Wijanto v Metcash Trading Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wijanto v Metcash Trading Ltd [2021] NSWPIC 345
APPLICANT:	Jessie Wijanto
RESPONDENT:	Metcash Trading Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	13 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits, medical expenses, permanent impairment compensation and interest on weekly benefits as a result of psychological injury; respondent relied on section 11A of the Workers Compensation Act 1987, being actions with respect to retrenchment or dismissal; applicant accepted redundancy while on maternity leave that had commenced 12 months before; dispute as to main contributing factor; incapacity, including effect of applicant’s maternity leave; claim that respondent contravened sections 278 and 283 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), but no submissions by applicant on this issue; application of AV v AW, Ponnan v George Weston Foods Ltd, Miller v NSW Police Service (No 2), Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Pet Foods Pty Ltd, and Kaur v Thales Underwater Systems Pty Ltd; Held - employment was main contributing factor to disease injury; the applicant’s injury was not wholly or predominantly caused by the respondent’s actions with respect to retrenchment or dismissal, which were in any event not reasonable; the applicant has had capacity for work since 27 July 2020, working in family business; the applicant’s entitlement to weekly benefits is not affected by maternity leave; award for the applicant for weekly benefits and medical expenses; claim for interest on weekly benefits declined as not possible to ascertain when claim duly made; the respondent did not contravene sections 278 and 283 of the 1998 Act; claim for permanent impairment compensation remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	1. That there is an award for the applicant of weekly benefits as follows: (a) $1,759.87 per week from 4 February 2019 to 6 May 2019, pursuant to section 36 of the Workers Compensation Act 1987; (b) $1,482 per week from 7 May 2019 to 26 July 2020, pursuant to section 37 of the Workers Compensation Act 1987; (c) $1,164.56 per week from 27 July 2020 to 30 June 2021, pursuant to section 37 of the Workers Compensation Act 1987, and (d) $1,156.72 per week from 1 July 2021, pursuant to section 37 of the Workers Compensation Act 1987. 2. That the respondent is to have credit for weekly benefits paid. 3. That the application for interest on the award of weekly benefits, pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 4. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 5. That the claim for permanent impairment is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of psychiatric/psychological injury deemed to have occurred on 4 February 2019. 6. That the Medical Assessor is to be provided with the following: (a) The Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 13 April 2021 and attached document; and (d) Application to Admit Late Documents dated 4 June 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jessie Wijanto (Ms Wijanto) was employed by the respondent, Metcash Trading Ltd (Metcash) as a Digital Campaign and Client Manager. She claims to have sustained psychological injury, deemed to have occurred on 4 February 2019, arising out of or in the course of her employment.

Ms Wijanto took maternity leave from February 2019 and was due to return to work in March 2020. She did not return, but accepted an offer of redundancy, which took effect on 23 March 2020.

In about August 2020, the applicant notified Metcash of her injury. On 13 August 2020, she was issued with a letter from its insurer, Insurance and Care NSW (iCare). ICare advised that it could assist with payment of medical expenses of up to $10,000. However, it had “applied a reasonable excuse” to delay the payment of weekly benefits. The reasons for this were that it needed more information to establish when Ms Wijanto told Metcash about the injury; how and where it happened; and that an injury occurred and was work related.

By letter dated 26 October 2020, the applicant’s solicitors made on her behalf a claim for permanent impairment compensation pursuant to section 66 of the Workers CompensationAct 1987 (the 1987 Act) of $39,340 in respect of 16% whole person impairment (WPI).

By letter to the applicant dated 24 November 2020, iCare asserted that her degree of permanent impairment was not capable of assessment because maximum medical improvement was yet to be reached.
By letter dated 1 February 2021, iCare advised the applicant that it had accepted liability for her injury. Because of the decision, it could “help” her with treatment expenses and weekly payments. The notice did not provide any detail of the weekly benefits that would be paid, or when they would commence. In fact, weekly benefits were paid for only one week. It appears from the list of payments that a payment of $475 gross was made for the period from 7 August 2020 to 13 August 2020, and was paid by the respondent, which was reimbursed by iCare.
On 24 March 2021, iCare issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for her claim.

ICare maintained that Ms Wijanto had not received a psychological injury, as required by section 11A(3) of the 1987 Act; and her psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to retrenchment or dismissal, “within the meaning under” [sic] section 11A of the 1987 Act. ICare disputed that the applicant had total or partial incapacity for work resulting from an injury; and that medical or related treatment was reasonably necessary as a result of an injury.

The notice stated that iCare’s decision would bring the applicant’s weekly payments to an end from 21 April 2021, a period of two weeks, plus a further seven days for delivery by post, as required by section 80 of the 1998 Act and section 76 of the Interpretation Act 1987.
By letter dated 29 March 2021, the applicant’s solicitors requested that iCare review its decisions to dispute liability. There is no evidence that a review took place, or, if it did, its outcome.
The applicant lodged an Application to Resolve a Dispute (the Application) on 30 March 2021. She claimed to have sustained primary psychological injuries arising out of or in the course of her employment with Metcash by way of disease, deemed to have occurred on 4 February 2019. The injury was due to “ongoing bullying, harassment, intimidation and lack of support”.
The Application claimed weekly benefits, pursuant to sections 36 and 37 of the 1987 Act, from 4 February 2019 ongoing; past medical expenses of $428.30 and future medical expenses of $11,200, pursuant to section 60 of the Act; and the sum of $39,340 in respect of 16% WPI, pursuant to section 66 of the Act.
By letter dated 13 April 2021, the applicant’s solicitors advised iCare that it was noted that liability was accepted on 1 February 2021 and denied on 24 March 2021. The applicant had received only one payment, in August 2020. The applicant sought payment of weekly benefits from 4 February 2019 (“first date of incapacity”) until the reasonable notice period stated in its section 78 notice, that is 21 April 2021.
The respondent lodged its Reply on 21 April 2021. It disputed the applicant’s claim for lump sum compensation, weekly benefits and medical expenses, relying on sections 11A, 11A(3), 33, 59, 60 and 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agreed at the conciliation/arbitration hearing that the following issues remain in dispute:

(a) whether the respondent has a defence to the applicant’s claim, pursuant to section 11A of the 1987 Act;
(b)    causation;
(c)    incapacity for work;
(d)    novus actus interveniens, including whether the respondent should be granted leave pursuant to section 289A(4) of the 1998 Act to raise the issue as an unnotified matter;
(e)    pre-injury average weekly earnings (PIAWE);
(f)    interest, and
(g) whether the respondent has contravened sections 278 and 283 of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 5 July 2021.
Mr Moffet of counsel appeared for the applicant, instructed by Mr Walker and Mr Covic.
Mr Robison of counsel appeared for the respondent, instructed by Mr Maley. The applicant was present. Mr Iokimidis attended on behalf of the respondent. Ms Venardos and
Ms Virtudazo attended on behalf of EML.

The Application was amended to claim interest on the arrears of weekly compensation, pursuant to section 109 of the 1998 Act.

The parties were unable to agree on the applicant’s PIAWE.
Due to the lengthy conciliation phase, during which the parties attempted to resolve the dispute, it was not possible to hear counsel’s submissions in the time remaining. A direction for written submissions was accordingly made. They were to include submissions on the application of section 11A of the 1987 Act; causation; incapacity; novus actus interveniens, including whether the respondent had the right to raise it as a matter in dispute; the applicant’s PIAWE; and interest. The applicant advised that she would be making a submission that the respondent had contravened sections 278 and 283 of the 1998 Act in failing to pay weekly benefits during the notice period. The parties have provided written submissions in accordance with the direction.

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

EVIDENCE

Documentary Evidence

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

(a)    the Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 13 April 2021 and attached document, filed by the applicant, and
(d)    Application to Admit Late Documents dated 4 June 2021 and attached documents, filed by the applicant.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Jessie Wijanto

The applicant’s first statement is dated 25 September 2020. I have extracted from her evidence a summary of the relevant matters. It is not intended to be a comprehensive survey of her evidence.
Ms Wijanto commenced employment with Metcash in January 2015. Her initial title was Digital Producer. She reported to Marc Keegan, Group Digital Services Manager.
In February 2018, the applicant was seconded to the position of Group Digital Services Manager after Mr Keegan was promoted. The secondment lasted for three months and her pay was backdated from October 2017.
The new general manager, Danielle Wilkes, did not want the applicant to continue as Group Digital Services Manager permanently. Ms Wijanto did not know why, but assumed it was because she was a young female, and they wanted an influential keynote speaker.

