Simpson v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Simpson v State of New South Wales (NSW Police Force) [2025] NSWPIC 229
APPLICANT:	Kelly Simpson
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Kathryn Camp
DATE OF DECISION:	27 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses; accepted psychological condition caused by workplace events; perception of workplace events; whether workplace events were real; section 4(b); section 11A(3); principles in Attorney General’s Department v K considered and applied; Held – applicant discharged onus of proof that real workplace events (actual or perceived) caused her psychological injury; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury deemed to have occurred on 9 May 2024, pursuant to s 4(b) of the Workers Compensation Act 1987. The Commission orders: 1. The respondent is to pay the applicant weekly compensation for the period 27 August 2024 to date and ongoing. The parties are to lodge consent orders within seven days of the date of this decision with respect to the quantification of the applicant’s entitlement to weekly payments, in accordance with this decision. 2. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge, pursuant to s 60 of the Workers Compensation Act 1987. 3. Liberty to apply in respect of order [1] and costs. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns a claim for weekly benefits and medical expenses in respect of an alleged psychological injury deemed to have occurred on 9 May 2024. For the reasons discussed below, the worker’s claim for compensation is successful.

BACKGROUND

On or about 2011, the applicant, Kelly Simpson, commenced work as a police officer for the respondent, NSW Police Force. She initially worked in general duties and by 2016 she commenced a role in the Dog Unit.
It is not disputed that the applicant is an “exempt worker”, and the amendments made by the Workers Compensation Legislation Amendment Act 2012 do not apply in respect of the alleged psychological injury.[1]
[1] Workers Compensation Act 1987, cl 25 of Pt 19H of Sch 6.
The respondent’s insurer issued several notices and reviews pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998. Of relevance, on 1 August 2024, 31 October 2024 and 23 December 2024, the insurer issued a dispute regarding the claim for compensation in respect of the alleged psychological injury.
On 16 January 2025, the applicant lodged an Application to Resolve a Dispute (Application) in respect of a claim for weekly benefits and medical expenses for the psychological injury.
On 10 February 2025, the respondent lodged a Reply.
On 15 April 2025, the applicant lodged an Application to Lodge Additional Documents.

ISSUE FOR DETERMINATION

The following issues remain in dispute:
(a)    whether the applicant suffered a psychological injury deemed to have occurred on 9 May 2024 (s 4(b) of the Workers Compensation Act 1987 (1987 Act));
(b)    whether the applicant has an entitlement to weekly benefits for the period 27 August 2024 and ongoing (ss 33, 36, 37, 40 of the 1987 Act, as it stood prior to the 2012 amendments), and
(c)    whether the applicant has an entitlement to past and future medical expenses (s 60 of the 1987 Act).
The following matters are agreed:
(a)    the applicant’s weekly wage rate was $1,812.62, as set out in the Application;
(b)    the applicant sustained a psychological injury in the workplace but the respondent disputes the workplace causes relate to real events;
(c)    the applicant has nil capacity for work for reason of her psychological condition, and
(d)    the applicant has an entitlement to the claimed medical expenses, if a finding of injury is made in her favour.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 4 March 2025, the parties attended a preliminary conference.
On 22 April 2025, the parties attended a conciliation conference and arbitration hearing. Mr Misha Hammond, of counsel, appeared for the applicant instructed by Law Advice Compensation Lawyers. Mr Greg Young, of counsel, appeared for the respondent instructed by Rankin Ellison Lawyers.
During the proceedings:
(a)    the Application was amended to claim weekly payments of compensation for the period from 27 August 2024 and ongoing;
(b)    the Application was also amended to claim past medical expenses in the sum of $4,471.85 but only sought a general order for medical expenses;
(c)    the applicant discontinued the Application to Lodge Additional Documents and attachments, lodged on 15 April 2025, and
(d)    the above factual matters were agreed (see [9] above).
The parties were unable to reach a resolution of the dispute and counsel provided oral submissions during the hearing which were recorded.
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, dated 16 January 2025, and attached documents;
(b)    Reply to the Application, dated 10 February 2025, and attached documents, and
(c)    Direction issued on 4 March 2025.

