Stamatopoulos and Linfox Australia Pty Ltd (Compensation) - [2021] AATA 1790

Stamatopoulos and Linfox Australia Pty Ltd (Compensation) [2021] AATA 1790 (9 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2575
Re:Harry Stamatopoulos
APPLICANT

AndLinfox Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:9 June 2021
Place:Sydney

1. The reviewable decision dated 21 April 2020 is set aside. The matter is remitted for reconsideration in accordance with the Tribunal’s findings.
2. It seems appropriate to order the Respondent to pay the Applicant’s reasonable legal costs and disbursements as agreed or taxed. However, I will not make the order until seven days after the publication of this decision to allow the Respondent an opportunity to oppose the making of the order.

.........................................................[sgd]...............
Mrs J C Kelly, Senior Member
Catchwords
COMPENSATION – workers compensation – major depressive disorder – section 19 claim – incapacity for work – whether incapacity is due to accepted psychological condition or due to termination of employment – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19
CASES
Bis Industries Ltd v Dale [2017] FCA 789
Bortolazzo v Comcare (1997) 75 FCR 385
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
9 June 2021
Introduction

The parties agreed that this case was appropriately dealt with pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). That is, the Tribunal should review the decision by considering the documents and material provided to it without holding a hearing.
The issue to be decided is whether the Applicant was, as a result of a psychological injury, “Major Depressive Disorder”, sustained on 11 July 2019 (the injury), incapacitated for work from 5 December 2019 when Linfox Australia Pty Ltd (the Respondent) terminated his employment. The Applicant had been employed by the Respondent since 2006, initially as a casual, and from 2007 as a permanent employee.
The parties addressed various refinements of the general issue which will be considered in detail later.
The events from 11 July 2019 until the reviewable decision made on 21 April 2020
The following chronology is based on the contemporaneous documents in evidence.
The Applicant described the circumstances in which the injury occurred in the incident report which was made on the day of the incident, 11 July 2019. He was driving a forklift loading a truck when a truck entered the yard and did a full U-turn “at speed”. The Applicant was facing the trailer he was loading with his back to the turning truck. He wrote:
I feel the truck came to [sic] close to me at speed. No indication was given (no horn or lights). Yard is under camera watch.
In the typewritten part of the Incident Report the nature of the injury was described as “Anxiety”.
On 9 August 2019, the Applicant attended his General Practitioner (GP). There was no reference to a work incident or conditions in the clinical record.
On 13 August 2019, the Respondent issued the Applicant with a First Written Warning for failure to follow reasonable and lawful instruction from the Operations Manager in relation to an incident that occurred on 24 July 2019. The Applicant declined to sign the acknowledgement on that letter:
I the undersigned have read and agree that any further incident of this type may result in further disciplinary action in accordance with Linfox policy, up to and including termination of employment.
The letter stated that the Applicant was free to utilise “our Employee Assistance Program (EAP)”.
The Respondent issued a Second Written Warning on 22 August 2019 for an incident on the day the First Written Warning was issued, 13 August 2019, and a further incident on 15 August 2019. Again, the Applicant declined to sign the acknowledgment on the letter.
The Applicant consulted his GP on 26 August 2019. The clinical note stated:
p/w frustration, aggravation and anxious over an incident at work last month that nearly killed him.
He was nearly run over by a B-double truck on 11/7/2019 whilst on site at work.
That driver works for Linfox, same company as Harry.
We had a discussion about the incident and whether a workers comp claim is necessary.
Harry wants to avoid that if possible and is ccurently [sic] liaising with his employer, but that still remains an option if necessary.
Harry has become quite anxious after this incident, which has also affected his sleep.
He is especially bothered by the apparent lack of action by his employer at this stage.
Plan:
trial of Endep at night
medical certificate issued
liaise with employer himself to try and achieve some resolution
consider putting a workers comp claim in if necessary
The medical certificate issued on 26 August 2019 was for 26 and 27 August 2019. It stated that the Applicant had a medical condition and would be unfit for work for those days.