Trent Ellis became the new manager in about July or August 2018, with a new title, Head of Digital Marketing. Ms Wilkes said he could decide what to do with the applicant.
For the first three months, the applicant trained Mr Ellis. He initially said he would not change her title or pay. In about November 2018, he lowered her pay and changed her title to Digital Campaign and Client Manager. Her role was similar, but he took over as the face of the team. She was still managing part of the team and looking after clients and campaigns.
Ms Wijanto took maternity leave from February 2019 and was due to return to work in March 2020. She never returned because of issues that happened after Mr Ellis became her manager, and that form the basis of her claim. She was ultimately offered redundancy, which she decided to take.
The respondent conducted annual formal performance appraisals. Mr Keegan was not very strict about this, but he never raised any issues about the applicant’s performance. Mr Ellis conducted a performance appraisal in January 2019. He tried to say she had bad behaviour and performance and to justify it by eliciting bad feedback about her. He ignored what she said and kept aggressively saying she was not doing what she was being asked to do. This was not the case and she knew how to do her job.
Mr Ellis never gave the applicant a warning and she was not under performance management, but she believed he “wanted it to go that way”. She explained that she sometimes could not do a task if a client had not confirmed something, but he never accepted her answer and said it was not good enough.
Mr Ellis also said the applicant’s tone was dismissive, “but that is just how I talk”. She tried to change the way she spoke to him. She felt she had to justify and defend her actions because he was always putting her down and became really aggressive. In the end, she apologised and said she was trying her best and doing everything she was asked. He was still not happy with her. He spoke as if she was rebelling and justified his actions by saying she had bad behaviour and was doing a bad job. There were multiple meetings about this.
The process never finished, because Ms Wijanto escalated the situation to Jackie Ho in People and Culture in January 2019. She said she could not be alone with Mr Ellis as she felt fearful and intimidated. She felt scared to go to her car or be alone in the office. Mr Ellis did not threaten her, but the way he spoke and his tone were scary. He tried to intimidate her using his deep voice, big stature, and disapproval. He did not assist her to improve. At team meetings, he would roll his eyes and yell at her. It was obviously targeted.
There had been no issues with Ms Wijanto’s performance, behaviour or attendance before Mr Ellis became her manager. She was not aware that complaints were made about her by staff. Before Mr Ellis started, she loved her job. She believes he targeted her because she is Korean, and he felt emasculated because of her knowledge. He told her how he disliked his Korean managers and workers at Hyundai.
Things started to deteriorate in January 2019, when Ms Wijanto was 20 weeks pregnant.
Mr Ellis became more aggressive, and it began to affect her mentally and physically. She had begun to feel very depressed before that. While she waited for promotion/secondment, Mr Keegan kept saying to wait, that she had to prove herself, and would get this promotion because she didn’t have children. She worked hard, put off having children and even cancelled holidays.
The applicant never formally complained, but she was crying every day, always ate at her desk, and never got any sleep. She and Mr Keegan eventually stopped talking and their relationship deteriorated before he moved to a different team in about July/August 2018. Her blood pressure was increasing, and her doctor said she could have a still birth if that continued.
The issues that led to the claim involved Mr Keegan, Mr Ellis and Lee Martin, Mr Keegan’s boss.
Regarding issues with Mr Keegan, “it was a good team in the beginning”, but there was a lot of swearing and racial and sexual jokes. Ms Wijanto accepted it as the culture and did not say anything. She tried to be a good sport and play along. She never complained about the comments or jokes.
Things started to change in 2017. The applicant’s father passed away in January 2017 and Mr Keegan denied her request to work from home. Some team members left, which was hard for Mr Keegan. They had a lot of outings and farewells and she and Mr Keegan became close. He called her his “work wife”.
When Mr Keegan left, he took “Gabby”, so Ms Wijanto had to do all the social media, digital design and management by herself. She was getting burnt out and working ridiculous overtime. She realised Mr Keegan’s words about her promotion and pay rise were empty. He stopped caring and helping her. She was depressed that she had put off so many things and sacrificed so much time to prove herself.
The applicant and Mr Keegan would drink with the team but were always the last ones left. She felt she had to do this and work non-stop. She worked on weekends, public holidays and late. It took a year to get the position and the pay rise. Mr Keegan knew she was stressed and burnt out because she was crying all the time but did not care.
The applicant started taking EAP (Employee Assistance Program) sessions in mid to late 2017 and had three sessions with “Denise”. She needed someone to talk to because she felt so depressed.
Just before Ms Wilkes started in February 2018, the applicant got her fixed term promotion. Her secondment position was confirmed, and she was given a pay rise. It was not as much as Mr Keegan was being paid. He told her that her pay would never decrease. Ms Wilkes warned her the secondment would finish in April 2018, that she was creating a new position above her, and wanted someone amazing. However, it took six months to find Mr Ellis and Ms Wijanto was told to train him.
The applicant did not deal much with Mr Martin, who was nice but a bit strange. He behaved very inappropriately towards her, making racial and sexual comments and looking her up and down. He once said she looked like a sexy schoolgirl. She never complained about this. At Expo in 2018, he unzipped her dress as she walked past. She was shocked and did not know how to react. She did not know it was something she could complain about. It made her feel horrible. She never complained about Mr Martin to anyone.
The applicant had to give up her window seat for Mr Ellis, which she found degrading. He was nice at first. He was passive aggressive at the start but then became aggressive once he became comfortable with the role.
On 5 September 2018, Mr Ellis snapped “really loudly” at the applicant while she was trying to give him the facts and answer his questions professionally. She is straight faced at work and explained things in a matter of fact way. Her tone was not raised but he did not like the way she spoke to him. This was the beginning of his inappropriate comments.
Mr Ellis said the applicant should calm down and did not have a smile on her face. He said she should speak with her teeth showing, as though she was smiling. She said she was sorry and was not trying to be rude. He said she came across as dismissive, rude, short and sharp. She explained it was how she talked, and she was just being professional. She felt shocked.
On 13 September 2018, the marketing campaign was set live early, and Mr Ellis got into trouble with Ms Wilkes. He marched over to the applicant and kept asking why she sent it live. She kept saying she did it because he told her to. He asked “If I told you to jump off a cliff, would you do it?”
In November 2018, the applicant was given a new role with less pay. Mr Ellis gave her no reason for this.
On 14 December 2018, the team went for drinks after a charity event. Mr Ellis twice offered Ms Wiijanto alcohol. She refused both times, as she was pregnant. He said he had a friend who drank alcohol while she was pregnant. This made her uncomfortable as she had heard stories of people who had had miscarriages.