Applicant’s statements

In evidence are two statements by the applicant, dated 28 May 2024 and 15 October 2024.
In her first statement, the applicant states that she commenced working in the Dog Unit as a Senior Constable from April 2016. Her role included kennel cleaning and dog feeding duties, development of young dogs prior to being suitable for a formal training course, and assisting with breading. She states that she was a Foster Carer Coordinator managing development dogs housed with foster carers. She further states that prior to starting parental leave in March 2023, she was the Breeding Acquisitions Retirement and Disposal (BARD) Assistant. Her duties included BARD meeting document preparation, minute taking, and other ad hoc tasks.
The applicant states that she works a 63 hour fortnight, on a six week roster.
The applicant notes an unrelated workplace injury to her Achilles on 9 April 2024, which she was still recovering.
The applicant states that she has no issues in her private life that cause her stress.
The applicant states that she attested from the NSW Police Force in May 2012, and was placed in general duties in Nowra. She describes her time in that role, including feeling undervalued and her work with dangerous police sergeants with whom were later dismissed or resigned.
The applicant provides detail about her time in the Dog Unit from April 2016, as a Dog Development Assistant (DDA). She notes that there was no passion, leadership or direction in the role as her supervisors were only relieving for a short time.
The applicant refers to the duties and expanding role of a DDA, to kennel attendant which continues to be a problem in 2024. She states that she and other DDAs have had to cover kennel duties for the entire or half a shift which means no development occurs for the dogs. She said that not having sufficient kennel staff affects the dog’s success which she considered important. This was extremely frustrating, as she was not employed as a kennel attendant.
The applicant states that Sergeant Steven Drury commenced working with her in April 2017. She states that under his leadership the best dogs were being put forward for formal courses but that the team and dogs were heavily scrutinised and sacked by the training team. She states that she was under a lot of pressure to produce great dogs and increase team credibility so the training team would not remove them. She states that the DDAs had been called “bottom feeders” and got no recognition for the tireless hard work put into these dogs. She states that she “worked hard to push on” and not let these comments affect her work ethic and self-worth but the “constant belittling wore me down.”
The applicant refers to the purchase of Belgian Malinois under the supervision of Sergeant Drury. There were some issues regarding the purchase of the dogs and their medical history. These concerns were passed on to management which had authorised the purchase of the dogs. The applicant states that there were issues with the dogs and the development of these dogs was very difficult. She adds that the process for dog acquisition was not followed and it angered her that her team’s opinion was considered worthless.
In September 2018, the applicant submitted a report regarding the need for a full time Foster Care Co-Ordinator. She states she had to care for between 25 and 40 dogs within the development program at various ages and abilities and relied on foster carers to take care of the dogs. The report proved her responsibilities were greater than other DDAs and that they were understaffed and required to fill in for kennel attendants.
The applicant states that Sergeant Drury confided in her about a lot of concerns and frustrations regarding the training team and she saw that this affected his behaviour. The pressure increased to the point he went on stress leave and left the Dog Unit.
Sergeant Leo Clarke took over from Sergeant Drury in April 2019, and Sergeant Angela Corbett joined sometime later. She states that workload increased with need to train and develop the dogs but they were criticised for this further development when the dogs went onto the formal course as they were too advanced for the handler. Her attempts to foster a relationship with the trainers, by setting development block training calendars to observe the dogs was met with silence or resistance. She states this made her infuriated. She thought they should all be in it together as they were trying to achieve the same outcome of an operational police dog.
The applicant refers to an event that occurred before March 2023 regarding a comment a police officer made to another police officer about a development dog being a nice backyard dog. That dog became a police dog. The applicant says it is comments like this that undermine her work and made her feel worthless. She states that “[h]handlers and trainers see us as inferior and we are treated as such.” She adds that she is underappreciated and rarely recognised for her efforts in the process of making successful police dogs. She also refers to a comment Inspector Craig James made when he commenced at the Dog Unit, that he is not “paying cops to walk dogs” which she found extremely offensive and disrespectful.
The applicant adds that she is often given menial tasks that fall outside of her role such as picking up or setting up handler kennels, kennel shifts, taking cars to fleet, packing the gravel driveway. She expressed concern about this in her “My performance” in March 2023.
The applicant states that she is not seen as equal to handlers, when taking on development dogs at home. She indicated that she had taken a young pup home to care for it but there was no financial incentives for doing so.
The applicant refers to examples of dogs not progressing to the next stage due to damage caused by trainers, and the dog is returned to dog development team.
The applicant says that since returning from parental leave in 2024, the direction of the Dog Unit had changed. She states that handlers are developing puppies, which was historically undertaken by the Dog Development team.
The applicant refers to specific examples of senior management and training not respecting and supporting her opinion.
The applicant states that Sergeants Clarke and Corbett both went on stress leave while she was on parental leave in 2023/2024.
The applicant also states that while on parental leave in 2020/21 and 2023/2024 she was extremely happy and had not worried about work. She had not worried until she started hearing how the Dog Development team was being managed by the training team while Sergeants Clarke and Corbett were on leave. She states that she attended an awards day at the Dog Unit in late 2023, and that this event triggered “anxieties about returning to work and the people seemed negative and unhappy”. She states that she “cried the whole way home and didn’t want to return to work in February 2024.”
The applicant states on her return to work she was presented with instability in the development office with no substantive sergeant, handlers rotating through the section and changes to processes between the training and development team. She was expected to work closely with the training team who had caused her stress in the past. She adds that Leading Senior Constable Hamilton was going to relieve as sergeant in the development office, while the two acting sergeants were on parental leave. This decision gave her anxiety as her comment in her cultural surveys and “my Performance” were not taken on board and rectified. She felt “undervalued” and her self-esteem and self-worth “hit rock bottom” on her return.
The applicant refers to taking on extra responsibilities, including cross checking data placed onto the Dog Database and kennel shifts (the latter due to officers taking sick leave).
The applicant states in the months prior to her return to work, she attended on Ryan Spencer regarding her stress and anxiety. She states that her feelings of “burnout, worthlessness and low self-esteem have stemmed from [her] toxic workplace culture, the constant lack of support by senior management and others within the Dog Unit, degrading my role and output, and snide remarks.” She states she has not been personally attacked but it is the constant degrading behaviour and attitudes surrounding her team that she takes personally, given she is the longest serving and experienced officer in the DDA.
The applicant states that the reputation of the Dog Development team and her role is extremely important to her. She states that returning to work has made her feel “anxious and stressed”. She states that she was crying at night and the morning before work, her stomach was churning and she felt like she needed to vomit. It has affected her sleep and relationship with her family. The applicant states that these sickening feelings returned, after she had a period of time off work for her Achilles’ injury in April 2024.
In her further statement, the applicant refers to her various roles in the NSW Police Force. She describes her current symptoms in detail. She also provides a list of factors which she considers contributed to her injury, under the heading “Exposure to Toxi Workplace Culture”.
The applicant states that the last weeks of her maternity leave she “noticed physical changes due to the impending return to work which continued once [she] returned.” She states that she was “physically sick, going to work and coming home crying and angry” with her family.
In response to Mr James’ statement, the applicant states that given her additional duties as a Foster Carer Coordinator and BARD Assistant she had increased office duties compared with other DDAs. She disputes that she was protected by her previous sergeants. She states that she was an extremely hard worker with a great work ethic. As a BARD panel member she shared an office with sergeants and was privy to many conversations between staff and witnessed the backlash these sergeants withstood for speaking up for the DDAs and how it diminished their mental health. She states witnessing this type of management style and toxic culture made her fearful around management and she felt she lost her voice.
In response to Acting Inspector Sergeant McGrath’s statement, she addresses his comments on her work roster and duties. She also refers to his comment that Sergeants Corbett and Clarke were vocal as an example of the toxic culture staff was subjected to in the Dog Unit.
In response to Dr MacDonald’s report and opinion that her condition seems to be primarily her perception of workplace events despite other statements alluding to the Dog Unit operating smoothly with no issues, she makes some comments. The applicant states that Sergeant McGrath and Chief Inspector James did not directly supervise her day to day duties and were not in a position to know the issues that staff in her section were subjected to in her team.
The applicant further states that she was exposed to several traumatic incidents, during her career with the NSW Police Force. The applicant then lists a number of those incidents, from her time in general duties to her time in the Dog Unit.

Medical evidence

Mr Spencer

Mr Ryan Spencer, treating clinical psychologist, provided a report dated 24 May 2024. In that report, Mr Spencer recorded that the applicant reported intense anxiety and stressful symptomology “as a result of her employment within the Police Force” after a “significant number of interpersonal conflicts with fellow staff resulting in continued invalidation throughout her employment noting bullying, burnout, increased workloads, and witnessing fellow co-workers struggle mentally, which has particularly been distressing for her.” He noted there is a substantial need for ongoing treatment and psychological sessions. He added that the prognosis is dependent upon effectiveness of her intervention.
There are also series of handwritten which record psychology sessions with the applicant.

