on behalf of the Department, and
(e)    Application to Admit Late Documents dated 23 February 2024 and attached documents lodged on behalf of Ms Ryan.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

Brief review of evidence

Statements of Ms Ryan

Ms Ryan relies on a statement dated 22 September 2023, a statement dated
31 January 2024, and a statement dated 22 February 2024.
Ms Ryan explained she completed a university degree in education and commenced working as a primary school teacher with Granville East Primary School (GEPS) in 2000. She said she completed a master’s degree in instructional leadership in 2018. She said she has a reading recovery qualification. She said she is currently enrolled in a Doctor of Education.
Ms Ryan said of Granville East Public School:
“During my employment at the school I have taught classes from kindergarten up to year 6 but I have also taught English as an additional language teacher for students from non-English speaking backgrounds and a specialist learning and support teacher where I teach specific children within a class who need additional support particularly with learning, social and emotional needs and speech, language and communication as well as behavioural issues.”
Ms Ryan noted Louise Reynolds (Ms Reynolds) became principal of the school in 2008.
Ms Ryan explained she “had a somewhat difficult relationship with Ms Reynolds but found that over the years that we were able to work together effectively”. She said of Ms Reynolds:
“Louise’s personality style in my opinion was passive aggressive towards me. Louise would ignore me and exclude me on occasion from professional learning meetings and Louise made it difficult to develop and progress into higher roles within the executive.”
While Ms Ryan said she successfully acquired the position of relieving assistant principal at GEPS in 2016, she said she was not remunerated at the correct rate, an anomaly reportedly not corrected by Ms Reynolds.
Ms Ryan said of Ms Reynolds, “as a result of Louise’s repeated stifling of my attempts to develop professionally, I decided that I would have to attempt to develop professionally outside of Granville East Public School” and she took up two secondments at Merrylands East Public School, the first in 2017 in the role of deputy principal/assistant principal and the second in 2019 in the role of classroom teacher and assistant principal and stage 1.
Ms Ryan explained in some detail the duties required of her by Ms Reynolds on Ms Ryan’s return to GEPS in 2021. She said:
“… Louise placed me in a guided reading support teacher role on stage 2 and stage 3 (8-12 years). Louise then advised me that in addition to my guided reading support role I was required to be an RFF teacher (take a class teacher’s class so the teacher could attend meetings or plan for lessons) and work as a classroom teacher in a job share role on a year 1 class one day a week. I was also required to be the casual teacher and take teachers classes when teachers were absent. I was required to support 90 students (approx.) in my role as compared to other support teachers who supported no more than 30 students and do planning for a range of roles and without support. The parents/carers of the children in the year 1 class and the community were not advised that I was the class teacher on the year one class one day a week. I was required to plan my lessons for this class and contribute to the writing of school reports. This was unfair and I felt excluded as compared to other classroom teachers in a job share role. I was not permitted to attend meetings, collaborate with the other teachers to plan lessons in meetings, engage in professional learning, sign the students school reports and not publicly be acknowledged as the class teacher for that class.”
Ms Ryan spoke of specific occurrences occurring after her return to working at GEPS. In an attempt to look at such occurrences in a chronological manner, it is apparent
Ms Ryan found the following occurrences quite distressing:
(a)    in June 2021 Ms Reynolds complained to Ms Ryan she had left a class unsupervised and gone home, which Ms Ryan said was not the case as while she had gone home the class “weren’t left alone as in the class there was another classroom teacher and a learning support teacher”;
(b)    in a letter dated 9 November 2021, Ms Reynolds raised concern Ms Ryan was not creating orientation videos and collaborating with the stage 1 team leader during the COVID-19 lockdowns, which Ms Ryan said was untrue.
Ms Ryan conceded she did not attend a scheduled meeting regarding this on
8 November 2021, but said she attended the rescheduled meeting later in November 2021. Ms Ryan explained that although she was not aware she was required to make videos while the children were schooled at home, she had attended all electronic meetings required and ultimately created all videos she was asked to create. She said despite the children no longer schooled from home, Ms Reynolds requested Ms Ryan create the videos referred, which Ms Ryan did. Ms Ryan said, “I did this in my own time at night as well as my teaching preparation for the following day”;
(c)    in January 2022 during the school holidays Ms Ryan received text messages from the assistant principal in which Ms Ryan “was accused of” not completing the videos. Ms Ryan’s confirmed she had competed the videos and uploaded them to ‘Share Point’ which she confirmed with the Director of Educational Leadership, John Kennedy (to who she had complained that the books she had been required to use for the videos contained age inappropriate content) and when Ms Ryan returned to school on the first day of term, Mr Kennedy told her Ms Reynolds accepted the videos had been created and “they considered the matter closed”;
(d)    during 2022 Ms Ryan said while other teachers were required to work in pods rather than across the school so as to minimise the spread of COVID-19, she was required to work across the school which put her at a higher risk of contracting the virus;
(e)    in March 2022 when Ms Ryan expressed concerns regarding the lack of clarity of her role with Ms Reynolds in that Ms Ryan had been told at the beginning of the year that she was to be the Intensive Learning Support Teacher for GEPS, this role had not eventuated, Ms Reynolds advised Ms Ryan this was not in fact her role and her role was that of “guided reading support teacher for stage 1”;
(f)    in April 2022 Ms Ryan was advised by Ms Reynolds she no longer had a dedicated work space, despite having been provided with one previously and there were spare workspaces within GEPS;
(g)    in April 2022 Ms Ryan was required to meet with the assistant principal, Sarah Mellish “once a week” or “once a fortnight”, with explanation for the meetings, despite enquiry by Ms Ryan, and
(h)    in or about July 2022 Ms Ryan realised she was not receiving her allocated release from face to face teaching because she “used as casual teaching coverage” and neither was she allocated time to do mandatory online professional learning. Despite enquiry, such anomalies were not rectified by Ms Reynolds.
Ms Ryan explained she attended meetings on 27 May 2022 and 1 June 2022 with Ms Mellish and Ms Reynolds during which concerns were raised about her “ongoing work performance” and she was provided with a document entitled “document of concerns”. Ms Ryan said, “they said to me effectively that my teaching needed improvement”. Ms Ryan said, “I was able to disprove the concerns.” Ms Ryan outlined the six points of concern:
(a)    Ms Ryan’s reluctance to join the assistant principal’s Whats App group. Despite Ms Ryan’s expressed discontent regarding the constant messaging in this particular group, Ms Ryan was reconnected to this group;
(b)    Ms Ryan’s failure to complete planning for her guided reading role, which
Ms Ryan denied saying she always completed her planning after being advised of the planning requirements by the class teachers who attending a meeting during the day, a meeting which Ms Ryan was not expected to attend;
(c)    Ms Ryan’s failure to attend a meeting between the assistant principal and the class teachers to discuss the reading progress of students, which Ms Ryan denied saying she did attend the meeting. Ms Ryan said she had requested the meeting “because she thought it was important that Sarah was part of the discussions I was having with teachers about student reading progress and so we all had a shared understanding of this information.” Ms Ryan noted “there was no follow up actions or any further communications from Sarah after this meeting”;
(d)    Ms Ryan’s failure to use independent reading activities as part of her guided reading support role, which Ms Ryan denied saying she had been advised of the new arrangements for independent activities by the class teachers, which included stencil booklets and “a cut up sentence”. Ms Ryan confirmed her planning included independent activities as well as the stencil booklet and cut-up sentence, and
(e)    Ms Ryan’s failure to communicate assessment information, which Ms Ryan denied saying she shared her assessment information with the assistant principal and the class teachers “in a timely manner”. Ms Ryan talked of completing assessment on students when required to do so by the assistant principal, having regular formal and informal discussions regarding the progress of students and her recommendations for such students. Ms Ryan talked of regularly updating the Department’s Planning Literacy and Numeracy online assessment tool regularly, which was required of her with the data being used by class teachers and the executive.
Ms Ryan said that in both these meetings she attended, concern was also raised about
Ms Ryan’s handwriting, with Ms Ryan being shown a student workbook where Ms Ryan had not formed a letter correctly. Ms Ryan said:
“It was put to me by Sarah that they needed a teacher on the stage “who can write in foundation style handwriting”. Was put on a school timetable requiring me to support he class teachers on stage 1 with handwriting lessons.
It struck me that Louise was nit picking. In the 23 years that I have been a school teacher I had never had anyone criticize my handwriting. I modelled writing daily.
…
Louise then said she wanted to put me on a performance development plan.
Due to the stress and anxiety I experienced as a result of the allegations put to me, the aggressive nature of the meetings and the unfair processes used by Louise I reached out to the Early Assistance Program (EAPS) for help. I lodged two or three incident reports to the Department of Education’s Incident Report Hotline. I made contact with both the principal of Merrylands East Public School being John Goh and the Director of Educational Leadership being John Kennedy asking for help and requesting if they could attend a meeting as my support. They were unable to assist. I advised the director the stress of this situation was causing me harm. I acted on the Director of Educations advice.
I had to go off work on 1 September 2022 because of the stress and anxiety that I was under. It felt to me that Iwas being subjected to an ongoing series of unfair and unfounded criticism of my work, and it was causing me emotional distress and I was having difficulty sleeping. I couldn’t eat. I was crying a lot both at home and at school. I was having panic attacks. I lost weight, was unable to sleep and staff at the school were commenting on the change in my appearance and asking if I was okay.
I went and saw my local doctor, Dr Allan Laughlin. I started consulting with a psychologist, being Dr Paul Gertler and I still see Paul about every 3 to 4 weeks.”
Ms Ryan also talked of an incident occurring on 31 August 2022, being the day prior to her going off work. She said:
“On the 31st August I returned to work after being on sick leave. As I walked into the school I felt fearful, unwell and had difficulty breathing so I sat at a table near the school gate. I was having a panic attack. At the front of the school a kindergarten student was attempting to run onto the road after his mother had left him with a teacher at the gate. I could see the teacher was finding it difficult to calm the student and that the student was about to run on the road. I went over to assist the teacher with restraining the student even though I was feeling unwell. The same strategies I used to calm the student were able to help calm me and I then felt well enough to go into the school. As I walked around the corner of a building Louise was waiting for me. I kept walking towards the kindergarten classroom. Louise followed me. I began having another panic attack. Louise approached me in an intimidating manner and was telling me there was another meeting now that I was back at school. I went into the kindergarten classroom fearful and feeling unsafe and I was finding it difficult to breathe again. I had to leave the school and I went to the nearest doctor for help. I later contacted the incident report hotline and the Early Assistance Program (EAPS) for help.”
As at the date of providing her initial statement Ms Ryan said “presently I feel totally unfit for work. When I think about work I get a sense of panic.”
I think it fair to say that in her statement dated 31 January 2024 Ms Ryan expanded on the difficulties she experienced with Ms Reynolds and Ms Mellish, and to some extent explained her apprehension in attending meetings with Ms Reynolds without a support person. She also said that when she requested copies of the minutes from the meetings she attended with Ms Reynolds, Ms Reynolds refused to provide them to her.
In her further statement dated 22 February 2024 Ms Ryan responded to the information provided by Ms Reynold on 20 February 2024 (referred below) and reiterated “in my 21 years of being employed as a teacher and educational leader I have not had concerns raised about me not meeting the professional teaching standard” and reiterated “each allegation that was put to me in the meetings by Ms Reynolds and Ms Mellish were inaccurate. My assessment data, teaching and learning programs and timetables were tabled in the meetings and made available to Louise.”

