Wells v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wells v Secretary, Department of Education [2025] NSWPIC 356
APPLICANT:	Michelle Wells-Demant (nee Wells)
RESPONDENT:	Secretary, Department of Education
MEMBER:	Parnel McAdam
DATE OF DECISION:	28 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; remitter following Presidential decision in Secretary, Department of Education v Wells; consideration of date of injury and thus calculation of pre-injury average weekly earnings (PIAWE); consideration of all medical and lay evidence required; Haddad v The GEO Group Australia Pty Ltd applied; whether applicant had an economic incapacity; Stone v Stannard Brothers Launch Services Pty Ltd applied; Held – date of injury calculated based on first date of incapacity; PIAWE calculated from that date; award of weekly payments made.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The name of the applicant is amended to Michelle Wells-Demant (nee Wells). 2. The applicant suffered an injury arising out of the course of her employment with the respondent, to which employment was the main contributing factor. 3. Pursuant to s 16 of the Workers Compensation Act 1987, the injury is deemed to have occurred on 23 July 2021. 4. The applicant’s pre injury average weekly earnings is $2,377.19. 5. The applicant’s pre injury average weekly earnings is indexed, for the periods claimed, to the following amounts (rounded to the nearest whole $10 pursuant to s 82D): (a) 1 October 2021 - $2,410; (b) 1 April 2022 - $2,450; (c) 1 October 2022 - $2,530; (d) 1 April 2023 - $2,630; $526 per day (e) 1 October 2023 - $2,690. 6. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 as follows: (a) 23 July 2021, $451.67; (b) 27 July 2021 to 28 July 2021, $903.33; (c) 9 August 2021 to 10 August 2021, $903.33; (d) 5 October 2021, $465.50; (e) 27 October 2021, $465.50; (f) 8 November 2021, $465.50; (g) 18 November 2021, $465.50; (h) 29 November 2021, $465.50; (i) 6 December 2021, $465.50; (j) 21 March 2022 to 31 March 2022, stat max rate of $2,282.90 per week; (k) 1 April 2022 to 5 June 2022, stat max rate of $2,282.90 per week. 7. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) 6 June 2022 to 30 September 2022 at the rate of $1,960 per week; (b) 1 October 2022 to 6 November 2022 at the rate of $2,024 per week; (c) 27 March 2023 to 31 March 2023, $2,024; (d) 1 April 2023 to 30 April 2023 at the rate of $2,104 per week; (e) 2 May 2023 to 3 May 2023, $841.60; (f) 9 May 2023 to 10 May 2023, $841.60; (g) 16 May 2023 to 17 May 2023, $841.60; (h) 23 May 2023 to 24 May 2023, $841.60; (i) 31 May 2023, $420.80; (j) 7 June 2023, $420.80; (k) 14 June 2023, $420.80; (l) 21 June 2023, $420.80; (m) 28 June 2023, $420.80; (n) 19 July 2023, $420.80; (o) 26 July 2023, $420.80; (p) 2 August 2023, $420.80; (q) 16 August 2023, $420.80; (r) 23 August 2023, $420.80; (s) 30 August 2023, $420.80; (t) 8 September 2023, $420.80; (u) 13 September 2023, $420.80; (v) 20 September 2023, $420.80, and (w) 11 October 2023, $430.40. 8. The respondent is to have credit for weekly payments made to the applicant to date. A brief statement is attached setting out the Personal Injury Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

These proceedings have an extensive history at the Personal Injury Commission (Commission). Proceedings claiming weekly compensation benefits were initially commenced on 30 November 2023. The matter proceeded through the Commission’s usual dispute resolution pathway, including a teleconference and a hearing on 20 February 2024. On that occasion, procedural issues were dealt with, and orders were made for the provision of written submissions on the substantive issues.
Ultimately the Member determined the issues in dispute in a decision dated 26 March 2024. That decision was appealed by the respondent. On 18 February 2025 the decision in Secretary, Department of Education v Wells [2025] NSWPICPD 11 (Wells) was delivered, with the following orders being made:
“1. Leave to appeal an interlocutory decision is granted, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, to the extent that this is necessary.
2. The Certificate of Determination dated 26 March 2024 is revoked.
3. The matter is remitted to a different non-Presidential member for redetermination.”
In accordance with the above orders, the matter has been remitted to me for redetermination. Given the issues determined on appeal, that redetermination is not at large.
The index injury in this case is a psychological one. Ms Wells-Demant was employed by the respondent, initially as a classroom teacher, and then as a “concurrent” head teacher, of two departments, at Queanbeyan High School. The cause of the psychological injury and the history thereof has been set out in detail in the previous member’s decision and in Wells. In summary, asbestos was found in classrooms, a colleague was diagnosed with asbestosis and feared he would die, and Ms Wells-Demant’s mental condition deteriorated.

ISSUES FOR DETERMINATION

Consistent with the direction I issued in this matter on 26 March 2025, and in consideration of the decision in Wells, the following issue remains in dispute:
(a) The appropriate date of injury, and as a consequence:
i.the calculation of the applicant’s Pre Injury Average Weekly Earnings (PIAWE), and
ii.the calculation of the applicant’s entitlement to weekly compensation benefits as a result of injury.

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 matter initially proceeded to a preliminary conference at which point the position of the parties was identified. I issued a direction setting out the issues and requiring the parties to file written submissions limited to the issues identified at [5], above, prior to the conciliation/arbitration hearing. Given the technical (and mathematical) nature of the issue in dispute, this was intended to crystalise the positions of the parties and allow proper opportunity for conciliation of the issue in dispute.
The matter proceeded to conciliation/arbitration on 9 May 2025. The parties attempted to resolve the outstanding issue, but given the different positions adopted, were unable to reach agreement. I note that at the point of the conciliation (and indeed prior to, and as far as I am aware, presently) Ms Wells-Demant has returned to work, meaning the period in dispute and claim for compensation is limited to a closed period of entitlement. In spite of this, the matter could not resolve on the day. Accordingly, I issued a direction for limited further submissions which have been provided by the parties.
On remitter, Ms Wells-Demant remains represented by Mr Latham of counsel, instructed by Beilby Poulden Costello Lawyers. The respondent is now represented by Mr Hickey of counsel, instructed by Hall & Wilcox Lawyers.