Dr Thazhathaveetil

Dr Sriram Thazhathaveetil, treating consultant psychiatrist and psychogeriatrician, provides a report dated 12 September 2024. Dr Thazhathaveetil records the applicant’s stressors to include; alleged bullying, poor staffing levels, unreasonable workload, and lack of support by management team in the workplace.
Dr Thazhathaveetil diagnoses the applicant with adjustment disorder with anxiety. He recommends the applicant attend weekly psychology sessions.

Dr MacDonald

In evidence is a report by Dr Kirsty MacDonald, forensic and general psychiatrist qualified by the respondent, dated 16 July 2024.
Dr MacDonald recorded a history of the applicant’s career with the respondent. She records that the applicant lodged a P902 Incident Notification form on 9 May 2024, which recorded that the applicant was forced to work with people who caused lots of grief to the unit and she was not supported by police management. She also notes that the applicant alleges anxiety when she thinks of facing work in that unit.
Dr MacDonald notes the applicant was on maternity leave, and on her return in February 2024 there were two new supervisors. She was granted a flexible work arrangement and returned to her previous portfolio of work. She is now working 60 hours per fortnight, having worked 72 hours per fortnight prior to maternity leave.
Dr MacDonald records a history of the injury. There were many ups and downs during her time at the Dog Unit, first when Sergeant Drury left. There were difficulties in interpersonal interactions with colleagues and that she felt stressed when she went on maternity leave in 2020 but did not worry much as she was going on leave. Since her return in 2024, she has been having difficulties at work. Two of her sergeants took stress leave at end of 2023, and the General Purpose Training Team was to take over the Dog Unit. The applicant went to an awards day at the end of 2023 and saw how unhappy her colleagues were which made her very anxious to return. While on maternity leave the applicant was happy and healthy. But between February and April 2024, she was upset and stressed most of the time and often cried when going to and from work. She also increased her alcohol intake.

Dr MacDonald records that the applicant reported her main issues were “stress, burnout, poor communication, unfairness, and procedural difficulties at work.” She also records that the applicant had been to “many distressing jobs during her time working with the police”.
Dr MacDonald records her findings on examination, that much of the content was around workplace events and the effect on the applicant’s mental health. Dr MacDonald states that there “were prominent themes of mistrust in the police, burnout and stress.”
In summary, Dr MacDonald records that the cause of her stress and anxiety “primarily seemed to be related to interpersonal issues within the police force, increased stress secondary to the work required of her, poor communication, burnout, and a perception of unfairness within the police.” She adds that the “loss of her previous managers on stress leave propagated the sense of unfairness and mistrust.” She further adds that there “also appears some emerging traumatic themes but these are not clinically significant for diagnosis of a traumatic disorder.” The applicant has a “clear mistrust and fear about returning to work with the police and themes of mistrust are prominent”.
Dr MacDonald repeats that the causes of the applicant’s condition are the issues raised in her statement of “interpersonal difficulties with colleagues, increased workload resulting in burnout, poor communication within the Dog Unit, and themes of procedural unfairness within the police.” There are no non-workplace stressors, noting the applicant had a young family.
Dr MacDonald diagnoses the applicant with major depressive disorder (single episode), with anxious distress. While the applicant stated she attended a number of traumatic jobs in her time with the NSW Police Force, these “appear to be an add-on to her current stressors and she does not currently reach the threshold for a separate trauma-related diagnosis”.
Dr MacDonald states, in response to a question whether the current psychiatric condition is due to workplace issues or non-workplace issues:
“[The applicant’s] condition seems to be primarily to [sic] the perceived interpersonal issues, perceived unfairness, perceived poor communication and burnout that she experienced during her time with the Dog Unit. I have read and acknowledged the statements that allude to the Dog Unit operating smoothly with no issues involving any workers. [The applicant] is adamant that these are the main precipitants to her condition. There do not appear to be any non-workplace related issues of note.”
In response to a question about the main/predominant cause of injury, Dr MacDonald states:
“I believe that the perceived interpersonal difficulties, burnout and poor communication were the main precipitant to the development of Ms Simpon’s condition. Other contributing factors were likely the ongoing stress around her ankle injury, although this is likely minimal.”
Dr MacDonald considers that the applicant is unlikely to be able to return to work due to the ongoing severity of her depression and anxiety symptoms. She considers that the treatment provided has been reasonably necessary and that the applicant will require further treatment.

Dr Smith

Dr Brendan Smith, psychiatrist, provides a report dated 30 October 2024, qualified by the applicant. Dr Smith records a history of exposure to a notable number of traumatic exposures and events, during her work in the Dog Unit and in general duties. He also records that the applicant first noted deterioration in her mental health approximately five years ago. There was a level of stress occurring in the workplace, notably around some interpersonal interactions with colleagues in the workplace.
Dr Smith records the applicant reported being on maternity leave from October 2020 until October 2021. On her return she engaged in her work duties well and had a better experience in the workplace, due to the support received from two sergeants leading the team at the time. These sergeants provided support against an alleged culture of denigration of her department from the general purpose training team. This culture involved, as the applicant reported, “being belittled, being thought of as worthless, feeling like your work has been discredited, feeling like the product of your work (dogs trained) was unworthy”. She reported indirect and generalised comments about her team being viewed as insignificant, and referred to a comment of a sergeant that he does not “pay the police to just walk dogs”.
Dr Smith also records the applicant had a second period of maternity leave in early 2023 to February 2024. She had a relatively settled period of mental health during the first part of that leave. However, after attending an awards event towards the end of 2023 and interacting with a few of her colleagues in the Dog Unit she reported that “nobody seemed positive or happy”.
Dr Smith said that the applicant reported this was in relation to the two supportive sergeants being on stress leave and the team feeling unsupported.
In the months leading up to her return to work, the applicant felt symptoms of dread, nausea, vomiting and increased emotional vulnerability. This was at the “prospect of being exposed to what she described as a ‘toxic’ workplace environment”.
On her return, the applicant reported that she struggled to cope with her working duties but that the two acting sergeants in supervision roles were “nice people”. However, she learned that a leading senior constable was due to be transferred to one of the acting sergeant roles and he had caused her a lot of grief. She reported that the thought of this officer being her direct supervisor caused her significant anxiety, dread and panic. The applicant reported that “he is part of the problem for our team, he thinks we are all shit”. The applicant reported a view that her team were seen as “bottom feeders, no one respects the hard work we do”.
Dr Smith records a history of the applicant’s injury in the workplace to the ankle in early 2024 and that she had time off but became increasingly anxious and emotionally vulnerable in face of having to return to the workplace and face the culture she described.
Dr Smith records his findings on examination to include:
“…themes of an allegedly aversive experience in the workplace, most prominently perceived treatment by colleagues external to her team in relation to her and her team’s work ethic, working role and utility. There was a sense of a lack of support, as well as a sense of being made to feel worthless and belittled. There was further traumatic exposure in line with the work of a police officer over a 12-year period.”
Dr Smith diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, with concomitant post-traumatic stress symptoms. He states that:
“[The applicant] alleges a toxic workplace environment with particular targeting of her dog training team by external members in the transport unit. She describes a toxic culture and demeaning attitudes towards herself and her team members, leading to increasing emotional and psychological difficulty within the workplace. The prospect of the above experience occurring in an unprotected manner, with an absence of supportive sergeants supervising, as well as the future entry of an external team member as a supervisor, has led to a substantial level of fear, dread and deteriorating mental health.”
Dr Smith considered that there was a direct causal relationship between employment, the work incidents. He considered the applicant to be totally incapacitated for any form of work, for reason of her experience of a toxic workplace within the Dog Unit and traumatic exposure over her work as a police officer. He recommended ongoing treatment to address her condition.