On 27 August 2019 the Applicant consulted the GP again. He had notified EAP and had an appointment the next day. He wanted to take the lowest possible dose of Endep. He had filed an incident report and was having discussions with the employer the next week. A medical certificate was given. It stated that the Applicant had developed anxiety and insomnia as a result of a near miss incident at work on 11 July 2019, his symptoms had propagated in that time and he is unfit for work from 26 to 28 August 2019.
The Applicant consulted his GP on 19 September 2019. The Applicant was dissatisfied with the handling of the “near miss incident” and stated that he was “lied to by his site manager and operation manager”. He was ignored and feels his wellbeing has not been considered and no duty of care displayed. He went to the EAP on 28 August and 13 September 2019. He had emailed HR twice but had not received a response. He was going to contact Comcare to “address this”. He may consider a worker’s compensation claim. As a result, he felt anxious and nervous at work and home. A medical certificate was issued that stated that he was unfit for work from 19 to 20 September 2019.
On 24 September 2019, the Applicant lodged a complaint with Comcare, the regulator, in relation to the near miss at Linfox and that Linfox failed to get back to him about the near miss.
An undated response from Linfox to a request from Comcare made on 30 September 2019, states that the driver had been banned from the site on 30 July 2019, had visited the site on about four occasions after the incident when the watchtower was unattended, and was finishing his employment with the Respondent on 11 October 2019.
On 18 October 2019, Comcare provided a report which set out the measures Linfox had taken to prevent a recurrence of such an incident and noting that the driver involved had been observed on multiple occasions to be on-site after the incident. It is relevant to note that the Applicant expressed his concern with various supervisors that the driver was back on site on about 29 July 2019, 25 August 2019 and 4 September 2019 and that he did not receive responses.
On 16 October 2019, the Respondent issued a Third and Final Written Warning to the Applicant in relation to an incident on 23 September 2019. The letter informed the Applicant:
For clarity, be advised that any further incident regardless of the type will result in the termination of your employment.
The Applicant refused to sign the acknowledgment on the letter.
Following is a summary of the clinical notes of the Applicant’s GP for consultations on 16, 21, 23, 28 and 31 October 2019.
On 16 October 2019, the Applicant referred to the third and final warning and reported that the incident the subject of that letter involved incorrect pallet stacking which he reported as a potential hazard, but for which he was blamed. He said that was “completely unfair and unjust”. He said that the site manager had been unhelpful, in particular with the regard to the near miss that threatened his life which appeared not to have been investigated. He said that the two warnings since the near miss were unjustified and he was disputing both which appeared calculated to threaten his career. He was very stressed and anxious. His dose of Endep was increased. He was considering a worker’s compensation claim. A medical certificate was issued stating that he would be unfit for work from 16 to 20 October 2019 inclusive.
On 21 October 2019, the Applicant was very stressed and anxious about his work situation. He felt ignored, unfairly targeted at work and bullied which had affected his self-confidence and self-esteem. He felt powerless and insecure in his employment future. A medical certificate was issued stating that he had a medical condition and would be unfit for work for 21 and 22 October 2019 inclusive.
There were records of two consultations on 23 October 2019. In the first, the Applicant reported that HR had agreed to a meeting with him and the union on 29 October 2019. Work matters continued to bother him, but he felt that the company was making an effort to address his concerns. He told his GP he would continue to take Endep and would return to work at 2:30 pm that day.
The second record stated that the Applicant had emailed the site manager stating that he was resigning as union delegate due to difficult times and needing to concentrate on himself and work. His supervisor called him into a conference room at start of shift about an incident on 15 October 2019 where he got lunches for staff and forgot to bundy off and on. The GP’s notes state:
Evidently this is not recognised by all staff as a strict requirement.
…
This incident has been brought up today in what appears to be some sort of witch hunt.
Harry’s anxiety and stress levels have risen accordingly.
Harry wanted to return to work but had been suspended with pay immediately.
Harry will now increase his Endep dose to 25mg daily.
A medical certificate was issued stating that the Applicant had a medical condition and would be unfit for work from 23 to 27 October 2019 inclusive.
