Walker v Dalaigur Preschool and Children's Services Association Inc
[2022] NSWPIC 623
•8 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Walker v Dalaigur Preschool and Children’s Services Association Inc [2022] NSWPIC 623 |
| APPLICANT: | Angeline Walker |
| RESPONDENT: | Dalaigur Preschool and Services Association Inc |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 8 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - The applicant claims weekly benefits, medical and related treatment expenses and permanent impairment payable under the Workers Compensation Act 1987 (1987 Act); resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) of 1987 Act with respect to performance appraisal/and or discipline; Held – the applicant’s injury was not wholly or predominately caused by reasonable action taken by the hospital with respect to performance appraisal and/or discipline; the applicant has no current capacity for work and is likely to continue to have no current work capacity resulting from injury and has entitlement to weekly compensation payable under sections 36, 37 and 38 of the 1987 Act; as the applicant requires medical and related treatment she has an entitlement to compensation payable under section 60 of the 1987 Act; the applicant’s claim for permanent impairment compensation resulting from primary psychological injury with a deemed date of injury of 17 August 2018 is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the injury. |
| determinations made: | 1. The primary psychological injury sustained by the applicant in the course of her employment with the respondent (with deemed date of injury of 17 August 2018) was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline. 2. The applicant’s pre-injury earnings are agreed to be $812.16. The applicant has had no current work capacity since 17 August 2018, and is likely to continue indefinitely to have no current work capacity, resulting from the injury she sustained in the course of her employment with the respondent. The applicant has an entitlement to weekly compensation payable as follows (subject to legislative indexation): a. under s 36(1) of the Workers Compensation Act 1987 at the rate of $771.55 per week; b. under s 37(1) of the Workers Compensation Act 1987 at the rate of $649.73 per week, and c. under s 38 (2) of the Workers Compensation Act 1987 at the rate of $649.73 per week. The respondent is pay the applicant’s weekly compensation accordingly. 3. The applicant has an entitlement to medical and related treatment expenses payable under 4. The applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from primary psychological injury sustained in the course of employment with the respondent (with deemed date of injury of 17 August 2018), as agreed and determined. The documents to be referred to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are as follows: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents dated 27 May 2022 and attached documents lodged on behalf of the applicant (save for paragraphs 4 and 5 of d. Application to Admit Late Document dated 13 July 2022 and attached documents lodged on behalf of the applicant. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Angeline Walker (Ms Walker), sustained injury the subject of these proceedings she was employed by the respondent, Dalaigur Preschool and Children’s Services Association Inc (Dalaigur). Ms Walker commenced working with Dalaigur on
14 July 2014, working full time as a Trainee Childcare Worker. Ms Walker completed her traineeship and was successful in her application for the role of ‘Advanced Child Care Worker Qualified’ in or about April 2016. Ms Walker ceased working with Dalaigur on
17 August 2018 and has not returned to work since. Ms Walker is currently 36 years of age.In these proceedings Ms Walker alleges she sustained primary psychological injury in the course of her employment with Dalaigur, with a deemed date of injury of 17 August 2018. The circumstances of injury are described in the following terms:
“The applicant sustained psychological injury due to the nature and conditions of her employment from about July 2017 to 17 August 2018 (deemed), which involved being subjected to bullying, harassment, and isolating type behaviour by her co-workers, particularly Megan McKay, Tracey Walker, Shanny Moran, and Margaret Smith, as set out in her attached statement.”
Ms Walker claims weekly compensation payable under s 36, s 37 and s 38 of the Workers Compensation Act 1987 (1987 Act) from 17 August 2018 to date and continuing.
Ms Walker’s pre-injury average weekly earnings (PIAWE) are agreed to be $812.16.Ms Walker claims medical and related treatment expenses payable under s 60 of the 1987 Act, particularised at $1,015.30.
Ms Walker claims permanent impairment compensation payable under s 66 of the 1987 Act for 19% whole person impairment (WPI).
Ms Walker’s claim for compensation is declined. While Dalaigur does not dispute Ms Walker sustained injury in the course of her employment with Dalaigur with a deemed date of injury of 17 August 2018, Dalaigur has raised defence under s 11A(1) of the 1987 Act in that Dalaigur says Ms Walker has no entitlement to compensation as the injury she has sustained was wholly or predominantly caused by reasonable action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the injury sustained by Ms Walker in the course of her employment with Dalaigur was wholly or predominantly caused by reasonable action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline, and if not;
(b) whether the Commission has jurisdiction to determine the applicant’s claim for weekly compensation payable under s 38 of the 1987 Act, and
(c) the degree of WPI sustained by Ms Walker resulting from the injury.
PROCEDURE BEFORE THE COMMISSION
Ms Walker’s claim for compensation came before me for preliminary conference on
2 June 2022. With Ms Walker’s claim unresolved at preliminary conference, her claim came before me for conciliation/arbitration hearing on 18 July 2022. Ms Hickey of counsel appeared for Ms Walker. Mr Perry of counsel appeared for Dalaigur. Mr Shum, a representative of EML, was present. Ms Walker was present.Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
When it became evident the arbitration hearing would not conclude during the day of
18 July 2022, I issued directions for the lodgement and service of written submissions by both parties. This has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 27 May 2022 and attached documents lodged on behalf of Ms Walker, save for paragraphs 4 and 5 of
Ms Roberts’ letter at page 4 (AALD 1), and(d) Application to Admit Late Document dated 13 July 2022 and attached documents lodged on behalf of Ms Walker (AALD 2).
