Stern v Clark - [2021] NSWPIC 47

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stern v Clark [2021] NSWPIC 47
APPLICANT:	Lauren Stern
RESPONDENT:	Kimberly Clark
MEMBER:	Ms Rachel Homan
DATE OF DECISION:	25 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation and section 60 expenses in respect of alleged psychological injury; inconsistencies between applicant’s evidence and the histories recorded by her doctors; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal pursuant to section 11A(1); Held- applicant sustained psychological injury as a result of multiple work stressors; defence under section 11A(1) not established; applicant’s PIAWE figure deemed admitted; respondent to pay weekly compensation and section 60 expenses.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) in the course of her employment. The applicant’s employment with the respondent was the main contributing factor to the injury. 2. The respondent has not discharged its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal pursuant to s 11A(1) of the 1987 Act. 3. The applicant had no current work capacity as a result of the injury from 15 April 2020 to date. 4. The applicant’s pre-injury average weekly earnings figure is deemed admitted.
ORDERS MADE	1. The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 15 April 2020 during the first entitlement period at the rate of $1,900 per week. 2. The respondent to pay the applicant weekly compensation to date and continuing pursuant to s 37(1) of the 1987 Act at the rate of $1,600 per week (adjusted in accordance with Division 6A of the 1987 Act). 3. The respondent to have credit for any weekly compensation already paid. 4. The award of weekly compensation is subject to s 50 of the 1987 Act to the extent that wages for sick leave have been paid. 5. The respondent to pay the applicant’s reasonably necessary incurred treatment expenses pursuant to s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Lauren Stern (the applicant) was employed by Kimberly Clark (the respondent) as a Sustainability and Public Affairs Manager. The applicant claims to have sustained a psychological injury in the course of her employment with the respondent.
A claim for compensation was made and liability for the alleged injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 20 July 2020. That decision was maintained following an internal review pursuant to s 287A of the 1998 Act in a notice issued on 18 August 2020.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 8 October 2020. The applicant sought weekly compensation from 15 April 2020 on an ongoing basis. The ARD was subsequently amended to also include a general claim for s 60 expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing by telephone on 21 December 2020. The applicant was represented by Mr Craig Tanner of counsel, instructed by Mr Luke Power. The respondent was represented by Mr Allen Parker of counsel, instructed by Mr Greg Guest. A representative from iCare was present during the conciliation.
At the commencement of the arbitration hearing, an application for leave under s 289A(4) of the 1998 Act to rely on a dispute pursuant to s 11A(1) of the 1987 Act was made by the respondent. After hearing submissions from both sides, leave was granted for reasons given orally and recorded.
Submissions were also heard in relation to an Application to Admit Late Documents filed by the applicant on 14 December 2020. For reasons also given orally and recorded it was determined that it was in the interests of justice for those documents to be admitted.
Submissions on the substantive issues in dispute commenced but were not able to be completed in the time allowed, given the time spent in conciliation and hearing the interlocutory disputes. With the parties’ agreement, a timetable was established for the filing of written submissions. The parties were informed of my intention to determine the dispute on the evidence and submissions before me at the conclusion of that timetable.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether the applicant sustained an injury as alleged to which employment was the main contributing factor pursuant to s 4 of the 1987 Act;
(b)    whether any injury was wholly or predominantly caused by reasonable action taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits pursuant to s 11A(1) of the 1987 Act;
(c)    the extent and quantification of incapacity resulting from injury, and

(d) the entitlement to s 60 expenses.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 14 December 2020;

(d) written submissions lodged by the respondent on 21 January 2021, and

(e) written submissions lodged by the applicant on 3 February 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 18 May 2020 and 10 December 2020.
The applicant gave a prior employment history that included the following roles:
(a)    September 2017 to August 2018: Marketing & Communications Manager, Australian Supply Chain Sustainability School;

(b)    January 2018 to August 2018: Digital Marketing Manager (contract), Eighty20 Communications, and

(c)    September 2018 to November 2019: Marketing Campaign Manager, Urban Environment.
The applicant commenced employment with the respondent on 25 November 2019, initially on a four-month contract. The applicant’s role was to drive the respondent’s corporate sustainability strategy and develop sustainability-related communications.
The applicant worked initially with a manager, Ms Schembri, who took maternity leave in December 2019:
“I initially worked successfully with my manager, Julia Schembri, who was due to leave in December 2019 on maternity leave. Julia indicated to me on a number of occasions that I was picking things up well and doing a good job in my new role.”
During that period, the applicant loved her job and was pleased about having chosen the role, rather than pursuing other roles that were potentially open to her.
In mid-January 2020, Ms Schembri was replaced by Ms Annelise Tregoning. Two weeks after Ms Tregoning joined the company, in late January, the applicant was offered a
12-month contract extension, which she signed on 31 January 2020. At no point during that process was any question of performance raised.
From 6 to 8 February 2020, the applicant attended the company's annual sales and marketing conference in the Hunter Valley.
The applicant said she had experienced periods of depression intermittently in her late teens and was first diagnosed with anxiety in her late twenties. The applicant had managed her anxiety, when required, with medication and counselling with a psychologist. This treatment had generally worked very well. Until February 2020, the applicant was generally in good health and felt stable on her medication.
In mid-February 2020, the applicant experienced a sustained anxiety episode, possibly triggered by having caught a virus which left her in bed for a week and a simultaneous flare-up of Pre-Menstrual Dysphoric Disorder (PMDD). The severity and sustained nature of the anxiety and severely low mood resulted in the applicant being admitted to South Pacific Private Hospital for three weeks and five days. The applicant was discharged on 16 March 2020.
Prior to being admitted to hospital, the applicant sent a text message to Ms Tregoning describing her physical and mental state. During her admission, the applicant was unable to make contact with the respondent but a medical certificate was sent.
In this period, Ms Tregoning contacted the applicant’s husband by email asking for a call to discuss the applicant’s health. It was mentioned that both an HR manager, Ms Kaman Tse, and the HR director would be on the call. It subsequently transpired that a central part of the discussion would be about when the applicant would be ready to have a conversation about her performance. The applicant’s husband formed the impression that the respondent wished to terminate the applicant’s employment whilst she remained in her probation period.
After the applicant was discharged from hospital, she was provided with a medical certificate indicating that she would be ready to start work on or after 30 March 2020, initially two days per week. The applicant said she felt very positive about her recovery, including her ability to manage her mental health on an ongoing basis. This included feeling optimistic about returning to work.
Soon afterwards, the applicant’s aftercare treatment was ceased and the applicant’s children withdrawn from school due to the COVID-19 pandemic. The applicant said that she and her husband handled this very well and had a great system in place to be able to help the children with remote learning whilst still completing their work.
The applicant returned to work on 1 April 2020, working two days per week. On the first day back, the applicant joined a video call with Ms Tregoning, Ms Tse and the HR director to discuss the applicant’s return to work. An offer was made to support the applicant but no proactive action taken to follow this up. The applicant was effectively obliged to come up with her own support measures.

Following the call, the applicant was given a number of urgent tasks to attend to including producing the company’s annual sustainability report. The applicant was given four working days to deliver a first draft.

The applicant sent out a first draft of the report in time for the agreed deadline.

At 9.00am on 15 April 2020. Ms Tregoning invited the applicant to a video call described as “a formality” to discuss her probation period at 11.00am. There was no indication that there would be a discussion about the applicant’s performance, no offer was made of a support person and no notice given of the matters to be discussed.

The applicant had an intense feeling of being ambushed. In the meeting the applicant felt as though there were two people against her, blaming her for everything. The applicant felt as though “the rug was being pulled out” from under her. The applicant’s head was spinning.

During the call, the applicant was presented with a list of examples of poor performance. At least one example related to a task the applicant was not formally responsible for. Others related to things that happened whilst the applicant was on sick leave. Another example was that the applicant did not book a meeting room for a meeting that was to be held. The applicant could not believe that this was something she could be fired for.

The applicant’s draft report was described as being substandard with no recognition of the effort that had gone into it or acknowledgement of the short timeframe provided to complete it. There was no indication of how it could be improved collaboratively or how the applicant could be supported to meet Ms Tregoning’s expectations.
The applicant described her response:
“During the meeting I felt attacked and vulnerable, I was ambushed by people who were telling me that I was no good at my job and that I was incapable. I had no words. I couldn't defend myself, I just couldn't speak, I kept thinking that I needed to somehow defend myself from this attack but I didn't know how and I just froze. I couldn't believe what was happening. I don't know how to articulate how attacked I felt and how distressing this was to me.
…
During the meeting, which lasted about 45 minutes, I was visibly in tears and distressed. At no time during the call did either Annelise or Kaman make particular reference to my mental health as being a mitigating factor that could have influenced my performance, and particularly that I had been back at work for less than 5 days. Towards the end of the meeting, I was told that my probation would be extended, and that I had 2 weeks to ‘prove myself'.”
After the meeting, the applicant felt as bad as she did prior to her treatment at South Pacific Private Hospital. The applicant felt completely surprised by the conversation including both its content and aggressive, insensitive tone. The applicant sent a private email to Ms Tse the same day expressing her feelings.
The following day, Ms Tregoning replied to the email that the applicant had sent to Ms Tse. The applicant felt this was a severe violation of her privacy. The applicant had felt she could trust Ms Tse, but that trust was broken. The applicant felt it had already been decided that the applicant would be fired and this left her feeling “incapable and broken”.
Since that time, the applicant had been off work and was receiving psychological support from a therapist. The applicant felt that the timing of the performance meeting was driven more by a desire to ensure that the conversation happened before the applicant’s probation ended rather than when it would be safe or reasonable for the applicant to have that conversation. The applicant had only been back for 4.5 working days.

