Treuer v Toyota Material Handling Australia Pty Limited

[2023] NSWPIC 288

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Treuer v Toyota Material Handling Australia Pty Limited [2023] NSWPIC 288
APPLICANT:	Heather Treuer
RESPONDENT:	Toyota Material Handling Australia Pty Limited
Member:	Anthony Scarcella
DATE OF DECISION:	19 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted primary psychological injury on 14 April 2021 (deemed); further incidents occurred on the applicant’s return to work with the same employer in January and February 2022; respondent argued that the was a further and separate primary psychological injury under section 4(b)(ii) in respect of the latter incidents; Ogden Industries Pty Ltd v Lucas considered and distinguished; Federal Broom Co Pty Ltd v Semlitch, DHL Excel Supply Chain (Australia) Pty Ltd v Hyde and Paric v John Holland (Constructions) Pty Ltd considered; Kooragang Cement Pty Ltd v Bates, The State Government Insurance Commission v Oakley and Secretary, New South Wales Department of Education v Johnson considered and applied; Held – the applicant suffered a primary psychological injury of gradual onset deemed to have occurred on 14 April 2021 within the meaning of section 4(b)(i); the applicant has had no current work capacity within the meaning of section 32A since 8 March 2022; the applicant’s incapacity results from the primary psychological injury deemed to have occurred on 14 April 2021; the respondent is to pay the applicant weekly compensation in respect of the primary psychological injury deemed to have occurred on 14 April 2021; the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 14 April 2021 under section 60.
determinations made:

The Commission determines:

1. The applicant suffered a primary psychological injury of gradual onset deemed to have occurred on 14 April 2021 within the meaning of s 4(b)(i) of the Workers Compensation Act 1987.

2. The applicant has had no current work capacity within the meaning of s 32A of the Workers Compensation Act 1987 since 8 March 2022.

3. The applicant’s incapacity results from the primary psychological injury deemed to have occurred on 14 April 2021.

The Commission orders:

1. The respondent is to pay the applicant weekly compensation in respect of the primary psychological injury deemed to have occurred on 14 April 2021 as follows:

   (a) $984 per week from 8 March 2022 under s 37(1) of the Workers Compensation Act 1987, as indexed and such weekly compensation payments are to continue until they are suspended, varied or terminated under the provisions of the Workers Compensation Act 1987;

   (b)    the respondent is to be given credit for any payments made, and

   (c)    liberty to apply within 14 days in relation to the calculation of weekly benefits.

2. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 14 April 2021 under s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Heather Treuer, is a 57-year-old woman who was employed by the respondent, Toyota Material Handling Australia Pty Limited (Toyota), as a rental and refurbishment administrator.

2. Ms Treuer alleges that, from early 2021, she was exposed to interpersonal conflict with a work colleague, Ms Haley Salter and was constantly disrespected, isolated and berated. Ms Treuer also alleged that she was directed to take on additional tasks at work and began to struggle with an increasing workload. Ms Treuer ceased work on 14 April 2021 following a confrontation with Ms Salter.

3. Shortly after 14 April 2021, Ms Treuer lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act). Ms Treuer was paid weekly compensation from 21 April 2021 to 30 November 2021 (being 32 weeks).

4. Ms Treuer returned to her pre-injury duties on 11 January 2022 on the basis that she was situated in a different department to Ms Salter. Shortly after returning to work, Ms Treuer was advised that she would be required to return to the same office as Ms Salter. Ms Treuer began to decompensate and struggled in her employment due to her psychological condition, being a major depressive disorder with anxious distress.

5. On 14 March 2022, Toyota made Ms Treuer redundant.[1]

   [1] Application to Resolve a Dispute at page 29.

6. On 17 March 2022, Allianz Australia Limited (Allianz), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of an alleged psychological injury suffered by Ms Treuer on 7 March 2022. Allianz denied an entitlement to weekly benefits compensation and to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act because Ms Treuer’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Toyota with respect to redundancy under s 11A of the 1987 Act. Further, Allianz denied liability because Ms Treuer did not have a total or partial incapacity for work under s 33 of the 1987 Act and because medical treatment was not reasonably necessary as a result of injury.[2] Allianz was not legally represented in these proceedings and no application was made to join it to these proceedings.

   [2] Application to Resolve a Dispute at pages 20-23.

7. On 20 April 2022, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the 1998 Act in respect of an alleged psychological injury suffered by Ms Treuer on 14 April 2021 disputing liability for the recurrence of Ms Treuer’s claim and an entitlement to weekly benefits compensation and medical expenses because Ms Treuer did not have a total or partial incapacity for work under s 33 of the 1987 Act and because medical treatment was not reasonably necessary as a result of injury.[3]

   [3] Application to Resolve a Dispute at pages 15-19.

8. On 16 August 2022, Ms Treuer, through her lawyers, requested a review of the decision contained in EML’s dispute notice dated 20 April 2022 under s 287A of the 1998 Act. Despite the request for a review being addressed to “iCare/EML”, Allianz responded to the request.[4]

   [4] Application to Resolve a Dispute at page 34.

9. On 31 August 2022, Allianz issued the outcome of its review under s 287A of the 1998 Act.[5] The review outcome referred to the employer as being G C Schmidt (Plant) Pty Limited with a date of injury of 3 June 2022 in one part of the document and Toyota with a date of injury of 7 March 2022 in other parts of the document. The review outcome referred to the injury as being a right cubital tunnel syndrome, an issue with the triangular fibrocartilage complex, a left arm condition and a cervical spine condition in one part of the document and an unspecified anxiety disorder in another part of the document. Allianz purported to maintain its decision dated 17 March 2022 to deny liability under ss 11A, 33, 59 and 60 of the 1987 Act.

   [5] Application to Resolve a Dispute at pages 24-28.

10. The reference in the review outcome notice to the physical injuries on 3 June 2022 were clearly unrelated to this case. The preparation of the review outcome notice fell well below the standard expected of an agent of icare.

11. Allianz’s review outcome notice dated 31 August 2022 referred to an independent medical examiner report by Dr Nicholas Cassimatis as follows:

    “The insurer obtained an IME report from Dr Nicholas Cassimatis, Consultant Psychiatrist, dated 13/05/2022. Dr Cassimatis diagnosed you with an adjustment disorder with depression, which related to the bullying in the workplace. The work incident was a substantial contributing factor to your diagnosis. You had recovered by January 2022, however had a relapse due to the fact that you would have to work with your bully or take redundancy.”[6]

    [6] Application to Resolve a Dispute at page 26.

12. Dr Cassimatis’ report dated 13 May 2022 was not in evidence.

13. Ms Treuer, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 30 November 2022 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming weekly benefits compensation from 8 March 2022 and ongoing under s 37 of the 1987 Act and medical expenses under s 60 of the 1987 Act as a result of the injury sustained in the course of her employment with Toyota on 14 April 2021.

ISSUES FOR DETERMINATION

1. The parties agreed that the issue in dispute is whether there was a further or separate injury after 14 April 2021 that resulted in the current incapacity.

Matters previously notified as disputed

1. The issues in dispute were notified in the dispute notices referred to above and were narrowed by agreement in the conciliation phase of the proceedings.

Matters not previously notified

1. No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

1. The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 22 March 2023. Mr Bruce McManamey of counsel appeared for Ms Treuer, instructed by Mr Peter Naddaf, solicitor and Mr Tom Grimes of counsel appeared for Toyota, instructed by Mr Simon Janssen, solicitor.

2. During the conciliation phase the parties agreed as follows:

   (a)    there is no dispute that Ms Treuer has suffered a primary psychological injury;

   (b)    there is no dispute that Ms Treuer was paid weekly benefits compensation from 21 April 2021 to 30 November 2021 (being 32 weeks) in respect of the pleaded injury on 14 April 2021;

   (c)    the respondent does not rely on a defence under s 11A(1) of the 1987 Act;

   (d)    Ms Treuer has had no work capacity from the date on which compensation benefits are claimed, namely, 8 March 2022 and ongoing, and

   (e)    Ms Treuer’s pre-injury average weekly earnings (PIAWE) are agreed at $1,230.

3. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    ARD dated 30 November 2022 and attached documents, and

   (b)    Reply to ARD (Reply) dated 23 December 2022 and attached documents.

Oral evidence

1. Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Heather Treuer’s evidence

1. In evidence there is a statement by Ms Treuer dated 28 November 2022. I will now refer to the relevant parts of that statement.

2. Ms Treuer stated that, in or about June 2017, she commenced employment with Toyota as a national rental and refurbishment administrator on a full-time basis working 38 to 40 hours per week. She provided a description of the duties she was required to perform.

3. Ms Treuer stated that, in about early 2021 during the course of her employment with Toyota, she began to encounter targeted treatment, bullying, harassment and degradation of character by Ms Salter. As a result, she developed a psychological injury.