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;
(b)    Reply and attached documents, and
(c)    An Application to Lodge Additional Documents, filed by the applicant on 9 May 2025, attaching a supplementary statement of the applicant and a list of payments.
The medical and documentary evidence in this case has been the subject of extension discussion in Wells. I do not intend to summarise it here, as not all of it is relevant to the singular issue before me. The pertinent documents will be discussed under findings and reasons, below.

SUBMISSIONS

As set out above, the parties have provided two sets of written submissions concerning the issue in dispute before me:
(a)    The applicant on 16 April 2025;
(b)    The respondent on 7 May 2025;
(c)    The respondent’s further submission on 12 May 2025, and
(d)    The applicant on 28 May 2025.

Applicant’s submissions

The applicant’s first set of submissions were provided prior to the conciliation in this case. The applicant identifies that the matter was remitted for determination of the date of injury, with reference to s 15(1) of Workers Compensation Act 1987 (the 1987 Act). The applicant identifies [71] of the decision of Wells, were DP Snell identified that the date of injury is not limited to a search for a relevant medical certificate.
The applicant refers to the relevant evidence including the statement of Ms Wells, the medical evidence including mental health care plans, reports of Drs Chamoli, Miller, Rastogi and Bolton, and the initial certificate of capacity. The applicant submits that the task for the Commission is to determine the date of injury with reference to all of the relevant evidence. The evidence shows evidence of symptoms from July 2021, and incapacity from that period. This is reinforced from the applicant ceasing work in her role as Head Teacher Casual Relief Coordinator in July 2021. Accordingly, the applicant submits that PIAWE ought to be calculated for the weeks the applicant worked within the relevant period before 21 July 2021. The applicant then sets out calculations based on those figures.

Respondent’s submissions

The respondent notes that the applicant’s evidence, including her statement, all post her injury and after PIAWE had been determined by the respondent. The respondent refers to the report of Dr Curtotti, of 19 July 2021, noting that it does not contain any reference to a work caused incapacity, and that it relates to relationship breakdown.
The respondent then refers to the opinion of Dr Miller dated 23 December 2022, who refers to symptoms due to trying to manage asbestos in a building at work. The applicant’s statement refers to being stable prior to the work incident of March 2021, but was seeing her psychologist month to check in. The respondent submits that the opinion of Dr Miller should be given less weight than the contemporaneous records of Dr Curtotti.
The respondent then refers to the report of Dr Chamoli of 30 July 2021 and the history contained therein, in the context with the reports of Dr Chamoli. The respondent refers to the applicant’s statement that Ms Wells-Demant attempted to return to work as a casual teacher in March 2022, but continued to struggle. On that basis, 22 March 2022 is the first clear date of incapacity due to work related injury defined by the medical evidence. The respondent submits that the medical evidence shows symptoms of a psychological condition from June 2021 that were not work related.
The respondent refers to Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad), submitting that PIAWE ought to be calculated with reference to the weeks that the applicant worked in the relevant period before 21 March 2022. The respondent then sets out some proposed orders in respect of a PIAWE figure calculated on that basis, for the period from 21 March 2022 to 30 April 20233.

Respondent’s further submissions

Following the conciliation/arbitration, both parties were invited to provide further submissions. This was at the request of the respondent and limited in scope. Accordingly, I set down a timetable for submissions with the respondent going first, and then the applicant being given an opportunity to respond.
The submissions largely deal with a report of Dr Boulton dated 20 July 2023. The respondent notes that per that report, Ms Wells-Demant got a new job in November 2022. The respondent submits that the applicant provided Dr Boulton with “only a limited history of her past 15 years of hurt and abuse” and withheld significant personal and relationship events of 2020 and 2021. The respondent submits that Dr Boulton’s conclusion that prior to March 2021, the applicant was coping well, was note the case.
The respondent seeks leave to amend the orders sought in previous submissions, submitting that the applicant had capacity from 23 July 2022, or November 2022, to work in suitable employment.

Applicant in response

The applicant submits that the respondent’s further submissions note that the scope of the remitter was only to determine PIAWE by way of a proper deemed date of injury. The respondent’s submissions appear to challenge whether there has been a compensable injury at all. The respondent cannot relitigate the entire matter, and subject to the matters that it successfully appealed, the respondent is bound by the decision of the previous Member.
The applicant reiterates earlier submissions, in particular that the applicant had a loss of earning capacity as she was incapacitated to work in one of her two head teacher roles as a Casual Relief Coordinator, that gave rise to an entitlement to for compensation for treatment expenses and time of work in 2021.

FINDINGS AND REASONS

The issue in this case is narrow, although as can be seen by the respondent’s further submissions, there may be some uncertainty or dispute as to the exact scope of what is to be considered on remitter. It is appropriate that that issue be dealt with first.