The applicant said that between being awarded a new contract and the performance meeting there was insufficient time to allow for a deterioration in the applicant’s performance. There was no discussion around the applicant’s performance at the time she was awarded the new contract and she assumed that the respondent had been content with her performance at that time. The applicant had worked together with Ms Tregoning for only eight days in total before the applicant was admitted to hospital.
In her supplementary statements of 10 December 2020, the applicant provided responses to written statements prepared by Ms Tregoning and Ms Tse.

Worker’s injury claim form

The applicant completed a worker’s injury claim form on 17 April 2020. The applicant described an injury occurring when she attended a probation-related work meeting by teleconference. The meeting was described in advance as routine and the applicant was not prepared for what turned out to be a performance discussion. The applicant had just returned from inpatient treatment for anxiety and depression. During the meeting it was insinuated that the applicant had two weeks to prove herself.
Following the meeting, the applicant suffered a significant deterioration in her mental health including catastrophic thoughts. The meeting had occurred six days after the applicant’s return to work. The applicant said she had returned to a state similar to that which led to her hospitalisation.

Factual Investigation Report

The respondent relies on a Factual Investigation Report prepared by AB Investigations, dated 29 May 2020. Attached to the report are the applicant’s statement and written statements from the applicant’s manager Ms Tregoning, and her HR manager, Ms Tse.

Kaman Tse

Ms Tse signed a written statement dated 22 May 2020. Ms Tse said her first interaction with the applicant was when she asked for time off after a conference in February 2020 as she was not feeling well. The applicant asked for advice on how to approach her manager Ms Tregoning as she did not know her well.
Ms Tse said she did not have any direct interactions with the applicant but her performance issues came to her attention from Ms Tregoning. Ms Tregoning had a meeting with Ms Tse on 22 January 2020 in which she indicated that the applicant’s work had been insufficient and there was room for improvement around execution and quality of work. Ms Tse said she had recommended that Ms Tregoning have a one-on-one meeting with the applicant to lay out her concerns. Before the meeting could be scheduled, the applicant went off sick. An offer was made to extend the applicant’s contract on 31 January 2020 noting that the applicant remained within her probationary period and her capability for the role could be further evaluated.
Ms Tse said she had not been aware that the applicant suffered from a mental health issue. Ms Tse was told the applicant had a virus when she took leave in February 2020. It was not until she received a medical certificate that she realised that the hospital to which the applicant had been admitted was one which dealt with addiction and mental health issues. The applicant shared her mental health issues at a return to work meeting on 1 April 2020.
Ms Tse said:
“During Lauren's absence, we were not able to reach out to her, we wanted to understand her condition and return to work. On 20th February 2020, Lauren's husband, Richard, emailed Annelise and CC me that Lauren would be away for 3 weeks without giving any details of her conditions. From that point, Richard became her contact person. As an employer, we would contact the employee directly a normal situation. Without knowing she couldn't contact anyone, we asked Richard if we could talk to Lauren and her return to work plan. We also noted there were performance issue we would like to raise to her directly.”
Ms Tse confirmed there was an audio call between the applicant, Ms Tregoning, the HR director and herself on 1 April 2020. The applicant disclosed her condition and said she could work 15 hours per week. It was agreed that the applicant would work for 15 hours in three days for four weeks, with the arrangement to be reviewed.
With regard to the meeting on 15 April 2020, Ms Tse stated:
“I facilitated the meeting between Lauren and Annelise on 15th April 2020, we shared with Lauren that since she was away for 7 weeks and there are some performance areas we would like to address, we would extend her 5-month probationary period to another 4 weeks. During the meeting, Annelise has shared where are the areas of improvement. If we wanted to terminate Lauren at that point, we would not offer her a 4-week extension. In the call I suggested Annelise and Lauren have a more regular meeting so they are able to achieve the improvement area.”
On 16 April 2020, Ms Tse received an email from the applicant saying that she would not be coming into work. Ms Tse believed that as the applicant’s line manager, Ms Tregoning would need to know this information. Ms Tse said it was appropriate that the information be shared sensitively with the relevant internal stakeholders. Ms Tse was seeking input from others involved in order to help the applicant.
Ms Tse said the applicant’s previous manager did not raise any performance issues with her. During a period in which Ms Tregoning was on leave, the applicant worked on a project being led by the HR director, which highlighted that she was not delivering on commitments / identified objectives. Ms Tse said:
“Had Lauren not been unwell, these performance concerns would have been raised with her during February when Annelise returned from her Annual Leave. It is important to bear in mind that the decision to raise them with Lauren was not a reflection purely on her performance across the 4.5 days she had returned. However, in the 4.5 days (across 3 weeks) Lauren returned to work in April, she forgot to attend the team WIP meeting once. Also, I understand that she was expected to deliver a draft for a sustainability project to Annelise however the quality did not meet the expectation of her position - Sustainability & Public Affairs Manager.
Given that Lauren was absent for 7 weeks from 10th February 2020 and the performance concern arise prior to her absence, Annelise and myself had a meeting with her on 15th April 2020 to share our intention to extend her probationary period for 4 weeks which would give Lauren and Annelise to work together to achieve a better performance outcome.”

With regard to the decision to hold a meeting on 15 April 2020, Ms Tse explained:
“It is the practice that the line manager and team member have a meeting 4 weeks prior to the probationary period draws to an end. The Company could have allowed Lauren to continue and terminate her employment without giving her an opportunity to improve if we had felt her performance was not as required. However, as we explained, our intention was to ensure she had the feedback and had an opportunity to demonstrate her ability to perform to the required standard. Our timeline also considered Lauren's illness, with a consideration that Lauren has just returned to work, we had held off the discussion until the third week after she has returned to work There were performance concerns prior to Lauren's absence and in those 4.5 working days since she has returned to work. It was appropriate to share these concerns with Lauren immediately rather than letting the issues slide.”

Annelise Tregoning

Ms Tregoning said she first met the applicant on 20 January 2020 on her first day of employment with the respondent. Ms Tregoning worked with the applicant for a total of 15.5 days comprising eight days before the applicant took extended leave and 7.5 days following her return. Ms Tregoning was the applicant’s direct supervisor.
Ms Tregoning said she held concerns around the applicant’s performance soon after commencing on the role:
“I had concerns with Lauren's performance in the first two weeks of my employment at KimberlyClark which I raised with three different people - Managing Director Doug Cunningham (31/01/2020), HR Director Ian Flemington (24/01/2020) and my husband (24/01/2020). My main concerns surrounded her ability to project manage and execute within deadlines. Her role is an important role with several key deliverables and deadlines and the ability to project manage and execute on time is important. For example, on 23/01/2020 I asked Lauren to find the sustainability strategies and key focus areas of key competitors and other players in our industry - mostly available on their websites - by the end of that day as the information was needed the following day. It was not sent to me until the end of the next day following me chasing for it twice. This was a very simple task not delivered within the timeframe needed, it wasn't complete, and the quality of work was unfortunately not at the level expected of someone in her role. This was the first piece of work I asked Lauren to help with, adding she had very little work in progress at this point.”
Ms Tregoning said that despite these concerns she chose to extend the applicant’s four month contract to one year as she wanted to give the applicant more time to work on these issues. Ms Tregoning also needed someone in the role as it was an important role with a number of key deliverables. Ms Tregoning was fully aware that the applicant remained within her probation period.
Over the next few weeks, a number of other issues arose:
“Over the course of the next few weeks, I discovered that a lot of work Lauren said had been done or was well underway was in fact not done or underway and she had not been performing at a level expected of someone in her role. For example:

• Lauren told me she had started reaching out to stakeholders for information for the sustainability report. However, she had handed this work over to a more junior member of our team who already had a large workload, increasing stress on that team member.

• Lauren project managed the creation of a video but I discovered the project had moved forward well over budget despite team members making it clear we needed to stay within budget. We had to put the project on hold whilst we worked with the agency to rescope within budget.

• Lauren told me communications for our nappy collection project were done but they hadn't commenced.

• Lauren invited external stakeholders to our office for a meeting about the nappy collection trial including contacts from Government and Veolia and she hadn't booked a room which left a more junior team member to find a room for the meeting last minute.

• Simple tasks such as seeking quotes for Keep Cups and Green Power were not done despite having weeks to do these and multiple meetings.