On 28 October 2019, the Applicant continued to be very anxious about his work situation. He told the GP he had been directed to attend a meeting. He felt they were trying to get rid of him. None of the near miss incident or validity of the three written warnings had been raised for discussion. Management had not consulted him about the near miss incident. The GP noted that the Applicant continued to suffer anxiety, insomnia and stress as a result. A medical certificate was issued stating that he would be unfit for work from 28 to 30 October 2019 inclusive.
On 31 October 2019 the Applicant was very stressed and distressed due to being told that the union could not help him. He felt that the company was constructing his dismissal which was very unfair. Three unreasonable warnings in rapid succession following a near miss incident that he reported to Comcare did not appear to be coincidental. He feared losing his job after the 15 October 2019 incident. He was given his third warning on 16 October 2019. “He will discuss his options with a lawyer Consider w/c claim”. A medical certificate was issued stating that the Applicant had a medical condition and would be unfit for work from 31 October 2019 to 3 November 2019 inclusive.
On 4 November 2019 he attended a meeting where a record of interview (ROI) was conducted into the alleged events.
At the conclusion of the interview it was stated that the Applicant remained suspended with pay in order for Linfox to consider his responses and conclude the investigation.
The notes for the GP consultation on 8 November 2019 record that the Applicant was stood down with pay on 4 November due to the 15 October incident. The company also alleged that the Applicant had obstructed a walkway with a forklift which he thought was a double standard because another person had done the same thing without disciplinary action. His anxiety and insomnia continued to escalate. He was very distressed “because of all these issues since the near miss incident”. He had lost 7 kg.
On 18 November 2019 he continued to be extremely distressed by his circumstances. He told his GP he had reported the near miss to Comcare and had been victimised since. He never received a response from the employer about the near miss incident. A mental health care plan was completed and the Applicant was referred to a psychologist. A lawyer was assisting him to submit a response to the allegations and warnings.
Although a “surgery consultation” is recorded in the GP clinical notes on 26 November 2019, the actions seem to be administrative. There is no reference to the Applicant being present.
The Applicant consulted his GP on 3 and 12 December 2019. His symptoms and complaints about his work continued. He was given “the sack” on 5 December.
On 5 December 2019, the Respondent issued a Termination of employment letter. The letter stated that on 23 October 2019, the Applicant was advised that management had commenced an investigation in relation to an allegation that on 15 October 2019, the Applicant took a 51 minute break instead of a 40 minute meal break. He was requested to attend a meeting to participate in the investigation but because his nominated representative was unavailable, the meeting was adjourned, and he was suspended from duty with pay.
On 28 January 2020 the Applicant lodged a claim for workers compensation for a condition described as “work induced anxiety and depression” which “started from a near miss incident” on 11 July 2019. In response to Question 22, “What happened and how were you injured?”, the Applicant wrote:
After the near-miss I was ignored, bullied, victimised and harassed.
The first WorkCover NSW Certificate of capacity was provided on the same date by the Applicant’s GP, who recorded that the date of injury was 11 July 2019 and the Applicant was first seen for the injury on 26 August 2019. The diagnosis was “Work induced anxiety and depression due to bullying and harassment”. The Applicant was certified as having no current work capacity for any employment from 6 December 2019 to 11 February 2020. It also stated that the estimated time to return to any type of employment was “uncertain at this stage” and factors delaying recovery were “failure to address the underlying issues at hand”.
The incident was described as follows:
There was a near miss incident at the workplace on 11 July 2019 whereby Harry was almost killed by a turning truck. Prior to the near miss incident, he had put in a hazard report concerning the operation manager. He developed anxiety and insomnia and his complaints to management were ignored. He was then targeted by management and victimised, ultimately leading to his unfair dismissal.
Thereafter, WorkCover NSW Certificates of capacity were issued regularly, mostly monthly. They contained the same information as set out above, but also included from time to time, details about the Applicant’s medication and treatment. The most recent one before the Tribunal was dated 12 March 2021. At that time, the Applicant was seeing a psychologist and was taking anti-depressant/anti-anxiety medication. He had been referred to a psychiatrist and prescribed medications. It was noted that “Legal proceedings continue at this time”.
