Wang v State of New South Wales (Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Wang v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 93
APPLICANT:	Yan Wang
RESPONDENT:	State of New South Wales (Sydney Local Health District)
Member:	Cameron Burge
DATE OF DECISION:	8 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly benefits and medical expenses claim in relation to alleged psychological injury; respondent disputes injury and alleges the death of the applicant’s father was the main contributing factor to her psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which her employment was the main contributing factor under section 4(b)(i); alternatively, even if the applicant suffered a grief reaction, her perception of real events in the course of her employment was plainly the main contributing factor to an aggravation of that grief reaction under section 4(b)(ii); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation and the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60.
determinations made:	1. The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury of 11 June 2020. 2. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 3. As a result of her injury, the applicant has suffered total incapacity for employment from 28 June 2021 to date and continuing. 4. At the date of injury, the applicant's pre-injury average weekly earnings were $929.69 per week. 5. The respondent is to pay the applicant weekly compensation as follows: a. from 28 June 2021 to 27 September 2021 pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $883.20 per week, and b. from 28 September 2021 to date and continuing at the rate of $743.75 per week, subject to relevant indexation.

STATEMENT OF REASONS

BACKGROUND

The applicant seeks payment of weekly compensation and medical expenses in relation to a psychological injury allegedly suffered in the course of her employment with the respondent.
In December 2015, the applicant commenced employment with the respondent as a part-time data officer at Royal Prince Alfred Hospital (RPA), working three days per week. She states her role involved data evaluation and correction of patient records. According to the applicant, she had a very heavy workload depending on the number of emergency department presentations, which usually ranged between 180 and 280 per day. She states when she commenced employment, she was not given adequate training, which added to the time she took to carry out her duties.
The applicant states that she was constantly stressed by her workload as she worked long hours and had no support. Additionally, she states she was treated unfairly by two co-workers, data manager Lilia Yoshiy and emergency department nursing unit manager Jessica Darby. The applicant alleges that she was forced into taking extra shifts and was "treated differently" by Ms Yoshiy. According to the applicant, her work-related anxiety caused disturbed sleep, for which she attended the sleep clinic at RPA in or around September 2016.
In mid-March 2019, the applicant's father who had a long-term illness became critically ill before passing away on 19 March 2019. The applicant alleges she found out about her father's decline on 17 March 2019. She states she attended work that day as there was no time to find a replacement. The applicant alleges she forwarded a text message to Ms Yoshiy on 17 March 2019 requesting the following day off work. Ms Yoshiy responded by telling the applicant to call the then nursing unit manager, Terrence and neither approved nor declined the applicant's request for leave.
The applicant states she was not aware she needed approval to take leave from the nursing unit manager, as Ms Yoshiy was her direct supervisor and the data manager had always approved the applicant's leave in the past. Moreover, the nursing unit manager was not working on 17 March 2019, and the applicant did not have his personal details.
The applicant therefore contacted Terrence on the morning of 18 March 2019. She did not work on that date or on 19 March 2019, the date of her father's passing. Following the death of her father, the applicant alleges her relationships in the workplace, especially with Ms Yoshiy, continued to deteriorate.
In December 2020, Terrence left employment with the hospital and Ms Darby became the nursing unit manager. The applicant alleges her relationship with Ms Darby and Ms Yoshiy was a poor one. On 1 March 2021, Ms Darby and the applicant had a meeting to discuss the applicant's sick leave. The applicant states that meeting was called without notice, and from that time she felt pressured by Ms Darby. By 7 June 2021, the applicant felt the situation in the workplace was so bad that she made a formal complaint to Human Resources about her manager. On 16 June 2021, the applicant advised the respondent of her mental state and lodged a workers compensation claim form on 28 June 2021. She has not worked since.
By s 78 notice dated 30 July 2021, the respondent denied liability on two grounds; namely the applicant's employment was not the main contributing factor to the contraction or aggravation of her condition, and that if she did suffer a psychological injury, it was brought about by the respondent's reasonable actions with regard to discipline and/or provision of employment benefits.