• Lauren did not share a very important industry meeting invite with me despite asking her to let me know as soon as it was scheduled so I could attend. I was never notified of the meeting and missed it.”
Following the applicant’s return to work, the applicant missed a team meeting explaining that she had completely forgotten about it. The applicant had also indicated she was happy to take the lead to draft the sustainability report. The content had already been collated and two weeks should have been plenty of time to write it. In a number of meetings over the course of the next couple of weeks the applicant said everything was on track. The first draft of the report had many typos, incorrect data, text from an old report and was not delivered at the quality expected of someone in the applicant’s role.
Ms Tregoning said that on 11 February 2020 the applicant sent a text saying she was not very well and was not going to be able to work for a few days:
“…’I'm feeling extremely anxious about all my deadlines (which is also making things worse) so will do whatever I can manage’. This was the first mention of anxiety from Lauren, and I was not aware of any anxiety being experienced by Lauren before this point. I would also note that I was not aware of the level of her anxiety following this text message as 'feeling extremely anxious' is a term many people use from time to time including myself.”
On 14 February 2020, the applicant sent a text saying she was getting over a virus but at the same time had been struggling with her mental health that week. Medical certificates certifying the applicant as medically unfit for work between 10 and 14 February 2020 and 19 February to 16 March 2020 were provided but no details of the applicant’s situation were shared.
On 19 February 2020, the applicant’s husband called Ms Tregoning and said the applicant had been admitted to hospital for two to three weeks. He said he could not give details of why she was in hospital. After some further correspondence with the applicant’s husband relating to payslips, on 11 March 2020, Ms Tregoning emailed the applicant’s husband to ask if he was free for a call the following day. When the applicant’s husband queried the purpose of the meeting, Ms Tregoning responded:
"As a group, we would like to check how Lauren is going and also discuss her employment with K-C. It would be great if she could join the call also however we appreciate this might not be possible. If this is the case and as her next of kin, we would like to have an initial discussion with you."
During the call on 13 March 2020, enquiries were made as to when the applicant might return to work. The applicant’s husband indicated that this was uncertain but would become clearer in the following week. It was indicated that there were some performance concerns and in the absence of an understanding of the applicant’s illness, her husband’s advice was sought on how to position these with her so as not to potentially impact her recovery. The applicant’s husband asked for details of the applicant’s performance issues but was told this could not be discussed with him without the applicant’s consent.
On 16 March 2020, the applicant’s husband sent an email labelled “without prejudice” indicating that he had sought legal advice and would be prepared to consider a negotiated exit once the applicant received clearance from her doctor.

Ms Tregoning said she was surprised by this:
“We did not want to get rid of Lauren as an employee while she was still in her probation period. I made it clear in our meeting on 15 April 2020 that I would work with her as much as she would like to ensure she passes probation.”
In the meeting on 1 April 2020, the applicant disclosed that she had suffered from mental health issues for a very long time and did not always know how or why it was triggered. On this occasion she said the virus triggered her mental health illness in early February. The applicant said she was feeling much better but said that deadlines increased her anxiety. There was a discussion around how to support the applicant with her return to work and she was asked how many days she would like to work to start with.
Ms Tregoning said she sent the applicant a meeting invite for 15 April 2020 to discuss extending her probation period due to concerns about her overall performance:
“I told Lauren in this meeting that we would be extending her probation period by another four weeks as we had some concerns surrounding her performance. I explained that I had some concerns in my first couple of weeks working with her but chose to extend her contract on 31 January 2020 to give her time to improve and for us to work together to address the gaps. Lauren was not back in the office again until 1 April 2020. I explained that over the course of the next few weeks from when I extended her contract, I discovered that work she said was done or was well underway was in fact not, and I shared some of the examples listed above. I think it was important to share examples of Lauren's performance gaps in this meeting to support the decision to extend her probation period.
…
Lauren was visibly in tears at the very end of the meeting (the last couple of minutes), at which point Kaman asked Lauren if she was OK. However, it's important to note that Lauren did not appear in distress at any stage of the meeting. At the end of the meeting when we saw that Lauren was in tears, we suggested to finish the meeting and regroup the next day to discuss a path forward. Lauren was talking to us throughout the meeting which indicates she was not obviously in distress or in tears throughout the whole meeting as we would have noticed this. When we finished the meeting both Kaman and I said we hoped she was OK and to take care.”
After the meeting Ms Tregoning sent the applicant a WhatsApp message offering for her to take the rest of the day off if she needed to, to which she responded, 'thank you’.
Ms Tregoning said the applicant was not offered a support person as the meeting was to discuss extending the applicant’s probation period. However, the applicant had the opportunity to request one at any time.
As the applicant’s probation period was coming to an end it was necessary to have the discussion at that time.
Ms Tregoning expressed the view that it was reasonable for Ms Tse to share the applicant’s email with her as the applicant’s manager. Ms Tregoning responded to the email suggesting to the applicant that they talk over the phone if she was comfortable to do so. The applicant did not respond.

Dr Jackman

The applicant’s general practitioner, Dr Alma Jackman’s clinical notes recorded a consultation on 11 February 2020 as follows:
“extended episode of anxiety started last week slowly building up could not get out of bed chest closed up, strange sensation in head, nausea triggered by stress also related to work stress love her job works on auto pilot has high functioning anxiety”
On 18 February 2020, Dr Jackman recorded that the applicant was seeking referral for an admission to South Pacific Private. The applicant was observed to be emotional and crying and said she could not cope.
On 16 April 2020, Dr Jackman recorded notes of a long telehealth consultation:
“Wok related stress - needs WC certificate of capacity
D/C from South Pacific Hospital a month ago
Outpatient program not completed due to Covid-19
Back at work, 3rd week now
2/7 of work spread over 3/7
was OK
yesterday morning - email from manager for video meeting
end of probation period
discussion with MR
meeting turned out to performance review
caught by surprise, was not prepared
New manager new her only for 8/7 before admission to Sth Pacific
List of negative things, performance terrible
most of that time she was in hospital
was very teary, distressed
tried to defend herself
MR person ended conversation
Probation period extended for 2 weeks
Also contract renewed for 1 year
Manager contacted husband while she was in hospital
Asked when would be appropriate time to do performance review
After meeting spent the rest of the day crying, couldn't processed
called husband who came from work to support her
did not work yesterday
seeking Medical certificate for today
Can't back to work, not safe
Distressed
back to her initial state of anxiety and depression
Asking me to speak to husband Richard
He contacted Employment lawyer for advice about her rights
Inappropriate work place performance meeting affecting her psychological well being
Failure of duty of care”
On 17 April 2020, Dr Jackman recorded:
“worrier
anxiety if not prepared eg packing for holiday, going out
easly aggitated by extreme temp, wind, sensory overload, crowd
extreme PMS, Lexapro helps
currenty middle of cycle
PHx of PND after first child
saw perinatal psychologist in UK
no suicidal attempts
tried to run away in the past
GPMHCP discussed, does not want plan”
The applicant was given a referral to Brookvale Psychology.
Dr Jackman completed a questionnaire for the insurer on 21 May 2020 in which she diagnosed that work-related stress triggered a flareup of pre-existing anxiety and depression meeting DSM-V diagnostic criteria.
Dr Jackman prepared a report for the applicant’s solicitors dated 3 September 2020.
Dr Jackman recorded that the applicant had requested a telehealth consultation on 16 April 2020 in which she reported anxiety symptoms triggered by work-related stress on the background of previously treated anxiety.
The applicant stated that she had been back to work for three weeks after being discharged from South Pacific Private Hospital when:
“Lauren said that her video meeting with a manager, a day before, turned into performance review, for which she was not prepared and was caught by surprise. She stated that she was very distressed, teary, tried to defend herself and eventually HR person ended the conversation. She reported she spent the rest of that day crying and could not process what happened. Lauren was very distressed and teary during telehealth consultation.”
Dr Jackman had completed a WorkCover certificate of capacity which indicated that the applicant would benefit from counselling with a psychologist to improve her anxiety and facilitate a safe return to work.
On 20 April 2020 the applicant reported that she required referral to a SIRA approved psychologist. The applicant reported that her anxiety was up and down and she was dry retching. A referral to a psychologist was emailed to the applicant on 11 May 2020.
On 18 May 2020 the applicant reported feeling a little bit better mentally but also stated that she could be up and down. The applicant had two sessions of psychologist treatment.
On 19 June 2020 the applicant appeared more relaxed and happy. The applicant reported that her mood was up and down but she still had a fear of returning to work because work was her main stressor. The applicant felt in good hands with her psychologist. Dr Jackman reported that she had not consulted with the applicant or received any correspondence from a psychologist or other treatment provider since that date.

WorkCover certificates

A WorkCover certificate was issued by Dr Jackman on 17 April 2020 diagnosing “anxiety and depression aggravated by work related stress”. A background of recently treated anxiety and depression was noted. The applicant was certified as having no current work capacity.
Subsequent WorkCover certificates certified the applicant as having no current work capacity until 17 July 2020.