On 26 March 2020, the Respondent issued the following determination:
In accordance with the provisions of the SRC Act, I hereby determine that Linfox is liable to pay compensation in respect of Mr Stamatopoulos’s psychological condition, being “Major Depressive Disorder” having regard to section 14 of the SRC Act. I have found the date of injury for the purposes of the SRC Act to be 11 July 2019.
On the same day, the Respondent issued a determination calculating the Applicant’s entitlement to payment for incapacity benefits pursuant to s 19 of the SRC Act as $9,071.40 for the period 8 July 2019 to 6 December 2019 when the Applicant’s employment was terminated.
The reviewable decision is the reconsideration decision dated 21 April 2020 which affirmed the 26 March 2020 incapacity payment determination. The reviewable decision-maker referred to the submission made by the Applicant’s solicitor that entitlement to payment of incapacity benefits extended beyond 6 December 2019 and said “however, no evidence has been provided to support this contention”. The reviewable decision maker continued:
On 13 March 2020, you were a party to Fair Work Commission proceedings against Linfox. The central issue of the proceedings was your termination from Linfox on 6 December 2019 due to disciplinary matters (unrelated to your accepted claim for workers’ compensation). I understand that a resolution was reached on the day and as part of the resolution, you accepted the termination of your employment with Linfox on 6 December 2019. [Emphasis added]
In these circumstances, I consider the cessation of your employment with Linfox on 6 December 2019 to be a relevant factor for the purposes of determining your entitlement to incapacity benefits as per section 19(4)(g) of the SRC Act. Therefore, I find that as of 6 December 2019 the reason for your incapability to work is the cessation of your employment rather than your accepted psychological condition.
Evidence in relation to treating psychologist
The Applicant commenced counselling with Ms Ucio, psychologist, on 21 November 2019 after being referred by his GP. She wrote a report to the GP on 4 March 2020 and a report dated 3 July 2020 at the request of his solicitors. That evidence shows that the Applicant attended further sessions on 7 and 21 December 2019, 18 January 2020, 1 and 13 February 2020, 14 March 2020, 3 April 2020, 1 May 2020, 5 and 26 June 2020, and that he was planning to continue monthly sessions thereafter.
Ms Ucio’s report dated 3 July 2020 set out the history of consultations and treatment provided. When he first attended:
He had recently been stood down with pay, pending further investigations. At the time of his initial session he presented as highly stressed and anxious.
…
Harry was seeking support regarding the impact of a stressful near-miss workplace incident which happened on 11/07/2019. This was followed by a series of other events experienced since then, and his subsequent treatment by his former employer, eventually resulting in his dismissal. …
…
Harry attended sessions to assist him to manage the psychological impact of the events. Harry advised that he followed due process regarding his complaint, and since this was not resolved he experienced multiple interactions with former Manager which left him feeling targeted, bullied and eventually resulted in him losing his job.
The impact of this has caused additional stressors in terms of disconnection and grief from a long-term workplace, financial pressures, and isolation resulting in an exacerbation of his depression.
When he attended a session on 18 January 2020:
(The Applicant) attended the session distressed and ruminating on the previous incidents, which were contributing to heightened anxiety and insomnia. He expressed feelings of rejection by the company, feeling helpless, and grieving the loss of his job and friendships at work.
Sessions in February 2020 focused on supporting the Applicant while he was applying for Workcover and Centrelink financial support. Ms Ucio noted that at that time:
Feelings of depression and anxiety remain significant.
In March 2020, the Respondent required a psychiatric review. Ms Ucio reported:
His persistent feelings of loss of self-esteem, post event trauma, hyper-vigilance and rumination surrounding his near-miss incident, lack of resolution/closure regarding this have impacted his mental health significantly. He reports a loss of confidence, motivation and financial stress. It appears he may have symptoms consistent with PTSD.
By April, the Applicant confirmed that he had received a diagnosis of PTSD through the appointed psychiatrist.