On 22 January 2019, the applicant attended a team meeting. Mr Ellis became very angry with the applicant about omissions on the cards they were using. He said he was not happy, snapped and yelled at her for the same thing another team member had done. He questioned everything very aggressively. She felt awkward because he was yelling at her.
A meeting was set for the next day. Mr Ellis asked the applicant if she thought she was doing the things within her role description and she said “yes”. He said she had not met his expectations and talked about the cards. He kept repeating himself. She said she acknowledged what he was saying and would do it at the next meeting. It was not a kind conversation and he was not happy with her response. He again raised her behaviour and started getting personal. He said other team members felt the same, and she said “no” to tasks. He would not listen when she tried to explain herself.
The applicant started to get very stressed. She got a headache and stomach cramps. She was 20 weeks pregnant and feeling very tense and anxious, because Mr Ellis said the same thing over and over. She tried to defend herself and it was getting tiresome. Her heart was beating very fast and the way he was talking to her was affecting her mentally and physically.
The applicant told Mr Ellis she was feeling very stressed. He said that was not his intention and they could continue the conversation later. Ms Wijanto said she did not want to continue it another time and requested he say everything then and there. He just repeated that she had bad behaviour and was being dismissive and asked what she was going to do about it. She said she needed time to think about it. At the end, he said it would affect her performance review.
As soon as the meeting finished, the applicant went to “Thomas” (Nip), who was a good friend and support. She said she did not know what to do. She was crying so much. He hugged her and said she should go home. She was so upset, and her stomach was cramping. She left work early to see her doctor because the cramps were getting worse.
The applicant told her general practitioner, Dr Lee, about the situation at work and her reaction. Dr Lee was very concerned about her blood pressure, which was getting higher. She warned that it could affect the baby and there was a risk of premature birth. It was too early to start maternity leave and Ms Wijanto thought working from home might help. Dr Lee wrote her a generic medical certificate saying she needed to work from home. No diagnosis was made at that time. Dr Lee referred Ms Wijanto to a psychologist, but she decided not to do it, as she had already been to EAP and could not deal with talking about it.
The applicant worked from home for the next two days. She had been working from home on Thursdays and Fridays for a few months, as was everyone. Mr Nip messaged her to say
Mr Ellis had been approaching others asking how to deal with people they did not like.
Working from home did not help. Every time Mr Ellis contacted the applicant, it caused her anxiety. He was very aggressive. She responded to everything straight away, to minimise his reaction. She was trying to stay as long as possible before taking maternity leave, but she could tell he just hated her.
On 25 January 2019, the applicant spoke to “Fiona” in HR, whom she considered a friend. She gave advice and suggested Ms Wijanto have a support person, so she did not have one on one conversations with Mr Ellis. “Laura” (Boswell) would not be her support person as she did not want to get involved. Mr Nip agreed but was not in her team.
Fiona offered further EAP, and the applicant again talked to Denise by phone. She found this beneficial. Denise told her to start documenting and write a confidential report to HR. She wrote a summary after 22 January 2019, when Mr Ellis was completely aggressive to her. She sent it to Ms Ho at the end of January.
Ms Ho was very understanding, but the applicant was told to keep her mouth shut, and felt she was being treated as the person who had done the wrong thing. She was told it was being investigated but the information could not be shared.
On 29 January 2019, the applicant emailed Mr Ellis her certificate and said that if he was not happy about her again working from home, it was going to be a sick day. He was fine because she had a certificate. He asked her to do some benchmarking tasks, which she had never done before. She asked for guidance or examples, but he refused, and she had to figure it out herself. She felt completely unsupported. When she again asked for guidance, he was aggressive, saying “Jessie, you need to take the lead. Jessie, figure it out”.
Mr Ellis was micromanaging everything and the applicant felt completely attacked. When he called, she had trouble breathing and her head hurt. She said she would not call him but would email him. Any contact with him triggered this reaction.
Mr Ellis wrote the applicant a long email about how she had not met his expectations, and she said she was sorry. He kept firing questions at her about multiple projects and was confused about why she had not done certain things. He was not happy with her responses. At 4pm she responded to his performance email. He mentioned she did not care about her job. That upset her, as she did care and had never been given so much negative feedback. It was not constructive criticism, he offered no support or guidance and never taught her a thing.
At 10pm in the evening, Mr Ellis sent Ms Wijanto two emails, one of which she forwarded to “Steph”, in the marketing team to create a meeting invitation. He was angry that she had done this, as Steph could see their previous conversation and his “true colours”. He wrote “YOU SENT THIS TO STEPH. DID YOU THINK THIS WAS A GOOD IDEA????” (Capital letters and punctuation as they appear in the statement). In fact, only “Steph” was in capital letters, but the email was in substantially similar terms.
Mr Ellis was passive aggressive about the applicant’s maternity leave and said she must be SO happy to be leaving for 12 months (Capital letters as they appear in the statement). She had not decided or told anyone how long she was going to take and was struggling to decide. He discussed her personal details in front of others.
The only person with knowledge of the applicant’s circumstances in her team is Ms Boswell, who does not want to be involved. She gave Mr Ellis the applicant’s private number while she was on maternity leave. Ms Wijanto was upset because she felt her privacy was violated. She and Ms Boswell are no longer friends. The only witness who could comment is Mr Nip. However, the applicant had not talked to him in over a year and did not want him contacted.
Mr Ellis complained about Ms Wijanto after he found out she had escalated the issue to HR. Ms Wilkes never talked to her about this. She received no response to her complaint, other than that it would be investigated.
The applicant’s last day in the office was 22 January 2019. She continued to work from home until 8 February 2019. She was to start maternity leave on 23 March 2019 but took it over a month early, by taking four weeks sick leave, then five weeks annual leave and then maternity leave.
In mid-March 2019, Ms Wijanto’s role was advertised on Seek as a full time role. She asked HR if they were wanting to get rid of her already. A few days later, it was changed to a maternity leave position.
While the applicant was on leave, Ms Ho assured her Mr Ellis would never contact her again. She said they had investigated but did not tell Ms Wijanto the outcome. She asked what would happen when she came back, and Ms Ho said they would talk about it closer to the time.
After she stopped working, the applicant saw Dr Lee for regular maternity check-ups. She talked to her about the issues at work. After a few weeks she went back to normal. The anxiety and stress improved. Her baby was born on 31 May 2019 and she remained on maternity leave.
In November 2019, Mr Ellis called, texted, emailed and left a voicemail on the applicant’s personal number, telling her to come to a meeting two days later, to talk about her return to work, as there was going to be a restructure. She was shocked and did not pick up the phone but listened to his message. She called Ms Ho and said she could not talk to him. Hearing his voice brought back anxiety and stress.
The applicant spoke by phone to the new general manager, Tracy Wilson, and “Jennifer” from HR about the restructure. She was advised they were getting rid of her role. It looked like it was being split into three. She was asked to come in to discuss it, but said she could not, with a baby. She had to advise in one to two weeks if she wanted one of the new roles, and she would have to apply for it. Alternatively, she could apply for another role with the respondent, or wait until her leave finished. If none was suitable, she could be given a redundancy. She took that option, effective on 23 March 2020.
Since then, “nothing happened”. The applicant felt better not being at work. She wanted to try to go back but could not. The thought of doing so caused her to have panic attacks. When she went near the Macquarie/North Ryde area it started again. She saw someone from work and felt traumatised. Her sleep was still disturbed, and she could not get over what had happened.
The applicant decided to lodge a workers’ compensation claim on 7 August 2020 because the issues were still affecting her and “that is not right”. This had been suggested by Fair Work, but it seemed too stressful last year and she did not want to deal with stress. She called Dr Eric Lim on 4 August 2020 and told him she had decided to lodge a claim. He helped her fill out the forms on 7 August 2020.
A few days later, “Touqa” from EML called and the applicant told her what had happened. She was very negative, kept saying her case would be denied and the respondent had already denied it. This caused the applicant stress. Touqa kept calling, leaving voicemails and emailing, and it was excessive. Ms Wijanto obtained a certificate saying she did not have to talk to her.
The applicant attended an independent medical examination with Dr Hillol Das on 17 September 2020. He was abrupt and kept cutting her off when she tried to explain everything. He mentioned the respondent had said it was due to her performance and denied any wrongdoing. This does not justify any of their actions.
The applicant’s anxiety and depression returned when she decided to lodge the claim, because she started to think about working again. She has referred to her medical treatment, which I will discuss below.
As for the applicant’s current condition, “things have been very up and down since I started this claim”. It had brought back a lot of memories. She was a bit shaky and felt anxious when she thought about it all. She got teary and felt depressed. She was not taking medication because she was breastfeeding. She was not as fit as she used to be, her sleep was disturbed, and her physical activity and motivation were very low. She only saw her family and kept in her “safe bubble”.
Since being made redundant, the applicant had worked part-time at the family embroidery and printing factory, 10 minutes away, helping her brother-in-law and sister. They had started paying her this financial year (that is 2020-2021) but before that she was volunteering. There were no set hours, and it was fairly flexible. They paid her a set amount, regardless of her hours.
The applicant made a further statement dated 29 March 2021. Much of the statement repeats her previous evidence.
The applicant does not have many email trails as many conversations with Mr Ellis,
Ms Wilkes and Mr Keegan were in person or by phone. Most refused to put anything in writing “for good reason they knew I could use it as evidence”. She confided in Mr Nip and Ms Boswell, but Ms Boswell refused to have anything to do with the case. She had witnessed one or two meetings where Mr Ellis was very rude.
Since around mid-August 2020, the applicant had been seeing a psychologist fortnightly and since about September 2020 had been seeing psychiatrist Dr David Kumagaya about monthly. She was taking no medication as she was both breastfeeding and pregnant.
The applicant started working in the family business towards the end of July 2020. She had been earning $300 per week, working approximately four hours per day, two or three days a week. She could take breaks and not work when she was not feeling well. She felt her sister and brother-in-law were much more accepting than another employer would be. She believed her family felt sorry for her and were only doing this because they are family.
The statement attaches copies of text messages, the letter advising the applicant of the restructure, an advertisement for her position and her report to HR, which covers the period from 5 September 2018 to 22 January 2019.