South Pacific Private Hospital

Records from South Pacific Private Hospital in relation to the applicant’s February 2020 admission show a primary psychiatric diagnosis of “generalised anxiety disorder” was given.
The following background was recorded:
“Symptoms intensify pre-menstrually and tend to be less prominent after period.
Feeling a mixture of anxiety and depressive symptoms - lethargy, sadness, teary
Also overwhelmed, waking in the morning in a panic, feeling nauseous and dry retching of work about a week
Since birth of children Dec 2016, vivid flashes of fear of something awful happening to her or her son eg being hit by bus then went back to work after 12 mths then extreme anxiety, suicidal thoughts, stopped breastfeeding and had toxic manager.
Several different jobs, but still feeling very anxious and traumatized, stressors difficult to identify, terrified of failure and ‘getting in trouble’
Sense of danger at home and work.
Wanting to escape.
Always goes to sleep listening to radio or podcast, before that used to stay up and around going to sleep.
Prior to that used to have a lot of issue falling asleep.
Always a ‘night owl’
Restless legs at night - takes Panadol
Fractured right fibula April 2019 when fell down stairs at home required ORIF Northern Beaches Hospital”

A preadmission assessment form asked the applicant what prompted her to engage in an assessment. The applicant’s response was recorded as:
“Had periods of ax & dep throughout life. Completed 2 week day program@ SPP 10 years ago and it was life chaging. Since having children though, has been having debilitating ax episodes. Work seems to be trigger. ‘Even looking at laptop makes me want to vomit’. Symptoms started again last weekend and clt hasn't moved for a week. Has been in state of panic and been dry wretching the whole time. Had to ask Mother to call SPP as couldnt pick up the phone.”
In response to a question about the applicant’s goals for treatment, the applicant is recorded to have responded:
“To break a circuit in my mind and body so I feel like I can live life. Go to work and not be terrified and scared all the time. I dont want to do anything major, I just want to go to work and look after my children and wake up like a normal person I want to find my triggers and work through them.”
The hospital’s records also contain a preadmission assessment dated 2 July 2017. That document provides a background as follows:
“Lauren explains that in the last few years she has been struggling with anxiety. She states that after she went back to work after time off for her first child she started to experience anxiety symptoms such as waking up and wanting to vomit, racing heart and a sense of fear after 2 months back at work. Lauren states that this was exacerbated by a toxic work environment with workplace bullying. She states that ‘it was a year of pure trauma, I thought I was going to die’. She states that at the time she was constantly suicidal and constantly at emergency.
…
Lauren cites that over the last few months she has known there is a point where she will have to go back to work after maternity leave with her second child and all of her anxiety symptoms are returning. She states that she hasn't dealt with these experiences and it is affecting all aspects of her life and she cannot think straight and is unable to do small tasks such as cooking.”
The applicant was recommended for an inpatient program at the time.

Ms Coetzee

The applicant’s clinical psychologist, Ms Sandra Coetzee, provided a psychological assessment report to the applicant’s solicitors, dated 23 November 2020.
Ms Coetzee indicated that she had seen the applicant under workers compensation on eight occasions between 1 May 2020 and 29 July 2020. The applicant was seen privately on two occasions in September and November 2020.
Ms Coetzee took a history of the applicant becoming aware shortly after starting employment with the respondent that her relationship with her boss was potentially problematic as it triggered psychological distress. The applicant accepted a contract renewal feeling that she may be able to overcome her distress associated with working with her boss:
“During the weeks following the renewal of her contract, Lauren’s distress heightened to the point that she was admitted to South Pacific Private for 3 weeks and treated for Anxiety and Depression. Lauren returned to work for 2 days a week from home. Lauren states that she was ‘ambushed’ by her boss who requested that she have a performance review shortly after her discharge from the hospital. This significantly escalated Laurens depression and anxiety. Lauren reported this to HR explaining how this had impacted her wellbeing.”

Ms Coetzee said the applicant presented at the initial session with a diagnosis of depression and generalised anxiety disorder under DSM-V. Ms Coetzee said the applicant was not fit for work at the time the applicant first came to see her and was currently still not fit for work.
Ms Coetzee gave the opinion that:
“…the injury at work was a substantial contributing factor into her psychological distress, Anxiety and Depression that resulted in her not being fit for work.”

Dr St George

The applicant relies on medicolegal reports prepared by consultant psychiatrist, Dr Nirenjen St George, dated 28 July 2020, 25 August 2020 and 4 December 2020.
In his first report, Dr St George described a background of major depressive disorder with anxious distress, well managed by the applicant’s general practitioner for the last four years. The applicant had been stable on escitalopram 20 mg daily with no relapses for approximately six years.
The applicant gave a history of feeling micromanaged and criticised after Ms Tregoning commenced as her manager. The applicant said there was a lack of constructive criticism or formal feedback and that her mental state began to deteriorate with escalating symptoms of anxiety and depression evident within a few days of the change in management.
The applicant’s mental state continued to deteriorate and concerns were raised with the applicant’s general practitioner in the first week of February 2020 before the applicant became completely overwhelmed on Saturday 8 February 2020. The applicant experienced passive suicidal ideation, pervasive low mood, anxious distress and panic attacks and was unable to return to work. The applicant also reported being unwell with a viral infection which exacerbated her anxious and depressive cognitions. The applicant reported her deteriorating mental state to her general practitioner and was subsequently admitted to South Pacific Private Hospital.
Following a three-week admission, the applicant reported stabilising in mental state and attempting a return to work. The applicant was not offered any specific support to help her recover and returned to full duties. The applicant’s manager and HR organised a performance review with no warning or offer of a support person. The applicant’s mental state deteriorated further at this point. The applicant was informed that her probation period was being extended.
Dr St George made a diagnosis of major depressive disorder with anxious distress in accordance with DSM-V diagnostic criteria. Dr St George said:
“Mrs Stern's pre-existing psychiatric condition of major depressive disorder was aggravated by a workplace psychiatric/psychological injury.”
Asked whether he agreed with the opinion of the respondent’s Independent Medical Examiner, Dr Antonella Ventura, Dr St George stated:
“I agree with Dr Antonella Ventura that Mrs Stern experienced a relapse of major depressive disorder and was depressed at the time of her performance management.
I do not agree that her major depressive disorder was caused by her viral illness. Rather, it is apparent that Mrs Stern was becoming psychiatrically unwell from mid-January 2020 when her manager was changed. This is evidenced by concerns raised by her to her GP and her admission to South Pacific Private Hospital for major depressive disorder. While she had reported to her employer that the viral illness was the reason she stopped working, this appeared to be her means of minimising the stigma of reporting her workplace psychological injury and need for intensive psychiatric care. Mrs Stern arranged a voluntary psychiatric hospital admission on 8 February 2020 due to passive suicidal ideation in the context of depressive cognitions about work and her inability to manage the workplace psychological trauma perpetrated by her supervisor.
For these reasons, it is clear that Mrs Stern's major depressive disorder was aggravated by workplace stressors rather than a viral illness.”
Asked whether employment was the main contributing factor to an aggravation of the applicant’s psychological condition, Dr St George stated:
“Yes, Mrs Stern's pre-existing psychiatric condition of major depressive disorder has been aggravated by her employment. The aggravation of her major depressive disorder commenced within a week of being managed by Mrs Trigaoani and continued to be exacerbated to the point she required inpatient psychiatric hospitalisation at South Pacific Private Hospital. Given Mrs Stern's stability in mental state for over four years, it is unlikely that a viral illness alone would have triggered her major depressive disorder, especially as she reported symptoms of anxiety and depression to her GP before she became physically ill.”
With regard to the applicant’s capacity, Dr St George stated
“Mrs Stern had no restrictions in her past work capacity. She currently does not have any capacity for work. She is not likely to have any future capacity to work in the position held at the time of the accident.
…
Mrs Stern does not have the capacity to work in any occupation.”
In his supplementary report of 25 August 2020, Dr St George was asked whether the applicant had difficulties with her employer prior to the admission to hospital 19 February 2020. Dr St George responded:
“During the psychiatric assessment conducted with Ms Stern on 28 July 2020, she reported that she first followed up with her GP for symptoms of anxiety and depression in late January 2020 in the context of having difficulty coping with the change of manager to Mrs Annelise Tregoning. This engagement in mental health treatment predated her admission to hospital.”
Dr St George compared the evidence set out in the applicant’s written statement with the history gathered on 28 July 2020 and responded:
“For the reasons stated above in my previous report and given Mrs Stern's stability in mental state for over four years, it is unlikely that a viral illness alone would have triggered her major depressive disorder, especially as she reported symptoms of anxiety and depression to her GP before she became physically ill. It is my opinion that Ms Stern was minimising the impact of her workplace stressors on her mental state and that her ‘unprecedented anxiety attack’ actually reflected her aggravation of major depressive disorder in the context of these workplace stressors. The variation in her factual statement can be explained by the depressive state she was in at the time with thoughts of acute suicidality prompting her decision to seek inpatient psychiatric treatment for the first time.
It remains my opinion that employment was the main contributing factor to her aggravation of major depressive disorder. While clinical notes have been provided by Dr Jackson, it would be of benefit to have dated medical records that also include the mental health care plan and referral planned for psychological therapy at the end of January as reported by Ms Stern.”
Dr St George indicated that he maintained his position with respect to the applicant’s psychiatric injury having considered the injury claim form, certificates of capacity, report of Dr Jackman dated 21 May 2020 and consultation notes of Dr Jackman as at 18 May 2020.
In the report of 4 December 2020, Dr St George was asked whether the conduct of the employer at the performance review was the main contributing factor to an acceleration, exacerbation or deterioration of any pre-existing psychiatric condition. Dr St George referred to the applicant’s statements and the history gathered during his examination on 28 July 2020 and responded:
“In my opinion Ms Stern had difficulties with her employer prior to her admission to hospital on 19 February 2020. During the psychiatric assessment conducted with Ms Stern on 28 July 2020, she reported that she first followed up with her GP for symptoms of anxiety and depression in late January 2020 in the context of having difficulty coping with the change of manager to Mrs Annelise Tregoning. This engagement in mental health treatment predated her admission to hospital.
…
For the reasons stated above in my initial report and given Mrs Stern’s stability in mental state for over four years, it is unlikely that a viral illness alone would have triggered her major depressive disorder, especially as she reported symptoms of anxiety and depression to her GP before she became physically ill. It is my opinion that Ms Stern was minimising the impact of her workplace stressors on her mental state and that her ‘unprecedented anxiety attack’ actually reflected her aggravation of major depressive disorder in the context of these workplace stressors. The inconsistency in her factual statement may be representative of the acute depressive state she was in at the time with thoughts of acute suicidality prominent in her decision to seek inpatient psychiatric treatment for the first time.
While Mrs Stern was able to recover with treatment and time away from her employer to the point of planning her return to work, the subsequent performance review by her employer retraumatised her to the point of being unable to work altogether due to re-aggravating her major depressive disorder. Her continuing incapacity is a result of the ongoing exacerbation of her major depressive disorder. It is therefore my opinion that the longitudinal unreasonable conduct of Mrs Stern’s employer is the main contributing factor to her exacerbation of major depressive disorder.”