12. Mr Perry objected to paragraphs 4 and 5 of the letter of Ms Roberts referred on the basis that the paragraphs are not probative in nature. While Mr Hickey pressed for admission of these paragraphs, following careful consideration of counsels’ submissions and the guiding principles propounded in rule 73 of the Personal Injury Commission Rules 2021 I formed the view that relative to these proceedings the paragraphs referred are not probative in nature and
I determined the paragraphs were not to admitted into evidence in these proceedings.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Ms Walker
Two statements of Ms Walker are in evidence. In her statement dated 24 October 2018
Ms Walker canvassed in detail the circumstances of her psychological injury. In her statement dated 9 April 2022 Ms Walker again canvassed the circumstances of her psychological injury in more or less consistent terms.In essence, Ms Walker said “things took a turn for the worse when Tracey Walker (Tracey) commenced employment with the preschool in about July or August 2017”. Following the departure of the room leader of the toddler room in which Ms Walker worked, Ms Walker worked as room leader for about three months with another trainee working with her.
Ms Walker was then advised Tracey would be the new room leader and Ms Walker was to work with her. The reasoning provided to Ms Walker was that there could not be two trainees working in the room. Ms Walker was “a little taken aback and confused by this”.Ms Walker said while she was working for Tracey, she felt anxious because of Tracey’s demeanour towards her and she described her workplace as becoming “toxic”.
Ms Walker said on 15 February 2018 she requested a change in her starting time to accommodate her daughter having started kindergarten, which appeared to cause no difficulty until she was told at a meeting on 2 March 2018 by Megan McKay (Ms McKay) and Margaret Smith (Ms Smith) that Tracey and Shanny Moran
(Ms Moran) had made complaint about Ms Walker’s request for a change in her starting time and it would not be approved. Ms Walker said she “was completely shocked as when I had spoken to them about it, they told me it was fine”. Ms Walker said she was also told that a complaint had been made that she had arrived at work 20 minutes late, which Ms Walker said occurred because she had assumed her start time had changed from 8.30 am to 9 am in accordance with her request. Ms Walker was provided with a letter by Ms McKay as she left the meeting, which she said she did open while she was at work. Ms Walker said:“When I went home, I opened it and it was a warning letter stating that I was not fulfilling my duties and requirements of hours. I felt a sharp pain in my chest as I could not believe what was happening.
I felt disliked, bullied and intimidated. It felt like I was given no opportunity to respond to the warning, and felt completely ambushed by the meeting. I had no prior warning that such a meeting was taking place, or that there were issues.”
On 5 March 2018 Ms Walker requested a meeting with Ms McKay, Ms Smith and Ms Moran. When she told them that she thought that being 20 minutes late on one occasion “was unreasonable grounds” for accusation that she was a bad employee, she was told the warning letter was not what she thought it was, and it was explained to her that it had only been given to her so she was “aware”. Ms Walker said she experienced pain in her chest during this meeting. Ms Walker subsequently consulted with her general practitioner about her chest pain, which was investigated. Ms Walker said her ongoing interactions with Ms McKay, Ms Smith, Ms Moran and Tracey resulted in her feeling confused and defeated and she said she was ‘fearful for her job’. Towards the end of June 2018 Ms Walker was contacted by telephone with suggestion she resign from her full time employment and commence working on a casual basis. Ms Walker said “I felt like I was being pushed out of my workplace”.
In early July 2018 Ms Walker engaged a solicitor who wrote to the Board of Directors of Dalaigur about Ms McKay’s behaviour towards Ms Walker, to which no response was provided to Ms Walker.
On 17 August 2018 Ms Walker said she was approached by Ms McKay and Ms Smith. She said “straight away I felt anxious”. Ms Walker explained:
“I had handed in a leave form over a week ago, requesting time off to go to my children’s book parade. Margaret handed me my leave form and told me ‘I am not signing this. We have parents here whose children go there too’. I explained that I handed this over a week ago. If there was a formal leave policy, I was unaware of it. I was holding my chest during this conversation. I felt like Megan was not approving my leave on purpose as another way of bullying me.
Megan also started telling me I was not pulling my weight again, and complained about my recent time off work. I told Megan that I had medical certificates covering me for my recent time off work. After the meeting I was anxious and upset.”
Mr Walker went on to explain:
“On 20 August 2018, I was getting ready to go to work when all of a sudden, I experienced a sharp pain in my chest. I rang Megan and told her I was not coming due to my chest pain and I went to my doctor and took a second day off to go and speak with a psychologist.
On 28 August 2018, I was feeling depressed and I contacted Megan. I told her that I was going to lodge a claim for workers compensation.
On 29 August, I saw my GP again and got a WorkCover Certificate of Capacity.
I then went to Megan’s office to give her a copy but she would not speak to me. I felt horrible and I left.
I later rang her to ask whether she had sent the forms to the insurer and she said that she hadn’t. I then contacted SIRA and lodged the claim myself with EML.
This injury has affected me greatly. I am depressed because of the way I have been treated.
After every meeting, I would ask for the minutes as Margaret was writing everything down. Every time I asked, Margaret would refuse to provide the minutes, and say she was still writing them ‘formally’.
On my last day of work, I asked Megan for my hours sheet however she refused to provide me with a copy.”
Statement of Benjamin Collins
A statement of Mr Collins dated 4 May 2022 is in evidence. Mr Collins is Ms Walker’s long term partner and it is evident from his statement that Mr Collins considered Ms Walker had been “really enjoying her job and study TAFE courses” for about three years since she commenced working with Dalaigur, with a subsequent deterioration in her mood.
Mr Collins stated that as time went on his enquiry when Ms Walker returned home from work as to how her day had been resulted in her being reduced to tears, with comment that she was being ignored by Mr McKay, Ms Morgan and Tracey at work and that these ladies were complaining about her. Mr Collins explained that Ms Walker developed chest pains and was teary.