4. Ms Treuer stated that, in about March 2021, she expressed concerns about her intense workload and about how she felt unsupported to her direct manager, Mr Wayne Barty. Thereafter, she described returning from personal leave in about April 2021 and Ms Salter demanding that she thank her colleagues for performing her duties whilst she was on leave.

5. Ms Treuer described other incidents involving Ms Salter. She described a meeting on 14 April 2021 with Ms Salter, where she discussed how she felt about the way she was being treated by her and how Ms Salter immediately became aggressive, spoke over the top of her and berated her. Ms Treuer stated that she was humiliated when Ms Salter walked over to work colleagues and stated publicly that, if she (Ms Treuer) had a problem she should speak with human resources. Ms Treuer immediately grew uncomfortable, anxious and distressed to the point where she could not do her work and face Ms Salter. She formally reported her conversation with Ms Salter to Mr Barty. Mr Barty immediately shut her down and scheduled a mediation for the following Tuesday.

6. Ms Treuer stated that she returned home from work distressed, panicked and sick to her stomach at the thought of returning to work to face Ms Salter in the mediation. She was unable to attend work on 20 April 2021 because she was in a state of panic and anxious distress. On 21 April 2021, she attended work to participate in the scheduled mediation. As she waited for the mediation to commence, she grew even more anxious and nauseated and then was informed by Mr Barty that Ms Salter had scheduled an annual leave day and so, the mediation would not proceed. She experienced a deterioration in her mental health. She left work and consulted her general practitioner, Dr Boguslaw Bartos of Green Valley Medical Practice.

7. Ms Treuer described her symptoms as low mood, anxious distress, constant ruminations, panic attacks, hyperventilation, sleep disturbance and weight loss.

8. Ms Treuer stated that, on 25 May 2021, she consulted Dr Bartos explaining that she had not experienced any relief with the sleep medication prescribed by him and that she continued to suffer from severe sleep disturbance. Dr Bartos recommended alternate medication and referred her to Ms Michelle Opacic, psychologist, of Growth Psychology Consulting for treatment of her symptoms.

9. Ms Treuer stated that through frequent consultations with her general practitioner and Ms Opacic she began to gain the assistance she needed. By about September 2021, she engaged in a gradual return to work program on pre-injury duties on a trial basis and began working from home starting at four hours per day and gradually increasing over the coming weeks.

10. Ms Treuer stated that, on 20 December 2021, she returned to work in the office in a separate building to Ms Salter. She was also allocated different working hours to Ms Salter. Ms Treuer came under a new manager, Brett, who made it clear that she and Ms Salter should not cross paths and that he would do all he could to avoid that happening.

11. Ms Treuer stated that, on 11 January 2022, the insurer’s case manager telephoned her advising that she was required to obtain a clearance certificate in order to continue working at Toyota. Ms Treuer thought that, if she did not agree to obtain a clearance certificate, her job would be in jeopardy. She obtained a clearance certificate even though she did not feel she had fully recovered. As she felt under enormous pressure, she requested Dr Bartos to give her a clearance certificate.

12. Ms Treuer stated that, as soon as Brett went on leave, Ms Salter disregarded the rules and left work early on 16 January 2022, which resulted in the two coming across each other in the car park. Ms Salter was driving towards her and glared at her. Ms Treuer immediately raced to her car and experienced a panic attack. The interaction between the two made Ms Treuer feel incredibly uneasy and she began to experience a further deterioration of her symptoms including, anxious distress, low mood, panic, hyperventilation and rumination.

13. On 1 February 2022, Ms Treuer sent an email to her EML case manager, which omitting formal parts and salutations, read as follows:

    “… Brett arranged for me to work in a separate building & start at a different time to Haley. It’s worked out nicely & it’s a huge relief not to be anywhere near her.

    I am happy for you to close the claim.

    Thank you for your help as well. …”[7]

    [7] Reply at page 91.

14. Ms Treuer stated that, in about mid-February 2022, Mr Ian Raffin informed her that she would be moving back to her former work area in a fortnight, which meant that she would have been sitting 1.5m away from Ms Salter. Ms Treuer immediately became anxious, nauseous and panicked at the thought of returning to work in such close proximity to Ms Salter. She struggled to complete her work that day and ruminated over what had occurred. She felt a further aggravation to her already fragile mental state and she struggled each day to go to work.

15. Ms Treuer stated that, on 28 February 2022, she was made redundant. She had been offered the opportunity to apply for alternate roles within Toyota but did not do so because she would have had to interact with Ms Salter.

16. Ms Treuer stated that, on 8 March 2022, she consulted Dr Bartos, told him that she had been made redundant and that she had experienced a flare-up of her injury because of multiple incidents that had occurred within the workplace. Dr Bartos issued her with a certificate of capacity.

17. Ms Treuer stated that, since 8 March 2022, she has continued to consult Dr Bartos on a monthly basis for the review of her psychological condition and the prescription of medication. She has not had any further treatment from Ms Opacic. But would like to do so because she continues to experience severe anxiety, depression, constant ruminations, panic attacks and feelings of hopelessness and helplessness. She has been unable to consult Ms Opacic because of the declinature of her claim.

18. Ms Treuer provided a detailed list of her ongoing restrictions and disabilities.

19. Ms Treuer received a letter from Toyota dated 14 March 2022 confirming that she had been made redundant as at that date.[8]

    [8] ARD at page 29.

The treating medical evidence

1. In evidence, are Ms Treuer’s clinical records produced by Green Valley Medical Practice on 13 May 2022[9] and Ms Treuer’s clinical records produced by Growth Psychology Consulting.[10]

   [9] ARD at pages 77-128.

   [10] ARD at pages 129-153.

2. On 29 August 2019, Ms Treuer consulted Dr Helena Ortiz, general practitioner, of the Green Valley Medical Practice for the purpose of obtaining a referral to Dr Eugene Moylan as a result of experiencing hot flushes without other symptoms of menopause. Dr Ortiz noted in the entry in the clinical records that options for treatment, other than hormone replacement therapy, were the prescription of Catapress or a low dosage of Efexor. Dr Ortiz prescribed Efexor-XR SR 37.5mg, one capsule daily.[11]

   [11] ARD at page 104.

3. On 20 April 2021, Ms Treuer consulted Dr Bartos complaining that she had been bullied at work and was unable to return to work. Dr Bartos recommended relaxation, a trial of Mega B anti-stress tablets and to add Valerian Forte tablets or Seremind tablets, if required.[12]

   [12] ARD at page 110.

4. On 23 April 2021, Ms Treuer consulted Dr Bartos advising that she was taking Mega B anti-stress tablets. Dr Bartos recommended relaxation and to add Valerian Forte tablets or Seremind tablets, if required. He noted the need to consult a psychologist.[13]

   [13] ARD at page 111.

5. On 4 May 2021, Dr Bartos had a case conference with Ms Treuer’s case manager and discussed a return to work plan and medication. As Ms Treuer had been suffering from insomnia, he recommended that she try Melatonin and prescribed Melatonin MR 2 mg tablets.[14]

   [14] ARD at page 111.

6. In an unsigned allied health recovery request completed by Ms Opacic on 12 May 2021, she provided a provisional diagnosis of an adjustment disorder with depressed mood and a differential diagnosis of depressive episode. Current symptoms were recorded to be reduced appetite, persistent worry, anxiety regarding returning to work, withdrawal, disturbed sleep, reduced motivation, tearfulness and depressed mood. The action plans included the implementation of mindfulness tasks, relaxation strategies, cognitive behavioural therapy and motivational interviewing for willingness to engage in therapy and implement tasks.[15]

   [15] ARD at pages 149-153.

7. On 25 May 2021, Ms Treuer consulted Dr Bartos complaining of still being stressed and depressed. She advised that Melatonin did not assist with her sleeping problem and that Bioglan sleeping tablets were working better. Dr Bartos referred Ms Treuer to Ms Opacic, psychologist.[16]

   [16] ARD at page 112.

1. On 25 May 2021, Ms Treuer consulted Ms Opacic advising that she felt up and down; that her sleep had improved, but that her mind wandered; that she worried about what would happen when she returned to work and how mediation would go. Ms Opacic reinforced activity scheduling and behaviour activation strategies and associated negative self-talk.[17]

   [17] ARD at page 134.

2. On 3 June 2021, Ms Treuer consulted Ms Opacic advising that her motivation was low and that she felt lethargic. She was waking less through the night but when she went to the bathroom, she would start thinking. She did not want to leave home for fear of bumping into someone from work. They discussed the exposure of Ms Treuer to these avoided situations and challenged her anxious belief that she would not cope with the confrontation.[18]

   [18] ARD at page 134.