Other evidence

Foster carer co-ordinator position proposal

In evidence is a proposal for a foster carer co-ordinator position, dated 27 September 2018 and response from management declining the proposal. The content of that document has been reviewed.

Performance review – March 2023

In evidence, is a screenshot of the applicant’s performance review dated 7 March 2023. Under the heading, display resilience and courage, it is recorded that the Dog Unit is:
“…highly criticised due to the work we do developing young dogs for formal training courses in the General Purpose and Detection capability and seen to be the lesser section even though we complete critical and ongoing development of the dogs which will become these officers new operational Police dog.”
She adds that given where she sits, she is “privy to conversations” where Dog Development staff, which includes the applicant, have been described as “dog walkers”, “kennel attendants”, “bottom feeders” or called to complete work outside job description.

P902 Incident Notification Form – May 2024

In evidence is the P902 Incident Notification Form, prepared by the applicant, dated
9 May 2024. In that form, the applicant reports a psychological injury. She records the cause being “[u]nsupported by management, forced to work with people who cause lots of grief” and that she experiences anxiety at the thought of facing work in the unit again.

Mitch McGrath

In evidence is a statement of Sergeant Mitch McGrath, dated 27 May 2024. He notes that the applicant was out of the workplace since April 2023 on maternity leave, returning in February 2024 on a part time basis. She was granted a flexible work arrangement on her return and resumed her role as Foster Care Coordinator. She is a seven day shift worker but he was unaware of her working any weekends on her return.
He said that the applicant went about her job without “any fuss or issues”. She had limited interactions with any dogs and did not have interactions with many other staff outside the Dog Development section.
He notes that the applicant was “very close with” Sergeants Corbett and Clarke who were “very vocal in the unit and would have many arguments and issues with training staff and handlers.” He did not witness the applicant interacting with training staff or handlers. Sergeants Corbett and Clarke both went on long term sick leave from late 2023 and have not returned to work.
On the applicant’s return there were two new acting sergeants, A/Sergeants Camilleri and Gersback. They were very supportive and accommodating on her return. Both these acting sergeants are currently out of the workplace on paternity leave.
He states in his role as general purpose training supervisor he had interactions with the development team, and worked with the applicant on a number of times. He is unaware of the lack of support from management the applicant refers to and who has caused her grief.

Craig James

In evidence is a statement from Inspector Craig James, dated 7 June 2024. He states that he commenced in the Dog Unit in January 2022 as an operations manager, and is now the Training & Development Manager – Dog Unit. He oversees the Dog Development Office, General Purpose Training Team, Detection Training Team, Kennel Team and Kennel Complex. He managed the applicant during his time in the Dog Unit. He states that the applicant was pleasant and respectful, but she “appeared to be protected within the workplace significantly by her former Supervisors in Sergeant Angela Corbett and Sergeant Leo Clarke”. He states that the applicant did not handle a lot of dogs and mainly managed the Foster Carer Program, which she did a good job of at the time. She also assisted on the BARD panel. He added that the applicant had a poor reputation due to very little flexibility in her work arrangements, as she was on a flexible work agreement.
Mr James reports that there was “conflict in 2022 and 2023 between the Training Teams – Detection and General Purpose and the DDA Office – mainly towards Sergeant’s Corbett and Clarke.” However this did not extend to the applicant, as far as he was aware.
Mr James states that he restructured the Training Team and Development Team while the applicant was on maternity leave, so they were a combined team. New staff had been recruited into the team. The applicant had not raised any concerns about the workplace or conflict she was having in the workplace.

SUBMISSIONS

The applicant and respondent provided oral submissions during the hearing which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Applicant’s submissions

The applicant submits that the real issue in dispute is injury and causation. The applicant asserts that the cause of her condition were the problems she faced in the dog squad.
The applicant refers to her statement evidence setting out her career as a NSW Police Officer.
The applicant then refers to Dr MacDonald’s evidence. Dr MacDonald provides an opinion which focuses on the real events occurring in the workplace causing the psychiatric injury. Those events were changes in the Dog Unit over the past five years caused stress and anxiety, interpersonal issues in the workplace, poor communication, burnout and a perception of unfairness within the police, and loss of previous managers.
The applicant submits that whatever happened in the short period when the applicant returns from maternity leave does not give scope to the defendant’s defence.
The applicant asserts that the emerging traumatic themes within the symptomatology she suffers, as noted in Dr MacDonald’s report, is an important part of the case and cause of her condition.
The applicant submits that it is difficult to see the respondent’s defence that the applicant’s condition relates to unreal events. The applicant submits that on the medical and statement evidence she clearly reacted to work events, and refers to her statement evidence which is consistent with evidence of Dr MacDonald, Dr Smith and Mr Spencer. The applicant also refers to Dr Thazhathaveetil’s evidence, which identifies alleged bullying, poor staffing levels, unreasonable workload, and poor staffing levels. The applicant refers to the clinical records but does not specially address the entries, other than to say they are consistent with the other medical records.
The applicant submits that if she perceives herself as being bullied and it is something that happened at work, and there is no s 11A defence, it is compensable.
The applicant refers to her note on 7 March 2023 and the P902 Form, and submits it is consistent with her claim.
The applicant submits that she has been on maternity leave, as she is coming back to the Dog Unit and ending her period of maternity leave her anxiety levels are increasing because she is going to be faced with the workplace again. The applicant asserts that the statement evidence sets out the issues she was facing with specific examples and the medical evidence identifies the following general issues as causative of her condition:
(a)    early career in general duties;
(b)    from 2017 day-to-day problems in the Dog Unit, including how her unit is perceived;
(c)    overworking leading to burnout, and
(d)    interactions with colleagues.
The applicant then refers to the respondent’s lay statement evidence. The applicant submits that Mr McGrath does not really deal in any detail with the factual allegations made by the applicant. It does not assist the respondent that the condition was caused by a reaction to unreal events. The applicant then refers to Mr James’ statement and notes it acknowledges that there was some conflict in 2022 and 2023 between training teams and Dog Unit. Again, it does not really deal with the factual allegations.
The applicant’s statement evidence is detailed, consistent with the history given to the independent experts, clinical picture from the treating doctors, and should be accepted. The applicant should be accepted as a witness of truth.
The applicant contends that the respondent’s case focuses on an incredibly short period of time right at the end of her career, and it is an unduly narrow focus.
The applicant submits that the independent experts find that she has no capacity for work. The applicant adds that the claim is for a single worker with either two or three dependents, but that is probably something the parties can clear up if the applicant succeeds on injury.
The applicant submits that a general order for s 60 expenses is available on the evidence.