Dr Ventura

The respondent relies on medicolegal reports prepared by psychiatrist, Dr Antonella Ventura, dated 30 June 2020 and 14 July 2020.
Dr Ventura took a history of the applicant initially enjoying her work and everything going well. At the end of December 2019, the applicant’s manager went on maternity leave and a new manager Ms Tregoning started in mid January 2020. A one year contract was signed and the following week the applicant went to a conference in the Hunter Valley:
“When she returned home she became unwell with a virus and was home sick for a week. Ms Stern told me that during the week she noticed an increase in depressive symptoms. She told me that she felt hopeless and did not want to go on. she told me that she was oversleeping and did not want to wake up. She reported a constant feeling of fear and dread. She was frequently tearful and lost interest and concentration. She told me that she was overwhelmed by a sense that she had done, or was doing the wrong thing.”
Dr Ventura noted that the applicant had a three-week admission to South Pacific Private Hospital. The applicant’s antidepressant medication was not changed. The applicant was supposed to attend an outpatient group but Covid-19 restrictions put an end to this. The applicant became more apprehensive and wondered how she was going to cope with normal life. The applicant’s sense of fear was still there and she had limited concentration.
Dr Ventura recorded that the applicant returned to work and in the third week was invited to a video call to discuss her probation period:
“Ms Stern told me that once she was on the call, her Manager launched on a performance management discussion. She was told that there were serious concerns about her performance. Her Manager criticised her draft report and she told me that she endured a 45 minutes call of criticism. Ms Stern told me that she felt completely ambushed and felt that she had to defend herself. She perceived her Manager's manner as aggressive. She told me that she felt ashamed, embarrassed and was tearful. She recalls thinking that she must be absolutely ‘s ... t’. She told me that by the end of the call she could not even talk. Ms Stern told me that she was told she had two weeks to prove herself. She believes this to mean that she would be fired unless she proved herself. She told me that at the time these comments had completely confirmed her existing fears that she was not good enough.
Ms Stern told me that after the call she felt desperate. She told me that she wanted to disappear although denied being suicidal. She reported ongoing low energy and not wanting to get out of bed. She told me that her appetite was low, however she gained weight during the covid-19 restrictions as she was comfort eating. She told me that she was in a state of shock and grief and that she was heartbroken. Ms Stern told me that she believed that it was all her fault and that she was ‘rubbish’. She told me that she believed that was the end of her career.”
Dr Ventura took a psychiatric history, noted the applicant’s current symptoms and performed a mental state examination before reaching a DSM-V diagnosis of “major depressive disorder, recurrent”:
“From the history available to me her current episode was precipitated by a viral illness in February 2020. Despite an admission to a private psychiatric hospital, her antidepressant medications were not modified to address her current clinical symptoms. She returned to work still symptomatic two weeks after being discharged from hospital. As a result of her low energy and concentration her performance was negatively affected. She therefore received negative feedback about her performance from her Manager. As Ms Stern was already depressed at the time of the negative feedback, her symptoms deteriorated further as a result of the performance management discussion.
Although the intensity of her symptoms has diminished with time and distance from work, her Major Depressive Disorder has not been adequately treated and she remains incapacitated for any type of work related duty at this stage.”
Dr Ventura said the applicant’s psychiatric disorder was constitutional. The applicant had a family history of depression and described a perfectionistic personality style. The current episode was precipitated by the viral illness in February 2020. The applicant returned to work prematurely and the negative feedback from the respondent further contributed to a feeling of depression, failure and low self-esteem.
Asked whether the circumstances were indicative of a s 11A(1) matter, Dr Ventura indicated that the major depressive episode deteriorated further after a performance appraisal meeting. Dr Ventura considered it outside her area of expertise to make a statement on whether the employer acted reasonably.
Dr Ventura confirmed that the applicant had no current capacity for work.

In the supplementary report dated 14 July 2020, Dr Ventura was asked whether the applicant’s psychological injury was wholly or predominantly caused by performance appraisal. Dr Ventura responded:
“In my opinion Lauren's psychological injury was not wholly or predominantly the result of the performance appraisal.”
Dr Ventura explained:
“In my opinion at the time of the performance appraisal, Lauren was already suffering from a major depressive disorder, which appeared to have been precipitated by a viral illness in approximately February 2020. Her depressive symptoms did not improve despite two admissions to South Pacific Private Hospital. I note that her antidepressant medications were not changed during the admissions to hospital. She continued to experience symptoms of major depression which in my view had an impact on her capacity to perform her work-related duties.”

Respondent’s submissions

The respondent relies on oral submissions by Mr Parker supplemented by written submissions prepared by the respondent’s solicitor, Mr Guest, dated 21 January 2021.
Mr Parker referred me to the history set out in the applicant’s first written statement and said this was relevant to the question of whether the opinion of Dr St George was reliable. The applicant’s evidence was that she was generally fine and in good health mentally and physically until February 2020. The applicant felt stable on her medication. In February 2020, the applicant sustained an anxiety episode possibly triggered by having caught a virus and simultaneous flareup of PMDD. The applicant explained that the severity and sustained nature of the anxiety and low mood resulted in her admission to the South Pacific Private Hospital. Mr Parker noted that there was no mention of any work-related stressors prior to the hospital admission or prior to the anxiety attack.

The applicant said that her condition had been effectively managed previously, allowing her to pursue a successful career with a number of high profile employers at management level. Mr Parker said this evidence was inconsistent with the history received by Dr St George and the treating evidence in the Application to Resolve a Dispute. Mr Parker referred in particular to the pre-admission assessment dated 2 July 2017 and contrasted it with the history taken by Dr St George that after a relapse of major depressive disorder in the postpartum period after her first child, the applicant responded well to GP counselling. The applicant resumed medication following the birth of her second child as prophylaxis for further depressive episodes. The applicant had denied further relapses of her major depressive disorder or anxiety disorder in the past four years.
Mr Parker submitted that the inconsistencies in the evidence called into question the diagnosis of Dr St George and his disagreement with Dr Ventura. Dr St George related the applicant’s anxiety and depression to her workplace conditions as at January 2020.
Dr St George had expressed the opinion that given the applicant’s stable mental state for over four years, it was unlikely that a viral illness alone would have triggered her major depressive disorder. Mr Parker submitted that the admission of the applicant to South Pacific Private Hospital in July 2017 was not consistent with history of stability in mental state for over four years. For that reason, the Commission would not accept Dr St George’s opinion. On that basis, the Commission would have to reject the applicant’s claim altogether.
Mr Parker also observed that the applicant had given evidence that following her discharge from hospital she was in a “really good place mentally”. Mr Parker described this as totally inconsistent with someone who had been suffering work stress prior to her hospital admission.
The applicant had complained that no proactive action had been taken to support her. Mr Parker observed that the applicant may have been the best person in the circumstances to advise her employer what she needed and what could be done to help her.
The applicant described being given some urgent tasks to do and being invited to a video call to discuss her probation period. The applicant referred to an email in this regard but the email had not been made available.
Mr Parker submitted that the applicant blamed the meeting on 15 April 2020 for her condition. Mr Parker said that the meeting was a performance appraisal meeting for the purposes of s11A(1). Mr Parker submitted that the meeting was reasonable given that the applicant was on probation and having regard to the nature of the matters which were raised. Mr Parker noted that there was no evidence that the employer was made fully aware of the applicant’s condition, the cause of it or the severity of it which would allow them to act differently.
Mr Parker submitted that if the applicant’s evidence was accepted, her condition could only be related to work based on the performance meeting. This was contrary to what
Dr St George had said. Dr St George’s opinion would not be accepted as he was unaware of the previous, severe, work-related anxiety attack in 2017.
Mr Parker referred to the witness statements of Ms Tregoning and Ms Tse. The witness evidence made no mention of any complaint by the applicant prior to her admission to hospital of work-related stress. The witness evidence suggested that a lot of effort was made to assist the applicant and encourage her to pass her probation period successfully. Instead of dismissing the applicant, the applicant’s probationary period was extended, given the long period of time she had off work. It was hoped that in this period there might be some improvement in the applicant’s performance. Ms Tse noted that if they had wanted to terminate the applicant they would not have offered her a four week extension to her probation period.