Evidence of Trent Ellis

Mr Ellis’s statement is dated 14 October 2020. I have extracted from his evidence a summary of the relevant matters. It is not intended to be a comprehensive survey of his evidence.
When Mr Keegan took another job, the applicant took a secondment to his role. Mr Ellis believed something personal happened between them. She had said they were quite close and personal, and it was “just weird” between them. She would not talk about it, but it was noted by HR and People Advice.
Mr Ellis was employed at a level above the applicant’s previous role. After the secondment, a new position was “rescoped” for her because her previous position had been backfilled. He believed she was happy with it. She signed a new contract and he created a job description with her.
The applicant’s core hours were standard business hours. She had flexible starting times and did not work excessive hours or overtime. She was entitled to a one-hour lunch break and was free to take breaks as required.
There were no issues between Mr Ellis and the applicant at first and they worked well together. After a few months, it became apparent she had a few performance issues. Her last performance appraisal was started by Mr Ellis in January 2019. It was “fine” from his perspective, but issues were raised with her about general administration and feedback about campaigns and processes.
During the first “WIP” meeting on 5 December 2018, Mr Ellis set expectations for the team. At the meeting on 15 January 2019, the expectations that Ms Wijanto would manage the meeting were not met and she had not delivered on the tasks required. He said the tasks were not being updated and this was her role. He took over the meeting and reiterated what he had told the team in December. He explained the expectations and deliverables and the purpose of WIP meetings. The applicant said “okay”, which suggested she understood.
There was one further WIP meeting on 22 January 2019, where there was consistent
non-delivery. Mr Ellis met the applicant on 23 January 2019, when he advised she was not meeting her deliverables and reiterated what had been said about expectations and how they had not been met.
Mr Ellis also gave the applicant feedback about her demeanour in the meeting on 15 January 2019. She was rude, short, sharp and not collaborative. This was negative behaviour. External team members had also provided feedback that she was not delivering. He gave her this feedback in her performance review. She disagreed and that was the end of the discussion from her perspective. He offered suggestions and asked what she could do. Her response was effectively that there was nothing she needed to change and there was no issue. The next step was to outline in her performance review clear examples where she did not meet behaviour and role criteria. This was documented through HR.
During the meeting on 23 January 2019, the applicant said she felt stressed and unwell. He said they should continue the conversation another time. He was not aware she had any concerns about her baby or any physical symptoms. He received an email from her on 29 January 2019 advising she would be working from home on the advice of her doctor. There was no mention about the health of her baby, stress, work performance, workload, or hours.
Mr Ellis had a phone call with the applicant on 30 January 2019, when they discussed a project she was supposed to deliver in a week. She had not done it and he asked if she required clarification about anything. This was given and she asked for an extension of three to four days. He said they had to deliver the next day. He offered to assist with other duties so she could focus on what was due. They talked about what a benchmark was and how you would arrive at it in terms of an equation. She said she needed more time and next week would be better. He said she had already been given a week, when she said she felt stressed and overwhelmed. She couldn’t think and requested to talk later. He said “of course”.
There was no clear agreement on when the project could be delivered. This was another example of deliverables not being met. The applicant gave no flags that she could not meet the deadline until the day it was due. That was part of her feedback about taking accountability. They did not finish her performance review, as arranged for 4 February 2020 [sic: 2019] as she emailed that day and the next to advise she was taking leave.
The applicant “effectively abandoned her role by taking leave”. She finished two months earlier than planned by initially taking sick leave. She provided a medical certificate and advised she was feeling unwell due to her pregnancy. There was no indication the leave was work related. She then took annual leave and 1.5 days of unpaid leave in March 2019 before her maternity leave commenced. The applicant never returned to work. There had been no agreement, discussion or consultation about her leaving earlier than planned. She did not provide a handover and Mr Ellis covered her role with a contractor.
At about this time, Mr Ellis became aware that the applicant had complained about him to People and Culture. Ms Ho investigated claims of bullying and harassment. There was no evidence to substantiate the allegations. He did not complain about Ms Wijanto. He consulted HR about not being able to close off her performance review.
There was an internal restructure in November 2019. Mr Ellis was advised to “share that information” with Ms Wijanto. He called her work mobile and left a voicemail and called her personal mobile. He did not speak to her directly and was not aware his attempts to contact her made her anxious and stressed. He was contacted by Ms Ho asking him not to contact the applicant. Communication with her was then managed by Ms Wilson. The applicant took redundancy at the end of March 2020.
On 6 October 2020, Mr Ellis became aware the applicant had made a claim in respect of psychological injuries sustained during her employment, dating back to January 2019. He denied having bullied her. He was not aware she felt targeted, intimidated, micromanaged and unsupported. Her pay was decreased in November 2018 because she was returning to her previous role.
As regards the applicant’s allegations that Mr Ellis had said she had bad behaviour and performance, was dismissive and not doing her job properly, that was “her summarising the situation”. He had given her examples of why her behaviour was not appropriate and said it could be perceived as dismissive, not that she was dismissive. He did not say she had bad behaviour, but that her response was not acceptable. He denied ignoring her explanations, not accepting her answers, or saying it was not good enough.
Mr Ellis denied trying to elicit negative feedback about the applicant. As part of the review process, he requested feedback from people who worked with her. It was up to those who provided it whether it was positive or negative. He denied his tone was scary and he used his voice to intimidate the applicant. He is a big person but was sitting down and did not lower his voice – “my voice is my voice”. He also denied the performance appraisal was an attack to spite the applicant and she was targeted because she is Korean. He made no reference to her heritage or culture. The appraisal was standard procedure.

Mr Ellis also denied micromanaging the applicant and enforcing deadlines. He did not recall her telling him she felt he never taught her anything or that he ever yelled at her. He had advised her she had not met her expectations and he was confused about why she had not done certain things. He denied that his feedback was not constructive or that he offered no support or guidance. He denied rolling his eyes at the applicant or targeting her.
Mr Ellis further denied having made inappropriate comments to the applicant, such as that he disliked his Korean managers and workers at Hyundai. He did not have a Korean manager. He did explain the differences between Australian and Korean business cultures. There were two reporting lines and there was tension involved in both sides of the business. He never spoke of the culture as impacting him or of disliking it. He denied asking the applicant if she would jump off a cliff if he told her to do it.
Mr Ellis did not recall snapping loudly at the applicant on 5 September 2018; asking her to speak with her teeth showing; offering her alcohol at the Opera Bar; or becoming angry and rolling his eyes at her in a meeting on 22 January 2019.
Mr Ellis denied becoming personal and saying over 10 times that the applicant was dismissive and had bad behaviour, or that he would not listen when she tried to explain herself. They had meetings about his expectations of her. He listened to her feedback, offered suggestions, and asked how she thought she could approach it differently. Her response was that she did not need to change.
Mr Ellis had emailed the applicant about her having forwarded the email to “Steph”. He wrote “Why did you create a meeting invite with all of my comments and feedback addresses [sic] to you and include the client, Steph??? Could you explain to me why you think that’s a good idea?” It was inappropriate to include clients on an internal email and it was reasonable for him to question her about it.
Mr Ellis denied being passive aggressive about the applicant’s maternity leave. There was a conversation about her being happy to take time off with her new baby. It was intended to be supportive. He was shocked that it was interpreted negatively.

Evidence of Jacqueline (Jackie) Ho

Ms Ho’s statement is dated 8 October 2020. Much of her evidence has been covered by the applicant and Mr Ellis, and I will not repeat it.
Ms Ho had never met the applicant. She became aware of her case through a colleague, Nicole Dyk, who played soccer with Ms Wijanto. She spoke to the applicant on 5 February 2019, and the applicant subsequently emailed her. During the investigation that followed, they had regular calls and built a professional relationship and trust.
Mr Ellis contacted People Advice on 23 January 2019 and 29 January 2019 with concerns about the applicant’s performance and behaviour.
On 23 January 2019, Mr Ellis advised the applicant was dismissive, unapproachable, not working with others, not open to feedback and disagreeing with what was being said. He had met with her to clarify expectations and support her. On 29 January 2019, he advised she had gone home sick after the meeting and was sick the following two days. The applicant’s performance review was scheduled for 29 January 2019, but she messaged Mr Ellis saying she had a doctor’s certificate saying she could work from home for a week.
Mr Ellis had previously contacted People Advice on 5 September 2018. He mentioned the applicant had been upset and he was concerned about some historic issues that may have affected her performance. He asked for advice. This showed there was a history of issues.
On 11 September 2018, Mr Ellis contacted People Advice. He had had a conversation with the applicant when her responses were defensive and she became very emotional. She did not provide much detail. She had had a close relationship with Mr Keegan, and he reminded her of her dead father so she could not speak or deal with him. Mr Ellis believed there were issues that were not work related but were impacting her work. She had not mentioned bullying and harassment.
The applicant sent an email on 4 February 2019 to the People Advice Centre, requesting the respondent’s policy on bullying, referring to bullying of pregnant women. She sent Ms Ho a written complaint on 5 February 2019 and an updated copy on 7 February 2019. She complained about Mr Ellis’s aggressive behaviour and communication. She gave the names of Mr Nip and Ms Boswell as witnesses but advised they did not feel comfortable being involved.
Ms Ho had informal conversations with Mr Nip and Ms Boswell. To the best of her recollection, they had not witnessed any bullying. It appeared there was a relationship breakdown between Mr Ellis and the applicant. She was unable to locate her notes of the discussions.
Ms Ho sought a written response from Mr Ellis. She was unable to substantiate bullying or harassment. She advised Ms Wilkes and notified the applicant by email on 29 March 2019, as she was not at work. The case was closed. Mr Ellis did not lodge a complaint about the applicant.
The applicant said the whole situation had got to her and she did not feel Mr Ellis should be able to get away with it. She felt anxious and stressed at times about the process. She felt physically and mentally stressed and had high blood pressure and stomach cramps. Ms Ho supported her taking leave early to ensure no complications with her pregnancy. She recalled the applicant saying she felt unsafe at work and scared to walk to her car.
The applicant emailed Ms Ho on 20 November 2019 to say Mr Ellis had called twice, left a message asking her to call him ASAP and to come into the office for a meeting on Friday. She asked “Didn’t you tell him he was never allowed to contact me?” Ms Ho explained that the respondent had an obligation to include Ms Wijanto in communication and consultation about the major change. It was reasonable for Mr Ellis as her manager to contact her. Ms Ho asked the applicant if she was available to attend the team talk the next day.
The applicant rang Ms Ho on 21 November 2019, extremely distressed, and said Mr Ellis had been contacting her. She said Ms Ho had promised he would never do so again. Ms Ho responded that she had not promised that, as he would be her direct manager when she returned, and she would need to communicate with him. The applicant said she did not trust anyone; no one understood what she had been through; and she felt she had no privacy.
Ms Ho believed her reaction did not match what had happened, as she had not even talked to Mr Ellis. The applicant said she had a lot going on, which made Ms Ho think there was something happening outside work.
To Ms Ho’s knowledge, Ms Wilson became the applicant’s key point of contact after their call in November 2019. On 1 December 2019, the applicant opted out of applying for any positions and said she wanted to continue maternity leave and see what positions were available then, knowing hers was redundant.
On 9 March 2020, Ms Wilson had a scheduled meeting with the applicant to discuss her opportunities. On 11 March 2020, the applicant advised she wished to take a redundancy. She was offered EAP and outplacement services.
Ms Ho heard nothing further until mid-August 2020, when she was advised by Paul Loakimidis, Injury Management Adviser, that the applicant had lodged a claim on 13 August 2020 for psychological injury.