Respondent’s submissions

The respondent submits that what has caused the capacity and worsening of the applicant’s mental health is not what is happening at work at the time. It is not real. The respondent contends that there is a huge gap in time as to when these events occur, as to what happen from when the alleged worsening of symptoms occurs in 2024.
The respondent refers to the applicant’s statement evidence. The respondent submits that the applicant was clearly not overworked. The respondent notes the activities the applicant was doing. She worked 63 hours a fortnight, which the respondent submits is a lot less than what most manual workers do and refers to factory floor workers working 38-40 hours a week.
The respondent submits that applicant’s time in general duties in Nowra may or may not have been causative but that is not what the applicant or the doctors talk about in terms of causation. What happens in Nowra on general duties is not relevant to causation. Following clarification that the applicant indeed relies on general duties as causative, the respondent submits that there is insufficient evidence to link what happened in general duties in those early days.
The respondent contends that the applicant’s comments about her work as a kennel attendant is in the “context of disgruntlement rather than overwork”. The respondent submits that the applicant says that she is overworked, but this must be viewed through the prism of 63 hours a fortnight. This is not overwork. The applicant is unhappy with having to do certain things and she feels that she could be doing far more important work rather than being a kennel attendant on occasions. This does not mean she is overworked.
The respondent submits by April 2017, Sergeant Drury comes on the scene and he was a harder taskmaster. By September 2018, there is a report about full time foster carer and coordinator but that report is not in evidence.
By April 2019, Sergeant Clarke took over from Sergeant Drury, and Sergeant Corbett joined sometime thereafter. The applicant has great support from her superiors Sergeants Clarke and Corbett. Things get better but do not completely resolve based on the applicant’s evidence. The respondent contends that the applicant has two sergeants effectively running interference, protecting her, giving her a buffer, support and guidance. The respondent accepts the applicant is privy to what is challenging Sergeants Clarke and Corbett and they later go off on leave but it is unclear why leave is taken. They advocated for the very same things that the applicant perceived as being perhaps structural issues, frustrating issues but nothing more than that.
The respondent notes that the applicant was first on maternity leave in 2020/2021 and later in 2023/2024. The applicant states that she was extremely happy and had not started to worry until she started hearing how the development team was being managed by the training team while Sergeants Corbin and Clarke were off work. The respondent refers to the awards day at the Dog Unit in late 2023 which triggered the applicant’s anxiety.
Through to late 2023, and there is a gap on the chronology from 2020 to 2023, there is nothing “provocative” in that time on the evidence. There is a gap of three years, possibly four but things occur after April 2019. The applicant is happy during gap. The doctors do not address this gap, and the respondent submits that this is an issue of “fair climate” in terms of Makita (Australia) Pty Ltd v Sprowles.[2]
[2] [2001] NSWCA 305.
The respondent submits that we do not know what occurred in the gap, what the real events are in that gap and the so-called worsening. The respondent refers to the applicant’s statement that in the last weeks of maternity leave she noticed physical changes due to the impending return to work. What was it, of her memory of three to four years ago? On her return to work the applicant faces the reality that what happened three to four years ago no longer exists. It is unreal. The applicant needs to say what it is that in that three to four year hiatus as to why things become more florid in 2024.