ISSUES FOR DETERMINATION

At the outset of the hearing in this matter, the respondent advised it no longer relied on the defence pursuant to s 11A.
The parties therefore agree the only issue for determination in relation to liability is whether the applicant suffered a psychological injury to which her employment was the main contributing factor.
The respondent also disputes the applicant's claim of total incapacity from 28 June 2021 to date and continuing. However, the applicant's pre-injury average weekly earnings (PIAWE) are agreed at $929.69 per week.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 14 December 2022. At the hearing, the applicant was represented by Mr Parker of counsel instructed by Ms Nair. The respondent was represented by Mr Beran of counsel instructed by Ms Israil.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    Respondent's Application to Admit Late Documents (AALD) and attachments dated 8 December 2022, and
(d)    Applicant's AALD and attachments dated 9 December 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a psychological injury

As the applicant’s claim relates to a psychological injury, she must demonstrate her employment was the main contributing factor to either the onset of her condition or any aggravation to it.
At the hearing, Mr Parker put the applicant's case on two bases, namely she developed a depressive disorder as a result of her employment or alternatively, if she suffered a grief reaction as a result of her father's death, that reaction was aggravated as a result of her problems in the workplace.
The distinction raised by Mr Parker is significant, because if the applicant's injury is found to be by way of aggravation, her employment need only be the main contributing factor to the aggravation, not the underlying condition itself.
The difference between main contributing factor and substantial contributing factor was set out by Snell DP in AV v AW [2020] NSWWCCPD 9. At [66], the Deputy President said:
“66. I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act. There may be more than one ‘substantial contributing factor’. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments …
70.   In Awder Pty Limited t/as Peninsular Nursing Home v Kernick, I expressed the view that whether ‘substantial contributing factor’, for the purposes of s 9A of the 1987 Act, was satisfied was ‘a question to be decided on the evidence overall, including a consideration of the matters described in s 9A(2). It is not purely a medical question.’ That view was applied by Keating P in Hogno v Fairfax Regional Printers Pty Limited and by Roche DP in Villar v Tubemakers of Australia Pty Ltd. The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.
71.   In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
‘That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). 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.’
72.    I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as ‘one of causation’. This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited. Their Honours referred to the ‘causative element’ of the test in s 9A. It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.
73.   In Bradley, a case involving s 4(b)(ii) in its current form, King SC ADP referred to the question posed by an Arbitrator, ‘whether or not ... the [worker’s] work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease’. The Acting Deputy President described this question as the correct one.”
As Deputy President Snell noted, the main contributing factor test is one of causation. In the workers compensation context, the Commission must apply a common-sense test to evaluating whether employment is the main contributing factor to an injury. The appropriate test was set out by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said at [810]:
"The result of the cases is that each case where causation is an issue in a workers compensation claim, must be determined on its own facts. Where the death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed the worker to subsequent death or injury, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a common-sense valuation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement compensation."
The authorities therefore make it clear that what is required is an evaluation of the totality of the evidence to determine the main contributing factor of an injury. In circumstances such as those in this matter, where an alternative non-work-related main contributing factor is suggested as the cause of the worker's injury, it is necessary to consider the causative of the competing factors, and then consider whether the employment was the main one (AV v AW at [76]).