3. On 17 June 2021, Ms Treuer consulted Ms Opacic. Ms Treuer was tearful and advised that she was told that her mediation may not take place because Ms Salter did not want to participate. Ms Treuer felt that she could not return to work without mediation. She did not feel that she could even walk through the door at work. She was looking forward to returning to work and had the expectation that mediation was the only option to do so. Ms Opacic reinforced positive gains and challenged the idea that what was happening at work defined her or her mood.[19]

   [19] ARD at pages 133-134.

4. On 1 July 2021, Ms Treuer consulted Dr Bartos advising, amongst other things, that she was still unable to return back to the same workplace. Relaxation and immunisation was discussed.[20]

   [20] ARD at page 112.

5. On 15 July 2021, Ms Treuer consulted Ms Opacic advising that she felt better but that the previous day was not a good day as she had consulted the insurer’s psychiatrist and found it difficult reliving the events. She was hoping that the psychiatrist would recommend a mediation before she returned to work. She had not received any further updates from work. Ms Opacic reinforced positive coping strategies and mindfulness.[21]

   [21] ARD at page 133.

6. On 29 July 2021, Ms Treuer consulted Dr Bartos advising that she had consulted a psychiatrist (Dr Shannon Paisley) organised by an insurance company (EML). Dr Bartos noted that she was consulting a psychologist and still waiting for mediation at work.[22]

   [22] ARD at page 113.

7. On 11 August 2021, Ms Treuer consulted Ms Opacic advising that she was progressing well and that the insurer’s psychiatrist had recommended mediation. They discussed returning to work and her anxiety about being exposed to the same environment and individual in the workplace.[23]

   [23] ARD at pages 132-133.

8. On 26 August 2021, Ms Treuer consulted Dr Bartos advising that the insurance company (EML) had admitted liability and that she was now able to work from home.[24]

   [24] ARD at page 114.

9. On 17 September 2021, Dr Bartos had a case conference with Ms Treuer’s case manager and discussed a return to work plan.[25] On 17 September 2021, Dr Bartos issued Ms Treuer with a certificate of capacity certifying her as having capacity for some type of work from 18 October 2021 to 15 November 2021 for six hours per day, five days per week and that she could commence working in an office after the mediation process but could also work from home.[26]

   [25] ARD at page 115.

   [26] Reply at pages 122-124.

10. On 12 October 2021, Dr Bartos issued Ms Treuer with a certificate of capacity certifying her as having capacity for some type of work from 16 November 2021 to 12 December 2021. The certificate also noted that Ms Treuer should work in another team.[27]

    [27] Reply at pages 119-121.

11. On 15 October 2021, Dr Bartos had a case conference with Ms Treuer’s case manager and discussed a return to work plan. Dr Bartos noted that Ms Treuer continued to consult a psychologist. Dr Bartos prescribed Efexor-XR SR 37.5mg, one capsule daily.[28]

    [28] ARD at page 115.

12. On 9 November 2021, Ms Treuer consulted Ms Opacic advising that she had made a gradual return to work from home. Ms Opacic noted reduced anxiety, improved mood and motivation. Ms Opacic also noted that Ms Treuer was currently coping with the return to work set up.[29]

    [29] ARD at page 132.

13. On 12 November 2021, Ms Treuer consulted Dr Bartos advising that she was still working from home and would be placed in a section working without her team. She complained of tiredness and was advised to use Berocca.[30]

    [30] ARD at page 116.

14. On 10 December 2021, Dr Bartos had a case conference with Ms Treuer’s case manager and discussed a return to work. He also discussed relaxation with Ms Treuer and her visits to the psychologist. Dr Bartos recorded that Ms Treuer would return to pre-injury duties on a trial basis.[31] On 10 December 2021, Dr Bartos issued Ms Treuer with a certificate of capacity certifying her as fit for pre-injury duties with the stipulation that she should work in another team.[32]

    [31] ARD at page 117.

    [32] Reply at pages 134-135.

15. On 16 December 2021, Ms Treuer consulted Ms Opacic reporting that she continued to worry about work and encountering Ms Salter. She was also worried about how she would be perceived by others. The session focused on the exploration of beliefs around how she was seen by others and ongoing reframing of unhelpful patterns contributing to her mood.[33]

    [33] ARD at page 129.

16. On 30 December 2021, Ms Treuer consulted Ms Opacic reporting that her first day back at work was like being in another office. Her boss had met with her in the morning and she experienced a quiet week at work. Ms Treuer reported that she found returning to work countered some of her anxiety about her return. She had not seen Ms Salter because they started work at different times. The session focused on strategies for Ms Treuer’s return to work and her associated anxiety about seeing Ms Salter.[34]

    [34] ARD at page 130.

17. On 15 January 2022, Ms Treuer consulted Dr Bartos advising that she was well now and had been allocated in a separate building at work and was happy to return to her pre-injury duties. Dr Bartos recommended relaxation, including breathing exercises, listening to music, walking, yoga and positive thinking. He also recommended that she try Mega B anti-stress tablets and add Valerian Forte tablets or Seremind, if needed. Dr Bartos prescribed Efexor-XR SR 37.5mg, one capsule daily.[35] On 15 January 2022, Dr Bartos issued Ms Treuer with a certificate of capacity certifying her fit for pre-injury duties from 11 January 2022.[36]

    [35] ARD at page 118.

    [36] Reply at pages 146-148.

18. On 24 January 2022, Ms Treuer consulted Ms Opacic reporting that she had been coping at work and that her anxiety about going to work had been reducing. However, she was still worried about it. The session focused on the exploration of her concerns and reinforcement of helpful thought patterns. Routines outside of work and the importance of maintaining such routines to manage her mood were discussed.[37]

    [37] ARD at page 129.

19. On 21 February 2022, Ms Treuer consulted Ms Opacic reporting that she had been “ok” and that work had been “ok”. Ms Treuer reported that she had bumped into Ms Salter and was shocked by the encounter but had coped well. Ms Opacic noted that Ms Treuer was positive. The session focused on positive reinforcement of recent progress.[38]

    [38] ARD at page 130.

20. On 8 March 2022, Ms Treuer consulted Dr Bartos advising that she was stressed and depressed. She had been told that she may be sacked and had consulted a lawyer. Ms Treuer requested him to reopen her case. They discussed relaxation in similar terms to the previous consultation. Amongst other things, Dr Bartos prescribed Efexor-XR SR 37.5mg, one capsule daily.[39] On 8 March 2022, Dr Bartos issued Ms Treuer with a certificate of capacity stating that she was suffering from stress, anxiety and reactive depression on a history of being bullied at work and certifying that she had no current work capacity for any employment from 7 March 2022 to 4 April 2022.[40]

    [39] ARD at page 118.

    [40] Reply at pages 110-112.

21. On 9 March 2022, Ms Treuer consulted Ms Opacic reporting that she had been made redundant at work as her position was no longer needed. She had consulted a lawyer. She reported that she was not sleeping, was worrying and crying. Ms Opacic’s session focused on the validation of emotions and sleep strategies. Ms Opacic noted that Ms Treuer was very distressed by the recent news of her redundancy and required supportive counselling and redirecting to helpful coping strategies.[41]

    [41] ARD at pages 130-131.

22. On 23 March 2022, Ms Treuer consulted Ms Opacic reporting low motivation and experiencing vivid dreams after she had encountered Ms Salter in the car park at work. The dreams would wake her. The dreams related to Ms Salter. She did not mention the dreams at the last consultation because she did not know if they were relevant. Ms Opacic addressed behaviour activation strategies for low motivation and mood as well as grounding and self-soothing strategies for the nightmares and sleep disruption.[42]

    [42] ARD at page 131.

23. On 25 March 2022, Ms Treuer consulted Dr Bartos advising that her solicitor had requested changing the dates of injury as per her first claim. He also recorded that she was stressed, upset and felt betrayed. Ms Treuer told him that her workplace was lying about her situation.[43]

    [43] ARD at page 119.

24. On 3 May 2022, Ms Treuer consulted Dr Bartos. Dr Bartos recorded the following history:

    “There was a toime [sic: time] that a lady who was bullying gave Heather a dirty look at work place in between two buildings. Heather was told that she will be moved to an old buildings [sic] about two weeks before retrenchment. Heather has dreams about lady bullying her. In one of the dream [sic] she was pushed into a toilet by lady bullying her. Palpitations on and of [sic: off].”[44]

    [44] ARD at page 120.

1. Dr Bartos provided relaxation advice and prescribed Efexor-XR SR 37.5mg, one capsule daily.

2. On 29 July 2022, Ms Treuer consulted Ms Opacic. They continued to work on strategies in respect of behaviour activation, activity scheduling and ongoing exposure to avoid situations. The plan was to continue with self-soothing and ongoing daily routines for mood management.[45]

   [45] ARD at pages 129-130.