The respondent concedes that no doubt that the applicant came across horrible and traumatic events as a police officer but the question is causation. There is a list of traumatic events but the applicant does not state that this caused her problem. Dr MacDonald does not consider this as causative but it is more the toxic environment. There is nothing in the clinical records about the traumatic events causing psychological injury. The respondent contends that it cannot be accepted that the traumatic events caused the injury. It is, if anything, the perception of what happened in the “so-called toxic environment” which is the only evidence of causation.
The respondent refers to Dr MacDonald’s evidence. Dr MacDonald refers to the traumatic events and that this appears to be an “add on”. This is consistent with the applicant’s statement. The respondent contends that it is background. Dr MacDonald says the cause is the perceived interpersonal issues. On the chronology, these issues occur between 2016 when she starts in the Dog Unit through to April 2019/2020 when she commences her first period of maternity leave. Since 2020 the applicant’s supportive sergeants are replaced by two also supportive sergeants. Her perceived interpersonal issues post 2020 or 2024 are not real.
Dr MacDonald also identifies perceived unfairness. This is in the context of what the applicant says she is doing a lot of duties, understaffed, not being appreciated, doing work as a kennel attendant. This happened in September 2018, when she wrote the report. When the applicant returns from maternity leave she does not go back to those duties full-time, but is working flexibly. She wanted to return to the same sort of work and her request was agreed in 2024. The respondent questions what is the perceived unfairness in 2024. It is not there in 2023 or 2022 when she is on maternity leave. Since 2020 the world has changed, the work environment has changed and the applicant’s personal circumstances and need for work has changed.
The next is perceived poor communication. The respondent asserts that nothing has happened since 2020, if anything, it has improved. The applicant has asked for two requests at work and they were approved. The respondent submits that the applicant may have been apprehensive in the days before going back to work but once she gets back there and knows the lay of the land, that is not real.
The other is burnout. The applicant worked 63 hours a fortnight when she worked full time but returned part-time. No burnout has happened since at least 2020. It is not real.
The respondent refers to Dr Smith’s evidence. Dr Smith refers to traumatic events and the applicant’s initial period of maternity leave. The chronology is not clear and there is nothing to really suggest that anything happened other than the awards night beyond 2020.
There is a reference in Dr Smith’s history, which does not appear elsewhere on the evidence, that the applicant learned that there was a leading senior constable who was to be transferred to one of the acting sergeant roles who had caused a lot of grief. It is recorded that the applicant reported that the thought of this officer being her direct supervisor caused her significant anxiety, dread and panic. This is an assumption he considered in order to answer the question of causation. It is not known whether this event happened.
The respondent contends that we know why there has been a worsening of symptoms in 2024 but the applicant is “jumping at shadows”.
The respondent concedes that Dr Smith refers to the applicant’s traumatic exposure in policing work, but places far more importance on the toxic workplace environment with particular targeting of the dog training team by external members in the transport unit. It is not clear who is the transport unit, the applicant only talks about inspectors and trainers.
The applicant also describes a toxic culture and demeaning attitudes towards herself and her team, but it is unclear by whom, but this is presumably people from 2016 to 2019/2020. This is a three to four year gap. Dr Smith notes that the prospect of that experience occurring in an unprotected manner with an absence of supportive sergeants supervising, as well as the future entry of an external team member as a supervisor, has led to a substantial fear, dread and deteriorating mental health. The event has not happened and is not real.
The respondent submits that the chronology is an important part of understanding what the applicant says is the toxic environment, which Dr MacDonald and Dr Smith refers to as “interpersonal issues, belittling, overworked, burnout”. The perception of what happen from 2016 to October 2020. Thereafter, she is happy and not worried about work, but triggered at the awards night and fearfully concerned in the days leading up to returning to work in 2024. However, when returning in 2024 then realising what she was fearing was in the past was no longer real. The applicant is just jumping about something that might happen.
The applicant’s mental health condition was not caused by real events, “at least from 2020 onwards”. The applicant is concerned about things that might happen that never did. She returns to work in a totally different capacity, with a young family that suits her circumstances, not overworked. Dealing with different people who are nice. The applicant is worried about someone who might join her team but it is not known whether they did.
The respondent concedes that if a finding is made against them on causation the medical evidence is of total incapacity and it is content with a general order for medical expenses.

Applicant’s submissions in reply

The applicant submits that there is a disconnect in the respondent’s submissions between what he urges the Commission to find and the medical evidence.
There is no medical evidence that suggests or opines that what happened to the applicant when she returned to work after maternity leave caused her decompensation. There is almost a concession from the respondent that the events up to 2020 were real events that she reacts to and that somehow the period from 2020 to 2024 nothing happened or the place was a really good employer absolves the respondent of a liability.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the 1987 Act.
The term “injury” is defined in s 4 of the 1987 Act. Relevantly, s 4(b) of the 1987 Act as it stood prior to the 2012 amendments provided that injury includes a “disease injury”, which means:
“(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
…”
In determining the application of the disease provisions the Commission has routinely applied the four-step process set out in Austin v Director General of Education.[3] In that decision and applying Federal Broom Co Pty Ltd v Semlitch,[4] Clarke JA said the following questions should be asked:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
(d)     If so, did a partial or total incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[5]
[3] (1994) 10 NSWCCR 373.
[4] [1964] HCA 34; (1964) 110 CLR 626.
[5] (1994) 10 NSWCCR 373.
“Psychological injury” is defined in s 11A(3) of the 1987 Act:
“(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological condition may constitute a “disease”, as described in s 4(b) of the 1987 Act.[6]
[6] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34, [632] (per Kitto J).
In Attorney General's Department v K,[7] Roche DP considered the relevance of a worker’s perception of workplace events in determining the causation of a “psychological injury”:
“The following conclusions can be drawn from the above authorities:
(a)     employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[8]
[7] [2010] NSWWCCPD 76.
[8] Attorney General v K [2010] NSWWCCPD 76, [52].
Deputy President Roche further stated:
“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 the events will always be subjective and will depend upon his or her personality and circumstances.”[9]
[9] Attorney General v K [2010] NSWWCCPD 76, [54].
The applicant bears the onus of proof, to establish her case on the balance of probabilities.[10] The relevant principles of onus of proof were discussed by Justice McDougall in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd.[11] Justice McDougall said:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.”[12]
[10] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)) (Nguyen); Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[11] [2008] NSWCA 246.
[12] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44] (per McDougall J (McColl and Bell JJA agreeing)).

Discussion

It is accepted that the applicant sustained a psychological injury as a result of workplace events or her perception of those events. However, the respondent disputes that these workplace events relate to “real events” and on this basis disputes injury pursuant to s 4 of the 1987 Act.
The main basis for the respondent’s position is that:
(a) the applicant’s perception of what is occurring at work at the relevant time is not real, and
(b) there is a gap in time when these events occur and when the applicant decompensates.
It is well accepted that a worker’s perception of workplace events, which are real and not external to the workplace, may satisfy the test of injury under s 4 of the 1987 Act.[13] A significant part of the respondent’s case was founded on the basis that the circumstances which gave rise to the applicant’s psychological condition were based on workplace events which were not real.
[13] Attorney General v K [2010] NSWWCCPD 76 at [52]; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249.
The applicant relies on four broad categories of events as causative of her psychological injury. These categories arise from the report of Dr MacDonald, qualified by the respondent, which is largely consistent with the opinion of Dr Smith, qualified by the applicant, on the cause of the applicant’s psychological injury. Those categories relate to the workplace and are as follows:
(a)    early career in general duties;
(b)    from 2017 day-to-day problems in the Dog Unit, including how her unit is perceived;
(c)    overworking leading to burnout, and
(d)    interactions with colleagues.
These categories are not disputed by the respondent as being causative of the applicant’s psychological condition, except with respect to the applicant’s early career in general duties and the general submission that the applicant’s psychological reaction was to events which were not real.
I accept the applicant’s general submissions, that these broad categories of events were real and the applicant’s reaction to those events (whether actual or perceived) were causative of her psychological condition. I will deal with each category in turn.