The period of incapacity issue

The proceedings in the Commission were commenced on 30 November 2023 claiming weekly compensation benefits where liability in dispute. Attached to the Application and Reply are a series of notices issued by Allianz (the insurer of the respondent). The following sets out a brief chronology of the decisions, reviews, and correspondence in this case up to an including the lodgement of the Application. The purpose is to set out the scope of the issues so the matter for determination, before me, crystalises with clarity, given the issues raised in the further submissions of the parties.
(a)    31 March 2022 – provisional weekly payments notice issued, with a date of injury of 3 January 2022 and a PIAWE of $1092.53;
(b)    11 April 2022 – review application made by Ms Wells-Demant (from what I can see, personally), in respect of the calculation of PIAWE;
(c)    22 April 2022 – review decision made, confirming the calculation of PIAWE as set out in the earlier notice;
(d)    22 June 2022 – the respondent accepted liability for a psychological injury “that happened whilst at work on 21/03/2022”. The PIAWE figure in that decision was $1150.03;
(e)    14 July 2022 – the applicant (through her solicitors), sought review of the “determination in relation to our client’s PIAWE rate”. The decision under review is not dated but is said to be attached to the correspondence;
(f)    5 August 2022 – review decision issued, to “confirm our original decision and matters in dispute dated 31 March 2022 and 22 April 2022”, with a PIAWE of $1,050.03;
(g)    4 November 2022 – the applicant’s solicitors sought a review of the “decision in relation to our client’s PIAWE”;
(h)    6 December 2022 – review decision issued confirming the original decision and matters in dispute in notices of 31 March 2022, 21 April 2022, and 5 August 2022, confirming the PIAWE of $1,050.03;
(i)    10 January 2023 – further review sought of PIAWE by the applicant’s solicitors. I cannot see, in the material before me, a decision in respect of this review request. Based on the content of other review documents, I do not think a decision was made following this request;
(j)    18 May 2023 – the applicant’s solicitors requested a review via email (I do not have this email before me);
(k)    8 June 2023 – review decision issued, confirming decisions made on 31 March 2022, 22 April 2022, 5 August 2022 and 6 December 2022 (this decision refers to the above email);
(l)    14 June 2023 – review form completed by Ms Wells-Demant (digitally signed by her), seeking a review of injury date and PIAWE. Ms Wells-Demant asserts that the injury date should be 11 March 2021, with a loss of capacity from 17 December 2021, with the PIAWE being $2,388.30;
(m)     28 June 2023 – review decision issued, confirming previous decisions of 31 March 2022, 22 April 2022, 5 August 2022, 6 December 2022 and 8 June 2023;
(n)    30 November 2023 – Application lodged in the Commission with a date of injury of 19 July 2021, claiming compensation from 18 March 2022 with a PIAWE of $2,282.90. It is noted that “The issue in dispute is the correct period for which the PIAWE calculation should be used.”
(o)    19 December 2023 – Reply lodged by the respondent, raising disputes as per the dispute notice, as well as seeking to raise other issues including federal jurisdiction, injury, and incapacity.
The position of the parties has been clear for some time. The applicant has always proceeded on an assertion that her injury should be deemed to have occurred some time during 2021, although the dates vary, and accordingly, the PIAWE figure relied upon. The amount has always been somewhere around the $2,300 figure. The respondent’s position has consistently been for a date of injury in 2022, with a figure of $1,050.03.
At the hearing of this matter, the respondent sought leave to put into issue whether the applicant suffered an injury in the course of employment. That application as rejected by the previous Member. Orders were then made in respect of the date of injury, with the Member finding a date of 19 July 2021 (deemed). Consequent orders were made for the payment of weekly compensation for the period 18 March 2022 to 23 November 2023.
The matter was then appealed. Deputy President Snell outlined the following grounds of appeal:
“The appellant raises the following grounds of appeal:
(a) The Member erred in the exercise of her discretion in not allowing the appellant to place ‘injury’ in dispute. (Ground No. 1)
(b)The Member erred as a matter of fact in finding that the respondent suffered injury on 19 July 2021 and not 18 March 2022. (Ground No. 2)
(c) The Member erred in law by not providing any or any adequate reasons for the finding of injury that she made. (Ground No. 3)” (at [16])
Ground 1 failed (see Wells at [40]). Ground 2 was successful (see [77]). Ground 3 was unnecessary to consider in the circumstances where ground 2 was upheld (see [78]).
The orders made on appeal were:
“1. Leave to appeal an interlocutory decision is granted, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, to the extent that this is necessary.
2. The Certificate of Determination dated 26 March 2024 is revoked.
3. The matter is remitted to a different non-Presidential member for redetermination.”
Thus it can be seen that whilst the respondent’s appeal ground that sought to revoke the Member’s interlocutory decision not to allow the respondent to raise injury was rejected, the certificate itself was revoked. That does not mean the matter is re-opened for all and sundry. Principally, it is not open to the respondent to now re-agitate injury as an issue. However, to the extent that any other findings were made in the previous Member’s certificate of determination, including in respect of payments of weekly compensation, they no longer exist and are not valid.
Further, the respondent has, since the Reply, put into issue the applicant’s capacity. The Application made an “ongoing” claim for weekly compensation benefits, in the s 37 period starting on 14 June 2022. At the time of the commencement of proceedings, that may have been appropriate award to seek (although I note that the original Member’s decision ends the entitlement under s 37 on 23 November 2023, one week prior to the commencement of these proceedings).

In my direction of 26 March 2023, I noted that the issues in dispute were as follows:
“a. the appropriate date of injury, and as a consequence:
i. the calculation of the applicant’s Pre Injury Average Weekly Earnings,
ii. the calculation of weekly payments as a result of injury.”
The second issue brings into play the period of entitlement to weekly benefits pursuant to s 37 of the 1987 Act. There is no dispute that the applicant is entitled to an award of weekly benefits. There is a dispute as to the calculation of that entitlement, including the period for when that entitlement ends.
It is of course the applicant’s onus to prove her case, including as to the period of incapacity. The respondent has pointed to evidence that suggested the period ended at a different date than in the previous Member’s award. It is clear and agreed that the applicant has returned to work (as much as divulged in the conciliation of this dispute), so an award of ongoing weekly benefits, as particularised in the Application, cannot be made.
Noting this issue, I called for a further teleconference on 25 June 2025. I issued a direction calling for further submissions and the filling of evidence on the applicant’s return to work, as well as another issue arising as to whether and when the applicant had a reduction in earning capacity.