The respondent noted that Dr Ventura also did not obtain a complete or accurate history in her report although the history recorded by Dr Ventura was consistent with the evidence of a severe work-related anxiety attack in July 2017.
The respondent submitted that should the applicant be successful, as the applicant was employed for only 2 days per week as at the deemed date of injury, the Pre-Injury Average Weekly Earnings(PIAWE) figure should be reduced from $2,000 to $800 in accordance with Schedule 3, Clause 2(iii)(a) of the 1987 Act.

Applicant’s submissions

The applicant relies on written submissions prepared by Mr Tanner, dated 2 February 2021.
Mr Tanner submitted that the applicant sought to be compensated in respect of a work-related psychological injury deemed to have been received on 15 April 2020. The applicant made a claim on the basis of a WorkCover certificate by Dr Jackman, dated 17 April 2020, which diagnosed “anxiety and depression aggravated by work related stress”.
Mr Tanner submitted that the history taken by Dr St George suggested an absence of relapses of the applicant’s major depressive disorder between 2016 and the events in early 2020. The respondent questioned this history having regard to the hospital preadmission assessment dated 2 July 2017.

The applicant recorded in her statement of 18 May 2020 that her second son was nearly four years old, which indicated that he was born in 2016. Although the preadmission report indicated that the applicant had psychological symptoms at that time, there was no evidence that the applicant needed or sought treatment in the period between July 2017 and November 2019 when she commenced employment with the respondent.
Mr Tanner submitted that the applicant was able to secure employment and work in a managerial capacity for a variety of employers for a period of over two years prior to commencing employment with the respondent. There was no evidence of incapacitating psychological decompensation during this period.
The applicant’s evidence that she initially worked successfully with her manager Ms Schembri was not challenged by the respondent. The respondent also did not dispute the applicant’s evidence that Ms Schembri had indicated to the applicant on a number of occasions that she was picking things up well and doing a good job.
Having regard to the preadmission assessment dated 17 February 2020, work seemed to be a trigger. Mr Tanner submitted that there was no reason to consider that the applicant would have experienced a major aggravation of her underlying depressive disorder had she not experienced work-related triggers in the course of her employment with the respondent.
Although the applicant in her statement described an anxiety episode possibly triggered by having caught a virus, examination of the evidence as a whole confirmed a work-related trigger. The clinical notes recorded by Dr Jackman on 11 February 2020, prior to the applicant’s admission to South Pacific Private Hospital, referred to symptoms triggered by work stress. The preadmission assessment by the hospital dated 17 February 2020 also referred to work as a likely trigger.
Ms Coetzee reported that the applicant realised her relationship with her boss triggered psychological distress. During the weeks that followed the renewal of her contract, the applicant’s distress heightened to the point that she was admitted to South Pacific Private for three weeks. Mr Tanner submitted that, having consulted with the applicant on 10 occasions, Ms Coetzee was reliably placed to identify the cause of the applicant’s psychological deterioration.
Dr St George also identified work-related stress in January 2020 as the basis for an exacerbation of the applicant’s underlying depression and anxiety. Dr St George rejected the suggestion that the applicant’s condition was caused by her viral illness and reiterated that it was related to the change of manager. Dr St George’s opinion was consistent with the clinical notes recorded by Dr Jackman on 11 February 2020 and the pre-admission assessment recorded at South Pacific Private Hospital on 17 February 2020.
Although the evidence did not suggest that the applicant’s mental state was entirely stable during the four years prior to her admission, the evidence did establish that the applicant was able to work for a variety of employers without any incapacitating aggravation of her condition. The applicant’s condition changed in 2020 due to her treatment in employment with the respondent.
Referring to Dr Ventura’s report, Mr Tanner submitted that her opinion that the current episode was likely to be precipitated by viral illness was no more than a bare ipse dixit unsupported by any explanation or reasoning as to how a virus could cause the development of psychological symptoms. Dr Ventura was unaware of Dr Jackman’s note of 11 February 2020 and the assessment recorded at South Pacific Private Hospital on 17 February 2020. Her opinion was unsustainable in the absence of any engagement with the contemporaneous evidence of work-related triggers.
Following her return to work, the applicant was invited to a meeting on 15 April 2020. The applicant was led to believe that the meeting was to discuss her probation period and would be a formality. The applicant was given no advance notice of the criticism she was to be subjected to and was unable to prepare herself. Mr Tanner submitted that a reasonable employer would be expected to provide particulars of alleged poor performance in advance of a meeting to enable the employee to prepare a response. The employee should also have been invited to have a support person present. The extension of the applicant’s contract on 31 January 2020 gave the applicant reason to believe she had been performing satisfactorily.
Mr Tanner submitted that it was also relevant that the respondent was aware that the applicant was not well, having been away from work for seven weeks. The applicant had informed Ms Tregoning of work-related triggers such as deadlines increasing her anxiety. Ms Tse’s statement also indicated that she was aware of the applicant’s psychological illness by the time of the 1 April 2020 meeting. Mr Tanner submitted that any reasonable person would have understood that the applicant would have been troubled by what Ms Tregoning intended to say to her at the meeting on 15 April 2020.
Referring to the applicable case law, Mr Tanner submitted that the meeting and Ms Tregoning’s criticism of the applicant were real events. The applicant’s perception of her treatment at the meeting was that she was ambushed, outnumbered, attacked and confronted with unfair criticism. That adverse experience had psychological consequences given the applicant’s underlying condition and vulnerability and caused a further aggravation of the applicant’s underlying anxiety and depression.
Referring to Dr Jackman’s clinical record of 16 April 2020, Mr Tanner submitted that the applicant’s experience of psychological trauma at the meeting on 15 April 2020 was confirmed. The applicant was described by Dr Jackman has being back to her initial state of anxiety and depression. A WorkCover certificate was issued. The history recorded by Ms Coetzee was also consistent with a work-related aggravation of an underlying condition
Mr Tanner submitted that the aggravation of April 2020 constituted a compensable injury regardless of whether the applicant had suffered an earlier work-related aggravation in February 2020. The applicant considered that she had suffered successive work-related aggravations of her underlying condition. This was consistent with the opinions of
Dr St George.
Dr Ventura acknowledged the effect of the encounter on 15 April 2020 in causing a deterioration in the applicant’s condition. Dr Ventura said the applicant’s condition was constitutional, but the relevant question was whether the constitutional condition was aggravated. Dr Ventura acknowledged that it was.
Mr Tanner noted the respondent’s reliance on a defence under s 11A(1) but said that was inconsistent with the respondent’s medico-legal case. This was explicitly denied by Dr Ventura. Furthermore, the aggravation of the applicant’s condition was not confined to the meeting of 15 April 2020. The aggravation initially occurred prior to the hospital admission.
The meeting on 15 April 2020 was not a performance appraisal but a meeting to discuss the applicant’s probation. Referring to Irwin v Director General of School Education[1], Mr Tanner submitted that the meeting failed to follow a recognised procedure through which the parties moved in order to establish the applicant’s efficiency and performance.
[1] (Unreported, Compensation Court of NSW, 18 June 1998).
Mr Tanner referred to Australian standards applicable to management of underperformance recorded in checklists published by the Fair Work Ombudsman and said that even if the meeting did constitute performance appraisal it was conducted in a grossly unreasonable manner. The lack of notice of the meeting; failure to give the applicant an opportunity to have a support person present; absence of prior notice that her performance was unsatisfactory; and failure to engage with the applicant in a manner which was cognisant of her psychological condition, were all sources of unreasonableness.
Mr Tanner submitted that the evidence established that the applicant had no current capacity for work. In the ARD, the applicant relied on a PIAWE figure of $2,000. That figure was not disputed prior to the respondent’s written submissions. The written submissions raised a new issue which took the applicant by surprise. If the PIAWE were allowed to be disputed now, Mr Tanner submitted that it would be appropriate to convene a further teleconference.
The applicant sought a general order with regard to s 60 expenses.

FINDINGS AND REASONS

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 Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further 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.”

In Attorney General's Department v K[2] Roche DP summarised the principles to be applied in determining causation in cases of psychological injury at [52]:
[2] [2010] NSWWCCPD 76.

“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.”

Further at [54]:

“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances.”