Respondent's submissions

Mr Beran submitted the main contributing factor to a bereavement reaction, such as that diagnosed by the respondent's independent medical examiner (IME), Dr Kaplan, must be the death of the applicant's father, because for such a diagnosis, there must be someone to grieve.
That submission stands somewhat in contrast with Dr Kaplan's own initial report dated 14 September 2021, in which the doctor stated the applicant's employment with the respondent is the main contributing factor because, while she would have experienced normal grief with the death of her father, the circumstances in the workplace made the condition more complex and distressing.
The respondent noted the applicant's allegation that she was refused leave in the days approaching her father's death is incorrect. Mr Beran said this was not a flawed perception of a real event, but rather something which simply did not take place.
Mr Beran submitted the applicant's belief Ms Yoshiy was responsible for approving her leave was plainly inaccurate. Whilst that may well be the case, it was a view which I find the applicant genuinely held. There is no evidence to contradict this being the case.
The respondent submitted the applicant's treating general practitioner (GP) records demonstrate her condition was brought about by guilt surrounding the death of her father. Mr Beran referred in particular to clinical records dated 11 June 2020 and 20 August 2020, which recorded histories relating to the death of the applicant's father.
Those records are, the respondent submitted, consistent with the GP mental health plan put together for the applicant on 18 June 2020, in which the applicant's personal history was stated as "blames herself for father dying with dementia". Likewise, a gynaecological referral on 24 September 2020 noted the applicant was depressed 18 months earlier as "her father passed away – patient felt very guilty".
Mr Beran referred to no fewer than seven further references to unresolved guilt before there was any mention in the treating doctor's records about alleged workplace bullying, the latter reference taking place on 20 June 2021. He submitted the evidence disclosed the applicant's condition had plainly been in existence before any complaint of mistreatment by her in the workplace.
Whilst that submission may be accurate with regards to the records of her treating GP, the lay evidence does disclose the applicant making complaints in relation to her treatment surrounding the swapping of shifts and workloads as early as 19 May 2019, when the applicant emailed Ms Yoshiy complaining about being ignored and circumstances surrounding the swapping of shifts.
The respondent attacked the applicant's IME, Dr Smith, on the grounds his report was based on a history of the applicant being depressed since 2019, when in fact the evidence did not support that contention. Mr Beran submitted Dr Smith's diagnosis of persistent depressive disorder with persistent major depressive episode and anxious distress stood alone and should not be preferred.
I do not accept that submission, noting that the respondent's IME, Dr Kaplan, regarded the difference between a diagnosis of prolonged complex bereavement disorder which he found and that of a major depressive disorder is often "an empirical decision to decide which condition takes precedence". In other words, the two are not mutually exclusive and, in my view Dr Kaplan’s concession is using either of the two diagnoses does not necessarily constitute an error.
The respondent made a global submission that when one examines the whole of the evidence, the applicant had not established her employment was the main contributing factor to any psychological condition.

Applicant’s submissions

Mr Parker submitted the withdrawal of the s 11A defence by the respondent casts the lay evidence of the respondent's witnesses in a new light. Rather than being evidence of reasonable behaviour pursuant to s 11A, the applicant submitted the behaviour relied on in fact supported a finding of workplace injury because that behaviour involved real events of which the applicant had a genuine perception.
Mr Parker referred to the supplementary statements of Ms Yoshiy and Ms Darby and submitted the incidents referred to by them were plainly real events, of which the applicant had a perception of bullying, exclusion or being left abandoned.
The applicant submitted it was only on a very subjective reading could it be said employment was not the main contributing factor to the applicant's injury, because even if the diagnosis was a grief reaction induced by guilt, it was work-related actions which gave rise to that guilt, namely the applicant's perception she could not take leave in the lead up to her father's passing as a result of the interaction between she and Ms Yoshiy in their text message exchanged on 17 March 2019. That text exchange was as follows:
"Applicant: Hi Lilia, my dad is critical ill and I am not able to work tomorrow and Tuesday. Thanks.
Ms Yoshiy: Okay no worries get well soon to your dad. Can you kindly also please ring Terrence tomorrow morning 95150011. Thanks. Lilia
Applicant: Yes I will ring him first thing in the morning thanks."
Whilst that exchange does not, in my view, represent a statement that the applicant could not take leave or could not have that leave approved by Ms Yoshiy, it is plain the applicant perceived this to be the case. Her reasons for doing so are set out in her statement, where she indicates it had always been her direct supervisor, the data manager, who had approved her leave in the past. I have no difficulty in finding the applicant had a perception that
Ms Yoshiy was refusing to approve or decline the applicant’s leave and was referring her to the nursing unit manager for approval.
Mr Parker referred to the applicant's email to Ms Yoshiy on 19 May 2019 as evidence of workplace problems between them. He noted the applicant describing Ms Yoshiy ignoring an earlier email about swapping shifts and the applicant's recounting of her working on 17 March 2019 instead of being with her father having “an enormous impact on my life".
The applicant submitted her diagnosis was not a bereavement disorder as alleged by the respondent, but if that was the accurate diagnosis, then the events at work were the main contributing factor to its onset.