Responses by Ms Reynolds

While there are no signed statements of Ms Reynolds relied on by the Department, the Department relies on a “statement response” dated 10 November 2022 with a large number of appendices attached and a document dated 20 February 2024 with signed notation:
“This document comprises an email from me dated 10 November 2022 together with the Chronological Summary which is set out in a table spanning the period 9 November 2021 to 1 September 2022. I confirm that these are my documents and information that I prepared.”
The Department also relies on a “response” dated 20 February 2024 in which Ms Reynolds provided a response to the statements of Ms Ryan dated 22 September 2023 and
31 January 2024. This response has been signed by Ms Reynolds.
In essence in her “responses” Ms Reynolds explained that the performance expectations of primary school teachers working with the Department are articulated in the Australian Professional Standards for Teachers as well as the Code of Conduct, which include:
(a)    planning lessons;
(b)    delivery of lessons;
(c)    assessment of work;
(d)    reporting on student performance, both via written reports and in communication with parents, and
(e)    working collaboratively with peers to plan and assess work.
Ms Reynolds said that the concerns she raised with Ms Ryan focused on the following standards:
Standard 1   Know students and how they learn,
Standard 3  Plan for and implement effective teaching and learning,
Standard 5  Assess, provide feedback and report on student learning,
Ms Reynolds said while Standards 6 and 7 were also of concern, with specific reference to communication and collaboration with colleagues. Ms Reynolds said that during the period 2021 – 2022 there were a number of areas in which Ms Ryan experienced difficulty in meeting the standards referred.
Ms Reynolds canvassed a number of issues raised by Ms Ryan:
(a)    Despite her agreement at a meeting on 10 August 2021, Ms Reynolds said
Ms Ryan had only created one of her allocated 11 learning videos by mid-October 2021 against a backdrop of all other team members having delivered the resources by that time. When this was raised with Ms Ryan on 11 November 2021, Ms Ryan denied being aware she was required to create the videos. In a meeting on 22 November 2021 with Ms Mellish, Ms Ryan agreed she would create 10 videos over the remaining weeks of the school year. Following further enquiry by Ms Mellish, Ms Ryan uploaded the remaining three videos before the end of the calender year.
(b)    Ongoing concerns about Ms Ryan’s performance caused Ms Reynolds to seek advice from the Directorate for Professional and Ethical Standards in April 2022, who advised collaborative development of a Performance and Development Plan with Ms Ryan “including strategies to address performance concerns”.
Ms Reynolds said while she scheduled several meetings with Ms Ryan to progress this strategy, Ms Ryan declined to attend most meetings. Ms Reynolds relevantly said:
“In the two meetings which did proceed, I outlined concerns regarding Ms Ryan’s performance, gave specific examples and tabled documentation evidencing those concerns and offered a three week cycle of individualised support. That support consisted of additional time off class to work on key areas, access to further professional learning and structured observation and feedback to support her performance improvement. The structure and approach to these meetings was, at all times collegial and supportive, and based on the Performance Development Cycle articulated in Improving the Quality of Teaching and specific guidance provided by PES. Ms Ryan rejected all feedback regarding her performance, despite documentation evidencing those concerns, refused to participate in the PDP or Performance Improvement process and commenced a period of sick leave, from which she is yet to return.”
(c)    Relevant to the meetings scheduled with Ms Ryan, despite Ms Ryan’s allegation to contrary, Ms Reynolds confirmed Ms Ryan was provided with proposed agenda for each meeting at least 24 hours prior to a scheduled meeting, Ms Ryan was provided with minutes of meetings for review and amendment if required, Ms Ryan was invited to bring a support person with her to any meeting and rescheduling of meetings was offered to suite the availability of a support person.
(d)    Relevant to a lack of clarity of Ms Ryan’s role, Ms Reynolds confirmed in 2012 Ms Ryan transitioned from the role of classroom teacher to specialist literacy support, and said:
“Over the years, Ms Ryan has at times sought clarification about my expectations of her within that role and the rationale for being required to contribute to broader duties within the school. Each time that Ms Ryan has raised queries about the role, either I or her supervisor have met with her to discuss those questions.”
Ms Reynolds said that when Ms Ryan raised a lack of clarity about her role and being attached to the COVID-19 Intensive Learning Support Program,
Ms Reynolds scheduled two meetings with Ms Ryan to address her queries, but Ms Ryan did not attend the meetings.
Ms Reynolds conceded that there had been requirement for Ms Ryan to perform duties outside her guided reading role, in that she was required to take a class one day a week and relieve other teams at time, Ms Reynolds explained:
“Some 80% of Ms Ryan’s role remained focused on Guided Reading, with the remaining 20% reallocated to align with the Department’s expectations of all teaching staff, that they contribute to the achievement of whole school priorities. I note again that Ms Ryan raises these issues against the backdrop of the extraordinary pressure on schools. Both Ms Ryan’s supervisor (Mrs Mellish) and myself made ourselves available to discuss this with Ms Ryan but Ms Ryan declined to meet with us for that purpose.”
(e)    Relevant to career progression, Ms Reynolds denied she had not provided “the same support and encouragement” to Ms Ryan as she provided to other staff and had “stifled” Ms Ryan’s attempts to progress her career. Ms Reynolds said with example that she had created leadership opportunities for Ms Ryan within GEPS, supported Ms Ryan’s application for leadership roles both within and without GEPS and supported her requests for secondment to other schools in order to take up acting leadership opportunities.
(f)    Relevant to professional learning, Ms Reynolds said that over the 20 year period Ms Ryan had been at GEPS she has had an extensive range of professional learning provided, both in house and externally. She noted that in 2021 and 2022 professional learning for Ms Ryan’s stage and area of responsibility was scheduled each Tuesday between 3.15 and 4.30pm but Ms Ryan did not attend a significant portion of these afternoons. Ms Reynolds provided comment “participation in these sessions is a core responsibility of all teaching staff at GEPS (as is standard within NSW Department of Education’s schools).”
(g)    Ms Reynolds further denied Ms Ryan’s allegations the meetings she had with
Ms Reynolds were aggressive in nature, Ms Reynolds was “passive aggressive” towards Ms Ryan and Ms Reynolds “always failed to recognise any achievement or initiative that [she] would make.” However, Ms Reynolds conceded she read out a letter to Ms Ryan on 31 August 2022, which she said had been developed in consultation with PES, and while she denied the letter threatened Ms Ryan with termination she accepted “it did direct her to attend the meeting” and noted there may be “remedial and/or disciplinary action” if she did not attend.
(h)    Ms Reynolds said Ms Ryan had been allocated a workspace that was conveniently located between the two classrooms in which she was most frequently working with students, which Ms Ryan was responsible for setting up. However, Ms Ryan declined to work from this designated workspace and elected to instead work in the corridor outside a classroom, without accessing existing resources or requesting additional resources.
The Australian Professional Standards for Teachers and the Code of Conduct to which
Ms Reynolds referred are not in evidence.