Early career in general duties

I do not accept the respondent’s bare assertion that there is insufficient evidence of causation to link what happened in general duties to her current psychological condition.
The respondent properly conceded that the applicant was exposed to traumatic events in the course of her work as a police officer. The applicant’s statement evidence describes exposure to traumatic events from 2011 while in general duties to her time in the Dog Unit. The occurrence of these traumatic events are not disputed.
Dr MacDonald and Dr Smith record a history that the applicant was exposed to traumatic events in the course of work. Dr MacDonald records a history of emerging traumatic themes but considers this is not clinically significant for a diagnosis of a traumatic disorder. Dr MacDonald described these events as “an add-on” to the applicant’s current stressors. Similarly, Dr Smith records a notable number of traumatic exposures and events in line with the work the applicant undertook as a police officer. Dr Smith’s diagnosis of the applicant included concomitant post-traumatic stress symptoms arising from those traumatic events.
While there is a focus on the “toxic work environment” as being the prominent causative factor of her psychological condition, the medical evidence indicates that the traumatic events impacted the applicant. In this regard, I accept that the traumatic events may not be a central cause of the applicant’s present psychological symptoms when compared with the toxic work environment. I also accept that the connection of these traumatic events with the applicant’s present symptoms may be tenuous on the evidence and on a temporal basis. However, as the applicant submits, it is still an important factor which forms part of the basis of her ongoing psychological symptoms. This is supported by both medical experts, which state at the very least the exposure to the traumatic events forms part of her current psychological stressors.
It follows that the accepted workplace traumatic events is a causative factor giving rise to the applicant’s psychological injury.

From 2017 day-to-day problems in the Dog Unit, including how her unit is perceived

Interactions with colleagues

The parties did not expressly identify what fell within the categories of day-to-day problems in the Dog Unit (including how the unit is perceived) or interactions with colleagues, but there is overlap between the two categories and the applicant’s perception of a toxic workplace.
The applicant consistently reports and describes a toxic workplace culture and demeaning attitudes towards her team. She provided examples of constant degrading behaviour and attitudes surrounding her team, which she described as “belittling” and explained that she took personally. For example, her team had been called “bottom feeders”, “kennel attendants” and “dog walkers” and that the team was not treated with respect. These factual allegations are not disputed. The applicant’s statement evidence is consistent with the histories recorded by Dr MacDonald and Dr Smith, a Performance Review document dated March 2023, and it is supported by the statement evidence of Mr James. There were clear interpersonal difficulties between the applicant’s team and the training team and the applicant was exposed to these difficulties while sitting in a shared office with the supportive sergeants who would speak up for her team.
There is no specific evidence that disputes the applicant’s evidence and examples of a toxic workplace. While Dr MacDonald states that the statement evidence alludes to the fact that the applicant’s team operated smoothly with no issues involving any workers, the lay evidence does not explicitly state this to be the case. There are only two lay statements from the respondent, namely, Mr McGrath and Mr James. The applicant states that these individuals did not directly supervise her day-to-day duties and were not in a position to know the issues her team were subjected to. Mr McGrath and Mr James do not indicate that they directly supervised the applicant or that the applicant’s team operated smoothly. Mr McGrath states that he was in another team, as a General Purpose Training Supervisor, but had some interactions and worked with the applicant in the development team. Mr James indicates that he managed the applicant but it is unclear in what capacity when he states his role was training and development overseeing at least four separate teams within the Dog Unit. Mr James also confirms that there was conflict in 2022 and 2023 between the training teams and the DDA office (the development team within which the applicant worked). The lay evidence supports the applicant’s evidence of workplace conflict or interpersonal issues.
It is accepted that the applicant had a strong relationship with her supervising sergeants, and that these sergeants took stress leave while she was on her second period of maternity leave in late 2023. It is also accepted that these sergeants provided the applicant with, as the respondent submits, “support and guidance”. Indeed, the respondent submits that these sergeants advocated for the very same things that the applicant perceived as being structural issues within the workplace.
The applicant’s attendance at a work awards day in late 2023 is another workplace event which contributed to the applicant’s psychological condition. During this event the applicant was made aware of structural changes in the Dog Unit. The applicant states that the development team was being managed by the training team while the supportive sergeants were on stress leave. Whereas Mr James states that the training team and development team were merged together following a restructure while the applicant was on maternity leave. There is a slight inconsistency between the lay statements on the details of the restructure which cannot be reconciled on the evidence but this is not critical. On the background of a clear conflict between the two teams and the departure of the supportive sergeants, on receipt of the news of the restructure the applicant became fearful of her return to work. There was no evidence to suggest that the tension or conflict between the two teams had resolved with the restructure. In any event, whether or not it did resolve is not significant because the applicant’s fear and psychological symptoms were based on past real events of workplace conflict which is undisputed.
Dr MacDonald and Dr Smith opined that the absence of the supportive sergeants contributed to the applicant’s increased emotional vulnerability. Dr MacDonald found that this propagated a sense of unfairness and mistrust. Dr Smith found that the prospect of being exposed to what the applicant described as a toxic workplace environment in the absence of these supportive sergeants, together with the future entry of an external team member as a supervisor, led to the applicant’s fear, dread and deteriorating mental health.

The respondent criticises the history reported to Dr Smith of a new acting sergeant as raising more questions than answers. However, the lay statement evidence confirms that on the applicant’s return there were two acting sergeants who were nice but were due to go on parental leave. Mr McGrath confirms that they were both on paternity leave (at least by May 2024). I infer that the evidence suggests that a new acting sergeant (Mr Hamilton) was to supervise the applicant, and that the applicant was of the view that the new supervisor would cause her grief. However, I accept that there is no evidence that explains what events gave rise to issues with that new supervisor or that that officer ultimately supervised the applicant.
Whether or not the work climate is less toxic or no longer toxic on the applicant’s return in 2024 (a finding which I do not accept is available on the evidence), is not to the point. That is because as the applicant explains in her statements, consistent with the medical evidence, the real events of the past were triggered by what she heard about the working climate and workplace restructure during the awards event in December 2023. Similarly, that Dr Smith finds that the prospect of the past experiences occurring in the absence of supportive sergeants supervising or a change in supervisor, is not fatal. The evidence of Dr MacDonald and Dr Smith is that the applicant’s perception of interpersonal issues (or toxic workplace culture) which is based on real events of the past is the precipitant to her psychological condition.
It is clear that the applicant took great pride in her role and was greatly affected by the way in which her team was perceived and treated. It is not contested that the applicant’s team was viewed and treated in this manner. The applicant’s feeling that her team was being treated differently or not well pervades her statement evidence. The applicant took this personally. I accept that evidence.
On the background of these interpersonal issues, the departure of her supportive supervising sergeants and the workplace restructure, the uncontested medical evidence indicates that the applicant felt increasingly vulnerable and her mental health deteriorated. That vulnerability persisted with the lack of continuity in supervising sergeants and the applicant felt unsupported which led to increased symptoms of dread, nausea, vomiting and emotional vulnerability.
While it is unclear whether the applicant was exposed to direct demeaning conduct (in the past or on her return to work in 2024) or that the new acting sergeant had commenced to supervise her, the applicant’s perception of fear was largely based on real past events. Even if the applicant has a different perception of the work environment, the undisputed evidence is that there were interpersonal issues between the applicant’s team and the training team and that the applicant perceived this to create a toxic work environment.