Mr Collins concluded in his statement:
“Ange and I have been together for 15 years now to see her so happy back when she started working at scribbly gum. To now still suffering from the way she was treated by management Margret Shanny Tracey and Megan, it really hurts me to see Ange still in pain from the disgusting behaviour of these ladies. In which should be a happy safe work environment.”
Letter of Jayarni Roberts
A letter of Ms Roberts dated 1 April 2022 is in evidence save for paragraphs four and five of the letter. Ms Roberts relevantly wrote in her letter that she is a previous work colleague and a friend of Ms Walker. She wrote she had worked with Ms Walker at Booroongen Djugun College between 2011 and 2012 and at Dalaigur between 2016 and 2018. Ms Roberts described Ms Walker as “a kind, polite and helpful worker who was friendly to everyone and easy to get along with at both workplaces”.
Diary entries of Ms Walker
In a diary entry dated 2 March 2018, Ms Walker wrote:
“WARNING LETTER FROM
SHAN, TRACEY.
ABSOLUTELY DEVASTATING.”
In a diary entry dated 5 March 2018, Ms Walker relevantly wrote:
“…
MEETING WITH MEGAN REGARDING LETTER
…
‘TOLD ME ITS ALRIGHT ITS NOT THAT KIND OF LETTER’
DON’T WORRY ..”
Text
A text exchange between ‘Ree’ and the applicant in or about 26 May 2019 is in evidence. In a text message Ree enquired of Ms Walker if she went through ‘bully tactics’ which caused her to leave Dalaigur, to which Ms Walker responded “Yeah why??”.
Legal correspondence
In a letter dated 6 July 2018 addressed to the Board of Directors of Dalaigur, Ms Walker’s solicitors made mention of “some speculation regarding Miss Walker’s ability to perform her role at Dalaigur” and in the context of Ms Walker reportedly advising “she loves her work at Dalaigur, but feels her contributions are not valued and on this basis has not been considered for advancement within the organisation” Ms Walker’s solicitors requested the Board’s intervention to prevent “further victimisation”.
Factual investigation
A factual report prepared by Huxley Hill Group, which is dated 7 November 2018 is in evidence.
Annexed to the factual report are statements made by the following persons:
(a) Megan Heather McKay, Director. In her statement Ms McKay described
Ms Walker’s work performance as inconsistent. She said while at times
Ms Walker was engaged there were times when she did not engage with the children. Ms McKay said that in the past 18 months or so there had been a decline in Ms Walker’s ability to communicate with colleagues and provide input into the school. She described Ms Walker’s work attendance as being of great concern;(b) Margaret Joyce Smith, Centre Manager of the Dalaigur’s Scribbly Gum Dalai where Ms Walker was based. In her statement Ms Smith described Ms Walker’s work performance as inconsistent and described her attendance as poor;
(c) Shanny Maree Moran, Team Leader. In her statement Ms Moran described
Ms Smith’s work performance as initially being good with decline in early 2017. Ms Moran described Ms Walker’s poor attendance increasing over time, and(d) Tracey Josephine Walker, Team Leader. In her statement Ms Walker described Ms Walker’s work performance as poor and also made reference to Ms Walker’s continual lateness and absence.
Also attached to the report are a number of notes evidencing various meetings occurring at Dalaigur:
(a) in a note relevant to a staff meeting on 14 August 2017 Ms Walker is recorded as present at the meeting and relevantly one of the items for discussion is documented:
“Tracey & Angeline to become Certified Supervisors. Need to write letter of offer and Management approval”;
(b) the meeting note dated 5 June 2018 is referable to a meeting between Ms Moran, Ms Walker and Ms McKay following discussion touching on Ms Walker’s contribution in the classroom with program and documentation, and also
Ms Walker’s punctuality. It is recorded:“Angeline agreed to have more input into the documentation and try not to be late. We agreed to catch up weekly to see how Angeline was going”;
(c) the meeting note dated 2 July 2018 described the meeting with Ms Walker as “informal” and pertained to some classroom time Ms McKay spent with Ms Walker during which Ms Walker told her that she had a, medical certificate and
Ms McKay queried why she was at work in such circumstances. Ms McKay documented:“She said she felt bad because she had so much time off. I told her she can’t help it if she is sick. I told her I can’t dispute a doctor’s certificate if he has given you the time off you shouldn’t be here”;
(d) a staff meeting note dated 3 August 2018 recorded Ms Walker as an apology, and
(e) a meeting note dated 17 August 2018 described the meeting between
Ms Walker, Ms Smith and Ms McKay regarding Ms Walker’s “attendance and punctuality at work”. The note read in part that Ms Walker was shown her time clock entries demonstrating the time she had worked since 23 May 2018, with
Ms Walker reportedly being shocked when shown the time clock document as it demonstrated she had not worked a full fortnight. Ms Walker’s punctuality was also noted to be of concern. The note also read in part that Ms Walker had requested a full day off on 22 August 2022 to attend her children’s book week parade with compromise that she would take 1 ½ hours off work to attend rather than the full day. Ms Walker was advised that her attendance was to be monitored and Ms McKay was to provide Ms Walker with a copy of her time sheet each week. A further meeting was scheduled. While a copy of the meeting note is signed by Ms McKay and Ms Smith, it is not signed by Ms Walker.
A letter dated 8 August 2018 from the Commissioner of Vocational Training, Department of Industry Training Services NSW addressed to Dalaigur confirmed notification from Dalaigur that Ms Walker had successfully completed her traineeship. The letter read in part:
“As a result of your support, Angeline has the opportunity to continue to develop her skills and pursue a successful career.
On behalf of the Department of Industry, I would like to thank you for your support in providing training opportunities for Angeline, and I look forward to your continuing support in the future.”