Treating medical evidence
Pitt Street Merrylands Medical & Dental Centre

Ms Ryan is under the general medical care of Dr Laughlin who practises out of Pitt Street Merrylands Medical & Dental Centre. Ms Ryan has consulted with doctors at the medical centre since at least late 2013 and the medical centre’s clinical records are in evidence. It is evident Ms Ryan has a history of suffering headaches/migraines for many years.
Ms Ryan presented for telehealth assessment on 2 November 2021 with complaint she had been assaulted at school by a disabled child. Dr Laughlin noted “stressed” and provided
Ms Ryan with a medical certificate. Ms Ryan re-presented for telehealth assessment on
11 November 2021. Dr Omar noted:
“feels stressed at work, had panic attack, was hit by a student, the child has autism, she is stressed, crying, has few work related issues, she is going to have meeting soon with school, she is not able to attend work today and tomorrow, asking for certificate for her work, given for today and tomorrow.”
Relevant to her mental health, Ms Ryan also presented for telehealth assessment on
23 February 2022. Dr Ng noted “a sudden death in the family today; mentally not stable enough to work today; for m/c”. Dr Ng issued Ms Ryan with a medical certificate on this occasion.
Ms Ryan relevantly presented for telehealth assessment on 27 April 2022. Dr Khan noted:
“requesting medical certificate
Patient has contacted the director of education and awaiting response
Feeling anxious and depressed
No history of depression in past
Advised to see regular GP for follow up”
Dr Khan issued Ms Ryan with a medical certificate on this occasion.
Ms Ryan presented for consultation with Dr Parndigamage on 17 May 2022.
Dr Parndigamage noted:
“consulting for the first time
Incident at work at a meeting
Feels anxious going back to work
Need MC for today”
Ms Ryan presented for consultation with Dr Laughlin on 18 May 2022. Dr Laughlin noted:
“has had a bullying incident at wk teacher 16/5 had a prev incident a couple of wks ago
Issues w meetings and records of meeting
Reported to director of education issues w timetable etc
for leave till addressed”.
Dr Laughlin issued Ms Ryan with a medical certificate on this occasion.
On review on 24 July 2022 via telehealth consultation, Dr Laughlin noted “still stress issues wk issues” and on 9 August 2022 via telehealth consultation, Dr Laughlin noted “vs ds stress wk issues”.
I think it is fair to say Ms Ryan then continued to regularly consult with
Dr Laughlin with complaint of bullying at work affecting her mental health, with Dr Laughlin noting during telehealth consultation on 29 August 2022 that the situation Ms Ryan found herself in may be a workers compensation issue. Ultimately, Ms Ryan received referral to
Dr Gertler for psychological assessment and care.
Dr Laughlin provided Ms Ryan with Certificates of Capacity in which he certified Ms Ryan with no current capacity for work resulting from her psychological injury sustained in the course of her employment with the Department. Dr Laughlin provided such certification up until 30 November 2023, having had the opportunity to review her on 29 October 2023.
Dr Laughlin also provided an undated report, which appears to respond to specific questioning. Unfortunately the report is quite difficult to read. However, doing the best that I can it is apparent Dr Laughlin confirmed Ms Ryan had consulted with the medical centre “multiple times” since April 2022 relevant to what Ms Ryan considered to be “bullying” incidents with a colleague and what the principal considered to “performance related” incidents. Dr Laughlin confirmed Dr Gertler supported diagnosis of psychological injury resulting from the ongoing work related conflict and Dr Laughlin provided diagnosis of “anxiety and depression related to these incidents”. Dr Laughlin considered Ms Ryan was not fit to work in the environment in which the incidents had occurred “until the issues are resolved”. He said, “If she was working elsewhere or if the principal was elsewhere then a graduated return to work would be possible.” He also said, “I don’t believe that it is possible to separate the conflict and the disciplinary component.”