The date of injury

The major issue of substance in dispute in this case is the date of injury. The claim is for a disease injury – whether it be an aggravation etc. or the contraction of a disease. As DP Snell points out in Wells, regardless of whether the injury represents an aggravation or contraction of a disease, the injury will be deemed to have occurred, pursuant to s 15 or 16 of the 1987 Act:
“(i) at the time of the worker’s … incapacity, or
(ii) if … incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury”.
The parties (as well as DP Snell in Wells) refer to the Court of Appeal’s decision in Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad). Of particular relevance to the issue in this case is [80] of that decision:
“As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.”
In Haddad, an argument that the determination of the appropriate date of injury is by reference to how a worker formulates the claim for compensation, was rejected (see [67]). No such proposition has been put in this case. It was also acknowledged that not all
work-related injuries result in an incapacity for work.
The relevant date, based on incapacity, must be incapacity that gives rise to an entitlement to weekly compensation, being a loss of wages (per Per Hodgson JA in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (Stone) at [37]):
“Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.”
The principal issue in this case, in determining the date of injury, is the existence of previous psychological issues (or comorbid issues) unrelated to employment. That does not necessitate a determination as to injury (which is not in dispute) but a consideration of when incapacity arose from injury.
The respondent takes issue with the evidence provided in this case being all post the applicant’s claimed date of injury, or after PIAWE had been determined by the respondent. I acknowledge a paucity of evidence that predates, or is around the time of the applicant’s claim for the date of injury. This has, as I have said above, been complicated by the applicant’s previous psychological history.
However, no challenge was made to the applicant’s credit, either through an application to cross examine her (the absence of which does not indicate that credit findings cannot be made) or in the respondent’s submissions. The applicant’s history is consistent in respect of her attendance for her mental health, including both her past issues and work-related issues.
The previous history, with Ms Wells-Demant’s abusive partner, is addressed in her statement. She describes being in a relationship from 2016 to 2020, but that “I had to leave that relationship as I had an abusive partner”. The applicant goes on to state: “I functioned well and removed myself from my abusive partner in 2020 without any functional incapacity nor any impact on my work capacity”. This separation predates the onset of psychological symptoms connected with employment, although it could have some overlap with the onset of those symptoms. The applicant goes on to describe herself as “emotionally stable prior to the incident in March 2021”, seeing her psychologist to “maintain the relationship and as a method of checking in”.
The “issue” in March 2021 was the discovery of asbestos in the classrooms of Queanbeyan High School. The applicant did not have an immediate incapacity at that time, nor does she claim she does. In her statement, she describes the after effects of that discovery, including supporting angry staff, lack of support from the Department of Education, and the emotional overwhelming nature of the issues as causative of “immense anxiety and fear”. The applicant describes her “emotional reserves” being depleted in June 2021.
This is also consistent with the description of injury in the Application:
“In March 2021, asbestos was found in the Applicant's workplace. One of her male staff members was diagnosed with asbestosis and the Applicant was fearful he would die and that she would come to a similar fate.
The EAP services were involved to support the other staff members given the anxiety and physical threats.
The Applicant reached out to EAP services for her own emotional support and addressed her anxiety. It took almost three months to do a deep clean of the classrooms. This caused the Applicant stress.
During the period of the claim the Applicant was also managing ten staff and there was marked anxiety and anger within the staff and she was supporting the staff with no time for her own health and wellbeing.
This was emotionally overbearing and extremely distressing and by in June 2021 she became suicidal.
The Applicant reached out to Lifeline and saw a psychiatrist in July 2021. She was on Escitalopram and Lamotrigine for ten years and the psychiatrist changed her medication to Desvenlafaxine, Quetiapine and Clonidine over a month.
The Applicant relinquished one of her head teachers positions as she displayed poor stress coping and her anxiety was debilitating.
The Applicant's condition continued to deteriorate and by 18 March 2022 the compounded stressors in the workplace caused her to suffer injury and claims weekly wage compensation.”
I note here in passing that the last sentence of this description is somewhat inconsistent with the claim made (for a date of injury of 19 July 2021). The applicant says “by 18 March 2022 the compounded stressors in the workplace caused her to suffer injury”. The date of incapacity, for the purposes of deeming the date of injury, is the date of injury. That is, the injury cannot have occurred on 18 March 2022 with incapacity at some point prior to that.
The applicant has an extensive history of psychological sequalae, for, according to the treating and medicolegal opinions, at least 10 years prior to the date of injury. This history is relevant because there is a dispute as to the cause of a potential incapacity in July 2021, where Ms Wells-Demant stepped down in one of her head teacher roles. Records of Ms Wells-Demant’s treating general practitioner provide a first record of such on 23 May 2015. Dr Drewitt-Smith records “needing to have meds for coping with life”, including a relationship breakdown, with a diagnosis of anxiety and depression and a prescription given for Lexapro. A similar history is recorded for the remainder of 2015, including “wanting a psychiatrist” on 9 October 2015.
A record on 3 May 2016 records “mental health – with dr grund”. Dr Curtotti records, on 20 July 2016, “Moved from central coast. Was under psychiatrist for anxiety and depression”. Records relating to mental health then cease until 29 May 2018, where a visit with Dr Curtotti records:
“Was on antoideptrssants for depression and anxiety 2015-2017. Waened off last year.