Treating medical evidence
Durri Aboriginal Medical Service / Durri Main Clinic
Ms Walker came under the general medical care of the doctors practising out of the clinic, with the clinical records being in evidence. The clinical records demonstrate that as early as 31 May 2018 Ms Walker reported to Dr Potter she “had been quite stressed with changes at work recently” and on review with Dr Henderson the following day, Dr Henderson wrote:
“stressed at present – issues at work
wants to change jobs
tempted to leave
family 4 children
and partner earning
has supportive
childcare
gets palpitations
went to boss – talked to then 3 hours ago
got very stressed about it panicky
…
Advised to consider whether she would like counselling for anxiety.”
On review on 29 June 2018, Ms Walker reported to Dr Henderson that she feels bullied.
Ms Walker was to consult with Mark Smith and Dr Henderson noted:“Boss rang her wanted to put her on casual as Angeline was told she was unreliable and that she didn’t feel that she was working at work.”
On 29 June 2018 Mark Smith, Mental Health Nurse, noted an appointment with Ms Walker the following Monday afternoon, and recorded:
“As per Dr Henderson’s notes:
Angeline attended with her young daughter, as such we kept the session as introductory.
Essentially Angeline is an early childhood worker at “scribbly gum Dalaigur early childhood centre. Recently she has noticed unfair treatment between staff by management. This has culminated in Management requesting that she quit her permanent position and work casual as they are accusing her of ‘unreliability’, they have also allegedly made other verbal complaints of Angeline not doing her full duties. There have been no ‘official warnings’ of any of these issues. Angeline states her sick records are within policy and she always provides doctors certificates for absences over two days.
Angeline very upset by this as she describes herself as a diligent worker.
Angeline has Union support and has sought good legal advice.
Briefly today we discussed that she should continue to do her job and all protocols on Monday, if management meet with her not to agree with any proposals but to seek them in writing.
Angeline will see me after work to discuss and debrief.”
On review on 4 July 2018 by Mr Smith, Mr Smith noted:
“Angeline feeling somewhat more settled as the meeting with the director was not too stressful. The director according to Angeline was pointing out inconsequential issues, nothing was written down, there were no warnings.
Angeline is considering her position with the pre-school. She is not happy in the treatment she has received, we discussed some strategies to deal with this such as seek written guidance from management to her tasks, also insist on doing all paperwork herself, not rely on others.”
It is evident from the clinical notes that Ms Walker’s workplace problems continue with Ms Walker reporting to Dr Henderson on 20 August 2018 that she “feels she will lose job”, reporting to Mr Smith on 22 August 2018 that “work has become untenable as she feels she is being unfairly scrutinised and she believes there may be discrepancy with her pay” and on 29 August 2018;
“…super hasn’t been going in and not getting amount she should in the bank!! – possibly as long as a year
being investigated
spoke to director yesterday at work – Angeline said she felt like she was the one doing something wrong…”
A report of Dr Henderson dated 5 December 2018 is in evidence. In her report,
Dr Henderson confirmed Ms Walker first consulted with Dr Potter on 31 May 2018 and then with her on 1 June 2018 regarding “her work related issues”. Dr Henderson explained that since that time Ms Walker had remained under her care and that of Mr Smith and had been referred to Zoe Brew, clinical psychologist.Dr Henderson wrote in her report:
“As you can see from the notes of consultations Angeline reported unfair treatment from her employer, harassment, she has felt bullied and reported workcover not being paid. She has had associated low mood , anxiety, feelings of panic, palpitations and chest pain in relation to this.”
Dr Henderson provided diagnosis of depression, anxiety and panic attacks which she considered related to Ms Walker’s “work-related issues”.
A report of Dr Olden dated 3 August 2021 is in evidence, which confirmed that at the time of writing Ms Walker remained considerably symptomatic.
About You Psychology
Allan Anderson is Ms Walker’s treating psychologist. His report dated 4 August 2020 is in evidence. Mr Anderson described Ms Walker as having “felt in her heart she had found her dream job” when she commenced working with Dalaigur. She said she was eager to go to work every day to teach children. Mr Anderson described Ms Walker as having worked hard and having achieved her Certificate III in childcare while working with Dalaigur. Mr Anderson reported that Ms Walker had indicated to him that she was the target of workplace bullying at Dalaigur in 2017/2018, which resulted in her experiencing panic attacks and low self-esteem and her seeking medical assistance from her general practitioner with referral for psychological counselling. Mr Anderson reported that at the date of writing Ms Walker had attended 18 counselling sessions, with the accent being on dealing with depression, anxiety and stress which he regarded as “being very largely contributed to by work-related issues”.
Mr Anderson wrote:“It is my professional opinion that any thought and mood disturbances are a subsequence of the workplace harassment at Dalaigur Pre-School.
…
Angeline Walker has in our professional opinion suffered great emotional abuse in the workplace.”
Mr Anderson provided diagnosis in terms of panic disorder with agoraphobia, major depression and anxiety disorder.
Independent medical evidence
Dr Canaris
Ms Walker was assessed by Dr Canaris in his capacity as independent medical examiner on two occasions. He has provided two reports addressed to Ms Walker’s solicitors. Dr Canaris’ initial report is dated 18 March 2019 and his subsequent report is dated 12 January 2021.
In his initial report Dr Canaris described Ms Walker reporting a difficult workplace situation arising when “she was singled out and harassed after losing position as leader to another worker who had been newly employed in 2017”. He said Ms Walker began to feel increasingly anxious with panic attacks which resulted in her taking time off work “which attracted further adverse scrutiny”. Dr Canaris reported Ms Walker ceased work when she was issued with a Certificate of Capacity “after she had been pulled up for requesting to take time off to prepare costumes for a book week parade for her own children”.