Gertler Psychological Services

Ms Ryan came under the psychological care of Dr Gertler, psychologist, who practises out of Gertler Psychological Services, following case conference on 27 October 2022. It is apparent that while Ms Ryan was initially referred to Dr Cherrie, psychologist, with who she consulted on 26 October 2022, Ms Ryan had requested a change to Dr Gertler who was her preferred psychologist.
Dr Gertler’s clinical records are in evidence. In his initial consultation note dated
2 November 2022 Dr Gertler relevantly wrote:
“case of workplace bullying and harassment for 2 years + gradual buildup.
School teacher Granville EAST PS. In support role, guided reading. K-2. Been there 22 years (substantive position) but has had periods of secondments to other schools.
Issues with principal. Escalated from Merrylands East PS(2018-20) when acted up as assistant principal at the beginning of 2012. Was put in guided reading support role for Years 3- 6.
June 2021- family medical emergency. Had to leave and informed principal, AP, supervisor, front office, etc. Next day Principal accused her of leaving class unsupervised, which never happened.
Then went into learning from home. Was doing her job. She’s very experienced and was accused of not working correctly (by Making weekly videos).
…
Studying a Doctor of Education at UNSW – start at the end of 2020.
DOI: 30 September 2022 (when she contacted the insurer, but it’s been going on for longer. Was just getting normal medical certificates.)
Was being contacted in the holidays by private text messages. At the beginning of Term 1 staff development day.
Felt isolated. Was covering classes related to reading so class teachers could go. Felt under evaluation. Notified of concerns about her performance around April – June. Then there were lots of meetings. School unwilling to support her development plan, including her doctoral studies. Plan was put together for her – they weren’t willing to discuss her personal goals.
Meetings were about ‘a whole lot of untruths’.
Contacted EAP and teacher’s federation.
Principal threatened her with contacted professional and ethics unit if she didn’t attend meeting and her employment would be terminated.
L handed – doesn’t write well. This was documented in the support plan under ‘performance concerns document.’
On a WhatsApp group with constant messaging.
After school has to do doctoral studies. Could cope with all the demands.
Doesn’t have any issues with other staff at the school.
Applying for jobs last year. Because of the role she was in it was hard to get AP positions.
Has been off work since mid-Sept. During a 3 – 4 hour meeting and she couldn’t handle it any more.
…
Tried to RTW after 30 September. As soon as she got to the school she couldn’t get in. She was having a panic attack, couldn’t breathe properly, rang her mother who encouraged her to go in. Principal was waiting for her. Felt anxious, sick and had to go home.
EAP – contacted them on phone
…
Current goal: get assistant principal position at another school or in a curriculum position.”
In his request for approval of Ms Ryan’s psychological consultations with him, which is dated 10 November 2022, Dr Gertler’s rationale for the services requested included comment “Ms Wright-Ryan demonstrates typical symptoms of acute stress associated with workplace bullying and harassment.”
On review on 17 November 2022 Dr Gertler noted discussion had focused on “RTW options floated at the last case conference”. Dr Gertler relevantly wrote:
“1.     Go to a temp position to build resilience/confidence
2.     Look at a mediation and return to the substantive position – not sure its resolvable because doesn’t trust what principal said.
3.      Look at RTW in a different place. To consider a compassionate transfer.
Doesn’t think she could walk onto that school. Doesn’t feel that its resolvable. Never knew what would happen in a day.
Doctoral research – scholarship with Dept Ed/UNSW. Thinks she’s the only one person at classroom level that has that scholarship. It was offered to educational leaders. Plan is to up skill self and up skill staff around you and that leads to improved outcomes for students.
She was separated from teachers. Principal was aware that she needed to be included in meetings with other teachers. Was told that she had to put her research on hold. Felt specifically targeted.
Last year put out dozens (maybe 100?) applications and didn’t get one interview.
I’m thinking option 1 might be the best. Would like some sort of literacy specialist role.
Not sleeping well because she keeps thinking about this …”
In an email, with the recipients including Ms Ryan’s rehabilitation provider and Dr Laughlin, Dr Gertler in part wrote:
“It would be helpful to identify the future direction for Ms Wright-Ryan. My feeling is that a RTW at her substantive school is going to be difficult and a temporary transfer to a new school could be the best, especially if she can use this temporary position as a basis upon which to apply for permanent roles at schools elsewhere. One question I have is that were she to transfer temporarily and apply for new roles, who would be her primary referee on job applications? Would it be the principal of her substantive school or her temporary school?”
On review on 22 December 2022 Dr Gertler described a reported deterioration in Ms Ryan’s mood and wrote in part:
“It’s about all the stuff that went on around the performance development. Still doesn’t understand why Principal did it. In order to have that process you have to be really badly performing.
…
Felt like a personal vendetta. Questioning: why? When she did the other things to her she would think “I just have to get better” or ‘what else can I do to try to bring this to some sort of close?’ ‘How do I stop this, what do I do?’ Because helpless in the end. Feels like she can’t go back there until the Principal is gone. Doesn’t trust her. She will say all the right things in a meeting, but she won’t follow through on it. Now thinks that this would make her more determined to target Tammy.”
In a report dated 2 February 2023 Dr Gertler confirmed Ms Ryan first consulted with him on 3 November 2022 with a history that included reported panic attacks associated with attending and confronting the school principal. He wrote:
“In relation to her work history, Ms Ryan reported that she was an experienced class teacher who had recently deputised as an assistant principal at a different school in her district. Upon her return to her substantive school in 2021 she was put into a reading support role which she felt was an effective demotion. There was a series of events in which her performance and professional conduct was questioned, which she felt was unfair and unjustified. Ms Ryan experienced increasing anxiety about attending school and this culminated on the listed date of injury which is 30 September 2022. Beyond this time, she was too anxious to attend school.”
Dr Gertler described a reported improvement in Ms Ryan’s mental health since the end of 2022 and she reported she was capable of being ‘more productive now’, which included reading and writing articles for her doctoral studies. However Ms Ryan reported “background worry about where she will eventually be placed.”
Dr Gertler described Ms Ryan as progressing well but cautioned “this is predicated upon her keeping her thoughts in the moment and not worrying about having to return to work in a learning role at her existing school”. He said too “clearly her relationship with the school principal is an obstacle and ideally, she could be found a role in a different school which is commensurate with her skills and experience.”
Dr Gertler provided diagnosis of adjustment disorder and depressed mood, which he said, “would be resolved if she had a clear concept of her return to work in a role that didn’t involve her confronting the principal at her existing school.”

On review on 16 May 2023, Dr Gertler noted the Department had denied liability for
Ms Ryan’s claim. Dr Gertler referred to the denial being grounded in s 11A of the 1987 Act. Dr Gertler wrote in part:
“Maintains that she can’t return to Granville East public school because it would be unsafe to be working with the principal. She doesn’t believe the Principal managed the performance concerns following the guidelines of the department.
The GP is going to complete a MHCP.
Studies on hold and running on hold because didn’t really want to.”

Rehabilitation Services

Ms Ryan attended assessment with Julian Reid, rehabilitation consultant on 12 October 2022 with Mr Reid prepared a report dated 18 October 2022. At the time of the assessment,
Ms Ryan was certified with no current work capacity. Mr Reid reported the history of injury:
“Ms Wright-Ryan reported working as a classroom teacher for Granville East Public School for approximately 10 years prior to sustaining her workplace injury. Ms Wright-Ryan indicated she has not returned to any duties since 01.09.2022 due to a diagnosis of “stressful incident related to work ongoing” as per Certificate of Capacity issued by Treating Physician, Dr Allan Laughlin on 30.09.2022.
Ms Wright-Ryan advised her workplace injury arose out of interpersonal conflict with her Principal dating back to Term 1, 2021 after Ms Wright Ryan returned to Granville East Public School after teaching at Merrylands East Public School during 2020. Ms Wright-Ryan reported using many of her accrued sick leave days during 2022 as a result of her Principal ‘relentlessly making things difficult for [her]’. Ms Wright-Ryan noted she was able to work around these issues and continue performing her duties until 01.09.2022.
Ms Ryan advised the last incident that ‘broke’ her occurred on 01.09.2022 after Ms Wright-Ryan had returned to work following multiple days of stress-related sick leave. Ms Wright-Ryan advised she was feeling anxious to return to work prior to leaving her house in the morning and after assurances from multiple members of her family had decided to go to work. Ms Wright-Ryan noted arriving at the school grounds and sitting in her car for a while before proceeding to walk into the school and sit on a wooden table out the front of the school. Ms Wright-Ryan advised calling her mother for comfort as she believed she was experiencing a panic attack at the time. Ms Wright-Ryan indicated her mother was able to calm her somewhat and instructed Ms Wright-Ryan to ‘go-in’. Ms Wright-Ryan reported that as she was walking towards the office, she saw a kindergarten student distressed at being left by their mother and walked over to the student to comfort them. Ms Wright-Ryan reported calming the student which also helped to calm her down somewhat.
Ms Wright-Ryan advised waling on a balcony towards her classroom when she was approached by her Principal who raised concerns surrounding Ms Wright-Ryan’s performance. Ms Wright-Ryan reported these accusations were false as there was no evidence, either observations, reports or records, to support them. Ms Wright-Ryan indicated feeling as though her Principal had brought this to her so as to ’distress[her]’.
Ms Wright-Ryan reported there have been multiple instances like the aforementioned during 2021 – 2022 and recalled two specific incidents that distressed her. Ms Wright-Ryan advised of an incident in June 2021 during which she had a family emergency and was required to leave the school with minimal notice. Despite this, Ms Wright-Ryan reported contacting an Assistant Principal, deputy Principal, administrative staff in the office and letting her fellow classroom teacher and SLSO in her classroom know as well as attempting contact with her Principal, informing them all she needed to leave the school grounds as soon as possible. Ms Wright-Reyan reported that once she had returned to work the following day, her Principal had accused Ms Wright-Ryan of lying about the emergency as well as contacting other staff members, stating that emergency procedures had not been followed and students had been left unsupervised. Ms Wright-Ryan reported that a fellow classroom teacher and SLSO were on her class at the time and therefore, the students were not left unattended.
Ms Ryan recalled another incident that occurred ‘during lockdown last year’ (2021) during which her Principal had instructed Ms Wright-Ryan to complete ‘reading orientation videos’ for students. Ms Wright -Ryan reported completing the requested videos and uploading them to the school’s sharepoint site and then receiving a private text from her Principal accusing Ms Wright-Ryan of not completing the videos. Ms Wright-Ryan indicated she spoke with her Director about this incident and received communications from them stating they had spoken with Ms Wright-Ryan’s Principal and agreed they were on file. Additionally, Ms Wright-Ryan noted her Principal had then complained that the text within the videos (e: the content rather than font) was inappropriate for the age level they were designed for. Ms Wright-Ryan reported responding to this that she had researched this issue and determined the text was adequate.
Additionally, Ms Wright-Ryan reported being hesitant to enter meetings with her Principal during 2021 and 2022 due to performance concerns levelled by her Principal at her. Ms Wright-Ryan indicated that following certain meetings (often relating to her performance) she would often not receive minutes from the meetings or evidence she brought to the meetings in support of herself would be ‘deliberately’ left out of the minutes. Ms Wright-Ryan reported an administrative staff member had said to her following one meeting, ‘She [the Principal] wants to pound you into the ground … I’ve never seen anything like this.
Ms Wright-Ryan reported that the culmination of incidents reached their ‘breaking point’ on 01.09.2022 after being confronted by her Principal and noted she left the school grounds shortly thereafter and went home. Ms Wright-Ryan reported visiting her treating physician, Dr Allan Laughlin on 01.09.2022 who advised he would provide her with a Certificate of Capacity.”
In discussion with Dr Laughlin on 12 October 2022, Dr Laughlin confirmed diagnosis in terms of “increased anxiety and depression related to interpersonal work issues” with Dr Laughlin indicating Ms Wright-Ryan had referred to multiple events at her workplace dating back “many months” in a “build-up of events”. At the time Dr Laughlin had provided no referral to psychologist but said “he would recommend this to Ms Wright-Ryan at the next scheduled review”. Dr Laughlin was unable to provide timeframe for recovery or opinion as to
Ms Ryan’s return to work goal as he considered this would depend on Ms Ryan’s response to treatment. However, he cautioned Ms Ryan “may potentially benefit from ‘looking elsewhere’”.
Based on the outcome of his initial assessment, Mr Reid concluded Ms Ryan had no current capacity for work. Mr Reid also considered Ms Ryan would benefit from psychological treatment sessions with a psychologist. Mr Reid described Ms Ryan as saying she required time to consider her return to work goal, as she reported feeling scared over the prospect of returning to her substantive school. Ms Ryan told Mr Reid she felt “traumatised by her experiences with her Principal and indicated she does not know how she would react if she needed to interact with the person she deems responsible for her injury”.