In support of that submission, Mr Parker noted the GP clinical entry on 20 August 2020 which referred to ongoing guilt feelings with regard to the applicant's father's death. He submitted the guilt was occasioned by the applicant's perception she had to attend work, and whether or not the perception was accurate, it was in relation to a real event (the text message exchange) and was the primary reason the applicant experienced guilt.
Mr Parker also submitted the Commission would make a positive finding that any guilt the applicant felt over her father's death was brought about because she was at work, which he submitted satisfied the requirements of both ss 4(b)(i) and 4(b)(ii). The applicant submitted the injury may well be a s 4(b)(ii) aggravation, as it was open to find the applicant would have had a grief reaction to her father's death, but that reaction has been made much worse by instances in the workplace.
The applicant also relied on two statements of Ms Zhao and Ms Tran, attached to the Application. Those statements recount the applicant complaining to her friends about work-related stress from 2016 onwards, including her suffering impaired sleep patterns, consistent with her attendance at the sleep clinic at RPA.
Mr Parker submitted these witnesses should be accepted. He noted no application was made to cross-examine them on their observations or recollections of the applicant from 2016 onwards, and their evidence is consistent with the applicant being under work-related stress long before her father passed away. Mr Parker submitted in light of the Commission's decision in Finney Pty Ltd t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13, it would not be open to make a credit finding against witnesses without them being cross-examined and having it squarely suggested to them that their recollections were either tailored or inaccurate.
In my view, the circumstances in Finney are different to those in this matter. The respondent, quite appropriately in my view, has not suggested Ms Zhao and Ms Tran have tailored their evidence. Parker ADP's decision in Finney was made in circumstances where a party submitted the witnesses of another had deliberately tailored or made up their evidence for the purposes of the proceedings. The Deputy President found that in circumstances such as that, where the individual rights of a witness may be impacted given an allegation tantamount to perjury is made against them, such allegations should be squarely put to them in cross-examination so they can be answered before a finding against the evidence of those witnesses can be made. Parker ADP held that absent such cross-examination in those circumstances, it would be open to the Commission to make a finding of lack of procedural fairness being afforded to the relevant witnesses.
In this matter, I am not satisfied there was any requirement to cross-examine Ms Zhao and Ms Tran as to their recollections before making an evaluation of their evidence. I note, however, that no criticism was levelled at the recollections of those witnesses, and I am inclined to accept their evidence, unchallenged as it is by any lay evidence at the contrary.
Whilst the respondent appropriately referred to a lack of corroboration in the treating GP material as to work-related stress before the death of the applicant's father, I note the authorities make it clear the absence of complaints recorded by treating practitioners is not itself the sole factor in determining whether an applicant has suffered a psychological injury: see Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, and Chanaa v Zarour [2011] NSWCA 199 at [86] which makes it clear there is no requirement for corroboration in a civil case.
Notwithstanding the absence of complaint to the applicant's GP before March 2019, there is to an extent corroboration of her alleged injury in the form of the lay evidence of Ms Zhao and Ms Tran.