Following interview and mental state examination, Dr Canaris provided diagnosis of adjustment disorder with anxiety and depressed mood and relevantly concluded:
“On the available history, her condition is predominantly attributable to her workplace predicament and her perception that she has been adversely singled out. In so saying, I note that her mother’s psychiatric history may have conferred on her some constitutional vulnerability to psychiatric disorder. However, she appears to have been entirely free of psychiatric illness before the emergence of her workplace problems.
I note her account differs very significantly from that coming from her employer. It is not my place as a psychiatrist to determine which version is to be preferred. I note also that Section 11A issues may come into place. My only comment in relation to this would be that your client appears on the basis of her history to have eminently understandable reasons for perceiving herself to have been treated unfairly.
...
Her prognosis is guarded given that she has suffered a psychological injury in the setting of a small and close-knit indigenous community which by its nature exposes her to public scrutiny with all the distress this may bring in its train.”
In his subsequent report Dr Canaris noted he had been provided with the opportunity to review the report of Mr Anderson dated 4 August 2020. Dr Canaris reported Ms Walker remained unwell, continued under fortnightly psychological review with Mr Allan and had not returned to any form of employment.
Following interview and mental state examination on this occasion, Dr Canaris provided diagnosis of panic disorder with agoraphobia and said:
“She also shows evidence of depression which in view of the chronicity of her symptoms would probably best be characterised as a persistent depressive disorder (dysthymia) with anxious distress.”
Dr Canaris considered Mr Walker’s current condition remained predominantly attributable to her workplace difficulties.
Dr Vickery
Ms Walker was assessed by Dr Vickery in his capacity as independent medical examiner. He has provided two reports addressed to the solicitors representing Dalaigur. Dr Vickery’s initial report is dated 19 April 2021 and his supplementary report is dated 14 May 2021. At the time of assessment Dr Vickery had the opportunity to review the reports of Dr Canaris and also the statements provided by Ms McKay, Ms Smith, Ms Moran and Ms Tracey Walker.
Dr Vickery described the reported circumstances of injury in the following terms:
“Ms Walker was working as a Child Care Worker Trainee of Scribbly Gum Childcare from 2014 when “I was doing my Certificate III Certificate in Childcare and I was enjoying it until the work environment became tense.
Ms Walker would be called into the Director’s office and ‘I was told I have to pull my weight and that I wasn’t doing this and I wasn’t doing that but the Room Leader would take the daybook and would not say anything to me about what was happening.
Ms Walker had seen a solicitor in July 2018 and ‘I sent a letter to the Board about the bullying and how I was suffering but then it seemed to happen more often and I’d be criticised by the Director and I’d try to explain but it was as if it just fell on deaf ears.
Ms Walker had felt increasingly unsettled and apprehensive and consulted a General Practitioner in August 2018 and was diagnosed with having panic attacks.
Ms Walker had then been called into a further meeting with the Director and was criticised for not working enough hours and her punctuality.
Ms Walker had requested to have a book day off work however this was denied.
The following morning on 17 August 2018 ‘I had really bad chest pain and I thought I was having a heart attack and I couldn’t go back there’.
Ms Walker consulted her General Practitioner and was placed on WorkCover leave and was referred for psychological counselling which she had been undertaking every few weeks.”
Dr Vickery noted Ms Walker was receiving psychological counselling. Following interview and mental state examination Dr Vickery provided diagnosis of specific situational phobic disorder which he considered related to her employment with Dalaigur. However, in response to specific questioning on the issue, Dr Vickery provided opinion Ms Walker’s injury was predominantly caused by the action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline.
In his supplementary report dated 14 May 2021, following specific review of paragraphs 69 – 97 of Ms McKay’s statement, Dr Vickery confirmed:
“It is my opinion on the basis of the information provided that the psychiatric injury was predominantly caused by the actions taken or proposed to be taken by the employer with respect to performance appraisal and/or discipline.”
Submissions
Mr Perry made oral submissions during the arbitration hearing. Mr Hickey provided written submissions in reply with Mr Perry providing written submissions in response. The written submissions are available to the parties and a recording of Mr Perry’s oral submissions is also available to the parties on request.
Determination
Defence raised under s 11A of the 1987 Act
In response to Ms Walker’s claim before the Commission, while it is not disputed Ms Walker sustained primary psychological injury in the course of her employment with Dalaigur, Dalaigur has raised defence under s 11A(1) of the 1987 Act relevant to performance appraisal and/or discipline. In essence, the Dalaigur says Ms Walker has no entitlement to compensation payable under the 1987 Act as the injury she sustained is wholly or predominantly caused by reasonable action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline.
Dalaigur has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[1] and Department of Education and Training v Sinclair[2]) and there are two aspects to the defence raised by Dalaigur.
[1] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[2] [2005] NWCA 465 (Sinclair).
Firstly, Ms Walker’s injury must be “wholly or predominantly caused” by Dalaigur’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in
Ms Walkers case, Dalaigur relies on discipline and/or performance appraisal.Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[3] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[4] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang,Ponnan v George Weston Foods Ltd[5] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[6].
[3] [2017] NSWWCCPD 6.
[4] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[5] [2007] NSWWCCPD 92.
[6] [2008 NSWWCCPD 96.
Relevant to the issue of causation of psychological injury, particularly when considering psychological injury caused in circumstances of a worker’s perception of real events occurring at work, in Attorney General’s Department v K [7] former Deputy President Roche usefully summarised the principles to be applied at [52]:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[7] [2010] NSWWCCPD 76.
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional…”
It is important to remember too that an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[8] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[8] [2013] NSWWCCPD 64.