Independent medical evidence
Dr Smith

Dr Smith conducted a file review relevant to Ms Ryan in his capacity as Injury Management Consultant. Dr Smith is a general practitioner. Dr Smith provided a report dated
14 October 2022 following referral on 6 October 2022. At the time of reporting, Dr Smith noted Ms Ryan was currently certified with no current work capacity, with diagnosis of anxiety and depression. Dr Smith described the certificate issued by Ms Ryan’s nominated treating doctor “suggests a series of incidents of an interpersonal nature and that Ms Wright-Ryan is seeking to resolve matters”. Following discussion with the Department, Dr Smith contacted Dr Laughlin on three separate occasions with a view to discussing the best way to progress Ms Ryan’s return to work, but Dr Laughlin reportedly never returned his calls.

Dr Gutkin

Ms Ryan was psychiatrically assessed on 19 January 2023 by Dr Gutkin in his capacity as independent medical examiner. Dr Gutkin provided a report dated 27 January 2023. At the time of assessment Dr Gutkin had available to him two reports prepared by Ms Ryan’s initial treating psychologist, Dr Cherrie, the first in time being dated 26 October 2022 and the second being 10 November 2022. Neither of these reports of Dr Cherrie are in evidence.
Dr Gutkin described the circumstances of injury:
“The main trigger for her deterioration in August of 2022 was a series of allegations from her principal that she had not done assigned work, which Ms Wright-Ryan tells me she did do and also an allegation that she left a class unsupervised, which Ms Wright-Ryan assures me was not the case. These incidents happened particularly in 2021 and in 2022; however, Ms Ryan reports that she has always had a difficult relationship with her principal but felt that they had been able to work together reasonably well in spite of this and Ms Wright-Ryan was distressed to discover that after returning from a stint working or two years as a reliving assistant principal at a different school, her return to her current school was met with criticisms despite her good record and 23 years as a primary school teacher.”
Dr Gutkin described Ms Ryan as presenting with a four month history of low mood, reduced appetite, impaired sleep and episodes of panic, specifically when meeting with her principal. However, after these symptoms began in August 2022, they improved substantially from late December 2022. At the time of assessment Ms Ryan reported “she is feeling much better and although not quite back to her baseline, she does feel that with the help of her psychotherapist and some time off work, she now feels ready to return to work.”
Following mental state examination Dr Gutkin said in summary:
“Ms Wright-Ryan appears to have had an adjustment disorder, with superimposed depressive disorder for a period of four to five months but this appears to have resolved and she now only has minor residual symptoms of adjustment disorder.”
In response to specific questioning Dr Gutkin provided opinion:
“Ms Wright-Ryan described a one-year history of repeated allegations of failure to complete work which she tells me she did complete, made by her principal. This culminated in her principal telling her she was going to performance manage her at work and asking to sit in on her classes due to concerns about her performance. In particular when the principal asked her to talk about her disability, in the form of her foreshortened fingers on her right hand, in the last meeting, this was very distressing. This meeting happened immediately after she had taken two weeks off to try to improve her mental health, but this led to a panic attack and this rattled Ms Wright-Ryan’s confidence, leading her to deteriorate over the subsequent months…
The main contributing factor to Ms Wright-Ryan’s psychological condition was her conflict with her principal and the repeated allegations which she felt were unreasonable and especially their final meeting and the experience of being asked to talk about the impact of her physical disability.
…
The experience of around one year of repeated criticisms from her principal and especially their final meeting in which she was informed she was going to be performance managed, and her classes observed, as well as being asked to talk about the impact of her physical disability, were the main or probably the whole cause of the psychological injury.”
Relevant to her current work capacity, while as at the time of assessment Dr Gutkin considered Ms Ryan “is fit for per-injury duties or for employment of any kind” he went on to explain:
“The rapid completion of any necessary investigations into Ms Wright-Ryan’s performance in a way which does not cause her to feel that she is not being listened to and that she can feel she is being treated fairly would likely remove any ongoing stressors. If it were possible for this to be done by someone other than her principal that would be ideal. However, I do believe that if a reasonably considerate space is created for Ms Wright-Ryan, she could tolerate performance management if that were needed but at present, she feels that her principal’s criticisms have been unfounded and that she has evidence to support her position on all allegations but if this were able to be resolved, Ms Wright-Ryan could return to her work either at her current workplace or at any school.”

Dr Khan

Ms Ryan was psychiatrically assessed by Dr Khan on 6 June 2023 in his capacity as independent medical examiner. Dr Khan provided a report dated 7 June 2023. Dr Khan noted Ms Ryan attended assessment without a support person. At the time of assessment Dr Khan had available to him the clinical records of Gertler Psychological Services.
Dr Khan noted Ms Ryan had been employed with the Department for some 23 years, with
Ms Ryan reporting to him “that events from early 2021 to mid – 2022 led to her mental state gradually deteriorating and led to her stopping work on 31 August 2022”.
Dr Khan reported that in late 2018 Ms Ryan had successfully secured placement in an assistant principal position at Merrylands East Public School for some two years, after which she was required to return to her substantive position at GEPS. Dr Khan also reported that during this time, Ms Ryan successfully obtained a scholarship to enable her study a Doctorate in Education.
Dr Khan relevantly reported:
“Ms Ryan said that she returned to the position of guided reading support teacher at Granville East Public School. She reported how the school principal did not provide her with a role description. Ms Ryan was expected to cover the teaching of 72 students between Years 3 and 6 and halfway in each term, the students changed over, and she would be required to cover the teaching of the second set of 72 students between Years 3 and 6. She was also required to teach as a classroom teacher on Fridays.
Ms Ryan said the parents of this class were not told that she was the teacher on Fridays, and she was not recognised for her work duties as a teacher as she was not given access to professional teaching leave that other classroom teachers had access to.
Ms Ryan reported how there were no issues with her performance in 2021. After the COVID-19 pandemic lockdown, the school principal accused her of not creating guided reading videos for the students even though this request had not been conveyed to her. Ms Ryan was expected to complete these 10 videos over a 5 week period, and she explained how each video took an average 6 – 14 hours to make. She said that she performed this extra work after hours and she noticed by then that her anxiety had started to emerge and was affecting her sleep. Ms Ryan explained how she felt the request form the school principal was unreasonable as teaching had returned to the classroom.
Ms Ryan described how she was put into the Kindergarten to Year 2 classroom teaching position along with the guided reading support teacher position in 2022 and she started to be excluded from meetings by the school principal. She reported how a new guided reading focus came into effect, but she was not provided any information by the school principal about this change. Ms Ryan explained how she was asked to attend a meeting to talk about her role and was told that the minutes and notes of this meeting would be provided to her, but she never received this information. She attended a routine performance development plan meeting with her supervisor but then suddenly ‘out of the blue’ on a Friday around 4.30pm she was told that there were concerns about her work performance. Ms Ryan said that no issues with her work performance had ever been raised and she was not provided any emotional support at that time or details about accessing EAP counselling. She reported how she was then subjected to approximately four 2 hour meetings where she was confronted by the school principal and assistant principal with false allegations. Ms Ryan said that she was not afforded any opportunity to properly reply to these false allegations. During these meetings, she experienced acute symptoms of anxiety and panic. Ms Ryan said that she spoke with the director about her concerns, and she made formal incident reports about how the school principal and assistant principal treated her in these meetings. She explained how her writing style had also been attacked and on one occasion she felt discriminated against due to her right arm disability when she was pressured by the school principal to talk about the disability, which had never been an issue throughout her 23 years of employment.
Ms Ryan said that a few weeks before she stopped working, she had started to engage with her general practitioner about her deteriorating mental state. On or about
31 August 2022, she was required to attend another meeting with the school principal who confronted her with a 12 page document with allegations. Ms Ryan said that the school principal started to read the document and after 2 hours, she was unable to cope anymore, and she left the meeting. She had been told that she would be put on a performance improvement plan, but she had not received this document to date.”
Dr Khan described Ms Ryan as consulting with Dr Laughlin who provided diagnosis of anxiety and depression. Dr Khan described Ms Ryan as consulting with Dr Gertler who provided diagnosis of adjustment disorder with depressed mood. Following mental state examination and in response to specific questioning Dr Khan provided diagnosis of adjustment with mixed anxiety and depressed mood, with opinion Ms Ryan’s employment with the Department at GEPS was the substantial contributing factor to her psychological injury. With reference to his reported history, Dr Khan said “Ms Ryan felt targeted, bullied and harassed by the school principal from 2021 onwards”. Dr Khan also provided opinion Ms Ryan was totally incapacitated for work:
“…due to the ongoing impact of the subject primary psychiatric/psychological injury on her mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust in interpersonal relationship.”