It should also be pointed out that as Beazley JA (as her Honour then was) (Campbell and MacFarlane JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms constitute a mental illness) for a finding of psychological illness to be made. As her Honour pointed out, the true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.
Mr Parker drew the Commission's attention to the decision in Mieth v Sydney Trains [2022] PICPD 27, in which Parker ADP noted at [54]:
"The misperception of real, albeit innocuous, events in the course of employment [may] result from an underlying pre-existing condition, but that does not mean the events were illusory or delusional. The appellant's psychological injury was caused by the events, even though such events would not cause psychological injury to a person who did not have the appellant's pre-existing psychopathology."
The Acting Deputy President in Mieth also noted the Court of Appeal decision in STA of NSW v Chemler [2007] NSWCA 249 (Chemler) where Basten JA noted at [69]:
"… if conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, he was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground."
Parker ADP further noted in Mieth:
"74. The issue accordingly is whether or not the events in fact occurred and whether the appellant's perception of real events in the course of employment led to a cognizable psychiatric injury."
Mr Parker submitted that even if the applicant was not refused leave on 17 March 2019 by Ms Yoshiy, it was her perception this was the case, and the text message exchange between she and Ms Yoshiy was plainly a real event.
The applicant also relied on her GP, Dr Omar's, referral to her treating psychologist,
Dr Stevens, in which he diagnosed "PTSD related to her work" and the applicant telling her GP she was depressed at the time of her father's deterioration and subsequent passing.
There was also in evidence a question and answer report from Dr Omar in which he diagnosed the applicant as suffering a major depressive illness, anxiety and post-traumatic stress disorder as a result of a prolonged history of bullying at work.
The applicant's treating psychiatrist, Dr Stevans, provided a report in which the relevant history was the applicant had been depressed since approximately 2016. I note that history, although brief, does accord with the observations of Ms Zhao and Ms Tran regarding the applicant's demeanour and condition around that time.
Mr Parker submitted the Commission would prefer Dr Stevans and Dr Smith to the views of Dr Kaplan. Mr Parker noted Dr Kaplan's initial report diagnosed prolonged complex bereavement disorder, however, he admitted an alternative diagnosis would be major depressive disorder, "and it is often an empirical decision to decide which condition takes precedence".
In his initial report dated 14 September 2021, Dr Kaplan stated the applicant's condition "arises from the alleged bullying and harassment at work and the circumstances of her father's death”. Dr Kaplan then said:
"On the balance of probabilities, her employment at RPAH is the main contributing factor. While Ms Wang would have experienced normal grief with the death of her father, the circumstances as described above made the condition more complex and distressing.
The predominant cause of the psychological condition is the treatment she received at work, not the purported disciplinary action.”
Dr Kaplan then provided a supplementary report dated 17 November 2021, in which he said "… The death of her father is the main contributing factor to her condition". Mr Parker submitted Dr Kaplan provides no substantive reasoning for this change of opinion and submitted his original diagnosis at page 142 of the Reply, namely that the applicant would have had a normal grief reaction to her father's death but the circumstances at work made it worse, is sufficient for a finding of injury pursuant to s 4(b)(ii).
The applicant's primary submission therefore was she suffered from depression caused by work-related issues over the years (s (4)(b)(i)) or in the alternative, if a bereavement disorder was found, it has been aggravated by the applicant's employment, and her employment was the main contributing factor to that aggravation (s (4)(b)(ii)).