3. On 5 October 2022, Ms Treuer consulted Ms Pratheepa Ramkumar, psychologist, of Growth Psychology Consulting. Ms Ramkumar took a history that Ms Treuer had been made redundant on 28 February 2022, being a few weeks after she had returned to work, having been on workers compensation. Initially she felt relief about her redundancy but later realised that she no longer had any purpose. In hindsight, she should not have rushed to return to work but, at the time, she feared that she may lose her job if she did not do so. Ms Treuer reported disturbed sleep with nightmares, feeling “crappy” with each day being a struggle, thinking too much and experiencing tiredness. Ms Treuer reported that her symptoms worsened when she came face-to-face with her aggressor (Ms Salter) in the car park at work. Ms Ramkumar focused the session on supportive counselling and taking small steps in Ms Treuer’s pathway to recovery.[46]

   [46] ARD at pages 131-132.

4. On 30 November 2022, Ms Treuer consulted Ms Opacic reporting improved mood and that she was enjoying her pressed flowers hobby. The session focused on identifying unhelpful beliefs about returning to work; challenging these beliefs to more realistic beliefs; and challenging catastrophising and personalising.[47]

The forensic medical evidence

[47] ARD at page 129.

Dr Shannon Paisley: 4 August 2021

1. On 14 July 2021, Ms Treuer consulted Dr Shannon Paisley, psychiatrist, at the request of EML. In evidence, there is a report by Dr Paisley dated 4 August 2021.[48] I will now refer to the relevant parts of that report.

   [48] Reply at pages 81-88.

2. Dr Paisley took a history from Ms Treuer that was consistent with the evidence at that time. Ms Treuer reported that her mental health gradually declined in April 2021 in the context of various conflicts at work. She became anxious and ruminated about her work situation. She experienced difficulty sleeping, fatigue and impaired concentration. She experienced diarrhoea when she was particularly anxious. Appetite was reduced and she lost 4kg in weight. Ms Treuer’s mood was depressed and she was less motivated. Whilst she had some suicidal thoughts, there was no intention or plan to act on them. She had become socially withdrawn and was afraid of seeing colleagues from work.

3. On mental state examination, Dr Paisley observed that Ms Treuer presented as a reasonably well-groomed middle-aged woman of average build. There were no psychomotor abnormalities and her speech was normal. She was tearful at times during the interview and her mood was depressed and anxious. Ms Treuer’s affect was reactive and appropriate to her thought content. There were no psychotic symptoms. She was cognitively intact and her insight and judgment were reasonable.

4. Dr Paisley’s diagnosis was one of an adjustment disorder.

5. Dr Paisley reported that Ms Treuer believed that the cause of her psychiatric symptoms was the way she was treated by Ms Salter and several other colleagues in the workplace. He opined that her employment was the main contributing factor to her psychiatric condition.

6. In respect of prognosis, Dr Paisley opined that it was favourable. However, he noted that unresolved tensions with some of Ms Treuer’s work colleagues may be a barrier to her returning to work in the same role.

7. Dr Paisley opined that there were no inconsistencies in Ms Treuer’s presentation and reported history. There was no evidence to suggest that she was malingering or voluntarily exaggerating her symptoms.

8. Dr Paisley considered that Ms Treuer currently had a capacity to work part-time for up to 20 hours per week in her pre-injury role or in another role for which she was suitably qualified.

Dr Abdal Khan: 22 July 2022

1. On 22 July 2022, Ms Treuer consulted Dr Abdal Khan, consultant psychiatrist, at the request of her lawyers. In evidence, there is a report by Dr Khan dated 22 July 2022.[49] I will now refer to the relevant parts of that report.

   [49] ARD at pages 37-45.

2. Dr Khan took a history from Ms Treuer that was consistent with the evidence. In particular, he recorded the following:

   “In September 2021, Ms Treuer engaged in a gradual return to work and was working from home. She described an incident in January 2021 when she was walking to her car and she saw Hayley who started to glare at her. This interaction caused Ms Treuer to experience acute symptoms of anxiety and panic. Ms Treuer reported how in mid-February 2022, when she had returned to working at her workplace, she was told by her employer that she would need to sit with Hayley, which aggravated her already fragile mental state. She was made redundant on 28 February 2022 and had not worked in any capacity since then.”[50]

   [50] ARD at pages 38-39.

3. On mental state examination, Dr Khan observed that Ms Treuer appeared her stated age; was dressed in casual attire; and had appropriate self-care. There was no evidence of psychomotor disturbance. Rapport was established. Ms Treuer described her mood in dysphoric terms and her affect was anxious and intermittently tearful. There were no abnormalities of speech and thought form. Ms Treuer’s thought content comprised pervasive symptoms of depression and anxiety. There was no perceptual disturbance. Cognition had evidence of impairment in attention, concentration and memory. She had appropriate insight and judgment.

4. Dr Khan’s diagnosis was one of a major depressive disorder with anxious distress.

5. Dr Khan opined that Ms Treuer’s employment was the main contributing factor to her psychiatric/psychological injury and conditions, subsequent incapacity to work and the need for ongoing treatment.

6. Dr Khan opined that Ms Treuer’s current psychiatric/psychological injury had been caused by the nature and conditions of her employment from early 2021, where she was bullied and harassed by a colleague. Dr Khan noted that the insurer accepted liability with the deemed date of injury as 14 April 2021. Although Ms Treuer engaged in a gradual return to work in her pre-injury duties, her psychiatric/psychological condition had not resolved and she required ongoing treatment with a general practitioner, psychologist and ongoing adherence with anti-depressant medication. Without such reasonably necessary treatment, it was unlikely that her condition would have recovered sufficiently in the first place to enable her to engage in a return to work.

7. In respect of Ms Treuer’s work capacity, Dr Khan opined that, from a psychiatric perspective, he considered her totally incapacitated for work and made the following observations:

   “Ms Treuer first experienced an incapacity to work from 20 April 2021 to September 2021. She engaged in a gradual return to work and was working from home. Ms Treuer reported how in mid-February 2022, when she had returned to working at her workplace, she was told by her employer that she would need to sit with the perpetrator of the workplace psychological trauma, which aggravated her already fragile mental state. She was made redundant on 28 February 2022 and had not worked in any capacity since then.”[51]

   [51] ARD at page 42 at [4(a)].

8. In respect of future treatment, Dr Khan opined that Ms Treuer required regular follow-up with a general practitioner for counselling; regular follow-up with a psychologist for psychological therapy; regular follow-up with a psychiatrist for review of her mental state; psychotropic medications; and referral for day patient group psychotherapy programs.

9. In respect of prognosis, Dr Khan opined that it was guarded. Dr Khan observed that Ms Treuer continued to experience pervasive symptoms of depression and anxiety, which impacted on her self-confidence, self-esteem, trust in interpersonal relationships and day-to-day functioning.

SUBMISSIONS

1. The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

Toyota’s submissions

1. I will now refer to Toyota’s principal submissions.

2. Toyota relied on s 4(b)(ii) of the 1987 Act to establish that Ms Treuer suffered a separate injury to the one pleaded in the ARD and conceded by Toyota.

3. Toyota relied on Ogden Industries Pty Ltd v Lucas[52] (Ogden) and submitted that the principle espoused in that case was that, where there is a work-related disease and there is some aggravation of it, the aggravation will constitute a new and separate injury if the employment has made some new and separate contribution to the aggravation. Such was the situation in Ms Treuer’s case.

   [52] Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32.

4. As to whether there is an aggravation of an injury, Toyota referred to the four step process in the judgment of Windeyer, J in Federal Broom Co Pty Ltd v Semlitch[53] (Semlitch).
   

   [53] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.

   Ms Treuer’s factual situation satisfied the four step process, in that, she was suffering from a disease; there was an aggravation of it; her employment was the main contributing factor; and her incapacity for work resulted from such aggravation.

5. Toyota referred to the injury description pleaded in the ARD and submitted that it was not entirely correct. Ms Treuer’s return to work on pre-injury duties, a new event during the course of employment and her decompensation would support a finding of aggravation under s 4(b)(ii) of the 1987 Act.

6. On 15 January 2022, Ms Treuer’s treating general practitioner, Dr Bartos, recorded in his clinical notes that Ms Treuer was well now; had been allocated in a separate building; and was happy to return to pre-injury duties.[54] On the same date, Dr Bartos issued a certificate of capacity certifying Ms Treuer as fit for pre-injury duties from 11 January 2022 without any ongoing restrictions and no treatment or medication recommendations.[55]

   [54] ARD at page 118.

   [55] Reply at pages 146-148.

1. By way of contrast, Dr Bartos’ preceding certificate of capacity dated 10 December 2021, certified Ms Treuer fit for pre-injury duties but noted that she should work in another team and needed to continue consulting a psychologist.[56]

   [56] Reply at pages 134-136.

2. The difference between the two certificates of capacity dated 10 December 2021 and 15 January 2022 together with the clinical note recorded on 15 January 2022, would indicate that Ms Treuer had recovered and suffered no ongoing incapacity due to the alleged injury on 14 April 2021.