Ms Ucio administered three DASS (Depression Anxiety Stress Scales) on 21 November 2019, 4 March 2020 and around May/June. The result of each test was that the Applicant’s Depression was extremely severe and his anxiety was moderate. His stress was moderate on the first test, severe on the second and normal on the third.
Independent medical assessments after lodgement of worker’s compensation claim
After the worker’s compensation claim was lodged on 28 January 2021, the following independent medical assessments were obtained by the Respondent and the Applicant.
Dr Shaikh, psychiatrist, prepared a report dated 21 February 2020 at the Respondent’s request. He had assessed the Applicant on the previous day. His diagnosis was Major Depressive Disorder.
Dr Shaikh provided the following opinions in response to questions posed by the Respondent:
It is my opinion that Mr Stamatopoulos’s condition bears causal relationship to the index incident of 11 July 2019, with potential further aggravation following his perception of unfair warnings and eventual dismissal.
…
Mr Stamatopoulos does not suffer a pre-existing psychiatric condition. The bulk of his emotional complaints relates to the near-miss incident of 11 July 2019. His perception of being targeted thereafter, and being reprimanded for unfair issues at work, perhaps led to an aggravation of the depressive disorder, but most of his ongoing emotional complaints continue to have primary linkage to the index incident of 11 July 2019. More than 75% attribution towards the psychiatric disorder is from the incident of 11 July 2019.
…
I expect his condition to reach stability in about three months. He is likely to be left with residual symptoms, which would increase should he return to Linfox.
…
Despite his reported complaints, I believe he is indeed capable of undertaking his preinjury duties in a gradually increasing manner. I do see that he has, however, been terminated from employment.
…
His Major Depressive Disorder at the moment would cause partial incapacity for employment. I believe he is capable of working for up to 20 hours a week, and with appropriate treatment, should be capable of progressing to full-time hours.
On 27 February 2020 Dr Shaikh prepared a supplementary report at the Respondent’s request. He had been provided with additional information about the “near miss incident” and the investigation into it. His previously expressed opinions did not change:
I have perused the additional information provided, and the opinions previously expressed do not change. Despite the inspector findings, it is known that Mr Stamatopoulos perceived a threat to his safety, and this was followed by his ill emotional experiences. As previously noted, documents from his GP, Dr Jason Cook, clearly discuss his frustration and anxiety over the incident of July 2019. Documentation also confirms receipt of EAP attention, and prescription of sedatives in August 2019. There was discussion of submitting a claim, but Mr Stamatopoulos was resistant.
Dr Martin Allan prepared medico-legal reports at the request of the Applicant’s solicitors, dated 4 August 2020, 11 September 2020 and 19 January 2021. Initially, he was provided documents including the reports of Dr Shaikh and correspondence from Ms Ucio, psychologist whom the Applicant had seen for 13 sessions. Dr Allan expressed the following opinions in the 4 August 2020 report.
He has a Major Depressive Disorder with crosscutting features of Post-Traumatic Stress Disorder. His treatment with fluvoxamine at this time is appropriate but it is too early to ascertain how useful it will be. His psychological treatment continues. At this time, I regard him as having no capacity for work but hope that over the next six to twelve months, there will be some improvement in his capacity for work with his ongoing treatment. I also understand a fair work case is ongoing and once there is some resolution of that I would anticipate this will further lead to a reduction in Mr Stamatopoulos’ distress levels.
…
The traumatic event on 11 July 2020 was the precipitant both for symptoms directly related to that “near miss” that is reported but in addition the lack of support he describes receiving thereafter also contributed to his Major Depressive Disorder.
…
The prognosis is guarded. Mr Stamatopoulos has had two unsuccessful trials of medication. His psychological treatment is ongoing and reasonable. He was only recently started on Luvox at 100 mg daily. It is too early to ascertain how useful it would be. I anticipate that he may experience some gradual improvement in his Major Depressive Disorder over the next six to twelve months alongside treatment.