Submissions

Mr Coombes and Mr McManamey made oral submissions, which I have carefully considered. As a recording of counsel’s submissions is available to the parties on request, I have not reproduced them here.

Determination

Whether Ms Ryan’s primary psychological injury, with deemed date of injury of 31 August 2022 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline of workers

In response to Ms Ryan’s claim before the Commission, while it is not disputed Ms Ryan sustained primary psychological injury in the course of her employment with the Department, the Department has raised defence under s 11A(1) of the 1987 Act relevant to performance appraisal and/or discipline. In essence, the Department says Ms Ryan has no entitlement to compensation payable under the 1987 Act as the injury she sustained is wholly or predominantly caused by reasonable action taken or proposed to be taken by the Department with respect to performance appraisal and/or discipline.
The Department has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[1] and Department of Education and Training v Sinclair[2]) and there are two aspects to the defence raised by the Department.
[1] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[2] [2005] NWCA 465 (Sinclair).

Firstly, Ms Ryan’s injury must be “wholly or predominantly caused” by the Department’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in
Ms Ryan’s case, the Department relies on discipline and/or performance appraisal.
It is important to note that in Kushwaha v Queanbeyan City Council[3] “discipline” is broadly defined as learning by instruction and the maintenance of that learning by training, exercise or repetition, with the narrow meaning of punishment or chastisement being secondary to this broader meaning. In Sinclair it was held that “discipline” extends to the entire process, including the course of an investigation. In Northern New South Wales Local Health Network v Heggie[4] Sackville AJA confirmed a broad view is to be taken of the expression “action with respect to discipline” prescribed in s 11A of the 1987 Act and said, “it is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.” It is also important to note that in Irwin v Director-General of Education[5] it was held and subsequently referred to in Dunn v Department of Education and Training[6] that performance appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment”.
[3] [2002] NSWCC 25.
[4] [2013] NSWCA 225; 12 DDCR 95.
[5] NSWCC 14068/97, 19 June 1998.
[6] [2000] NSWCC 11; (2000 19 NSWCCR 475).
Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[7] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[8] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang Cement Ltd v Bates,[9] Ponnan v George Weston Foods Ltd[10] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[11]
[7] [2017] NSWWCCPD 6.
[8] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[9] (1994) 35 NSWLR 452.
[10] [2007] NSWWCCPD 92.
[11] [2008 NSWWCCPD 96.
Relevant to the issue of causation of psychological injury, particularly when considering psychological injury caused in circumstances of a worker’s perception of real events occurring at work, in Attorney General’s Department v K [12] former Deputy President Roche usefully summarised the principles to be applied at [52]:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (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);
(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 all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(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 v Comcare Australia [2002] FAC at 1464 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.”
[12] [2010] NSWWCCPD 76.
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional…”
It is important to remember too that an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[13] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[13] [2013] NSWWCCPD 64.
Secondly, if the Department successfully establishes Ms Ryan’s psychological injury was wholly or predominately caused by the Department’s actions regarding performance appraisal and/or discipline, then the Department is required to establish the Department’s actions were “reasonable”. In Heggie Sackville AJA set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
Turning first to whether Ms Ryan’s injury must be “wholly or predominantly caused” by the Department’s actions regarding discipline and/or performance appraisal.
Ms Ryan said that while her relationship with Ms Reynolds was “difficult”, over the years they were able to work together effectively. However, it appears that following Ms Ryan’s return to GEPS in 2021 there were a number of occurrences involving Ms Ryan and Ms Reynolds which demonstrate Ms Ryan and Ms Reynolds were no longer working together effectively. Ms Ryan made specific mention of complaint made by Ms Reynolds that Ms Ryan had left her class unattended on one occasion and also that Ms Ryan had failed to create and upload to the required platform a number of learning videos within the agreed timeframe. Ms Ryan made specific mention too that she was not provided with clarity as to her role on returning to GEPS, she was required to work “across the school” rather than “in a pod”, which placed her at a high risk of contracting COVID-19, she was not provided with a suitable designated work space, she was required to meet regularly with Ms Mellish without explanation as to why, and she was not provided with allocated release from face to face teaching and she was not provided with time to complete her mandatory online professional learning.
Ms Ryan said she attended two meetings with Ms Reynolds and Ms Mellish during which concerns were raised about Ms Ryan’s work performance, the first being on 27 May 2022 and the second being on 1 June 2022. Ms Ryan said Ms Reynolds had indicated to her that she would be placed on an performance development plan. Ms Ryan said that consequent on the allegations made about her work performance, she suffered “stress and anxiety”, contacted EAPS for assistance, lodged incident reports with the Department’s Incident Report Hotline and sought the assistance of Mr Goh who was the principal of Merrylands East Public School and Mr Kennedy who was the Director of Educational Leadership.
It is apparent Ms Ryan subsequently took a period of sick leave, and Ms Ryan said that on her return to work on 31 August 2022 she suffered a panic attack before entering the school and a further panic attack after being advised by Ms Reynolds there was to be another meeting “now I was back at school”. Ms Ryan said she sought medical assistance, contacted EAPS for assistance and lodged an incident report with the incident report hotline.
Ms Ryan said she ceased working at GEPS on 1 September 2022 because of the stress and anxiety she was suffering. Ms Ryan said she consulted with Dr Laughlin and ultimately came under the psychological care of Dr Gertler. Mr Ryan remains under their care to date.
Ms Reynolds canvassed in some detail Ms Ryan’s failure to create and upload to the required platform a number of learning videos within the agreed timeframe of mid-October 2021. She accepted however that after liaison with Ms Ryan on two occasions in the November, Ms Ryan ultimately uploaded all of the videos required of her on 24 December 2021.
Ms Reynolds accepted Ms Ryan had sought clarity of her role when she returned to GEPS but said Ms Ryan did not attend either of the meetings she had arranged with Ms Ryan to address her enquiry. Ms Reynolds accepted Ms Ryan was required to undertake duties outside of Ms Ryan’s guided reading role but said Ms Ryan’s allocation to duties other than her guided reading duties was in line with the Department’s expectations that all teaching staff “contribute to the achievement of whole school priorities”. In saying this, Ms Reynolds noted that at the time Ms Ryan raised this particular issue, she did so “against a backdrop of the extraordinary pressure on schools”, which I assume is reference to the difficulties faced by schools in NSW due to the COVID-19 pandemic.
Ms Reynolds explained that while Ms Ryan had in fact been provided with a designated workspace, it was not an area in which Ms Ryan wished to work, and she elected to work in an alternate space. Ms Reynolds also explained that in so far as Ms Ryan’s professional learning was concerned, while this was in fact scheduled for each Tuesday afternoon between 3.15pm and 4.30pm, Ms Ryan failed to attend a significant portion of these afternoons.
Ms Reynolds canvassed in some detail her meetings with Ms Ryan and Ms Mellish on