Respondent's submissions in Reply

Mr Beran reiterated the main contributing factor to the applicant's condition was the death of her father. He submitted that on a consideration of all the available evidence, a finding of a relevant s (4)(b)(ii) aggravation could not be made out.

Consideration

On balance, I accept the applicant has suffered a work-related injury in the course of her employment with the respondent. I accept the views of her treating practitioners support such a finding, and also the evidence of the lay witnesses Ms Zhao and Ms Tran which is unchallenged.
Notwithstanding the evidence supplied by Ms Yoshiy and Ms Darby to the effect that a number of the applicant's complaints regarding their relationship with her were not accurate, in my view, there were plainly work-related issues in that relationship. The applicant's perception of those issues has, in my view, been the cause of her condition. Those events include disagreements and misunderstandings in relation to changes to shifts, pressures concerning the applicant's workflow and a lack of sufficient training and understanding by the applicant of various procedures.
I have little difficulty in accepting the applicant's issues were brought to a head by the events surrounding her father's passing, but in my view, that passing was not the main contributing factor to the development of her condition, given her uncontested evidence was she had been suffering work-related stress as early as 2016 and had been affected to the point she attended the RPA sleep clinic.
In particular, I do not accept the views of the respondent IME, Dr Kaplan, in his second report. Dr Kaplan provides no reasoning as to why he altered his opinion from the applicant's employment being the main contributing factor to the development of her condition to the bare ipse dixit statement that "the death of her father is the main contributing factor to her condition".
Having regard to the totality of the evidence, I am satisfied that the applicant suffered a psychological injury in the course of her employment with the applicant by way of a major depressive condition pursuant to s 4(b)(i).
In the alternative, even if the applicant's condition was correctly diagnosed as a grief reaction, it was plainly made worse in my view by the events which took place at work at the time leading up to and including the applicant's father's death. That much is admitted by the respondent's IME in his initial report, and I accept Mr Parker's submission that the main contributing factor to any aggravation of an underlying bereavement disorder was work-related, namely the applicant's perception that the text exchange on 17 March 2019 was to the effect she could not take time off work to be with her father and that Ms Yoshiy was refusing to approve leave.
The allegation of an aggravation pursuant to s 4(b)(ii) was not pleaded in the Application, however, it was raised in the respondent's s 78 notice and at the hearing. Moreover, the respondent made no objection to the applicant raising an aggravation under s 4(b)(ii) as a basis for injury, and Mr Beran dealt with that allegation appropriately in his submissions in reply.
For the above reasons, I therefore find the applicant suffered an injury in the course of her employment with the respondent, on the deemed date of injury as pleaded pursuant to s 4(b)(i) or in the alternative, as a result of a work-related aggravation of her bereavement disorder pursuant to s 4(b)(ii), with the deemed date of injury as pleaded in the Application.

The applicant's capacity for employment.

In my view, the evidence overwhelmingly discloses the applicant has suffered a total incapacity for employment on and from 28 June 2021, being the last date on which she worked with the respondent. The applicant has provided certificates of capacity which support such a finding, together with treating medical evidence from Dr Stevans, the opinion of IME Dr Smith and her treating GP who continues to certify her as unfit.
The respondent's own IME, Dr Kaplan, noted in his report dated 17 November 2021 that the applicant was incapacitated for work and would not be able to return until her condition improved slightly, and there were no signs of exaggeration, inconsistency or malingering. Dr Kaplan noted the applicant told her she "would be prepared to work from home on her computer or go to a different section".
That sentence is the only evidence which could be said to contradict the finding of total incapacity. Notwithstanding that sentence, Dr Kaplan accepted the applicant was incapacitated for work, having weighed up her condition overall.
In my view, the medical evidence in this matter is overwhelming. The applicant has and continues to suffer total incapacity for employment from 28 June 2021 to date and continuing as a result of her workplace injury.
The applicant's PIAWE are agreed to total $929.69.
Given my finding of total incapacity as a result of the injury, it would follow that the Commission will make orders that the respondent will pay the applicant weekly compensation as follows:
(a) from 28 June 2021 to 27 September 2021 pursuant to s 36 of the 1987 Act at the rate of $883.20 per week, and
(b) from 28 September 2021 to date and continuing pursuant to s 37 at the rate of $743.75 (subject to indexation from time to time).
At the hearing, the applicant amended the claim for medical and treatment expenses to one for a general order pursuant to s 60 of the 1987 Act. Given the findings which I have made in relation to liability, the Commission will make an order that the respondent pay the applicant's reasonably necessary medical and treatment expenses.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 93

8 March 2023