feels ok now as life has been good. Gone back to teaching this year and feeling anxious again…” (sic)
A mental health care plan was prepared at that point. On 14 March 2019, the mental health care plan was extended for four visits. On 24 January 2020, there is a request for a new mental health plan with reference to “Started having panic attacks in Dec. retouched”. There was a change in psychologist.
By 6 May 2020, Ms Wells-Demant anxiety levels “have dramatically increased in March”. Pharmacological intervention was recommenced (Lamotrigine and Lexapro). Towards the end of May, anxiety levels had come down since the medication was started.
In August of 2020, relationship issues with Ms Wells-Demant’s partner at that time were evident. On 14 September 0220, it is recorded that she “Decided to end relationship with fiancée of 4.5 years”. A that time she was “Copin with work” (sic). On 26 November 2020, an updated mental health care plan was made.
On 22 February 2021 (shortly prior to the discover of asbestos in the school), Ms Wells-Demant visited Dr Curtotti who records “Needs repeat script. Separated from boyfriedn and feelig good” (sic). Prescriptions were provided for Lamotrigine and Lexapro.
The next record is the first following the onset of issues at school. On 3 May 2021, Ms Wells-Demant attends Dr Curtotti who records “Feels meds are not working well”. There is reference to “PTSD symptoms” and a “long counselling session”. A referral was made to a psychiatrist for a “meds review”. No mention is made of work-related issues. The referral appears in the Application and is dated same day, providing:
“Thanks for seeing Michelle who was diagnosed with depression and anxiety 10 years ago. She was treated with lexapro and lamptrigine which helps her symptoms. She broke up with her fiancée in September last year. She experienced some emotional and psychological trauma with this relationship and she is havign difficulty processing these feelings and is feeling very sad and confused. Any thoughts of havign to deal with her ex makes her very anxious and panicky. Could you please assess for PTSD and review medication”. (sic)
Ms Wells-Demant saw Dr Curtotti again shortly before the attendance on her treating psychiatrist from the above referral. On 19 July 2021 there is reference to post-traumatic stress disorder and memories of abuse at the hands of her former partner. At that time the management was to review the mental health care plan and await psychiatrist to adjust medication. The mental health care plan prepared on 19 July 2021 makes no reference to work issues.
Dr Chamoli, treating psychiatrist, first provides a report dated 30 July 2021. Dr Chamoli describes Ms Wells-Demant as suffering “psychological trauma in this relationship leading to ongoing psychological symptoms giving suspicion of a post-traumatic stress disorder”. Dr Chamoli takes an extensive history of psychological issues including past trauma (as a teenager), relationship breakdowns, and the issues in her most recent relationship. Dr Chamoli records:
“Dissatisfied with the relationship, she worked long hours and took excessive responsibilities to escape her partner. Michelle reports she was doing two head teachers job and working around the clock. She has given up excessive responsibilities now. She is happier at work now. Michelle reports he has cut down work as she was not able to cope with the excess responsibilities she has taken up in her role. On cutting down her work Michelle has realised she is easily triggered by negative stimuli in her environment. The negative and environmental stimuli trigger he memories of past trauma”.
There are no other references to work in the report, or the issues there including the discovery of asbestos and the fallout from that. There is no causal connection identified between work and the cessation of one of the head teacher jobs. There is an identification of long hours to escape a partner (i.e. the reason why Ms Wells-Demant was completing two head teacher roles) and that Ms Wells-Demant was “not able to cope” with both roles (that is a reduction in capacity). There is, however, no explanation that that reduction in capacity was caused by an injury. That does not necessarily defeat the claim, as one must consider the totality of the evidence. It is a contemporaneous record, although a treating one, and must be considered of some weight in that regard.
Ms Wells-Demant explains her attendance on Dr Chamoli in her statement. She describes coming to a “breaking point” in June 2021, calling Lifeline, and seeing psychiatrist in July 2021. The psychiatrist changed medications over the period of a month. She states: “I then continued working full time but relinquished one of my head teachers positions as I was stressed and could not cope. My anxiety was debilitating”. She describes having time off work but does not set out when or how this occurred.
Dr Chamoli provides a further report dated 28 August 2021. Ms Wells-Demant had requested an earlier follow up due to worsening anxiety. It was noted that Ms Wells-Demant’s mental health had improved noticeably since the change in medications, and was “feeling more “chilled” up until 2 weeks ago”. There is further reference to work issues: “She is feeling overwhelmed and irritated with tiny things such as emails and phone calls from work. She is finding hard to cope”. There are further reports from Dr Chamoli during 2021 that do not shed light on the issues but rather deal with the treatment regime undertaken.
Ms Wells-Demant attended Dr Curtotti on a few occasions towards the end of 2021 for reasons unrelated to this claim. In her statement, Ms Wells-Demant describes frequently seeing her GP in Term 4 for “numerous reasons, with her stating that it would be best if I took leave as I had lost my capacity for work”. Unfortunately there are no records of any such conversations or statements made by the GP in the clinical records. On 21 March 2022, she attends on Dr Miller. On that date the doctor records:
“depression and anxiety fluctuating since 4/21 as a resutl of stressors at work