…
Mr Stamatopoulos’ incapacity, as it presents at this time, arises due to events in his workplace. The termination is a minor contributing factor. His depression had clearly its onset in the aftermath of the July 2019 event and the subsequent treatment he received by his employer who, from the information provided, were not forthcoming and disclosing to him the information that he sought. He was not supported. Communications he had sent were not responded to.
Dr Allan’s Supplementary Report dated 11 September 2020 was prepared to address clinical notes dated 7 and 17 June 2015 and 21 June 2017 relating to the Applicant’s reports of stress. The notes did not cause Dr Allan to change the opinions expressed in his 4 August 2020.
In his Supplementary Report dated 19 January 2021, Dr Allan wrote that he had reviewed the statement of Mr Stamotopoulos and the certificates of capacity, as well as his own initial report, and that the opinions stated in his previous reports had not changed as a result of this information.
Consideration
I have the benefit of Statements of Facts, Issues and Contentions from each party, the Applicant’s Written Submissions and Written Submissions in Reply, and the Respondent’s Outline of Written Submissions.
Section 19(1) relevantly sets out:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom ss.20, 21, 21A or 22 applies.”
[Emphasis added]
Section 19(2) provides:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …”
[Emphasis added]
Section 19(4) in its chapeau provides the following:
In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to …”
[Emphasis added]
“Suitable employment” is defined in s 4(1) of the Act:
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)       in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)        the employee’s age, experience, training, language and other skills;
(ii)       the employee’s suitability for rehabilitation or vocational retraining;
(iii)      where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)      any other relevant matter; and
(b)       in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
“Any other relevant matter” in section (a)(iv) of the definition of suitable work is an implicit reference to and includes the nature and extent of the employee’s injury and the effect of the injury upon the employee’s ability to work.[1]
[1] Bis Industries Ltd v Dale [2017] FCA 789 at [71]. (Bis Industries)
I accept the Respondent’s submissions that:
The provisions of section 19(4) of the Act clearly intend to strike a balance between the incapacitating result of a work injury and the obligation of an employee to exploit his economic worth for both his benefit and the benefit and preservation of the fund to which all injured workers may require access. It is not sufficient that an employee have an injury that may entitle him or her to compensation. Rather, the employee need be incapacitated for work as a result of that injury, thereby diminishing his or her capacity to work for economic reward, as opposed to a restriction on that economic capacity imposed by their actions, separate to the consequence of the injury. It is only then that competing interests may be balanced.[2]
[2] Respondent’s Outline of Written Submissions at [23].
As Heerey J said in Bortolazzo v Comcare (1997) 75 FCR 385 at 388 “an injured worker should be neither worse off, nor better off, as a result of any injury”.
In Bis Industries, Rangiah J discussed section 19(2) and (4) and concluded:
The legislative policy is that an injured employee’s underutilisation of his or her earning capacity will, in appropriate circumstances, result in reduction of the amount of weekly compensation payable. This is because compensation under section 19(2) is payable only for loss of earnings due to incapacity for work. [Emphasis added]
It was not disputed that in determining the amount per week that an employee is able to earn in suitable employment, pursuant to section 19(4) of the Act, the termination of the Applicant’s employment may a relevant factor to be taken into account pursuant to section 19(4)(g) of the SRC Act:
The precise relevance and significance of the termination will depend upon the circumstances of the case.[3]
[3]Bis Industries at [75].
The Respondent contended that the relevant factor includes a second element, the Applicant’s “acceptance of this date of termination [5 December 2019] as part of Fair Work Proceedings”.[4]
[4] Respondent’s Statement of Facts Issues and Contentions at [9].
No order or agreement resulting from the Fair Work Proceedings is in evidence. The Applicant did not assert that his employment was not terminated on 5 December 2019. I infer that he accepted that as the termination date.
The Respondent contended that if I accepted the Applicant’s submission, the Applicant would be better off as a result of the injury, despite his misconduct.