Medical Evidence

Myhealth Castle Towers

The medical records of the practice are in evidence.
On 24 January 2019, Dr Christina Wynn recorded “Abdo pain. Workplace issue”. The applicant was then 21 weeks pregnant.
Dr Wynn recorded that the applicant felt targeted by her manager, who was rude to her and nice to everyone else. She was allegedly ridiculed, told off and questioned in front of colleagues. She felt attacked in a meeting, despite accepting criticism and negotiating improvements. She was told that the manager would compile a list of things she was doing wrong. He finished a “debate” with her with “you need to smile more”. The applicant was aware she was “matter of fact” at work, and not warm, but that was how she was professionally. She did not understand his incessant aggressive behaviour, as she was leaving in three months and “will not return”.

The manager was a “large, muscly man”, so the applicant felt physically intimidated. She had that day spoken to HR, as she had started crying at work. She was feeling very nervous and panicked due to recent disagreements with the manager. The reasons for her visit were recorded as workplace bullying and pregnancy counselling. The applicant was given a certificate from 24 January 2019 to 1 February 2019. She was advised to stay off work or work from home to reduce stress and its potential negative effects on the pregnancy.

On 1 February 2019, Dr Wynn recorded that the applicant was able to work from home. She felt less panicked, but the situation had escalated. She had received multiple “condescending” and “angry” emails from her manager. A minor admin. error incited emails using lots of exclamation points and capital letters. She had been hesitant to take it further with HR, as the HR manager was good friends with her manager.
Dr Wynn noted “revised writing report to HR”, including email printout as evidence of bullying behaviour. The applicant was given “resource” of Fair Work Ombudsman for workplace bullying if there was no action from HR. Focused coping and relaxation strategies were discussed. The applicant was advised to keep herself safe and avoid dangerous situations and one-on-one encounters, given “element of physical intimidation”. Her blood pressure had improved and there was no further abdominal pain.

On 13 February 2019, Dr Mee-Jin Lee recorded ongoing workplace bullying causing anxiety. The applicant was crying often, had worried thoughts and insomnia, palpitations, and queasy stomach. She made similar complaints to those recorded by Dr Wynn. She felt very unsupported and alone. Her manager did not believe she was really sick, and she felt scared to confront him as he had in the past been very confrontational and not responsive to what she said. She needed her job. Her husband was supportive, and her baby was doing well.

Dr Lee diagnosed adjustment disorder with anxiety, and recorded workplace bullying. She issued a certificate from 13 February 2019 to 22 February 2019.
On 2 March 2019, Dr Lee recorded that the applicant was doing better. She had not been at work. HR had made measures for interviewing “for collateral history”, and the manager, who was on leave. Ms Wijanto was less anxious.

On 15 April 2019, Dr Lee recorded that the applicant had wrist and finger pain, swelling and some paresthesia. She had been helping her sister with her business, cutting and using her hands a lot. Her mood was stable since stopping work. She had no anxiety or panic attacks.

The applicant continued to consult the practice for antenatal and postnatal care. On 13 July 2019, Dr Lee recorded that she was enjoying motherhood and time with the baby. There was “no low mood”. She had a very supportive and loving husband and supportive parents and in-laws.
On 19 August 2020, Dr Lee recorded that the applicant informed her about a workers’ compensation case she was opening with another doctor specialising in compensation. She was stressed about the iCare agent calling repeatedly and was seeing a psychologist.
The applicant’s records required for workers’ compensation were exported on 2 September 2020. She continued to consult the practice for other issues, including her second pregnancy.

Dr Eric Lim/Workers Doctors

Dr Lim’s clinical records commence on 7 August 2020. He recorded that the applicant had reported on 8 February 2019 that she had suffered a psychological injury at work. She reported being harassed and bullied by the head manager. She also could not cope with the new management style and employment changes. She had not previously claimed compensation as she was pregnant and was advised by her GP to avoid further stressors.
Dr Lim opined that the mechanism of injury was the direct result of performing the applicant’s tasks as a Digital Marketing Manager. The history was consistent with employment being the main contributing factor to the injury. He diagnosed adjustment disorder with anxiety. The applicant had suffered psychological injury after being bullied at work. She was not to work for Metcash and was to trial alternate work. She was fit to work for four hours a day, four days a week.
On 12 August 2020, Mr Carl Nielsen, psychologist, recorded that bullying and harassment were still affecting the applicant. It had “commenced from day 1” and worsened for the last three months of her employment when the new general manager took over. Her symptoms included teary outbursts, crying bouts, irrational guilt, anxious and depressive cognitions, impaired memory and concentration, and sleep disturbance.
Mr Nielsen diagnosed major depressive disorder with anxious distress.
The applicant consulted Dr Ben Dickson on 14 August 2020. He recorded her injury as adjustment disorder with anxiety. She had low mood, was very anxious, distressed, and tearful. Her sleep and appetite were disturbed. Her affect was anxious, and she was crying throughout.

Dr Dickson recorded “harassment from insurer”, which implied the applicant was lying and would be investigated. Her mood had deteriorated. The calls were becoming more frequent. They discussed updating her certificate to reflect the need for email communication only.

On 19 August 2020, the applicant consulted psychologist Ms Stephanie Falero. She presented with anxious tearful mood, congruent affect and rapid speech. The “lady from iCare” called every day, although the doctor had requested email. The applicant had “buried” the issues. Starting the claims process had brought up a lot of emotions. She had felt undervalued, intimidated, micromanaged, and humiliated in front of others. She complained with no response. She felt they were trying to get rid of her. She was working four hours a day/four days a week in the family business.
On 21 August 2020, Dr Dickson recorded that the applicant felt slightly better since “harassment” from iCare had ceased. Before that, she was frequently tearful and anxious all day. Her mood remained predominantly low.
On 26 August 2020, Ms Falero recorded that the applicant was feeling less stressed as iCare had ceased calling. The applicant did not believe she could work in a corporate environment due to mistrust, as she felt betrayed, and partly because she could not cope.
On 2 September 2020, Ms Falero recorded that the applicant presented with anxious mood, congruent affect and normal speech. She had applied for some jobs as she felt she needed to but did not try hard for the application. When she thought of working again she felt dread
- “I can’t do this”. She was advised not to apply yet as she was not psychologically stable enough. She had taken three days off and would take the rest of the week, due to food poisoning and amotivation.
On 16 September 2020, Ms Falero recorded that the applicant reported depressed mood and anxious cognitions. Her anxiety was triggered by visiting the area close to work. She was overwhelmed by appointments and having to retell her experience.
Dr Dickson recorded on 18 September 2020 that the applicant was fixated on stressors with the legal process. She had had an appointment with an independent medical examiner, who was “very rude” and wondered if her claim had been declined. She had also had multiple calls from the case manager. She was anxious and depressed on review.
Ms Falero recorded on 1 October 2020 that there had been an aggravation of the applicant’s anxiety and stress. The diagnosis was adjustment disorder with anxiety and depressed mood. She had been concerned about being accepted, “fitting in”, not being able to say no, and avoidant of conflict.
On 15 October 2020, Ms Falero recorded that the applicant had been low for the past two weeks. She discussed her feelings about Mr Keegan and acknowledged boundaries were crossed. She felt guilt around this. She felt disconnected from her partner. She presented with anxious mood, dysphoric affect and rapid speech. The diagnosis remained the same. She could not work as her mother had been unable to help with the baby.
On 29 October 2020, Ms Falero recorded that the applicant’s mother had been helping once a week, but “she cannot hold things without dropping them”. She had impaired memory and concentration. She felt fearful when she saw men that looked like Mr Ellis. There were other external reminders of work. The diagnosis remained the same.
On 13 November 2020, Dr Dickson recorded that the applicant was eight weeks pregnant. She was working less, due to nausea. Her mental state was unchanged. On the same date, Ms Falero recorded that the applicant was triggered by seeing people who reminded her of her previous manager. She was worried he might know about her claim and try to find out information about her.
Ms Falero recorded on 27 November 2020 that the applicant was scared by the thought of going back to work, but relieved she was pregnant and the process was delayed. She was working irregularly due to nausea.
On 11 December 2020, Ms Falero recorded that the applicant had anergia, irritability and depressed and anxious mood. She had low tearful mood, dysphoric affect and normal speech.
On 15 January 2021, Ms Falero recorded that the applicant had anxious cognitions when thinking of returning to “corporate life”. She had not received any wages since starting the claim and was not aware she was meant to.
Dr Dickson recorded on 29 January 2021 that the applicant’s anxiety was exacerbated by issues with iCare/payments. Her solicitors were unable to reach the case manager “for weeks”. On the same date, Ms Falero recorded that the applicant had increased interest and enjoyment in pleasurable activities. She had been going to the beach often and enjoyed herself and had commenced walking with her partner.
Ms Falero recorded on 12 February 2021 that the applicant had received one payment from the insurer. She was at the park when she ran into a former colleague. They did not acknowledge each other, and she was able to defuse her thoughts and remain present with her child. She had settled mood, congruent affect and normal speech.
Conversely, Dr Dickson recorded on 19 February 2019 that heightened anxiety had persisted since this encounter. The applicant worried over how she would deal with other colleagues, who are more “fake”, and would try to engage her. Her anxiety was exacerbated when her case manager sent her an email accusing her of lying about her working hours. She was taken aback, as her certificates of capacity (COCs) always had the hours on them, she had worked less, and it was mentioned in Dr Lim’s initial report.
Ms Falero recorded on 5 March 2021 that the applicant was fatigued at 24 weeks gestation. Her case manager had accused her of lying about working, which shocked her. She was contacted by an old co-worker who left before anything had happened. She was working less often and thought she may have to stop soon.
On 26 March 2021, Ms Falero recorded that the applicant was disappointed and shocked that her claim had been declined. She felt the insurer did not believe her and felt dismissed as she had by her employer. Ms Falero noted tearfulness, anxious and depressive cognitions, fatigue and loss of trust and confidence. The applicant had sleep disturbance, anxious mood and somatic symptoms. She had worked one day that week.