Secondly, if Dalaigur successfully establishes Ms Walker’s psychological injury was wholly or predominately caused by Dalaigur’s actions regarding performance appraisal and/or discipline, then Dalaigur is required to establish Dalaigur’s actions were “reasonable”. In Northern New South Wales Local Health Network v Heggie[9] Sackville AJA set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[9] [2013] NSWCA 225; 12 DDCR 95.
It is apparent that when Ms Walker commenced working with Dalaigur in 2014 as a trainee childcare worker she was happy with both her work and her study. It is apparent too that
Ms Walker was successful with her work as in 2017, with the departure of the room leader of the toddler room in which Ms Walker worked, Ms Walker became the room leader. However, Ms Walker’s role as room leader was limited to a three month period as Tracy was subsequently given the role, with Ms Walker provided with reasoning that there could not be two trainees working in the room, which occurred while Ms Walker was working in the role.Ms Walker described feeling anxious while working with Tracey because of Tracy’s demeanour towards her. Ms Walker said in February 2018 she requested a change in her starting time to accommodate her daughter having commenced kindergarten and was under the impression there was no difficulty in her request being accommodated until she was told at a meeting with Ms McKay and Ms Smith on 2 March 2018 that as a complaint had been made about her being late for work by 20 minutes on an occasion by Tracy and Miss Moran, Ms Walker’s request would not be approved. Ms Walker was given a letter by Ms McKay as she left the meeting, which she subsequently realised was a ‘warning letter’. Ms Walker said she felt “disliked, bullied and intimidated”. She explained she was given no prior warning about the nature of meeting occurring on 2 March 2018 and said she was given no opportunity to respond to the letter. While Ms Walker subsequently met at her request with
Ms McKay, Ms Smith and Ms Moran on 5 March 2018 and Ms Walker was told the ‘warning letter’ was not what she thought, Ms Walker explained her ongoing interactions with
Ms McKay, Ms Smith, Ms Moran and Tracey resulted in her feeling ‘fearful for her job’, a feeling which was cemented when she was apparently contacted by telephone towards the end of June 2018 with suggestion she resign from her full time permanent position and work on a casual basis.
Ms Walker first sought assistance from her general practitioners about her difficulties at work on 31 May 2018 with Dr Potter sufficiently concerned about Ms Walker at that time that he asked her to consider counselling for her anxiety. On 29 June 2018 Dr Henderson reported Ms Walker felt “bullied” and made specific reference to a telephone call she had received with suggestion she change from her permanent role to a casual role because she was “unreliable” and not working while she was at work. Ms Walker’s general practitioners’ clinical records demonstrate a deterioration in Ms Walker’s mental health as a result of ongoing workplace issues, which ultimately resulted in Ms Walker ceasing work on
17 August 2018 and as of 30 August 2021 Dr Olsen reported Ms Walker remained considerably symptomatic. Mr Anderson, under whose psychological care Ms Walker came some three months after she ceased working at Dalaigur, also accepted a deterioration in
Ms Walker’s mental health from in or about 2017/2018 as a result of ongoing workplace issues, which he described in terms of “workplace harassment”. Mr Anderson provided diagnosis of panic disorder with agoraphobia, major depression and anxiety disorder.Ms Walker was assessed by Dr Canaris in his capacity as independent medical examiner on two occasions, the first occasion being on 8 March 2019, which is only just over six months after Ms Walker ceased working with Dalaigur. Ms Walker told Dr Canaris on this occasion “she was singled out and harassed after losing her position as leader to another worker who had been newly employed in 2017” with Ms Walker feeling increasingly anxious, which in turn resulted in her taking time off work “which attracted further adverse scrutiny”. Dr Canaris provided diagnosis of adjustment disorder with anxiety and depressed mood, which he concluded was “predominantly attributable to her workplace predicament and her perception that she had been adversely singled out”. On review on 12 January 2021, some 20 months’ later, while Dr Canaris’ diagnosis on this occasion was more in line with that of Mr Anderson, his opinion as the predominant cause of Ms Walker’s injury remained the same.
Ms Walker was assessed by Dr Vickery in his capacity as independent medical examiner on one occasion, being on 31 March 2021, some two years after she was first assessed by
Dr Canaris. While Dr Vickery provided diagnosis of specific situational phobic disorder, which he accepted resulted from Ms Walker’s employment with Dalaigur, Dr Vickery provided opinion Ms Walker’s injury was predominantly caused by the action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline, opinion which he confirmed in his supplementary report following review of Ms McKay’s statement relevant to Ms Walker’s reported poor work and study performance and absences from work, and the various meetings she had had with Ms Walker over time.Despite submission to the contrary by Mr Perry, following a review of the evidence as a whole and careful consideration of counsel’s submissions, I am of the view the psychological injury Ms Walker sustained in the course of her employment with Dalaigur resulted from the behaviours she was subjected to by Ms McKay, Ms Smith, Ms Moran and Tracey after Tracey took over Ms Walker’s role as room leader. While there is denial by Ms McKay,
Ms Smith, Ms Moran and Tracey that they subjected Ms Walker to behaviour which was bullying in nature, there is no doubt that workplace events occurred that resulted in
Ms Walker perceiving she was being bullied. Ms Walker reported as much to her general practitioners while she was still working at Dalaigur. Ms Walker also reported as much to Mr Anderson under whose care she came approximately three months after she ceased working at Dalaigur and Dr Canaris who assessed her a short time later. I prefer the opinion of Dr Canaris to that of Dr Vickery as Dr Canaris has had the opportunity to assess
Ms Walker on two occasions, the first occasion being only six months after she ceased working with Dalaigur, and Dr Vickery has only had the opportunity to assess Ms Walker on one occasion, which was some considerable time after she ceased working with Dalaigur.