started as a result of trying to manage asbestos in building at work

has been to psychiatrist” (sic)
A certificate of capacity for work, an Australian Government document (rather than a NSW certificate of capacity) was provided on that date and is attached to the Application. The date of injury is listed as “April 2021” and the injury was said to be caused by “Stressors at school trying to coordinate and manage staff and decontamination of Asbestos in school building”.
Dr Chamoli then provides a report, written to “Gerry” (Dr Miller) dated 27 March 2022. Dr Chamoli provides the history of original referral from Dr Curtotti, with a diagnosis of “mild to moderate severity depression on a background of a complex post-traumatic stress disorder and cluster B personality traits”. Dr Chamoli then goes on to record:
“At the 2^nd follow-up in September 2021, Michelle reported remission of depression. She presented for review last week with a relapse of depression with severe anxiety. This is in context of significant stress from work place. Michelle reported she had been working at the Queanbeyan high school for last 4 years. She has worked as head teacher on and off for last 2 to 3 years. Michelle reports she was carrying the workload of two teachers previously. She enjoys teaching and has gone back to being a classroom teacher. She is feeling burnt out from prolonged periods of stressful working environment”.
On the next attendance with Dr Miller, that certificate was change to the proper NSW certificate, although without a diagnosis, date of injury, or causal explanation. On 20 May 2022, a certificate is provided with a diagnosis of “anxiety and depression as part of an Adjustment Disorder” with a date of injury of April 2021.
Dr Miller also writes a letter “To who it may concern” dated 17 June 2022. It is written as a medical certificate. Dr Miller records that the applicant:
“has been suffering with derpression and anxiety for some time and has been on medication and psychological care for this in the past
She was reviewed by my colleague Dr Curtotti at this practice and a referal to a psychologist was mad on 19/7/21 to address these issues as well as to address increasing anxiety due to stressors as Deputy principal at Queanbeyan High School as also contributing to her worsening symptoms
I would support Ms Wells in her claim that her psychological health had been impacted from this time” (sic)
As the respondent points out, this correspondence post-dates the making of the claim and the crystallisation of the issues in dispute in this case. That does not mean that I can give it no weight. That is commonly the case in workers compensation proceedings as issues of relevance come to the forefront of mind that may have had a reduced relevance at an earlier time. Of course, one is always aware of the nature and purpose of clinical notes (Nominal Defendant v Clancy [2007] NSWCA 349 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34). The clinical notes in this case make no mention of work-related issues as being causative of incapacity. Dr Chamoli’s reports from the middle of 2021, starting on 30 July 2021, make reference to Ms Wells-Demant’s work, and that “she has given up excessive responsibilities now”. This suggests a reduction in capacity for responsibility at work. It does not, of its own, show that the reduction was caused by a work injury (as opposed to the other causative factors that existed, including Ms Wells’ long psychological history and relationship issues) or that the reduction was a loss in wages.
Neither party’s submissions, until I called for a further teleconference, had actually addressed the latter issue, or provided a clear evidentiary basis for the conclusion I would have to reach. On that basis, I had presumed it was agreed that at the time Ms Wells-Demant stood down from her dual head teacher role, she had a loss in earning capacity (more than just a loss in responsibility), consistent with Stone. However, given the unsatisfactory evidentiary basis to reach that conclusion, as well as to afford the parties procedural fairness, I convened a further teleconference on 25 June 2025, calling for further submissions and evidence. This was after the majority of this decision had been written. The issue was limited to that raised in Stone, as well as the applicant’s return to work.