Dr David Kumagaya – Consultant Psychiatrist

Dr Kumagaya reported to Dr Lim on 9 September 2020.

Dr Kumagaya recorded a history that is consistent with the applicant’s evidence. She reported the onset of depressive and anxious symptoms. She suffered from grief in 2017, with the passing of her father, but was not formally diagnosed with a psychiatric/psychological condition. Her psychological functioning was stable before her work-related injury.

Dr Kumagaya diagnosed adjustment disorder with mixed anxiety and depressed mood. He noted that the applicant was working suitable duties at reduced hours at an embroidery factory.
The applicant continued to consult Dr Kumagaya, who provided her with psychoeducation and supportive psychotherapy. He recommended continued psychological therapy.
On 21 January 2021, Dr Kumagaya reported that the applicant’s mental state had improved. There had been a mild reduction in her anxiety and improvement in her interest whilst engaging in activities. There were ongoing concentration and energy problems, anxiety, and restlessness.
The applicant had distressing memories of bullying and harassment. She spoke of being “yelled at” and being handed anonymous critical comments. Television programs and media portrayals of corporate scenes triggered such memories.
Dr Kumagaya discussed the applicant’s treatment options, including psychotropic medication. She requested ongoing psychological therapy. She was aware of Mothersafe and of discussing any potential medications with it. Her diagnosis remained the same.

Dr Abdal W. Khan – Consultant Psychiatrist

Dr Khan was qualified by the applicant and reported first on 22 October 2020.
Dr Khan recorded a history that the applicant first experienced difficulties during her employment in early 2018. It took over a year to obtain a promotion and she felt undervalued and unsupported. The history he recorded is consistent with Ms Wijanto’s evidence.
The applicant experienced gradual deterioration in her mental state, with symptoms of depression and anxiety, including low mood, anxious ruminations, panic attacks, sleep and appetite disturbance, amotivation, reduced enjoyment in activities, anergia, impaired concentration and feelings of hopelessness. She took sick leave and annual leave, due to her deteriorating mental state, before commencing maternity leave.
Dr Khan referred to the records of Myhealth, and entries made by Drs Wynn and Lee.
The applicant continued to have symptoms of depression and anxiety. She struggled with the Permanent Impairment Rating Scale categories. She was being treated by a psychiatrist and psychologist and had not trialled psychotropic medication. She denied any pre-existing past psychiatric history. There was no significant family history.
Dr Khan diagnosed adjustment disorder with mixed anxiety and depressed mood. The applicant had not had the capacity to work in her pre-injury duties and hours from the date of injury. She was working in a family business, performing basic trimming and administration duties, working less than 20 hours per week. She needed to be prompted by her family to work.
Dr Khan opined that the applicant experienced gradual deterioration in her mental state from early 2018 as a result of work-related psychological trauma. She was repeatedly bullied, harassed, ignored, dismissed and unsupported by her manager. Dr Khan recommended that she continue treatment with her GP, psychologist and psychiatrist, and consider a trial of psychotropic medication. Her prognosis was guarded, and she was unlikely to return to employment within her education, training and experience.
Dr Khan assessed the applicant with 16% WPI. He rated her employability as three.
Dr Khan again reported on 4 May 2021.
Dr Khan noted that the insurer accepted that Ms Wijanto had suffered a workplace psychiatric/psychological injury. He disagreed that the deemed date of injury was 20 March 2020, opining that the applicant first became incapacitated for work in early 2019. The leave she took before commencing maternity leave was due to her deteriorating mental state and concerns about stillbirth due to workplace psychological trauma.
Dr Khan considered the evidence of Dr Das. He noted that Dr Das did not have the contemporaneous medical records of Ms Wijanto’s “treating team”, but had to rely on information provided by the insurer and its lawyer. His conclusion “changed dramatically” between his reports dated 28 September 2020 and 2 March 2021. It was “evident” the insurer had not considered the records.
Dr Khan then referred in detail to the applicant’s clinical records. He reported that they highlighted how her workplace trauma and deteriorating mental state predated, by more than 12 months, any action with respect to retrenchment and dismissal.
Dr Khan opined that there was a clear temporality between the applicant’s workplace psychological trauma and the deterioration in her mental state from early 2019. That trauma was the predominant cause of her incapacity for work, not her retrenchment and dismissal.

Dr Hillol Das – Psychiatrist

Dr Das reported first on 28 September 2020.
Dr Das recorded that Metcash had indicated performance management and there was an internal investigation with findings of “performance gaps”, such as not working with others or being open to feedback. The applicant was subsequently on maternity leave, after which her job was made redundant.
Dr Das recorded that the applicant had three EAP sessions in 2017 but could not remember the exact reasons. She was unhappy with her ex-manager, who promised her a long-delayed and short-lived promotion. Her father died at about the same time. A group from work would go out, and she and her ex-manager always ended up “we two together, I was married, and it was unpleasant”.

The applicant had three EAP sessions in 2018-2019 when she had problems with her new manager, who took over from August 2018, and her role and pay were reduced.
The applicant stopped work in February 2019, taking first sick leave and then maternity leave. She was working part-time in the family business, run by her sister and brother-in-law. The business did not really need her, “they are just helping me”. She helped with the website and whatever tasks were there, and felt supported by her family. She was not looking for a job because she did not feel comfortable going back to work and felt very anxious, because of her experience at the workplace.
Dr Das recorded a history of the issues in the workplace that is consistent with the applicant’s evidence. She said that after she informed the respondent of her pregnancy, she felt completely undervalued and “everyone was so rude to me, all managers were older. I was the young Asian girl and they all looked down on me”. She became unhappy, anxious and depressed and felt concerned that it was affecting her pregnancy. She tried sick leave and working from home, but eventually could not cope any more. Her GP was concerned about the risks to her pregnancy when she ceased work in February 2019.
Dr Das recorded that the applicant’s symptoms had become much worse since her job was made redundant, with mounting financial problems. She was reliant on her husband, who is a nurse. She felt sad that she was not at work, but could not go back. She felt anxious even when she went to the area. She stayed at home all the time. It was a 10 minute drive to work, and she worked flexible but irregular hours. She drove her mother to the hospital but spent the rest of her time at home with her baby and took him to her in-laws, who lived close by.
The applicant had looked for a few jobs but did not feel confident. She had lodged her claim about two months before. She could not get rid of the thoughts and felt “horrible” about what had happened. She had hoped to return to work after her pregnancy, but with that not realised she again felt abandoned. She denied there was ever formal performance management or a warning, and believed her performance was never really a problem.
Dr Das noted that the applicant appeared distressed, was mildly agitated from time to time, and clearly appeared preoccupied and ruminative about her experiences of work during 2017 to 2019. She described feeling more distressed since she put in the claim and had to talk about it. She mentioned being clearly affected due to the “culture, there was a lot of sexual and racial innuendo” that she never complained about until January 2019. She said it was never addressed and she had to cease work.
Dr Das diagnosed moderately severe adjustment disorder with anxiety and depressed mood. The condition appeared to have been due to experiences in the workplace, where the applicant had problems with her ex-manager and a new manager. This was worse when she was pregnant during the end of 2018. She developed symptoms of anxiety and altered mood, more so after she made a formal complaint in January 2019. She was worried about the risk to her pregnancy when she stopped work, much earlier than her scheduled maternity leave, in February 2019. Her symptoms appeared to have been aggravated since her position was made redundant in March 2020.