I am comforted in my conclusion in that Mr Anderson, who is Ms Walker’s long term treating psychologist, is also of the opinion Ms Walker’s injury results from behaviour she was subjected to during the course of her employment with Dalaigur, being behaviour he described in terms of “great emotional abuse”.Even if I was to accept Ms Walker’s injury was wholly or predominantly caused by action taken by Dalaigur with respect to performance appraisal and/or discipline (which I do not) Dalaigur is required to establish Dalaigur’s actions regarding performance appraisal and/or discipline was reasonable.
In Dunn v Department of Education and Training[10] (Dunn) Gerahty J referred to his earlier unreported decision in Irwin v Director-General of Education[11] in which he said a performance appraisal should be “formal, somewhat like an examination or a test rather than an extended and continuing assessment” and concluded an enhancement program to which a teacher was subjected for well over a year was not performance appraisal. In the circumstances of this particular matter it does not appear Ms Walker was ever subjected to any type of formal program addressing her work performance and I do not accept that relevant to Ms Walker any action taken or proposed to be taken by Dalaigur was with respect to the performance appraisal of Ms Walker.
[10] [2000] NSWCC.
[11] NSWCC 14068/97 (Irwin).
Considering the meaning of reasonableness as regards any actions taken or proposed to be taken by Dalaigur with respect to discipline, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[12]; Melder v Ausbowl Pty Ltd[13]) and in Irwin Gerahty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[12] [1998] NSWCC 13.
[13] [1997] NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[14] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[14] [2013] NSWCA 225; 12 DDCR 95.
While it may be that certain steps taken by Dalaigur with respect to Ms Walker’s lateness and/or absences from work may have been “reasonable” (particularly noting reference in the meeting note of 5 June 2018 to Ms Walker having agreed “to try not to be late” and the references in the meeting notes of 2 July 2018 and 17 August 2018 to Ms Walker’s absences from work) it is not evident Ms Walker was ever offered the opportunity of a support person being in attendance at her meetings with management regarding her lateness and/or absences from work and neither is it evident Ms Walker was offered employee assistance programme (EAP) support consequent on such meetings with management. I am of the view that at any meeting where an employee is handed a ‘warning letter’ by management it is appropriate that the employee be offered the opportunity of a support person being in attendance at such meeting and the employee be offered EAP support counselling, which did not occur in the circumstances of the meeting Ms Walker attended on 2 March 2018 with Ms McKay and Ms Smith.
In all of the circumstances known to Dalaigur at the time of Ms Walker’s meetings with management, with particular reference to Ms Walker feeling increasingly anxious while working with Tracey, which in turn resulted in her taking time off work “which attracted further adverse scrutiny”, the unfortunate situation Ms Walker found herself in having been given a ‘warning letter’ by Ms McKay as she left the meeting on 2 March 2018, the lack of offer of a support person to attend any meeting with management and the lack of offer of EAP counselling consequent on her meetings with management, I do not accept the action taken by Dalaigur with respect to discipline for her lateness/absences from work was ‘reasonable’.
For reasons discussed above I am not satisfied Dalaigur has discharged the onus of proof required and Dalaigur cannot rely on defence raised under s 11A(1) of the 1987 Act.
Does the Commission have jurisdiction to determine Ms Walker’s claim for weekly compensation payable under s 38 of the 1987 Act?
With note that Ms Walker’s entitlement to weekly compensation ceased on 5 February 2021 Mr Perry submitted that the Commission was unable to determine the applicant’s claim for weekly compensation payable under s 38 of the 1987 Act in that Ms Walker had not presently satisfied the requirements of s 38 (1), (2) and (3) of the 1987 Act, which relevantly provide:
“(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.”
Mr Perry confirmed Ms Walker has not been assessed by the insurer “as having no current work capacity and likely to continue indefinitely to have no current work capacity” (in this regard Mr Perry drew my attention to Dr Vickery’s opinion there had been an improvement in Ms Walker’s psychological condition at the time of his assessment), and accordingly submitted Ms Walker had no entitlement to weekly benefits payable under s 38 of the 1987 Act.
79.In response to Mr Perry’s submission Mr Hickey referred me to the decision of Member McDonald in the matter of Chea v Woolworths Group Limited[15] in which it was held the Commission has jurisdiction to determine a claim for weekly compensation under s 38 of the 1987 Act. While I am not bound by the decision of Chea, I share the view expressed by Member McDonald in her decision and also share the view expressed by a number of other Members in the decisions of Roberts v University of Sydney[16], Dickson v Zurich Financial Services Australia Limited[17] and Mazzocchi v Unitrans Asia Pacific Pty Limited[18]. I intend to follow these decisions referred in that I agree that while the wording in s 38 of the 1987 Act refers to an insurer deciding a matter, s 105 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) encompasses jurisdiction and power within the Commission to hear disputes regarding an injured worker’s entitlement to weekly compensation payable under s 38 of the 1987 Act. The decisions of the insurer in evidence are the notices issued to Ms Walker in accordance with the former s 74 and current s 78 of the 1998 Act, which are dated 20 November 2018, 8 April 2019 and 26 May 2021. In these notices Ms Walker is advised of the insurer’s decision to dispute liability for her claim for compensation. Section 105 of the 1998 Act relevantly provides the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under the 1987 Act and the 1998 Act.
[15] [2022] NSWPIC 26 (Chea).
[16] [2021] WCC 25.
[17] [2022] NSWPIC 22.
[18] [2022] NSWPIC 186.