3. The email from Ms Treuer to EML dated 1 February 2022,[57] being two weeks after the issue of the pre-injury duties certificate with no restrictions, was quite clearly evidence of a successful return to work.

   [57] Reply at page 91.

4. Ms Treuer’s evidence was that when she returned to work, she was allocated different working hours to Ms Salter and was relocated to a separate building. On 16 January 2022, Ms Salter left work early and Ms Treuer saw her driving towards her in the car park. As a result Ms Treuer suffered a panic attack.[58] In mid-February 2022, Mr Ian Raffin informed Ms Treuer that she would be moving back to her former work area in close proximity to Ms Salter in two weeks.[59]

   [58] ARD at page 9 at [42].

   [59] ARD at page 9 at [43].

5. Support by way of medical opinion for the latter two mentioned events causing a different aggravation of Ms Treuer’s condition is found in Dr Khan’s report dated 22 July 2022. Dr Khan opined that the events aggravated her already fragile mental state.[60]

   [60] ARD at pages 38-39 and 42 at [4a].

6. The definition of an aggravation of a condition at law in Semlitch was that if the employment contributes to the worsening of the symptoms or the outward manifestations of the condition, the worsening will be an aggravation. On the history provided, Ms Treuer experienced an aggravation of her condition.

7. Quite clearly, Ms Treuer had recovered to the point where she informed her employer and general practitioner that she was now well; was issued with an unrestricted certificate of capacity; and informed her EML case manager that her file may be closed. Thereafter, she suffered two separate and subsequent events that caused her to suffer an aggravation of her condition according to her own independent medical examiner, Dr Khan. The aggravation of Ms Treuer’s symptoms fit within the definition of aggravation of a disease. She then goes off work following these new events and suffered an ongoing and likely, total incapacity for work.

8. The Commission would not find that there is any material contribution to Ms Treuer’s current incapacity in respect of the pleaded injury on 14 April 2021. Ms Treuer’s incapacity relates solely to the subsequent aggravation that is not pleaded in the current ARD. For those reasons, the Commission would find an award for the respondent in respect of these proceedings.

Ms Treuer’s submissions

1. I will now refer to Ms Treuer’s principal submissions.

2. The issue is a simple one. Ms Treuer is accepted as having no current work capacity from 7 March 2022. Under the legislation it must be established that such incapacity results from the accepted injury relied on, that is, the primary psychological injury on 14 April 2021. That requires an application of the common law test in respect of causation.

3. Toyota’s position is that the Commission should conclude that the events that occurred at work in February 2022, themselves were an injury, being an aggravation of the earlier injury, which would constitute an injury under s 4(b)(ii) of the 1987 Act.

4. Toyota did not refer to any authority that says that, if there is an injury under s 4(b)(ii) of the 1987 Act, somehow or other, the earlier injury under s 4(b)(i) of the 1987 Act ceases to exist. The reason for that is that there is no such authority. In fact, it is contrary to the law. There are many circumstances in which one can have a succession of injuries and the question arises as to whether it resulted from the first injury in time. The most instructive authority in this regard was the New South Wales Court of Appeal decision in Secretary, New South Wales Department of Education v Johnson[61] (Johnson).

   [61] Secretary, New South Wales Department of Education v Johnson [2019] NSW CA 321.

5. Ms Treuer referred to the three possible categories in respect of causation where an earlier injury is followed by a later injury that Emmett AJA in Johnson cited from the judgment of Malcolm CJ in The State Government Insurance Commission v Oakley[62] (Oakley).

   [62] The State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003.

6. Ms Treuer submitted that her case fell within the first Oakley category, namely, where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident. This was so because it was quite clear that the aggravation to Ms Treuer’s condition that occurred in February 2022 as a result of being advised that she was going to be moved back closer to Ms Salter was a consequence of the earlier incident in April 2021.

7. Ms Treuer submitted that her case also fell within the second Oakley category, namely, where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred. Again, it was quite clear that Ms Treuer suffered an exacerbation or aggravation of her condition in February 2022.

8. Ms Treuer submitted that her case did not fall within the third Oakley category, namely, where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damages subsequently sustained. This was so because it was quite clear that Ms Treuer suffered an exacerbation or aggravation of her condition in February 2022.

9. Johnson was cited with approval in Ozcan v Macarthur Disability Services Ltd[63] (Ozcan).

   [63] Ozcan -v- Macarthur Disability Services Ltd [2021] NSWCA 56.

10. Ogden is a 1967 decision of the High Court of Australia. The more recent New South Wales Court of Appeal decisions in Johnson and Ozcan are to the contrary. Further, Ogden is not really an authority for the proposition submitted by Toyota. Ogden involved a death claim where there had been two occurrences and between the two occurrences, there had been a change in the benefit that was payable. The High Court of Australia determined that the subsequent event was an aggravation and was an injury. Therefore, the death benefit was payable from the later injury in time. Ogden was not in any way an authority for the proposition that, because there was a second injury, it did not result from the first injury.

11. There is no issue that Ms Treuer sustained an injury on 14 April 2021 and that, as a result of that injury, she was off work for a period of time and then certified fit to work on 15 January 2022. However, one would not conclude that she had made a full recovery.

12. On 15 January 2022, Dr Bartos recorded in the Green Valley Medical Practice clinical records that Ms Treuer was now well, had been allocated to a separate building and was happy to return to her pre-injury duties. Nevertheless, Dr Bartos advised management by way of relaxation; a trial of Mega B anti-stress tablets; add Valerian Forte tablets or Seremind, if needed; and prescribed Efexor-XR SR 37.5mg, one capsule daily.[64] So, Ms Treuer had not made a full recovery.

    [64] ARD at page 118.

13. Further, Ms Treuer continued to consult Ms Opacic, psychologist. On 24 January 2022, Ms Opacic recorded in Ms Treuer’s clinical records that she was still impacted by grief related to a friend that had passed away; noted that she had been coping “ok” at work; anxiety related to going to work was reducing but that she still worried; and reinforced helpful thought patterns as discussed in previous sessions.[65] So, Ms Treuer was still the subject of treatment on 24 January 2022.

    [65] ARD at page 129.

14. On 21 February 2022, Ms Opacic recorded that Ms Treuer’s return to work had been “ok”; bumped into Ms Salter and was shocked but coped well.[66] There was contemporaneous support for the incident involving Ms Treuer running into Ms Salter, being shocked and having a reaction.

    [66] ARD at page 130.

15. Ms Treuer referred to and relied on the events in her evidentiary statement dated 28 November 2022 at [41]-[44].[67] There was no evidence to contradict Ms Treuer’s evidence of those events. The events certainly occurred and importantly, those events clearly related to the causation of the original injury. Ms Treuer was then made redundant on 28 February 2022.

    [67] ARD at page 9 10.

16. On 8 March 2022, Dr Bartos recorded in the Green Valley Medical Practice clinical records that Ms Treuer was stressed and depressed. He noted that she was told that she may be sacked and had consulted a lawyer. He noted that Ms Treuer requested him to reopen her case. Dr Bartos prescribed Efexor-XR SR 37.5mg, one capsule daily.[68]

    [68] ARD at page 118.

17. On 8 March 2022, Dr Bartos issued Ms Treuer with a certificate of capacity in respect of stress, anxiety and reactive depression as a result of a history of being bullied at work with the stated date of injury being 14 April 2021. Dr Bartos certified Ms Treuer as having no current capacity for any employment. Allianz’s dispute notice dated 17 March 2022 referred to the date of injury as being 7 March 2022 and also referred to the certificate of capacity issued by Dr Bartos dated 8 March 2022 but did not attach a copy of it to the dispute notice. All the certificates of capacity in evidence referred to 14 April 2021, being a deemed date, as being the date of injury.

18. Dr Bartos opined that Ms Treuer’s condition was as a result of the initial injury, as did Dr Khan. There is no opinion in Toyota’s case that expresses any view about whether the incapacity from 7 March 2022 does or does not result from that injury and that is because there is simply nothing in its case that post-dates this period of incapacity.

19. Notably, in Allianz’s outcome of its review under s 287A of the 1998 Act dated 31 August 2022, it referred to a report dated 13 May 2022 by Dr Nicholas Cassimatis, being the insurer engaged consultant psychiatrist. The review outcome stated that Dr Cassimatis diagnosed Ms Treuer with an adjustment disorder with depression, which related to the bullying in the workplace and that the work incident was a substantial contributing factor to the diagnosis. It was also stated that Dr Cassimatis reported that Ms Treuer had recovered by January 2022 but experienced a relapse due to the fact that she was to work with her bully or take a redundancy.[69] The opinion of Dr Cassimatis more than comfortably satisfies the test of causation the Commission needs to apply, which is whether Ms Treuer’s incapacity results from the accepted injury on 14 April 2021.