The applicant’s condition remained quite significantly symptomatic. She was employed in a reduced capacity in her family business, where it was sheltered and flexible, yet she was struggling. Dr Das opined that she did not really have capacity to go back to remunerative employment for any new employer. She should be supported in her treatment, and once her mental state improved in the next three to six months, she would perhaps gain from timely assistance to facilitate a return to work for alternative or her pre-injury duties with a new employer.

Dr Das opined that the applicant’s condition appeared to have developed in the aftermath of problems with her ex-manager in 2017-2018 and her new manager in 2018-2019. Her role was changed, her pay was reduced, and she was allegedly spoken to rudely and criticised unfairly by a manager who was new to the job and whom she had trained. This was worse during her first trimester of pregnancy and more so after she made a formal complaint in January 2019. She was worried about the risk to her pregnancy when she stopped work in February 2019, much earlier than scheduled for her maternity leave.
Dr Das was asked if performance management and redundancy was the predominant cause of the applicant’s “diagnosable injury”. He responded that she did not give a history of any formal performance management and denied ever receiving any warnings or having participated in any formal performance reviews. Her symptoms were intermittent during 2017-2018 and prominently manifest in January-February 2019. They appear to have been somewhat self-contained once she had ceased work and was pregnant with her first child. They were much aggravated when she could not go back to work as planned or expected in March 2020, and instead lost her job.
Dr Das opined that the applicant’s pregnancy could have been a protective factor in some way, and the current exacerbation was precipitated by the unexpected or unanticipated event of job loss and resultant financial consequences. Her mental state was the main barrier for her return to work. She also did not have a job to which to return.

The applicant’s prognosis was uncertain, and she did not have capacity to work for a new employer. Dr Das opined that she should continue with her psychologist and psychiatrist and may be considered for appropriate medications if her symptoms persisted to the same degree. The decision in relation to her claim would also play a crucial part in influencing her overall recovery and prognosis.
Dr Das provided a supplementary report dated 2 March 2021. He referred to having reviewed his reports of September 2020 and November 2020. There is no report dated November 2020 in evidence. The supplementary report refers to it being dated 23 November 2020.
Dr Das also referred to a telephone discussion with the respondent’s solicitor on 1 March 2021, regarding the request for a report addressing the issue of causation. The details of this discussion are not known.
Dr Das opined that the applicant’s condition of adjustment disorder was a stress reactive condition caused by the perceived stress associated with employment related factors of restructuring and subsequent redundancy. The factors associated with the “restructuring” appear to have been the context when the applicant first developed her stress related symptoms, for which she presented to the doctor and proceeded on leave in early 2019. Her symptoms were probably self-contained once she was away from the workplace for a considerable period. She was also focused on her pregnancy. She did not work from March 2019 to March 2020, during which time she went through pregnancy and maternity and was not on any treatment.
Dr Das further opined that the exacerbation of the applicant’s symptoms followed “redundancy” and the consequent financial problems arising from unanticipated job loss when she was looking forward to going back to work in early 2020. The “cascade of events” appears to have been the whole and predominant cause of the applicant’s psychological injury, where no other significant factors were thought to have been causally relevant to her current condition.

SUBMISSIONS

Both parties have provided written submissions, and the respondent has provided a chronology. I will therefore refer only briefly to the submissions.

Respondent

The respondent referred to its chronology of events.

The respondent submitted that the applicant made assertions about her interpretation and perception of events, which it lists, together with its evidence in response. It submitted
I should find that there was no unreasonable conduct by Mr Ellis, and he did not bully, target, intimidate or micromanage the applicant. If I find that the conduct did occur, I should find it was reasonable and occurred in the management and appraisal of the applicant’s performance.

The respondent submitted that there was no wrongful or inappropriate conduct, and nothing that falls within the applicant’s pleaded claim, in Mr Ellis having contacted her during her maternity leave. It is admitted that the call was made. It arose from conduct relating to retrenchment or redundancy.

The respondent referred to the claim history. It submitted the applicant first saw a doctor in respect of her work injury allegations on 7 August 2020, more than 18 months after she left employment.
On or about 13 August 2020, EML received the first certificate and reasonably excused the claim. It paid one week’s compensation in August 2020. On about 1 February 2021, it wrote to the applicant accepting liability for a date of injury of 8 February 2019. No weekly compensation or medical expenses were paid. On 24 March 2021, EML issued a dispute notice declining liability for injury on 24 March 2020, and disputing there was a compensable injury on 8 February 2019.

The respondent then referred to the Application and the correspondence from the applicant’s solicitor to EML dated 13 April 2021.

The respondent referred to the applicant’s treating medical records. It submitted that the entirety of the contemporaneous medical evidence is three attendances on a GP in January 2019; and no further complaints were made until August 2020. It submitted there were arguably contributable non-work-related factors, including the death of the applicant’s father in January 2019 and the health issues of her mother and father-in-law. The clinical notes are consistent with Dr Das’s opinion that there were events that occurred at the time, but they were self-contained and did not cause psychological harm.

The respondent submitted that the clinical records of the applicant’s psychologists commence six months after the termination of employment and 18 months after the alleged bullying and harassment. They are not contemporaneous and are susceptible to reliance on recollection only. The respondent submitted they should be treated with caution. It referred to the broadening of the applicant’s allegations and non-work-related issues.

The respondent referred to Dr Khan’s reports. It submitted that the purpose of his second report was to provide a different causation argument and assert that the cause of the applicant’s incapacity was incidents that occurred in 2018 and 2019, and she became incapacitated in early 2019.

The respondent submitted that Dr Das in his supplementary report makes clear that events in the workplace in January and February 2019 did not cause or lead to and were not the [sic] substantial contributing factor to any psychological condition. The diagnosis is a stress reactive condition caused by perceived stresses associated with restructure and redundancy in March 2020. Those matters were the whole and predominant [sic] cause of the psychological condition.

The respondent submitted there seems no dispute that the applicant suffers from adjustment disorder with anxiety and depressed mood. She must still show that work was the main contributing factor to the injury. The allegations of overbearing conduct by Mr Ellis are a perception only and Mr Ellis denied it occurred. There is no independent corroboration of her evidence. She made an allegation about her redundancy and contact from Mr Ellis, which clearly occurred. She must still show that any such incident was the main contributing factor to her sustaining the disease. Other factors have added to the condition. The respondent submitted that a finding will be made that employment has not been the main contributing factor to the applicant’s psychological condition.

As regards its defence pursuant to section 11A of the 1987 Act, the respondent submitted that on the weight of the evidence, its conduct and that of Mr Ellis in managing the applicant was reasonable. While the applicant thinks it was unreasonable, that is not the test. There must be an objective analysis of the material. As Mr Ellis was regularly in contact with Ms Ho and his HR advisers, in view of that material, the conduct must be seen as reasonable. The respondent submitted the same can be said concerning the contact at the time of the redundancy.

The respondent submitted that Dr Das’s supplementary opinion supports the position that what caused the applicant’s condition and diagnosis was the restructuring and retrenchment and dismissal in March 2020. This was the whole or predominant cause. The applicant has not led any contrary evidence and Dr Das’s opinion should be accepted. The respondent submitted there is adequate evidence to prove the section 11A defence and no compensation will be payable.
The respondent submitted that, to the extent a finding is made about its conduct in January and February 2019, the objective evidence is that it related to management of the applicant, in respect of performance appraisal and discipline. Objectively, it was reasonable and section 11A would also apply as a defence to that conduct.

As regards the applicant’s work capacity, the respondent submitted that she clearly has capacity. At a minimum, this is $300 per week, but that amount is based on an arbitrary payment, not an actual work assessment. Her own evidence suggests she could work at least 16 hours per week and possibly more. The respondent submitted the real reason the applicant is not working is not because of any work injury, but because of her maternity leave. She is not seeking work and has not been seeking work since the left the respondent in March 2019.

The respondent submitted that, to recover weekly compensation, the applicant must show that her incapacity or loss of earnings is by reason of the injury. The reason she has not earned any income does not arise from any work injury and no amount should be allowed.
The respondent submitted that there is a dispute as to whether the applicant has reached maximum medical improvement. To the extent that an injury is established, any permanent impairment dispute should be referred to a medical assessor for determination pursuant to the Guidelines.

As regards procedural issues regarding weekly payments, the respondent rejected the assertion that past amounts are payable irrespective of any finding of liability or incapacity. It submitted the Commission has no jurisdiction to make (such) an order. It can make an award for payment of arrears of weekly compensation, which will then be payable. There is no basis to make a finding on the basis of alleged estoppel, and there is no estoppel. This is not a court of equity, and the Commission is limited to its statutory powers to make awards pursuant to the 1987 Act. The respondent submitted that “this argument goes no further and must end here”.