It is common ground between the parties that the applicant in this case had a pre-existing psychological condition being treated through medication prior to the commencement of her employment with the respondent. The applicant alleges an aggravation of that condition in the course of her employment with the respondent.
The respondent has identified a number of apparent inconsistencies between the applicant’s first written statement and the medical evidence on which she relies as to the events which were causative of the alleged aggravation of her psychological condition.
The applicant’s written statement, which was provided to an investigator engaged by the respondent, indicates that the applicant’s pre-existing psychological condition was well managed with medication and counselling as required. The applicant said this treatment had generally worked very well and, until mid-February 2020, the applicant was generally in good health and felt stable on her medication.
The respondent has compared this history to the records of the South Pacific Private Hospital which contain a preadmission assessment of the applicant completed on 2 July 2017. The applicant’s symptoms at that time were recorded to be sufficient to warrant inpatient treatment. It is not apparent whether the applicant in fact underwent inpatient treatment and the applicant has not addressed this in her statement. The respondent observed that a history of such treatment or a deterioration in the applicant’s psychological symptoms around July 2017 was not provided to either of the medicolegal experts.
In July 2020, Dr St George took a history of the applicant’s pre-existing major depressive disorder being well managed by her general practitioner for the last four years with the applicant stable on her medication with no relapses for approximately six years.
Mr Parker submitted that the failure to disclose the events in July 2017 to Dr St George undermined the reliability of Dr St George’s opinion such that no weight could be placed upon it and the applicant’s claim should fail.
I accept that neither Dr St George nor Dr Ventura were given a history of a deterioration of the applicant’s psychological condition prompting an assessment at South Pacific Private Hospital in July 2017. I am not, however, satisfied that this omission alone renders their opinions unreliable. The applicant has given undisputed, credible evidence that in the period prior to her employment with the respondent she was employed in a number of managerial roles. There is no medical evidence of further incapacity or treatment for more severe symptoms between July 2017 and early 2020. I am satisfied that the history of prior psychological symptoms and treatment recorded by both experts was sufficiently, if not perfectly, complete and accurate.
Mr Parker also identified a discrepancy in evidence as to the alleged trigger for the applicant’s hospital admission in February 2020. The applicant’s statement gives no indication of any work-related stressors contributing to the deterioration in her condition around that time. The applicant described feeling stable and in good health until she caught a virus which left her in bed for a week. At the same time, there was a flareup of the applicant’s PMDD. The applicant suggested that this was the trigger for the more severe and sustained episode of anxiety and low mood which resulted in her admission to the South Pacific Private Hospital.
Both the contemporaneous medical evidence and the history subsequently recorded by the applicant’s treating practitioners and Dr St George, indicate that work was a contributing factor to the February 2020 admission. The clinical records of Dr Jackman show a consultation on 11 February 2020 in which the applicant described an extended episode of anxiety slowly building up. The applicant’s symptoms were said to be triggered by stress and “also related to work stress”. The applicant was recorded to have said that she loved her job but worked on autopilot. Seven days later, the applicant returned to Dr Jackman seeking a referral for admission to South Pacific Private Hospital.
The records of South Pacific Private Hospital give a history of anxiety and depressive symptoms. The applicant described working in several different jobs and having difficulty identifying her stressors, although the applicant was terrified of failure and getting in trouble and felt a sense of danger at home and at work. The preadmission assessment form clearly identified work as a trigger. The applicant was quoted as indicating that even looking at her laptop made her feel like vomiting. The applicant expressed a desire to be able to go to work and not be terrified and scared all the time.
That the applicant regarded work as a trigger to her deterioration in February 2020 is also suggested in the history subsequently reported to the applicant’s clinical psychologist, Ms Coetzee. Although Ms Coetzee first saw the applicant following her discharge from hospital, on 1 May 2020, the history recorded by her was of the applicant realising shortly after starting employment with the respondent that her relationship with her boss triggered psychological distress. The applicant accepted a contract renewal in January 2020 feeling that she may be able to overcome this distress. During the weeks that followed, the applicant’s distress heightened to the point that she was admitted to hospital.
Dr St George also took a history of work-related stressors in the period prior to the applicant’s hospital admission in February 2020. The applicant described feeling micromanaged and criticised after Ms Tregoning commenced as the applicant’s manager. There was a lack of constructive criticism or formal feedback and the applicant’s mental state began to deteriorate within a few days of the change in management.
Ms Tregoning’s evidence confirmed that the applicant had expressed to her that she was feeling “extremely anxious” about all of her deadlines on 11 February 2020. Ms Tregoning and Ms Tse have both given evidence, however, that they weren’t aware of the full extent and nature of the applicant’s psychological symptoms at this point.
The respondent’s medicolegal expert, Dr Ventura, took a history that was more consistent with the applicant’s written statement. Dr Ventura recorded that the applicant initially enjoyed her work and everything was going well until the applicant contracted a virus upon returning from the Hunter Valley and was at home sick for a week. Based on that history, Dr Ventura gave the opinion that the applicant’s current episode of major depressive disorder was precipitated by the viral illness in February 2020. Dr Ventura considered the applicant’s underlying psychiatric disorder was constitutional and related to her family history of depression and perfectionistic personality style.

It is unfortunate that the apparent discrepancy between the applicant’s first written statement and the evidence from her doctors with regard to the triggers for the episode in February 2020 is not addressed in the applicant’s supplementary statements. Those statements are focused predominantly on the events after the applicant’s return to work and the statement evidence given by Ms Tregoning and Ms Tse.
This discrepancy in the evidence is, however, addressed in Dr St George’s supplementary reports. Dr St George has given the view that the applicant was seeking to minimise the impact of the workplace stressors on her mental state. Dr St George also thought the inconsistency may be representative of the acute depressive state the applicant was in at the time.
The value of contemporaneous medical evidence has been repeatedly endorsed in the case law in this jurisdiction. Having regard to Dr St George’s explanation for the inconsistency and the clear references to work-related stress in the treating medical evidence, the weight of evidence indicates that the applicant’s employment, in particular her deadlines and working relationship with Ms Tregoning, was a contributing factor to the deterioration in the applicant’s condition prior to her admission at the South Pacific Private Hospital in February 2020. I prefer Dr St George’s opinion on this issue over that given by Dr Ventura.
The respondent has identified an additional inconsistency in the evidence with regard to the applicant’s condition following her discharge from hospital. The applicant’s evidence indicated that after her discharge from hospital she felt very positive about her recovery, including her ability to manage her mental health on an ongoing basis. This included feeling optimistic about returning to work. Mr Parker described this as inconsistent with someone who had been suffering work stress prior to her hospital admission.
There is, however, medical evidence indicating that the applicant had not made a full recovery. The applicant did not return to her pre-injury hours and had been certified as fit to work only 15 hours per week. The applicant was expected to continue in an outpatient program through the hospital, although the COVID-19 pandemic prevented that from being completed.
The respondent’s expert, Dr Ventura expressed the view that the applicant’s return to work was premature. The applicant’s anti-depressant medication had not been modified to address her current clinical symptoms. The applicant’s sense of fear was still there and she had limited concentration and low energy. The applicant returned to work whilst still symptomatic.
Dr St George’s opinions are also consistent with the episode of February 2020 having a continuing effect upon the applicant despite being able to recover, with treatment and time away from work, to the point of being able to plan a return to work.
There is essentially no factual dispute as to the events that followed the applicant’s return to work, although the witnesses differ significantly in their perception and characterisation of those events. Amongst other things, I am satisfied, based on the consistent evidence of the applicant, Ms Tse and Ms Tregoning, that:
(a)    the applicant returned to work on 1 April 2020, working 15 hours over three days per week;
(b)    on 1 April 2020, there was a videoconference between the applicant, Ms Tregoning, Ms Tse and the HR director in which the applicant disclosed her psychological condition to the other participants in the videoconference;
(c)    during the videoconference, the applicant was invited to identify the ways in which the respondent could support her;
(d)    the applicant was given a number of tasks including preparing the company’s annual sustainability report, for which the applicant was given a two week deadline. A draft was submitted in accordance with the deadline;
(e)    on the morning of 15 April 2020, the applicant was invited to a videoconference at 11.00 am, which was described to her as a “formality” to discuss her probation period;
(f)    no notice was given to the applicant of any performance issues which were to be discussed in the videoconference and the applicant was not invited to bring along a support person , and
(g)    during the videoconference on 15 April 2020, Ms Tregoning provided the applicant with a number of examples of poor performance and advised the applicant that her probation period would be extended.
The applicant has described in some considerable detail her perception of these events and her psychological response to them.
In the videoconference of 1 April 2020, the applicant felt the onus was being put on her to come up with her own support measures. In the circumstances, the applicant was unable to meaningfully respond and needed her managers to take the lead. The applicant described working over the weekend to deliver the draft sustainability report. The applicant described feeling “ambushed” by the invitation to attend a videoconference on 15 April 2020. During the meeting the applicant felt “blamed” and her head was spinning. The applicant felt many of the examples of poor performance were unfair. The applicant felt “attacked and vulnerable”. The applicant “froze” and didn’t know how to defend herself from this “attack”. After the meeting, the applicant felt she was “back to square one”, meaning she felt as bad as she did prior to her hospital treatment.
Both Ms Tse and Ms Tregoning have given evidence that the applicant was visibly distressed and crying by the end of the videoconference, although Ms Tregoning denied that the applicant was distressed throughout the entire meeting. All of the witnesses confirm that the applicant sent an email to Ms Tse describing her adverse response to the videoconference the following day.
The applicant’s evidence as to her psychological response to the events following her return to work, including the videoconference on 15 April 2020, is consistent with what was recorded by Dr Jackman in her clinical notes and WorkCover certificates. It is also consistent with the history provided to Ms Coetzee and the histories given to both Dr St George and Dr Ventura. There is a consistent view amongst the doctors involved in the applicant’s case that these events caused an aggravation or deterioration of the applicant’s symptoms of anxiety and depression.
Considering the evidence as a whole I find that there were real events in the workplace, both before the applicant’s hospital admission in February 2020 and following her return to work on 1 April 2020, including on 15 April 2020, which the applicant perceived as creating an ‘offensive or hostile working environment’. The workplace events contributed to an aggravation of the applicant’s pre-existing psychological condition in February 2020. Despite an improvement in symptoms with hospital treatment and time away from work, the aggravation continued to affect the applicant at the time she returned to work. There was a further deterioration of the applicant’s symptoms caused by the events on 15 April 2020.
For the reasons described above, I am satisfied that the applicant sustained a psychological injury consistent with the definition of ‘injury’ in s 4(b)(ii) of the 1987 Act. I also accept Dr St George’s opinion that employment was the main contributing factor to the injury.