I have discussed the treating and factual evidence provided in some detail above. As the applicant points out, the task is to determine the date of injury with reference to all of the evidence. This was made clear in the decision of Wells at [74]:
“The finding of a deemed date in the circumstances is not simply a matter for medical evidence; it is to be determined “by reference to all the relevant evidence”. Of necessity it will involve a consideration of the lay and medical evidence.”
The remaining documents for consideration are the medicolegal reports in this matter. Dr Rastogi and Dr Boulton provide independent medical expert opinions, whilst Dr Smith provides a report as an injury management consultant.
Dr Rastogi’s report is dated 11 October 2022. She takes a history of Ms Wells-Demant managing the first lock down in April 2020 reasonably well and performing well, and then the finding of asbestos in March 2021. Dr Rastogi records that Ms Wells-Demant “came to a breaking point with her emotional reserves depleted in June 2021 in the school holidays when she became suicidal.” After those school holidays, Ms Wells-Demant “continued working full time but relinquished one of her head teacher positions as she displayed poor stress coping and her anxiety was debilitating”.
Dr Rastogi then records Ms Wells-Demant experiencing ongoing issues including being exhausted in September 2021, feeling isolated in October 2021 holidays, and her GP recommending stress leave. Dr Rastogi notes that Ms Wells-Demant was reluctant to commence workers compensation, and she applied for 12 months of leave without pay for 2022 instead. Ms Wells-Demant saw her general practitioner on 21 March 2022 and initiated workers compensation. In respect of the previous psychiatric history, this is acknowledged to some degree. Dr Rastogi records a history of anxiety and depression since the age of 20, pharmacology for 13 years with not relapses, and that she has “always continued to receive psychological counselling from time to time”. I note this history is not as thorough as recorded in the clinical notes, including the complex issues with earlier relationships, trauma from that, and a diagnosis of post -traumatic stress disorder. Dr Rastogi records that the relationship ended in abuse. It is however consistent with Ms Wells-Demant’s statement that she continued to see her psychologist as a way of “checking in” and maintaining the relationship.
This is also probably reflective of Ms Wells-Demant’s awareness of her mental health (see the report of Dr Chamoli, who notes Ms Wells-Demant’s mother is a psychological counsellor, that Ms Wells-Demant used “psychological jargon with accuracy implying she had undergone extensive psychotherapy”, and describes her as having “good insight into her emotional health”).
Dr Rastogi provides the diagnosis of adjustment disorder with anxiety in remission. She provides the following opinion on the date of injury:
“Her onset of her psychological condition and decline occurred in June 2021 with her relinquishing her other position and gradually deteriorated with resuming school with exacerbation and inability to work since March 2022. She was partially incapacitated since 2021 and became fully incapacitated in March 2022 due to progression of anxiety with adjustment disorder. There was shame, embarrassment and financial stress but she pushed herself to continue working until March 2022.”
Dr Boulton provides three reports for the respondent. The first is dated 20 July 2023. It is noted that Dr Boulton records “Ms Wells-Demant was at work on the day of assessment”, at Bungendore High School, and that she got the job in November 2022.
In respect of the injury date, Dr Boulton records:
“Ms Wells believed her injury had occurred in March 2021 and said that she was in dispute with Allianz around the injury being in March 2022. She believed she had reached a point of incapacity in December 2021.”
Dr Boulton records a comprehensive history of the asbestos issues at work. He records Ms Wells-Demant calling Lifeline in June 2021, and then the following:
“Around this time she was referred to a psychiatrist. She had wondered at the time whether it was an issue related to a breakup that had occurred twelve months earlier, although recognised in retrospect this was not likely. She did not want to accept that this was a workplace issue because her identity as a teacher had been so important for her.”
He records Ms Wells-Demant relinquishing one of her two head teacher roles. There are further repeated references to Ms Wells-Demant believing that her loss of capacity for employment was in December 2021. Dr Boulton was specifically asked about a date of injury. He provides:
“I would state this date is most likely March 2021 when the issues around the asbestos started. According to the history provided by Ms Wells, this led to a deterioration in her mental state. She had continued to try and work as her mental state was deteriorating which further exacerbated the situation”.
A supplementary report was provided on 3 September 2023, attempting to clarify the date of injury issue. Dr Boulton records:
“Ms Wells denied any mental health issues or acute stressors in the lead up to the asbestos incident in 2021. She reported the new onset of psychological symptoms in March 2021. She felt scared/anxious, responsible for the wellbeing of the affected teachers, unsupported, and developed insomnia.”
I note this history of no acute stressors is not consistent with the clinical material including the breakdown of Ms Wells-Demant’s relationship and trauma associated with same. Dr Boulton goes on to acknowledge the various different dates of injury issued, including 3 January 2022, 18 January 2022, 21 March 2022, and 19 June 2021. Ultimately Dr Boulton suggested that given the various dates provided, the question be answered by “legal professionals or the PIC”, but that the date of injury, in his opinion, was March 2021.
On 13 October 2023, Dr Boulton provides a further supplementary report. This report was requested with reference to Dr Curtotti’s report of 19 July 2021, noting the relationship breakdown. In spite of this information, Dr Boulton remained of his opinion:
“In summary, although it would seem likely that Ms Wells was sensitive to developing stress, anxiety and mood problems after relationship breakups, the predominant contributor in this case remains the workplace injury. She self-reported feeling well in the leadup to the workplace injury. Because of the time course that I understand separated the relationship break up to the workplace injury, I think it would be unlikely that the breakup played a predominant role in her symptoms in March 2021 or now.”
Dr Smith provides two reports. As can be seen from Dr Boulton’s history, this complicates things further with a proposed date of injury of 18 January 2022, although it is not clear to me how that date arises. Dr Smith records:
“Ms Wells is a full-time secondary school teacher (head teacher) who has lodged a claim for a psychological injury (18 January 2022) due to decompensating over the course of the past year. The trigger events were the process around asbestos removal from the school, a claim of overwork, managing two faculties, as well as having to do casual teaching and briefly relieving for the deputy principal”.
The second report of Dr Smith likewise sheds little light on the appropriate date of injury and deals more with ongoing issues, including capacity in 2023.
This case has been difficult to unravel form a medical and lay perspective. Ms Wells-Demant has had psychological issues for much of her adult life. To her credit, she has been highly successful and highly functioning in spite of those issues. She was, prior to the injury with the respondent, on psychological medication for 10 to 15 years.
There was a clear and significant work issue in March of 2021. The stressors of finding asbestos in a classroom, having fears around her personal health in that context, and then being the point of contact for other distressed staff, are obvious. It is no wonder that Dr Boulton continually maintained a date of injury of March 2021. It is also no wonder that Dr Boulton suggested that the date of injury be determined by the Personal Injury Commission.
Ms Wells-Demant was, up until June or July of 2021, functioning highly, completing two head teacher roles, and working in a high stress environment. Her relinquishing one of those roles is certainly an indicator of a loss of capacity. As I have said, I had presumed that the loss of one such role came with it a loss in earning capacity, otherwise the point is largely moot (per Stone).
The contemporaneous records make little of work stressors around that time. Nothing appears in the treating GP clinical notes. The focus of Dr Curtotti, and the reasons for the referral to Dr Chamoli, was by her own referral of 3 May 2021, related to relationship issues, having difficulty with her ex, and an assessment of PTSD. This referral makes no reference to work issues. The report of Dr Chamoli focuses largely on functioning (as is appropriate given the nature of the issue at that time), but does confirm that Ms Wells-Demant “cut down work as she was not able to cope with excess responsibilities”. This is not causally linked to workplace issues, but rather is an effect of Ms Wells-Demant’s psychological decompensation (whether due to work or relationship issues).