    [69] ARD at page 26.

20. There is an undisputed history of events, which clearly relates to the original injury that is aggravated. There are the opinions of two psychiatrists and a general practitioner that this incapacity is causally related to the injury or is a manifestation of that injury. There is no evidence to the contrary. Accordingly, the Commission would find it a fairly simple and straightforward matter to conclude that Ms Treuer’s incapacity results from the injury deemed to have occurred on 14 April 2021; that Ms Treuer has had no current work capacity from 8 March 2022 to date; and that she is entitled to weekly benefits compensation as indexed from the latter mentioned date together with a general order under s 60 of the 1987 Act.

Toyota’s submissions in reply

1. The Ozcan and Oakley cases can be differentiated because they were cases where the issue was whether particular injuries could be aggregated for the purposes of a whole person impairment assessment. The circumstances in Ms Treuer’s case are different because a determination of whether there is a further injury for which there should be a new incapacity and therefore, separate liability.

2. What is required in this case is a consideration of the four steps set out in Semlitch and that, if there is a finding of an aggravation of Ms Treuer’s condition, then there is a consideration of the final step, namely, whether there is a total or partial incapacity resulting from that aggravation.

3. Ms Treuer submitted that the reference made to her taking Efexor at the relevant time was demonstrative that she had not recovered from the psychological condition deemed to have occurred on 14 April 2021. However, the reference in Ms Treuer’s Green Valley Medical Practice clinical records on 29 August 2019,[70] which pre-dated the pleaded injury, referred to a surgery consultation to obtain a referral to Dr Moylan in a situation where Ms Treuer was complaining of hot flushes without other symptoms of menopause. The entry recorded that options other than hormone replacement therapy were the prescription of Catapress or Efexor. The entry recorded that Ms Treuer was prescribed the same dosage of Efexor that she was prescribed leading up to the pleaded injury and leading up to the aggravation Toyota asks the Commission to find. Clearly the prescription of Efexor was totally unrelated to the pleaded injury and should not be a consideration as to whether Ms Treuer had recovered from the pleaded injury.

   [70] ARD at page 104.

4. Ms Treuer’s evidence that she had not fully recovered when she returned to work should be contrasted with the email she sent to the EML case manager on 1 February 2022, where she advised that the transfer had worked out nicely; it was a huge relief; and that she was happy for EML to close the claim. The contemporaneous email was more likely to be accurate than Ms Treuer’s statement dated 28 November 2022.

5. In accordance with the principles espoused in Paric v John Holland (Constructions) Pty Ltd[71] (Paric), the Commission would place very little weight on the certificates of capacity relied on by Ms Treuer because they did not contain the history of the subsequent aggravating events and they did not contain any explanation as to the dramatic change in her work capacity. Toyota also relied on the decision in DHL Excel Supply Chain (Australia) Pty Ltd v Hyde,[72] where President Keating said that certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based.

   [71] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.

   [72] DHL Excel Supply Chain (Australia) Pty Ltd v Hyde [2022] NSWWCCPD 22 at [93].

6. Ms Treuer referred to Allianz’s review outcome under s 287A of the 1998 Act and the reference to Dr Cassimatis’ report and his opinion that there had been a relapse of her condition. However, that report is not before the Commission. It has not been served by Ms Treuer in these proceedings. So, any conclusions contained in it would be given very little weight.

7. If Dr Cassimatis considered that there had been a recovery and there had been subsequent events unrelated to the injury relied on, that is consistent with Toyota’s submissions that there was a subsequent aggravation, which quite clearly caused the incapacity when one compares the certificates of capacity progressing from being fit for pre-injury duties to totally unfit.

8. The Commission ought to enter an award for the respondent in respect of the claim for weekly benefits compensation and medical and related expenses under s 60 of the 1987 Act as there is an aggravation of Ms Treuer’s condition on 7 March 2022, being an injury that is not pleaded in the ARD, and Ms Treuer’s incapacity arises from that aggravation.

FINDINGS AND REASONS

The legislation and legal principles

1. 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.

2. 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 under the Act to the injured worker shall include weekly payments during the period of incapacity.

3. There is no dispute that Ms Treuer has suffered a primary psychological injury. It is not disputed that Ms Treuer has had no current work capacity since 8 March 2022. The issue in dispute is whether there was a further or separate psychological injury after 14 April 2021, namely, 7 March 2022, that resulted in Ms Treuer’s agreed current incapacity.

4. The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[73] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[74] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.

   [73] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.

   [74] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136].

5. Toyota submitted that, on 7 March 2022, there had been an aggravation of Ms Treuer’s psychological condition under s 4(b)(ii) of the 1987 Act and as such there was a further injury for which there should be a new incapacity and therefore, separate liability.

6. Section 4(b) of the 1987 Act provides that “injury” includes a “disease injury”, which means 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: s 4(b)(i); and 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: s 4(b)(ii).

7. As to the meaning of disease, in Federal Broom Co Pty Ltd v Semlitch[75] (Semlitch), Kitto J said:

   “In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason I can see for reading it in the present context as not extending to mental illness.”[76]

   [75] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.

   [76] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 632.

8. In Commissioner for Railways v Bain[77] Windeyer J stated:

   “The word ‘disease’ seems to me apt to describe any abnormal physical or mental condition that is not purely transient …”[78]

   [77] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246.

   [78] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246 at 272.

9. In Semlitch, Kitto J said:

   “There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.[79]

   [79] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.

10. In Semlitch, Windeyer J said:

    “The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.”[80]

    [80] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639.

1. In Semlitch, Windeyer J also posed the following four questions:

   “Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[81]

   [81] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 638.

2. The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[82] (Raymond).

   [82] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79.

3. Sections 4(b)(i) and 4(b)(ii) of the 1987 Act require that the employment must be the main contributing factor to the injury, namely, the contraction of a disease or the aggravation, acceleration, exacerbation or deterioration of the disease condition.[83] The word “main” in the phrase “main contributing factor” means “chief” or “principal”.[84]

   [83] Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013: 8 April 2014).

   [84] Meaney v Office of Environment and Heritage – National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].

4. Roche DP in State Transit Authority v El-Achi[85] (El-Achi) said:

   “That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”[86]

   [85] State Transit Authority v El-Achi [2015] NSWWCCPD 71.

   [86] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].

5. In AB v AW,[87] Snell DP agreed with the above quoted passage in El-Achi and observed that:

   “The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”[88]

   [87] AB v AW [2020] NSWWCCPD 9.

   [88] AB v AW [2020] NSWWCCPD 9 at [78].

6. Where a work injury involves a subsequent injury, it is relevant in respect of the issue of causation, to consider the three categories outlined by Malcolm CJ in Oakley.

7. In Oakley, Malcolm CJ identified three categories where the issue of causation involved a consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury or, more accurately, the assessment of damages consequential upon an earlier injury. The observations were made in the context of proceedings at common law in which negligence was alleged. However, the observations are equally applicable in this case in respect of the issue of incapacity.

8. The three Oakley categories are as follows:

   (a)    where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident;

   (b)    where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred, and

   (c)    where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damages subsequently sustained.

9. The three categories were discussed and the decision was applied in Johnson. Johnson was a case that involved judicial review of a Medical Appeal Panel. Ms Johnson suffered a psychological injury in the course of her employment in 2014. Subsequently, she suffered a second psychological injury in the course of employment with another employer. Emmett AJA in Johnson[89] stated that, in the legal sense, an injury or incapacity may be attributable to more than one cause operating concurrently.[90] There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is, the question of foreseeability does not arise. It is sufficient to say that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.[91]

   [89] Secretary, New South Wales Department of Education v Johnson [2019] NSW CA 321 at [53].

   [90] Baker v Willoughby [1970] AC 467 at 492.

   [91] Busby v Morris [1980] 1 NSWLR 81 at [19].

10. In Johnson, Simpson AJA stated that a necessary part of the Medical Appeal Panel’s task was to consider, in the light of the medical evidence, into which of the three Oakley categories the injured worker’s case fell. The Medical Appeal Panel did not undertake that analysis. The Medical Appeal Panel was required to undertake a careful analysis of all of the evidence.

11. The three categories in Oakley were also discussed in Ozcan, in particular, the second category.

12. The question of whether the disputed incapacity “results from” an injury is a question of fact (Kooragang).

Consideration and findings

1. I accept Ms Treuer as a witness of truth, who did her best to provide a history of the events in the workplace and the effect those events had on her. I also accept that she did her best to provide a history of her psychological condition, her treatment and her complaints of symptoms to her treating doctors, psychologists and the forensic medical specialists. The histories she provided were, in the main, consistent over a period of almost two years.

2. On 4 August 2021, the psychiatrist engaged by EML, Dr Paisley, could find no inconsistencies in Ms Treuer’s presentation and reported history. Nor did he find any evidence to suggest that she was malingering or voluntarily exaggerating her symptoms.[92]

   [92] Reply at page 87 at [13].