27 May 2022 and 1 June 2022. Ms Reynolds said that during the period 2021 – 2022 there were a number of areas in which she perceived Ms Ryan experienced difficulty in meeting the standards required of her. Ms Reynolds made specific reference to standards attached to “know students and how they learn”, “plan for and implement effective teaching and learning” and “assess and provide feedback and report on student learning”. Ms Reynolds said she had raised her concerns about Ms Ryan’s performance with the Directorate for Professional and Ethical Standards in April 2022 who advised collaborative development of a Performance and Development Plan. Ms Reynolds said that relevant to her meetings with Ms Mellish and Ms Ryan on 27 May 2022 and 1 June 2022 Ms Ryan was provided with the proposed agenda at least 24 hours prior to the meeting, Ms Ryan was invited to bring a support person with her to the meeting if she wished and Ms Ryan was provided with minutes of the meeting for review and amendment if required.
Ms Ryan appears to have sought medical assistance on 27 April 2022 with complaint she was feeling “anxious and depressed” and was waiting for a response after contacting the Director of Education. Ms Ryan sought medical assistance on 17 May 2022 with complaint she was feeling anxious about going back to work with reference made to an “incident at work at a meeting”. Ms Ryan sought medical assistance on 18 May 2022 and Dr Laughlin noted on this occasion that Ms Ryan had issues with meetings and records of meetings with specific reference to a workplace “bullying incident” on 16 May 2022 and a previous incident a couple of weeks earlier. All these consultations occur prior to Ms Ryan’s meetings with
Ms Reynolds and Ms Mellish on 27 May 2022 and 1 June 2022 at which time it was proposed Ms Ryan be placed on a performance development plan. Dr Laughlin subsequently confirmed Ms Ryan had consulted with the medical practice with “multiple times” since April 2022 relevant to what Ms Ryan considered to be incidents of workplace bullying. While Dr Laughlin provided diagnosis of anxiety and depression, which he said resulted from these incidents, he said “I don’t believe it is possible to separate the conflict and the disciplinary component”. Dr Laughlin is not of the view Ms Ryan’s injury is wholly or predominantly caused by action taken by the Department with respect to performance appraisal and/or discipline.
Ms Ryan was assessed on 12 October 2022 by Mr Reid in his capacity as rehabilitation consultant. Ms Ryan provided a history of Ms Reynolds “relentlessly making things difficult for her” but said she had been able to manage working until 1 September 2022. Mr Reid reported Ms Ryan ceased working at GEPS at that time after she returned to work after a period of “stress-related” sick leave brought about by a culmination of incidents and was confronted by Ms Reynolds. Mr Reid said Ms Ryan reported she felt “traumatised” by her experiences with Ms Reynolds and felt Ms Reynolds was “responsible for her injury”. In subsequent discussion with Dr Laughlin Mr Reid noted Dr Laughlin’s reporting of Ms Ryan’s history of “interpersonal work issues” and a build-up of multiple workplace incidents dating back “many months”.
Ms Ryan came under the psychological care of Dr Gertler on 2 November 2022, being a time after she ceased working at GEPS on 1 September 2022. At that time, Dr Gertler relevantly noted “case of workplace bulling and harassment for 2 years + gradual buildup” and referred also to Ms Ryan being “notified of concerns about her performance around April – June” with lots of subsequent meetings, which Ms Ryan said were about “a whole lot of untruths”.
Dr Gertler noted Ms Ryan had ceased working in September 2022 with note “During a 3 – 4 hour meeting and she couldn’t handle it any more”. In a report dated 2 February 2023
Dr Gertler provided diagnosis of adjustment disorder with depressed mood against a backdrop of what he described as “a series of events in which her performance and professional conduct was questioned, which she felt was unfair and unjustified”. Dr Gertler provided opinion Ms Ryan’s injury “would be resolved if she had a clear concept of her return to work in a role that didn’t involve her confronting the principal at the existing school”. While on review on 16 May 2023 Dr Gertler reported Ms Ryan’s belief Ms Reynolds had failed to manage her concerns about Ms Ryan’s performance in line with the Department’s guidelines. Dr Gertler does not provide unequivocal opinion Ms Ryan’s injury is wholly or predominantly caused by action taken or proposed to be taken by the Department with respect to performance appraisal and/or discipline.
Ms Ryan was independently psychiatrically assessed by Dr Gutkin on 19 January 2023.
Dr Gutkin reported a consistent history of Ms Ryan working well with Ms Reynolds, despite a problematic relationship, until she returned to work at GEPS and Ms Reynolds raised concerns about Ms Ryan’s performance in 2021 and 2022, which resulted in Ms Ryan experiencing a deterioration in her mental health in or about August 2022. Dr Gutkin described a one year history of repeated allegations by Ms Reynolds regarding Ms Ryan’s work performance culminating in Ms Ryan being advised by Ms Reynolds that “she was going to performance manage her at work”. Dr Gutkin also referred to Ms Ryan being asked to talk about her disability in her second meeting with Ms Reynolds, which Ms Ryan described as “very distressing”. Dr Gutkin provided diagnosis of adjustment disorder (a superimposed depressive disorder present for four to five months appearing to have now resolved) and provided opinion:
“The experience of one year of repeated criticisms from her principal and especially their final meeting in which she was informed she was going to be performance managed, and her classes observed, as well as being asked to talk about the impact of her physical disability, were the main or probably the whole cause of the psychological injury.”
I think it is fair to say Dr Gutkin does not provide unequivocal opinion Ms Ryan’s injury is wholly or predominantly caused by action taken or proposed to be taken by the Department with respect to performance appraisal and/or discipline, in that he also talks of cause being the repeated criticism of Ms Ryan’s work for a period of one year prior to any meeting with Ms Reynolds during which performance appraisal and/or discipline is discussed. While he also talks of Ms Reynolds raising Ms Ryan’s disability, this is an incident which is denied by
Ms Reynolds who says Ms Ryan raised her disability during discussion about her handwriting.
Ms Ryan was independently psychiatrically assessed by Dr Khan on 6 June 2023. Dr Kahn reported a consistent history of Ms Ryan’s reported difficulties with Ms Reynolds following her return to GEPS, with concerns about Ms Ryan’s performance raised in 2022 and subsequent meetings leading to Ms Ryan experiencing acute symptoms of anxiety and panic. While Dr Khan noted too that one occasion Ms Ryan had been pressured by Ms Reynolds to “talk abut her right arm disability”, which she said had never been an issue throughout her long teaching career, Ms Reynolds said that it was Ms Ryan who raised her disability when criticised about her handwriting. Dr Khan noted Ms Ryan was ultimately advised that she was to be placed on a performance improvement plan. Dr Khan provided diagnosis of adjustment disorder with mixed anxiety and depressed mood. Dr Khan provided opinion Ms Ryan’s employment with the Department is a substantial contributing factor to injury, noting “Ms Ryan felt targeted, bullied and harassed by the school principal from 2021 onwards”.
Dr Khan does not provide opinion that Ms Ryan’s injury is wholly or predominantly caused by action taken or proposed to be taken by the Department with respect to performance appraisal and/or discipline.
I am of the view Ms Ryan has provided a credible history regarding the circumstances of her injury and following review of the evidence as a whole and consideration of counsel’s submissions, I do not accept Ms Ryan’s injury was wholly or predominantly caused by action taken or proposed to be taken by the Department with respect to discipline and/or performance appraisal. I note (a) opinion provided Dr Laughlin, under whose general medical care Ms Ryan has been for some time, that it is not possible to separate the recognised conflict which had arisen between Ms Reynolds and Ms Ryan and any “disciplinary component”, (b) history provided by Dr Gertler of “workplace bullying and harassment for 2 years + gradual buildup”, (c) history provided by Mr Reid of Ms Reynolds “relentlessly making things difficult” for Ms Ryan which resulted in her using a number of leave days in 2022, (d) history provided by Dr Gutkin which in part described “one year of repeated criticisms” from Ms Reynolds, and (e) history provided by Dr Khan which in part described Ms Ryan feeling “targeted, bullied and harassed” by Ms Reynolds from 2021 onwards, and I am not satisfied Ms Ryan’s psychological injury is “wholly or predominantly caused” by action taken or proposed to be taken by the Department with respect to discipline and/or performance appraisal, but rather as a result of an unfortunate increasing deterioration of her working relationship with Ms Reynolds after Ms Ryan’s return to GEPS in 2021 and Ms Ryan’s adoption of a particular perception to Ms Reynold’s interactions with her thereafter, particularly so during 2022.