Subsection 11A(1)

A worker who receives a psychological injury which meets the statutory definitions will not be entitled to compensation if the defence in s 11(A)(1) of the 1987 Act is made out:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Subsection 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence[3].
[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
In Hamad v Q Catering Ltd[4], Snell DP found that in many cases there will need to be medical evidence to establish that the employer’s action was the “whole or predominant cause” of the injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[4] [2017] NSWWCCPD 6.

The test of reasonableness is an objective one[5]. In Commissioner of Police v Minehan[6] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education[7]:

“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness”.

[5] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.

[6] [2003] NSWCA 239.

[7] (unreported 18 June 1998).

Leave was granted to the respondent to rely on a defence pursuant to s 11A(1) of the 1987 Act by reference to “performance appraisal” at the arbitration hearing. Perhaps as a reflection of the lateness of the defence, however, the respondent has not put forward a medical opinion that the meeting on 15 April 2020 was the whole or predominant cause of the applicant’s psychological condition.
Whilst all of the medical evidence appears to accept that the events on 15 April 2020 contributed to a deterioration or aggravation of the applicant’s symptoms, none of the practitioners has given an opinion that the respondent’s actions on that date were “the whole or predominant cause” of the deterioration or aggravation of the applicant’s pre-existing psychological condition. All of the practitioners, including Dr Ventura, have accepted that a deterioration or aggravation commenced prior to the applicant’s hospital admission in February 2020. That deterioration or aggravation persisted, despite improvements in the applicant’s symptoms, when she returned to work and attended the meeting on 15 April 2020.
Where the experts differ is on the initial trigger or cause of the aggravation requiring hospital treatment in February 2020. For reasons set out above, I have preferred Dr St George’s opinion in this regard over that given by Dr Ventura.
I am not satisfied that this is one of those cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. In the absence of a clear medical opinion on the “whole or predominant cause”, I am not satisfied that the respondent has discharged its onus in respect of the s 11A(1) defence.
Even if the meeting on 15 April 2020 was the predominant cause of the applicant’s injury, I am not satisfied on the evidence before me that the meeting constituted reasonable action with respect to performance appraisal.
I accept that the applicant’s managers did hold genuine concerns about the applicant’s performance. I accept that the applicant’s probation period was due to expire and it was standard practice for a meeting to be conducted with new employees prior to the end of their probation. I accept that it was reasonable for the respondent’s performance concerns to be communicated to the applicant.
Whilst the evidence of Ms Tse and Ms Tregoning indicates that concerns with respect to the applicant’s performance were noted from January 2020, there is, however, no evidence before me that the applicant was given contemporaneous feedback that her work was unsatisfactory prior to the meeting on 15 April 2020. Performance issues were flagged with the applicant’s husband during the period of the applicant’s hospitalisation, but it does not appear to have been raised directly with the applicant until 15 April 2020. The applicant appears to have been under the impression, by virtue of the extension of her contract, that she was performing at a satisfactory level.
It is significant also that after the meeting on 1 April 2020, the applicant’s managers were aware of the applicant’s psychological condition and that she had just recently completed three weeks of inpatient treatment for that condition. Even if the condition had not been disclosed previously, and Ms Tregoning and Ms Tse were unaware that work had triggered the deterioration in the applicant’s condition, the applicant had disclosed the condition and her recent treatment on 1 April 2020 and advised that deadlines increased her anxiety. I am not satisfied that the manner in which the meeting on 15 April 2020 was conducted made appropriate and reasonable allowances for these circumstances.
The applicant was not given advance notice that performance issues would be raised at the 15 April 2020 meeting. This denied the applicant an opportunity to prepare for the meeting or seek to have a support person present. The balance of power in the meeting weighed against the applicant, given the presence of both Ms Tse and Ms Tregoning. The applicant was presented with a list of examples of poor performance, all at once. Given that the applicant’s probation period was being extended, it is unclear why the applicant needed to be confronted with her performance issues so soon after her return to work. Although Ms Tse said the timeline for the meeting considered the applicant’s illness, it was in fact held only 4.5 working days after the applicant returned to work.
For these reasons, I am not satisfied that the respondent’s actions in respect of the meeting on 15 April 2020 were reasonable.
I am not satisfied that the respondent has discharged its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal pursuant to s 11A(1) of the 1987 Act.
The applicant’s psychological injury is compensable.

Extent and quantification of incapacity

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer shall include a weekly payment during the incapacity.
The applicant has sought weekly compensation from 15 April 2020 ongoing based on a PIAWE rate of $2,000 as set out in the schedule of earnings contained in the ARD.
Weekly payments of compensation are quantified by reference to s 36 of the 1987 Act for the first 13 weeks of incapacity and s 37 of the 1987 Act between weeks 14 and 130. Both sections require a determination to be made as to whether the worker has “no current work capacity” or “current work capacity”. Those expressions are defined in cl 9 of Schedule 3 to the 1987 Act:
“9 Meaning of “current work capacity” and “no current work capacity”
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Although the respondent has disputed that the applicant is incapacitated for work as alleged and her entitlement to weekly compensation has been disputed, the medical evidence before me unanimously indicates that from 15 April 2020 onwards, the applicant has had no current capacity for work.
That opinion was expressed by Dr Jackman in the WorkCover certificates issued by her, by Ms Coetzee in her report of 23 November 2020, as well as by both Dr Ventura and
Dr St George. Given my findings on the cause of the applicant’s injury, I am satisfied on this evidence that from 15 April 2020 to date, the applicant has had no current capacity for work as a result of her injury.
Having made that finding, s 36 of the 1987 Act relevantly provides:

“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.”

In the second entitlement period, s 37(1) of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.”
The applicant’s PIAWE figure of $2,000 was not disputed at any time in the proceedings until the respondent’s written submissions were lodged.
Rule 15.5 of the Workers Compensation Commission Rules 2011 provides:
“15.5 Schedule of earnings
If the amount of weekly compensation is in dispute—
(1)     the applicant must include in the application to resolve the dispute a schedule of earnings containing full particulars of the amount claimed,
(2)     if a party wishes to dispute the accuracy of any matter in the schedule of earnings, the party must lodge and serve with the first document lodged and served by the party in the proceedings, in addition to any documents required under rule 10.3(1) to be lodged and served by the party, a schedule of earnings containing full particulars of the party’s allegations of the earnings,
(3)     a matter not disputed by a party as provided in subrule (2) is deemed to be admitted by the party.”

Although not applicable to the present proceedings, the Personal Injury Commission Rules 2021 make similar provision in r 68.
The respondent has not lodged in the Commission a schedule of earnings containing full particulars of the respondent’s allegations of the earnings. Nor has any evidence been lodged of the applicant’s earnings in employment with the respondent or, for example, any periods of unpaid leave, for the purposes of calculating the applicant’s PIAWE pursuant to cl 2 of Schedule 3 of the 1987 Act and cl 8B and 8E of the Workers Compensation Regulations 2016. Nor has the respondent sought leave to do so.

In all the circumstances, I am not satisfied that it is appropriate to dispense with compliance with r 15.5(2). The applicant’s PIAWE rate is deemed admitted by the respondent.
The applicant is entitled to an award of weekly compensation pursuant to s 36(1) of the 1987 at the rate of $1,900 per week and pursuant to s 37(1) at the rate of $1,600 per week (adjusted in accordance with Division 6A of the 1987 Act).
The respondent will have credit for any weekly compensation already paid.
The award will be subject to s 50 of the 1987 Act to the extent that wages for sick leave have been paid.

Entitlement to s 60 expenses

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
The ARD was amended to include a general claim for past treatment expenses.
In view of the findings above, I will order the respondent to pay the applicant’s incurred treatment expenses in accordance with s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

SUMMARY

The applicant sustained a psychological injury pursuant to s 4(b)(ii) of the 1987 Act in the course of her employment. The applicant’s employment with the respondent was the main contributing factor to the injury.
The respondent has not discharged its onus of establishing that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal pursuant to s 11A(1) of the 1987 Act.

The applicant had no current work capacity as a result of the injury from 15 April 2020 to date.

The applicant’s PIAWE figure is deemed admitted.

The respondent to pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 15 April 2020 during the first entitlement period at the rate of $1,900 per week.
The respondent to pay the applicant weekly compensation to date and continuing pursuant
to s 37(1) of the 1987 Act at the rate of $1,600 per week (adjusted in accordance with Division 6A of the 1987 Act).
The respondent will have credit for any weekly compensation already paid.
The award of weekly compensation is subject to s 50 of the 1987 Act to the extent that wages for sick leave have been paid.
The respondent to pay the applicant’s reasonably necessary incurred treatment expenses pursuant to s 60 of the 1987 Act upon production of accounts, receipts and/or valid Medicare Notice of Charge.

Rachel Homan
MEMBER

25 March 2021