3. In his report dated 22 July 2022, Dr Khan did not refer to any inconsistencies in Ms Treuer’s presentation or history.

4. I accept Ms Treuer’s unchallenged evidence that, as a result of frequent consultations with Dr Bartos and Ms Opacic, she began to gain the assistance she felt she needed in respect of her work-related psychological symptoms and that, by about September 2021, she engaged in a gradual return to work program on pre-injury duties on a trial basis from home starting at four hours per day and gradually increasing her hours over the coming weeks. Ms Treuer’s evidence was corroborated by Dr Bartos and Ms Opacic.[93]

   [93] ARD at pages 114, 115 and 132-133 and Reply at pages 122-124.

5. On 10 December 2021, Dr Bartos had a case conference with Ms Treuer’s case manager and discussed a return to work. Dr Bartos recorded that Ms Treuer would return to pre-injury duties on a trial basis[94] and issued Ms Treuer with a certificate of capacity certifying her as fit for pre-injury duties with the stipulation that she should work in another team.[95]

   [94] ARD at page 117.

   [95] Reply at pages 134-135.

6. On 16 December 2021, Ms Opacic recorded in the Growth Psychology Consulting clinical records that Ms Treuer continued to worry about work and encountering Ms Salter. She was also worried about how she would be perceived by others at work.

7. I accept Ms Treuer’s unchallenged evidence that, on or about 20 December 2021, she returned to work in the office in a separate building to Ms Salter and that she was allocated different working hours to Ms Salter in order to avoid them encountering each other.

8. On 30 December 2021, Ms Opacic recorded in the Growth Psychology Consulting clinical records that Ms Treuer’s first day back at work was like being in another office. Her boss had met with her in the morning and she had experienced a quiet week at work. Ms Opacic recorded that Ms Treuer found returning to work countered some of her anxiety about her return. The session focused on strategies for Ms Treuer’s return to work and her associated anxiety about seeing Ms Salter.

9. I accept Ms Treuer’s unchallenged evidence that she came under a new manager, Brett, who made it clear that she and Ms Salter should not cross paths and that he would do all he could to avoid that happening.

10. I accept Ms Treuer’s unchallenged evidence that, on 11 January 2022, the insurer’s case manager telephoned her advising that she was required to obtain a clearance certificate in order to continue working at Toyota. I accept that Ms Treuer thought that, if she did not agree to obtain a clearance certificate, her job would be in jeopardy. I accept that she obtained a clearance certificate from Dr Bartos even though she did not feel she had fully recovered because she felt under enormous pressure to do so.

11. On 15 January 2022, Dr Bartos recorded in the Green Valley Medical Practice clinical records that Ms Treuer advised that she was well now and had been relocated to a separate building at work and was happy to return to her pre-injury duties.[96] Dr Bartos issued Ms Treuer with a certificate of capacity certifying her fit for pre-injury duties from 11 January 2022.[97] Despite issuing the clearance certificate, Dr Bartos recommended relaxation, including breathing exercises, listening to music, walking, yoga and positive thinking. He also recommended that Ms Treuer try Mega B anti-stress tablets and add Valerian Forte tablets or Seremind, if needed and prescribed Efexor-XR SR 37.5mg, one capsule daily. The issue of the clearance certificate to Ms Treuer and the ongoing management recommended by Dr Bartos was consistent with Ms Treuer’s evidence that she was under enormous pressure to obtain the certificate despite not having fully recovered.

    [96] ARD at page 118.

    [97] Reply at pages 146-148.

12. I accept Ms Treuer’s unchallenged evidence that Ms Salter left work early on or about 16 January 2022, which resulted in the two coming across each other in the workplace car park. I accept that Ms Salter was driving towards Ms Treuer and glared at her. I accept that the encounter caused Ms Treuer to experience a panic attack. I accept that the interaction between the two made Ms Treuer feel incredibly uneasy and that she began to experience a further deterioration of her symptoms including, anxious distress, low mood, panic, hyperventilation and rumination. However, I do not accept that the stated further deterioration amounted to a separate primary psychological injury within the meaning of s 4(b)(ii) of the 1987 Act that resulted in Ms Treuer’s agreed current incapacity for the reasons I will come to later.

13. On 24 January 2022, Ms Opacic recorded in the Growth Psychology Consulting clinical records that, Ms Treuer had been coping at work and that her anxiety about going to work had been reducing. However, she was still worried about it.[98] In this consultation, Ms Opacic did not record Ms Treuer’s encounter with Ms Salter in the car park.

    [98] ARD at page 129.

14. Whilst the email from Ms Treuer to EML dated 1 February 2022,[99] was evidence of a successful return to work as at that date, it was not evidence that Ms Treuer had made a complete recovery from her work-related psychological condition deemed to have occurred on 14 April 2021.

    [99] Reply at page 91.

15. On 21 February 2022, Ms Opacic recorded in the Growth Psychology Consulting clinical records that, Ms Treuer had bumped into Ms Salter and was shocked by the encounter but had coped well. Ms Opacic noted that Ms Treuer was positive.[100]

    [100] ARD at page 130.

16. I accept Ms Treuer’s unchallenged evidence that, in about mid-February 2022, Mr Raffin informed her that she would be moving back to her former work area in a fortnight’s time, which meant that she would have been sitting 1.5m away from Ms Salter. I accept Ms Treuer’s unchallenged evidence that she immediately became anxious, nauseous and panicked at the thought of returning to work in such close proximity to Ms Salter. I accept that she felt a further aggravation to her already fragile mental state and that she struggled at work thereafter. However, I do not accept that the stated further aggravation amounted to a separate primary psychological injury within the meaning of s 4(b)(ii) of the 1987 Act that resulted in Ms Treuer’s agreed current incapacity for the reasons I will come to later.

17. On 8 March 2022, Dr Bartos recorded in the Green Valley Medical Practice clinical records that Ms Treuer was stressed and depressed. She had been told that she may be sacked and had consulted a lawyer. Dr Bartos issued Ms Treuer with a certificate of capacity stating that she was suffering from stress, anxiety and reactive depression on a history of being bullied at work specifying 14 April 2021 as being the date of injury and certifying that she had no current work capacity for any employment from 7 March 2022 to 4 April 2022.[101]

    [101] Reply at pages 110-112.

18. On 9 March 2022, Ms Opacic recorded in the Growth Psychology Consulting clinical records that Ms Treuer had been made redundant at work as her position was no longer needed. She reported that she was not sleeping, was worrying and crying. Ms Opacic noted that Ms Treuer was very distressed by the recent news of her redundancy and required supportive counselling and redirecting to helpful coping strategies.[102]

    [102] ARD at pages 130-131.

19. Ms Treuer received a letter from Toyota dated 14 March 2022 confirming that she had been made redundant as at that date.[103] I accept Ms Treuer’s unchallenged evidence that she had been offered the opportunity to apply for alternate roles within Toyota but did not do so because she would have had to interact with Ms Salter. On 5 October 2022, Ms Ramkumar recorded in the Growth Psychology Consulting clinical records that Ms Treuer initially felt relief about her redundancy but later realised that she no longer had any purpose and that, in hindsight, she should not have rushed to return to work. However, at the time, she feared that she may lose her job if she did not do so. She also recorded that Ms Treuer reported that her symptoms worsened when she came face-to-face with her aggressor (Ms Salter) in the car park at work.

    [103] ARD at page 29.

20. Toyota did not submit that Ms Treuer’s redundancy was relevant to its submission that she had aggravated her primary psychological injury within the meaning of s 4(b)(ii) of the 1987 Act but relied on the incidents on or about 16 January 2022 and mid-February 2022

21. On 23 March 2022, Ms Opacic recorded in the Growth Psychology Consulting clinical records that Ms Treuer complained of low motivation and experiencing vivid dreams after she had encountered Ms Salter in the car park at work and that the dreams would wake her.

22. In his report dated 22 July 2022, Dr Khan observed that Ms Treuer first experienced an incapacity to work from 20 April 2021 to September 2021. She engaged in a gradual return to work and was working from home. In mid-February 2022, after she had returned to her workplace, she was told that she would need to sit with the perpetrator of the workplace psychological trauma and that this aggravated her already fragile mental state. However, I do not accept that the stated further aggravation amounted to a separate primary psychological injury within the meaning of s 4(b)(ii) of the 1987 Act that resulted in Ms Treuer’s agreed current incapacity for the reasons I will come to later.

23. Dr Khan diagnosed Ms Treuer with a major depressive disorder with anxious distress. He opined that Ms Treuer’s current psychiatric/psychological injury had been caused by the nature and conditions of her employment from early 2021, where she was bullied and harassed by a colleague. Dr Khan opined that, although Ms Treuer engaged in a gradual return to work in her pre-injury duties, her psychiatric/psychological condition had not resolved and she required ongoing treatment with a general practitioner, psychologist and ongoing adherence with anti-depressant medication.