Even if I was to accept Ms Ryan’s injury was wholly or predominantly caused by action taken or proposed to be taken by the Department with respect to discipline and/or performance appraisal (which I do not for reasons discussed above) the Department is required to establish that the Department’s actions taken or proposed to be taken with respect to discipline and/or performance appraisal were “reasonable”.
The circumstances surrounding Ms Ryan’s injury are not without complication. It is evident there was a significant deterioration in Ms Ryan’s mental health after she returned to GEPS. Ms Ryan described her relationship with Ms Reynolds as having always been difficult and it is apparent her relationship with Ms Reynolds deteriorated when she returned to GEPS. Ms Reynolds reportedly became increasing concerned about Ms Ryan’s work performance and ultimately sought guidance from the Directorate for Ethical and Professional Standards regarding her concerns, which led to Ms Ryan being advised by Ms Reynolds that she was going to be subjected to performance management.
While it may be that certain actions taken or proposed to be taken by or on behalf of the Department with respect to discipline and/or performance appraisal may have been “reasonable”, of particular concern to me is Ms Reynolds’ interaction with Ms Ryan on Ms Ryan’s return to school after an extended period of sick leave due to stress and anxiety. Although I am mindful of the rather difficult position Ms Reynolds may have found herself in regarding management of her school staff, including Ms Ryan, during what was a demanding time schools in New South Wales, I do not think it is “reasonable” for Ms Reynolds to have raised with Ms Ryan on her very first day back at school after an extended period of leave due to stress and anxiety any need for a further meeting regarding her work performance.
In circumstances where Ms Reynolds was acutely aware of the deterioration of Ms Ryan’s mental health following her return to GEPS and subsequent raised concerns regarding
Ms Ryan’s work performance, I am of the view it was not reasonable for Ms Reynolds to raise with Ms Ryan any requirement for a further meeting regarding Ms Ryan’s work performance as soon as she returned to school after an extended period of leave necessitated by the deterioration in Ms Ryan’s mental health.
In all of the circumstances known to Ms Reynolds at the time Ms Ryan returned to school after an extended period of sick leave necessitated by the deterioration in Ms Ryan’s mental health , I do not accept the action taken by Ms Reynolds on behalf of the Department with respect to the need for a further meeting regarding Ms Ryan’s work performance to be “reasonable”.
For the reasons discussed above I am not satisfied the Department has discharged the onus of proof required and the Department cannot rely on defence raised under s 11A of the 1987 Act.

Capacity

As the Department does not dispute Ms Ryan sustained psychological injury in the course of her employment with the Department, with her employment being the main contributing factor to injury and I have determined her injury was not wholly or predominantly caused by reasonable action taken by the Department with respect to performance appraisal and/or discipline, it follows Ms Ryan may have an entitlement to weekly benefits payable under s 37 of the 1987 Act from 25 May 2023 ongoing.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during incapacity.”
Section 37 of the 1987 Act relevantly provides for weekly payments during an injured worker’s second entitlement period. The provisions of s 37 of the 1987 Act requires consideration as to whether an injured worker has “current work capacity” or “no current work capacity” as defined in cl 9 of Schedule 3 of the 1987 Act:
“An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Suitable employment is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) Having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
the worker’s place or resident.”
Assessment of Ms Ryan’s capacity for work from 25 May 2023 involves consideration as to whether since that time Ms Ryan has had a current work capacity or no current work capacity as defined in Schedule 3 of the 1987 Act.
This requires consideration of Ms Ryan’s capacity to undertake not only her pre-injury employment with the Department but also her capacity to undertake suitable employment as defined in s 32A of the 1987 Act, irrespective of its availability. This is accepted in Wollongong Nursing Home Pty Ltd v Dewar.[14] It is also accepted in Dewar that suitable employment “must refer to a real job in employment for which the worker is suited”.
[14] [2014] NSWWCCPD 55 (Dewar).
Mr Reid assessed Ms Ryan on 12 October 2022, being some seven months prior to date from which Ms Ryan’s claim for weekly compensation commences. At the time of assessment, Mr Reid concluded Ms Ryan had no current capacity for work.
At the time Dr Gutkin psychiatrically assessed Ms Ryan on 19 January 2023, being some four months prior to the date from which Ms Ryan’s claim for weekly commences, while
Dr Gutkin provided opinion Ms Ryan was “fit for per-injury duties or for employment of any kind” he cautioned fair resolution of the conflict that had arisen regarding Ms Ryan’s performance was required prior to any return to work by Ms Ryan.
While Dr Gertler has not provided opinion as to Ms Ryan’s capacity to work, on
16 May 2023 being about 10 days prior to the date from which Ms Ryan’s claim for weekly compensation commences, Dr Gertler noted Ms Ryan’s academic studies and recreational running were “on hold because didn’t really want to”. Dr Gertler’s reported main concern at that time regarding Ms Ryan’s return to work progress appeared to be an inability to return to work with Ms Reynolds at GEPS. This said, Dr Gertler noted Ms Ryan’s reported reluctance to undertake her required academic studies and recreational exercise because she “didn’t really want to” being an apathy noted by Dr Khan some three weeks later.
At the time Dr Khan assessed Ms Ryan on 6 June 2023 Dr Khan provided opinion Ms Ryan was totally incapacitated for work, which he explained was,
“… due to the ongoing impact of the subject primary psychiatric/ psychological injury on her mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms, self-confidence, self-esteem and trust interpersonal relationships.”
Dr Laughlin has relevantly provided Ms Ryan with a number of Certificates of Capacity during the periods 1 May to 31 May 2023, 1 June 2023 to 30 June 2023, 1 July 2023 to
31 August 2023, and 1 November 2023 to 30 November 2023 in which he has certified Ms Ryan with no current work capacity resulting from her psychological injury. Dr Laughlin last had the opportunity to review Ms Ryan on 29 October 2023.
Ms Ryan said in her evidentiary statement dated 22 September 2023 “presently I feel totally unfit for work. When I think about work I get a sense of panic”.
Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Ms Ryan has had no work capacity from 25 May 2023. While
Dr Gutkin provided opinion Ms Ryan following psychiatric assessment on 19 January 2023 suffered no incapacity for work, such opinion is curtailed by a fair resolution of the conflict that had arisen regarding Ms Ryan’s performance (which has not occurred to date) and accordingly I prefer the opinions provided by Ms Ryan’s treating general practitioner, Dr Laughlin, who has the day to day management of Ms Ryan’s health and by Dr Khan, who had the opportunity to psychiatrically assess Ms Ryan some six months after she was psychiatrically assessed by Dr Gutkin.

Quantification of entitlement to weekly benefits

Ms Ryan’s PIAWE is agreed to be $2,348.08 (as indexed)
I am satisfied that since 25 May 2023 Ms Ryan has hand no current work capacity. Accordingly Ms Ryan’s entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,878.46 (as indexed).

SUMMARY

The Department does not dispute Ms Ryan sustained primary psychological injury in the course of her employment with the Department with deemed date of injury of 31 August 2022 and that her employment was the main contributing factor to injury, and I have determined Ms Ryan’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal and/or discipline of workers.
The parties agree Ms Ryan’s PIAWE is $2,348.08 (indexed) and I have determined
Ms Ryan suffers no current capacity for work resulting from her injury since 25 May 2023. Accordingly Ms Ryan has entitlement to weekly compensation payable under s 37(1) of the 1987 Act from 25 May 2023 ongoing at the rate of $1,878.46 (as indexed).

[2024] NSWPIC 186

12 April 2024