Dr Miller, in her first certificate of capacity (for the Australian Government) and in her letter “to whom it may concern” supports a connection to work since April 2021, or from the date of referral to “a psychologist” from 19 July 2021 (I note here that I initially took this as the referral to Dr Chamoli, which was actually made in May 2021. It is now apparent that this is the mental health care plan review prepared by Dr Curtotti). This represents the date on which the claim is made and the applicant has made submissions. The applicant submits that the evidence shows psychiatric injury from June 2021 and incapacity from July 2021. It is not clear on what date the applicant ceased working in her role as head teacher in July 2021, but I take it that must have been on or around 19 July 2021, which was coincidentally the date of referral the mental health care plan prepared by Dr Curtotti with referral to Kate Leeds, psychologist. That care plan contains a history of past trauma, relationship issues and breakdown, and the following: “Is the deputy Principal at Queanbeyan highschool and has ongoing stress”.
Whilst that record does not explicitly link incapacity to work, it does provide a contemporaneous record that mentions Ms Wells-Demant’s employment. There are two possible ways to read that sentence: simply a record of Ms Wells-Demant employment and that she has stress (not related to her work, but in general and caused by all of the other issues recorded in the plan), or that Ms Wells-Demant has stress at work, connected to her work, and caused by a psychological injury suffered in the course of employment.
I am cautious of DP Snell’s reasons at [72] and [73]:
“The respondent’s statement at [33] to [47] dealt at some length with her psychological symptoms in the latter part of 2021. She said she was at “breaking point with [her] emotional reserves depleted in June 2021 during the school holidays. [She] then became suicidal.” She said she had time off work without specifying when and that her continued absences exhausted her sick leave. The evidence does not support the found deemed date of injury of 19 July 2021. The appellant submits this was an error of fact.
I accept that the finding of a deemed date of injury at [25] of the reasons involved error.”
I do not read [73] as binding on me, on remitter at large, to prohibit a finding of 19 July 2021 as the date of injury. As the Deputy President points out, the determination of the issue requires a consideration of the lay and medical evidence. Dr Curtotti’s mental health care plan, although it does not explicitly refer to an incapacity for work (but simply stress at work) must be considered in the context of all of that other evidence, including the applicant’s statement, the other clinical evidence, and the medicolegal opinions provided by both parties. In respect of that final piece of evidence, I note that the psychiatrists who have assessed Ms Wells-Demant agree that her injury occurred in 2021, with an associated incapacity.
The applicant bears the onus of proving her case. That proof is on the balance of probabilities. The complexity of the previous (and/or comorbid) psychological issues Ms Wells-Demant suffered in the lead up to the asbestos being discovered at school, and until her referral for continued sessions with her psychologist on 19 July 2021 (and then her appointment with a psychiatrist shortly after), have made this difficult to untangle.
I am satisfied, on the balance of probabilities, that Ms Wells-Demant was feeling psychological stress due to her work from the identification of asbestos in the school in March 2021. By June 2021, her psychological condition was deteriorating, causing her to relinquish one of her head teacher positions in July of 2021. Her employment, and injury suffered therein, materially contributed to her loss of capacity from 19 July 2021. That represents the first date of incapacity from a medical perspective.
There remains the question of whether Ms Wells-Demant suffered any economic incapacity from that date, consistent with Stone.
The applicant submits that she did not incur a monetary loss in her weekly wages until 23 July 2021, when she was unfit for all her work due to injury. She was able to return to work once she obtained other duties in a classroom, following the cessation of the head teacher role.
The applicant’s submissions attach evidence that was not previously before me but does assist in determining the issue. The applicant’s pay slip for the period 23 July 2021 to 5 August 2021 does show that the applicant took sick leave on 23 July 2021 (as well as 27 and 28 July). The applicant also attaches a certificate from a pharmacy, certifying that she was unable to attend work on 27 July 2021 due to “illness/injury”. As is often the case with generic medical certificates (whether from a general practitioner or some other cause), there is no explanation or cause for the sickness described.
Until this point, the applicant’s case, including pleadings and submissions, was on the basis of a date of injury of 21 July 2021. This is a minor difference.
Also attached to the late documents is an email sent by Ms Wells-Demant on 9 July 2021, headed “Casual Relief Coordinator Position”. This is the second/dual head teacher role the applicant was occupying. In that email, Ms Wells-Demant states “To ensure that I can fulfill my duties as Head Teacher TAS/ART I will have to relinquish my position of casual relief coordinator effective immediately.”
The respondent submits that I am constrained by evidence as to earnings, and whether the applicant reduced her head teacher role due to incapacity. The respondent submits that the applicant has not discharged her onus of proof to the degree required, and repeats prior submissions made about incapacity prior to 21 March 2022.
I am satisfied that the applicant has, with the further evidence, provided sufficient evidence to show she suffered a medical incapacity from 19 July 2021, and an economic incapacity from 23 July 2021. Consistent with Stone, and ss 15 and 16, this then becomes a date of injury of 23 July 2021. I accept the applicant’s submissions in that regard, and PIAWE will be calculated from that date.
The remaining issue is the applicant’s return to work. The applicant submits she had a prolonged period of incapacity form March 2022 to October 2022. Payments were made by the respondent in that period, which, it is submitted by the applicant (and based on my conclusion above, correctly), were erroneously calculated. The applicant submits that she then had a gradual return to work, resulting in her being off for one or more days every fortnight, until 23 November 2023, when she returned to her pre-injury capacity. The applicant sets out a comprehensive wages schedule, including the calculation of PIAWE and the award that should be made for the periods of incapacity.
In reply, the respondent submits that the applicant demonstrated capacity for employment of 70 hours per fortnight from 7 November 2022 and there is no economic loss and no entitlement thereafter.
I do not accept the respondent’s submissions. The certificates attached to the respondent’s further submissions include, from November 2022, regular periods of sick leave or leave without pay (excluding the vacation period, where Ms Wells-Demant was paid 70 hours per week and had no economic loss). For example, in the period from 11 November 2022 to 24 November 2022, when Ms Wells-Demant worked at Bungendore High School, she took leave without pay from 7 November 2022 to 10 November 2022. She took sick leave on 23 November 2022, 29 November 2022, and 13 December 2022. This continued in 2023, with sick leave taken on 6 February 2023. It is apparent that Ms Wells-Demant was working, for most of that period, 63 hours per fortnight rather than 70 (that is, taking one day of sick leave per fortnight). It also appears that some of the leave from November 2022 until Ms Wells-Demant returned to full duties in November 2023 was paid (that is there was no economic incapacity). It is likely that s 50 of the 1987 Act would operate for some of those periods.
Attached to the applicant’s further submissions is the evidentiary basis for the conclusion it is submitted I should reach. I have discussed the pay slips above. There are also a series of emails between Ms Wells-Demant and a safety and wellbeing advisor at the respondent, in May 2023. Ms Wells-Demant was essentially told that she needed to take personal leave or unpaid worker’s compensation leave on days that she wasn’t working. I have had difficulty putting together what, precisely, the entitlement would be to workers compensation in circumstances where Ms Wells-Demant was on leave without pay for some days within certain fortnights and was paid sick leave on some occasions. The applicant’s wages schedule is not dispute by the respondent other than on a capacity basis. I will take that as the basis of the award for weekly compensation I will make. It may be that there needs to be some amendment to the awards, or credit given to the respondent for leave paid as sick leave (as opposed to leave without pay).
PIAWE is to be calculated in accordance with a date of injury of 23 July 2021. The applicant has also set out a wage schedule and calculation of PIAWE in her submissions on remitter. These submissions include indexation, although it appears the applicant has not taken account of s 82D of the 1987 Act with respect to rounding. My figures may slightly differ from those asserted by the applicant. That is again not disputed by the respondent except as to the appropriate date of injury. It may be necessary for some amendment to the award due to some of these issues and the parties may apply to the Commission, in the usual course, with appropriate orders sought. I will do my best to make the necessary and correct orders to ensure Ms Wells-Demant receives her entitlements, and, from the respondent’s point of view, those entitlements are correctly calculated.

[2025] NSWPIC 356

28 July 2025