24. There is no medical opinion in evidence that contradicts the opinions expressed by Dr Khan. Toyota provided no forensic medical evidence to support its submission that Ms Treuer suffered a separate primary psychological injury on 7 March 2022 within the meaning of s 4(b)(ii) of the 1987 Act.

25. Dr Paisley’s evidence is of little assistance in respect of the issue to be determined in these proceedings. It is clear that it was his report that prompted EML to accept liability in about September 2021 in respect of the claimed primary psychological injury deemed to have occurred on 14 April 2021.

26. I agree with Toyota’s submission that I should give little weight to the reference to Dr Cassimatis’ opinion in Allianz’s review outcome notice dated 31 August 2022 that Ms Treuer had recovered by January 2022 but had suffered a relapse due to the fact that she would have had to work with her bully or take a redundancy. Dr Cassimatis’ report was not in evidence.

27. Dr Bartos issued Ms Treuer with certificates of capacity referring to the relevant date of injury as being 14 April 2021. Whilst Dr Bartos’ certificates of capacity did not contain the history of the post 14 April 2021 events or an explanation as to the dramatic change in her work capacity or provide a report setting out the same, I give the certificates some weight as Dr Bartos did record some history and its effects on Ms Treuer in the Green Valley Medical Practice clinical records on 3 May 2022 as set out in [71] above. The clinical records were, in the main, consistent with Ms Treuer’s evidence. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[104]; and applied in King v Collins[105] and Mastronardi v State of New South Wales[106]. Any inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[107] I have exercised such caution.

    [104] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.

    [105] King v Collins [2007] NSWCA 122.

    [106] Mastronardi v State of New South Wales [2009] NSWCA 270.

    [107] Mason v Demasi [2009] NSWCA 227.

28. The Growth Psychology Consulting clinical records as recorded by Ms Opacic and Ms Ramkumar were, in the main, consistent with Ms Treuer’s evidence.

29. Efexor is used to treat depression. It is not clear on the medical evidence whether Ms Treuer continued to take Efexor-XR SR 37.5mg in respect of her primary psychological condition and/or by way of treatment as an alternative to hormone replacement therapy, having had it prescribed for her for the first time on 29 August 2019. Accordingly, as submitted by Toyota, I have not taken the prescription of Efexor into consideration when considering whether Ms Treuer had recovered from her pleaded injury.

30. It is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd,[108] Makita (Australia) Pty Ltd v Sprowles[109] (Makita); South Western Sydney Area Health Service v Edmonds[110] (Edmonds); and Hancock; that there must be a “fair climate” on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two. I am satisfied that there was a “fair climate” on which Dr Khan founded his opinion.

    [108] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.

    [109] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.

    [110] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.

1. Dr Khan has the necessary expertise to provide an opinion in this matter, being a consultant psychiatrist of the Royal Australian and New Zealand College of Psychiatrists with specialist qualifications in general adult psychiatry and addiction psychiatry and expertise in medicolegal (civil) psychiatry, as well as specialist qualifications in addiction medicine with the Australasian Chapter of Addiction Medicine (Royal Australasian College of Physicians). Dr Khan applied the facts assumed and/or observed in Ms Treuer’s matter and satisfactorily explained his path of reasoning in arriving to his opinion.

2. Accordingly, I accept the opinions expressed by Dr Khan. I accept Dr Khan’s opinion that Ms Treuer’s current psychiatric/psychological injury had been caused by the nature and conditions of her employment from early 2021, where she was bullied and harassed by a colleague (Ms Salter). I accept Dr Khan’s opinion that, although Ms Treuer engaged in a gradual return to work in her pre-injury duties, her psychiatric/psychological condition had not resolved by that time. I accept Dr Khan’s opinion that, after Ms Treuer had returned to her workplace, she was told that she would need to sit with the perpetrator of the workplace psychological trauma and that this aggravated her already fragile mental state.

3. I reject Toyota’s submission that Ms Treuer’s case falls within the principle espoused in Ogden, namely that, where there is a work-related disease and there is some aggravation of it, the aggravation will constitute a new and separate injury if the employment has made some new and separate contribution to the aggravation. In Ms Treuer’s case, I find that the primary psychological condition and symptoms she suffered as a result of the pleaded injury on 14 April 2021 had not resolved by the time she returned to work with Toyota. Ms Treuer had continued to consult Dr Bartos and Ms Opacic throughout the relevant period.

4. I reject Toyota’s submission that the event where Ms Treuer had encountered Ms Salter in the workplace car park on 16 January 2022 and the event where Ms Treuer was informed by Mr Raffin that she would be moving back to her former work area in close proximity to Ms Salter, caused a different aggravation to Ms Treuer’s psychological condition. Ms Salter was a constant throughout the events described in the evidence. I find that the events on 16 January 2022 and mid-February 2022 exacerbated or aggravated Ms Treuer’s ongoing psychological condition and symptoms.

5. I reject Toyota’s submission that the Ozcan and Oakley cases can be differentiated because they were cases where the issue was whether particular injuries could be aggregated for the purposes of a whole person impairment assessment. Oakley was not a case that involved issues in respect of particular injuries being aggregated for the purposes of a whole person impairment assessment. The observations made by Malcolm CJ in Oakley were made in the context of proceedings at common law in which negligence was alleged.

6. Where a work injury involves a subsequent injury, it is relevant to consider the three Oakley categories. The High Court of Australia in Calman v Commissioner of Police[111] (Calman) stated that it has long been settled that incapacity may result from an injury for the purposes of workers' compensation legislation even though the incapacity is also the product of other, even later, causes.[112]

   [111] Calman v Commissioner of Police [1999] HAC 60 at [38].

   [112] Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 at 162; The Commonwealth v Butler (1958) 102 CLR 465 at 476; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; 16 ALR 479 at 484; Bushby v Morris [1980] 1 NSWLR 81 at 86-88.

7. The Oakley categories were adopted by the New South Wales Court of Appeal in Government Insurance Office of NSW v Aboushadi[113] (Aboushadi), where Mason P said:

   “ … The question at issue is the extent of liability of the first tortfeasor in a situation where the continuing adverse impact of the first tort is discernible. It is not the law that the commission of a second tort, affecting an already vulnerable plaintiff, by itself puts an end to the liability of the defendant responsible for the first tort. …”[114]

   [113] Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396.

   [114] Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396 at [23].

8. In Ms Treuer’s case, her psychological condition continued throughout the relevant period and was capable of producing serious effects if exacerbated or aggravated and that is what occurred when she encountered Ms Salter in the workplace car park and more so, when she was informed that she would be moving back to her former work area in close proximity to Ms Salter. As a result of the events in respect of Ms Treuer’s accepted primary psychological injury deemed to have occurred on 14 April 2021, she was in a vulnerable position, leaving her exposed to a greater level of damage resulting from subsequent events.

9. I find that Ms Treuer’s case fell within the first Oakley category because it was clear on the evidence that the exacerbation or aggravation of Ms Treuer’s psychological condition that occurred in January and February 2022 was a consequence of the injury deemed to have occurred on 14 April 2021. That is, it would not have occurred had she not suffered the psychological condition deemed to have occurred on 14 April 2021.

10. I find that Ms Treuer’s case also fell within the second Oakley category because it was clear on the evidence that Ms Treuer suffered an exacerbation or aggravation of her initial psychological condition in January and February 2022 and because the evidence does not support a finding that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.

11. Ms Treuer’s case did not fall within the third Oakley category because it was clear on the evidence that Ms Treuer suffered an exacerbation or aggravation of her initial psychological condition in January and February 2022. There was no evidence that the subsequent injury would have occurred whether or not Ms Treuer had suffered the original primary psychological injury. Further, there was no evidence that the damage sustained by the subsequent injury included no element of aggravation of the earlier injury.

12. Having made the above findings I am satisfied, on a common sense evaluation of the causal chain, that the causal chain in respect of the primary psychological injury deemed to have occurred on 14 April 2021, was not broken by the events of January and February 2022 and that Ms Treuer’s incapacity results from the injury deemed to have occurred on 14 April 2021.

13. There was no dispute that Ms Treuer has had no work capacity since 8 March 2022. Accordingly, she is entitled to weekly compensation benefits as indexed and a general order for medical and related treatment under s 60 of the 1987 Act.

14. In respect of Ms Treuer’s entitlement to weekly benefits compensation, her pre-injury average weekly earnings are agreed at $1,230. In accordance with s 37(1) of the 1987 Act, Ms Treuer is entitled to weekly compensation benefits in the sum of $984 per week, as indexed, from 8 March 2022 until such payments are suspended, varied or terminated under the provisions of the 1987 Act.

CONCLUSION

1. My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.