Overworking leading to burnout

The applicant asserts that she had been overworked, and the medical practitioners explain that this led her to burnout. This category also relates to what has been described as the applicant’s perceived unfairness, in respect of the work generally.
The applicant asserts that she was undertaking a lot of duties, her team was understaffed, not appreciated and she was working as a kennel attendant. Contrary to the respondent’s submission, this was not limited to September 2018 when she wrote a report seeking additional support. The applicant describes these issues persisting on her return to work in 2024 with increased office duties when compared to her peers, and this evidence is not disputed.
The applicant’s hours of work reduced when she returned to work following maternity leave. It is accepted that on her return in 2024 the applicant was working on a flexible work arrangement of part-time hours but undertaking her former duties. The respondent provided submissions to this effect.
The respondent’s submission that the applicant was not overworked because she only worked 63 hours, which was less than a factory floor worker working 38-40 hours a week, was misplaced. The applicant did not indicate that she was overworked for reason of her flexible work arrangement or the actual hours she worked.
The applicant’s statement evidence, together with the medical histories, record that she was required to undertake multiple duties. Some of these duties did not fall within her scope of work or were in addition and this impacted her ability to perform her usual tasks. It impacted her duty to develop the police dogs and that this affected the dog’s success as a police dog. For example, the applicant was required to work as a kennel attendant and undertake Dog Database work which were extra responsibilities and took away time to undertake other needed tasks. There is no evidence to suggest that the applicant’s usual duties were reduced to accommodate the additional tasks, which the applicant indicated were usually undertaken by another role and had impacted her ability to perform her usual tasks.
The issues surrounding additional tasks was raised with the respondent. It was formally raised with the respondent in 2018 when the applicant made recommendations for change which were not adopted. It was raised again at least in March 2023 in the applicant’s written performance appraisal. This evidence is not disputed. Indeed, I was not taken to any evidence to indicate that this situation changed or that the applicant’s day-to-day workload reduced, notwithstanding her return to part-time work in her usual duties.
The evidence indicates that the applicant was required to undertake additional duties, that she felt that this was unfair and that it impacted her ability to perform her usual duties leading to feelings of overwork and/or burnout.

Gap of time

The respondent submits that there is a gap of provocative events for three years between 2020 to late 2023, possibly four but that “things occur after April 2019”. I do not accept the alleged gap to be determinative. The applicant had two periods of maternity leave for approximately 12 months firstly from October 2020 to October 2021 and secondly from April 2023 to January/February 2024. I do not consider it appropriate to draw an adverse inference from this alleged gap, when it is clear that the applicant was not working over a significant portion of this period and that in March 2023 (prior to her second period of maternity leave and before the December 2023 awards event) the applicant records her concerns about the workplace in her performance appraisal. That evidence is not disputed.
The medical experts are aware of and take a history of this period, which comprises of two periods of maternity leave during which time the applicant is happy and not worried about work. It is in the lead-up to her return in early 2024, and from late 2023, that the applicant begins to notice physical changes. The evidence consistently records that the applicant’s physical changes are a result of workplace events and that her condition worsens following the 2023 awards event, which triggers thoughts about events of the past. To the extent that the respondent argues that the medical experts did not have a “fair climate”[14] in which to express their opinions because this gap was not addressed, for the above reasons, this cannot be accepted.[15]
[14] Paric v John Holland (Constructions) Pty Limited [1984] 2 NSLR 505.
[15] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11.

Totality of factors

The applicant reacted to workplace events that were real.[16] The applicant was not jumping at shadows, as the respondent contended. For the reasons discussed above, those events largely relate to interpersonal issues within the workplace and secondary feelings of overwork leading to burnout, but also in-part relate to the applicant’s early career in general duties.
[16] Attorney General v K [2010] NSWWCCPD 76, [52].
I have exercised caution in my findings. In this regard, I note that there are some gaps on the evidence. At times it is difficult to follow the chronology of events despite the applicant’s detailed statement evidence and the respondent’s attempt to set out the chronology in its submissions. The respondent’s statement evidence also lacks specific detail regarding the relevant workplace events. Notwithstanding this, I am satisfied real events (actual or perceived) occurred in the workplace which caused the applicant to suffer a psychological injury. Those workplace events predominately occurred in the past prior to the applicant’s return to the workplace in 2024, but some occurred afterwards. There being no non-work events causative of the applicant’s condition, the applicant’s employment with the respondent was a substantial contributing factor to the development of her psychological injury.
It follows that I am satisfied the applicant suffered an injury pursuant to s 4(b) of the 1987 Act.

Capacity

The medical evidence is clear and consistent. The applicant has total incapacity for work, which is ongoing. There is also no dispute that the applicant has total incapacity for work for the period from 27 August 2024 and ongoing.
The parties agreed that the applicant was an exempt worker and the 2012 amendments did not apply to the applicant. They also agreed that her weekly wage rate was $1,812.63. However, the parties were not in a position to confirm whether the applicant had one or two dependants over the relevant period or the relevant indexation amount. The parties indicated an intention to agree on the quantification of the applicant’s entitlement to weekly benefits, if there was a finding on injury.
Accordingly, the parties are to lodge consent orders in respect of the quantification of the applicant’s entitlement to weekly benefits.

Medical expenses

The medical evidence provides that the applicant has undertaken treatment for her condition and requires ongoing treatment, including psychological sessions.
The respondent properly conceded that, if there was a finding of injury, the applicant had an entitlement to the claimed compensation.
It follows that the applicant is entitled to the past medical expenses claimed and there will be a general order for the reasonably necessary incurred medical expenses, pursuant to s 60 of the 1987 Act.

CONCLUSION

The applicant sustained a psychological injury in the course of her employment with the respondent. As a result of that injury, the applicant has total incapacity and requires ongoing medical treatment.
Noting the above findings and agreement between the parties, if the parties cannot agree on the quantification of the applicant’s entitlement to weekly benefits they have liberty to apply within seven days.
The applicant having succeeded on the application, is entitled to costs. No submissions were made as to costs. If the parties wish to make any submission in respect of costs, they should do so within seven days.
The findings and orders are set out in the Certificate of Determination.

[2025] NSWPIC 229

27 May 2025