While it is not disputed Ms Walker had no current capacity for work during the period 17 August 2018 and 15 February 2021, being the period of entitlement to weekly compensation payable between weeks 1 to 13 under s 36 of the 1987 Act and between weeks 14 to 130 under s 37 of the 1987 Act, it is disputed is the Commission has jurisdiction to determine Ms Walker’s claim for weekly compensation payable between weeks 131 and 260 under s 38 of the 1987 Act, and for reasons discussed above I accept the Commission has jurisdiction to determine Ms Walker’s claim for weekly compensation payable under s 38 of the 1987 Act.
Entitlement under s 38 of the 1987 Act
As noted, the only decisions of the insurer in evidence are the notices issued to Ms Walker in accordance with the former s 74 and current s 78 of the 1998 Act, which are dated
20 November 2018, 8 April 2019 and 26 May 2021. In these notices Ms Walker is advised of the insurer’s decision to dispute liability for her claim for compensation, with such dispute grounded in defence raised under s 11A(1) of the 1987 Act. The notices do not canvass any decision by the insurer as to Ms Walker’s current capacity for work resulting from her injury.
There is no requirement Ms Walker satisfy s 38(1) of the 1987 Act and the medical evidence clearly demonstrates Ms Walker has no current work capacity resulting from her injury (and there was no submission made by Mr Perry to the contrary). I accept Ms Walker has no current work capacity from her injury and accordingly, Ms Walker has not satisfied s 38(3) of the 1987 Act.
In accepting Ms Walker has no current work capacity, I also accept Ms Walker is “likely to continue to indefinitely to have no current work capacity” as required by s 38(2) of the 1987 Act and accordingly Ms Walker satisfies s 38(2) of the 1987 Act.
In his initial report dated 18 March 2019 Dr Canaris expressed opinion Ms Walker had no current capacity for work due to her high level of anxiety and said “I suspect she would have great difficulty also trusting another employer”. He said of prognosis:
“Her prognosis is guarded given that she has suffered a psychological injury in the setting of a small and close-knit indigenous community which by its nature exposes her to public scrutiny with all the distress this may bring in its train.”
In his subsequent report on 21 January 2021 Dr Canaris reported of Ms Walker that she could not see herself working “because of lack of trust in others, her tiredness, and because of feeling overwhelmed by her anxiety when she is out of the house to point that she finds it very difficult to concentrate”. Dr Canaris concluded on this occasion that Ms Walker remained manifestly unwell and provided diagnosis of panic disorder with agoraphobia and dysthymia with anxious distress. Relevant to the Psychiatric Impairment Rating Scales relevant to assessment of permanent impairment, Dr Canaris considered Ms Walker to be totally impaired when it came to her employability.
In his report dated 4 August 2020 Mr Anderson cautioned that continuous engagement in therapy with a treating psychologist would be required to facilitate any return to work by
Ms Walker and he was strident in opinion Ms Walker could not return to work at her previous workplace. As recently as 15 June 2022, Dr Olden certified Ms Walker as “unfit to work in any capacity, due to ongoing severe anxiety and depression”.In his report dated 19 April 2021 Dr Vickery provided opinion Ms Walker had no current capacity for work and while he said “there has been some recent recovery in taking up painting” there is no suggestion by Dr Vickery that Ms Walker’s current capacity for work will change.
Following a review of the evidence as a whole and careful consideration of counsel’s submissions I accept Ms Walker has no current work capacity and is likely to continue indefinitely to have no current work capacity and accordingly Ms Walker has satisfied s 38(2) of the 1987 Act and has an entitlement to weekly compensation after the second entitlement period, as provided by s 38 of the 1987 Act.
Permanent impairment
As I have determined Ms Walker’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline Ms Walker may have an entitlement to permanent impairment compensation payable under s 66 of the 1987 Act for permanent impairment resulting from the injury.
It is appropriate Ms Walker’s claim for permanent impairment compensation resulting from psychological injury in the course of her employment with Dalaigur with a deemed date of injury of 17 August 2018 be remitted to the President for referral to a Medical Assessor to determine WPI resulting from the injury. The documents to be referred to the Medical Assessor with this Certificate of Determination – Statement of Reasons are as follows:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) AALD 1 (without paragraphs 4 and 5 of Ms Roberts’ letter), and
(d) AALD 2.
SUMMARY
The primary psychological injury sustained by Ms Walker in the course of her employment with the Dalaigur (with deemed date of injury of 17 August 2018) was not wholly or predominantly caused by reasonable action taken or proposed to be taken by Dalaigur with respect to performance appraisal and/or discipline.
Ms Walker’s pre-injury earnings are agreed to be $812.16. Ms Walker has had no current work capacity since 17 August 2018, and is likely to continue indefinitely to have no current work capacity, resulting from the injury she sustained in the course of her employment with Dalaigur. Ms Walker has an entitlement to weekly compensation payable as follows (subject to legislative indexation):
(a) under s 36(1) of the 1987 Act at the rate of $771.55 per week;
(b) under s 37(1) of the 1987 Act at the rate of $649.73 per week, and
(c) under s 38 (2) of the 1987 Act at the rate of $649.73 per week.
Dalaigur is to pay the applicant’s weekly compensation accordingly.
Ms Walker has an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act resulting from injury sustained in the course of her employment with the respondent, including past medical and related treatment particularised at $1,015.30. Dalaigur is to pay Ms Walker’s medical and related treatment in accordance with s 60 of the 1987 Act.
Ms Walker’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment of WPI resulting from primary psychological injury sustained in the course of employment with the Dalaigur (with deemed date of injury of 17 August 2018), as agreed and determined. The documents to be referred to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are as follows:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) AALD 1 dated (save for paragraphs 4 and 5 of Ms Roberts’ letter at page 4), and
(d) AALD 2
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