The Respondent contends that the Applicant was performing his pre-injury duties up until his termination, that the termination of his employment was the precipitator of his claim for compensation, and that any inability to work on his part after 5 December 2019 was due to the termination of his employment with the Respondent and not to the accepted condition that resulted from the near miss that occurred on 11 July 2019. Or put another way, until the termination of his employment on 5 December 2019, he had a capacity to work and was exploiting that capacity to work to a level comparable to his capacity to work prior to the injury. Therefore, any incapacity for work experienced after the termination of his employment was not “as a result of the injury”.
The chronology set out above shows that on a number of occasions from 26 August 2019 to 28 October 2019, the Applicant’s GP issued medical certificates stating that the Applicant was unfit for work. In context, the reason in each case was his response to the 11 July 2019 “near miss” and his treatment thereafter by the Respondent. That “treatment” related to how the near miss incident had been treated by the Respondent and how the Respondent dealt with issues relating to the Applicant’s conduct at work which he considered to be targeted bullying.
The Applicant had received two Written Warnings from the Respondent before the consultation on 26 August 2019.
It is not accurate to claim, as the Respondent does, that the Applicant performed his pre-injury duties “immediately prior to the termination of his employment” on 5 December 2019. He was suspended from his duties on full pay on 23 October 2019. His GP issued several certificates of unfitness for work from 16 October 2019 to 3 November 2019 inclusive. He did not undertake his usual duties thereafter for about seven weeks until the termination of his employment. I infer that during his suspension from duties and then after he was terminated, there was no practical reason for the Applicant to provide medical certificates as to his fitness for work until he lodged his workers compensation application.
The contemporaneous GP clinical notes show that the Applicant was considering filing a worker’s compensation claim at least from 26 August 2019. While he lodged his claim after his termination, I do not accept the implication suggested by the Respondent that he only lodged it because of the termination.
I have not had the advantage of oral evidence, including cross-examination of the Applicant or the independent medical experts. It is not clear to me that all the contemporaneous evidence in the clinical notes of the GP and the treating psychologist were put to the independent medical experts for consideration or to the extent they were, how carefully they were considered.
The Respondent criticised the evidence both Dr Allan and its own expert, Dr Shaikh, for “not appropriately” reconciling the various causative factors and the “proximate cause for the cessation of his employment”. It could have asked Dr Shaik to address the issue further but did not.
Both Dr Shaikh and Dr Allan considered that the injury that occurred on 11 July 2019 was the major contributing factor to the Applicant’s incapacity, 75% in the case of Dr Shaik. Dr Allan considered the termination to be only a minor contributing factor. It is not clear whether that conclusion included consideration of the conduct issues resulting in termination. It is not clear how Dr Shaikh assessed the 75% figure.
I am satisfied on the evidence that the Applicant was incapacitated for work on 5 December 2019 by a psychiatric disorder. The major contributing factor to that psychiatric disorder was the injury suffered on 11 July 2019. I have taken into account Dr Shaik’s reports which were based on an assessment of the Applicant made more than two and a half months after the termination of the Applicant’s appointment and the reports of Dr Allan prepared months later. I have given greatest weight to the contemporaneous evidence.
Conclusion
Addressing each of the Respondent’s contentions in its conclusion to its Outline of Written Submissions:
·     The Applicant was not undertaking his pre-injury duties immediately prior to the termination of his employment on 5 December 2019. The GP’s medical certificates certified him unfit from 16 October to 3 November 2019 inclusive. He was suspended from work from 23 October 2019. He did not work from 16 October 2019 until his termination.
·     His incapacity for work as of 5 December 2019 was because of a psychiatric disorder and not because of the termination of his employment as a consequence of misconduct.
·     The major contributing factor to the Applicant’s psychiatric disorder and hence his incapacity for work on 5 December 2019 was the injury that occurred on 11 July 2019.
Decision
The reviewable decision dated 21 April 2020 is set aside. The matter is remitted for reconsideration in accordance with the Tribunal’s findings.
Costs
It seems appropriate to order the Respondent to pay the Applicant’s reasonable legal costs and disbursements as agreed or taxed. However, I will not make the order until seven days after the publication of this decision to allow the Respondent an opportunity to oppose the making of the order.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................................[sgd]................................
Associate
Dated: 9 June 2021

Date of hearing: On the papers