(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

The respondent bears the onus of establishing a defence to the claim, pursuant to section 11A of the 1987 Act – Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) DDCR 206.
The respondent has made submissions about the conduct of Mr Ellis, submitting that I should find that, if it did occur, it was reasonable, and occurred in the management and appraisal of the applicant’s performance, or discipline. However, in raising a defence pursuant to section 11A of the 1987 Act, the respondent relied solely on its actions with respect to retrenchment or dismissal of the applicant. It did not rely on “management”, which does not appear in section 11A(1), performance appraisal or discipline.
While the dispute notice may be somewhat unclear on the issue of “injury”, it unambiguously referred to retrenchment or dismissal as the matters relied on pursuant to section 11A of the 1987 Act. That was confirmed by the respondent’s solicitor at the telephone conference on 28 April 2021.
The applicant did not address “management”, performance appraisal or discipline in her submissions, nor do I believe she needed to do so. No application has been made pursuant to section 289A(4) of the 1998 Act to raise matters other than retrenchment or dismissal as defences to the claim, pursuant to section 11A. I do not therefore intend to consider the matter of performance appraisal or discipline. I do note that the respondent has no medical evidence that addresses those issues, which, while not necessarily fatal to such a defence, is a matter to be taken into account: Hamad.
The applicant submitted, with respect to the respondent’s reliance on “dismissal”, that she was not dismissed. I accept that submission. The applicant was offered several options after the restructure of the Digital Marketing Team, including redeployment. She was advised that if no suitable options were found, she would be made redundant. She chose to accept redundancy and was provided in a letter dated 20 March 2020 with “formal notice of termination via redundancy”.
Turning to the matter of retrenchment, the respondent bears the onus of establishing that the applicant’s injury was wholly or predominantly caused by its reasonable action.
I will deal firstly with the issue of “wholly or predominantly caused”. This has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSSWCCPD 96. In the same case, Roche DP dealt with the causation issue, on the basis that Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, as “the leading authority on causation in workers’ compensation claims”, applied. He said, “causation is a question of fact to be determined on the evidence in each case”.
The applicant submitted that the respondent had a factual challenge in proving that the injury, which was first recorded by Dr Wynn (in fact, it was Dr Lee) on 13 February 2019, was wholly or predominantly caused by the redundancy that occurred more than a year later.
I agree.
Dr Wynn recorded as early as 24 January 2019 that the applicant had “workplace issues” and felt targeted by her manager. She advised the applicant to stay off work or work from home. The applicant contacted HR on 25 January 2019, made a formal complaint about
Mr Ellis on 5 February 2019 and updated it on 7 February 2019. Her evidence about having made a complaint is confirmed by both Mr Ellis and Ms Ho, and by documentary evidence.
Dr Lee diagnosed the applicant with adjustment disorder with anxiety on 13 February 2019. She recorded workplace bullying.
All the medical practitioners who have provided evidence in this matter accept that the applicant’s injury was caused by her experiences at work, with some evidence relating it to events as far back as 2018. It is not necessary that she establish bullying or harassment by Mr Ellis or anyone else.
Dr Das, who was qualified by the respondent, initially opined that the applicant’s condition appeared to be due to experiences in the workplace, including problems with her manager and ex-manager. This was worse when she was pregnant in 2018. She developed symptoms of anxiety and altered mood, more so after she made a formal complaint.
Dr Das was asked if performance management and redundancy were the predominant causes of the applicant’s injury. He responded that her symptoms were intermittent during 2017-2018 and prominently manifest in January-February 2019. They were “much aggravated” when she could not go back to work and lost her job. The fact that her symptoms may have been aggravated by the loss of her employment falls far short of establishing that the redundancy was the whole or predominant cause of her injury. The injury had occurred at least 12 months before and was “prominently manifest” at that time.
Dr Das was then asked to provide a supplementary report. He opined that the applicant’s condition was caused by the perceived stress associated with restructuring and redundancy, and this was the context in which she proceeded on leave in early 2019. The restructure and redundancy were in 2020. There is no suggestion that they were even contemplated in 2019, when the applicant commenced leave. The “exacerbation” of the applicant’s symptoms followed her redundancy and resultant financial problems. She clearly already had symptoms at that time.
Dr Das has not explained why he altered his opinion as to the causation of the applicant’s injury, and his opinion as to why she went on leave in early 2019 is clearly at odds with the evidence about the date of the restructure and redundancy. I do not accept the evidence in his supplementary report.
The respondent has failed to establish that the applicant’s psychological injury was “mainly or principally caused” by its action with respect to retrenchment or dismissal. It is therefore unnecessary that I consider whether such action was reasonable. No submissions on “reasonableness” were made by the applicant.
If it were necessary to determine the issue of reasonableness, I would nonetheless conclude that the actions of the respondent in having Mr Ellis contact the applicant about the restructure whilst she was on maternity leave were not reasonable.
The applicant had made both formal and informal complaints about Mr Ellis’s conduct, albeit that the respondent did not uphold her complaint. She told Ms Ho she felt unsafe at work and scared to walk to her car. She had attributed this to feeling intimidated by Mr Ellis.
The restructure may have had the effect of ending the applicant’s employment. It would have been appropriate, therefore, for discussions about her future to take place with someone other than a person about whom she had made complaints. Ms Ho had “built [with Ms Wijanto] a professional relationship and trust”, and after the applicant complained, further contact was made by Ms Wilson. Either could have been the initial point of contact for the discussions with the applicant.

Incapacity

The applicant submitted that she had no capacity for work until 27 July 2020 and has since had a reduced capacity. The respondent submitted that the reason she has not earned any income does not arise from any work injury, and no weekly benefits should be awarded.
The applicant’s evidence is that since being made redundant, she had worked part-time in the family business. She had been paid during the financial year 2020/2021. She stated in her second statement that she started working in the family business towards the end of July 2020. It is not clear if that is when she actually commenced assisting in the business, or when it started to pay her.
There is a notation by Dr Lee on 15 April 2019 that the applicant had symptoms in her hands, as she had been helping her sister with her business. That was before the applicant was made redundant, and there is no other record of the applicant working in the business, apart from her own evidence.
The applicant’s evidence is that she felt better not being at work, but the thought of returning gave her panic attacks. When she went near the area where she worked, “it started again”. She felt traumatised by seeing someone from work, her sleep was disturbed, and she could not get over what had happened.
The evidence from the practice of Workers Doctors is that the applicant presented as anxious, distressed and tearful. The claims process brought up a lot of emotions. She had “buried the issues”.
Dr Khan opined that the applicant had not had the capacity to work in her pre-injury employment or her pre-injury hours from the date of the injury.
Dr Das, in his first report, opined that the applicant’s symptoms became much worse after she was made redundant. Her condition developed during 2018/2019, but became worse when she was pregnant, towards the end of 2018 and more so after she made a formal complaint. She was employed in a much reduced capacity but was struggling. She did not have the capacity to work for a new employer.
I accept the evidence of, in particular, Dr Khan and Dr Das, which supports the finding that the applicant had no work capacity until July 2020. She has adopted 27 July 2020 as the date on which she commenced to earn $300 per week, working in the family business.
Dr Lim certified the applicant with capacity to work for four hours per day, four days per week, on 7 August 2020. Her evidence is that she works up to about 12 hours per week, but earns the same amount, regardless of the hours worked.
The applicant submitted that the minimum wage at July 2020 would return the applicant $317.44 per week for a 16 hour week. The minimum wage increased from 1 July 2021 to $20.33 per hour, so for a 16 hour week, would return the applicant $325.28 per week.
The respondent did not provide submissions on why it should be permitted to raise the issue of novus actus interveniens, having not relied upon it in its dispute notice. Its submission on this issue was that there is no post-injury event that took over the injury, which it conceded remained compensable, but it is family commitments, rather than the injury, that are producing incapacity.
While it is not clear whether the respondent actually seeks to rely on novus actus interveniens, for the sake of completeness, I will deal with the issue. It was not raised in the dispute notice, or at the telephone conference held on 28 April 2021, but raised for the first time at the conciliation/arbitration hearing. No reason was provided for it not having been raised before that date. Applying the relevant matters referred to by Roche DP in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227, I refuse to exercise my discretion to allow the respondent to raise the issue of novus actus interveniens.
The respondent’s dispute notice raised the issue of incapacity, and I will consider its submission that the applicant’s incapacity for work, if any, is due to her family commitments and not to the injury.
In the matter of Kirkbride, Arbitrator Harris applied Miller (No 2). The respondent submitted that Kirkbride is distinguishable because, in that matter, the respondent sought to reduce the payment paid to a worker by the amount she had been paid while she was on maternity leave.
What I need to determine is whether, and if so to what extent, the applicant was incapacitated for work as a result of the injury arising out of or in the course of her employment. I have determined that she has had an incapacity for work as result of the injury since 4 February 2019. The incapacity for work did not arise because of her family commitments. She was already incapacitated before her first child was born on 31 May 2019, and she returned to work part-time, despite her family commitments, once she was certified fit to do so.
In Kirkbride, Arbitrator Harris noted that the statutory powers of the Commission arise under the 1987 Act and the 1998 Act. He held that there is no statutory power in the Commission to order other than what the applicant is entitled to receive pursuant to the provisions of the 1987 Act. I respectfully agree.
Arbitrator Harris applied Miller (No 2), in which Roche DP said:
“More importantly, an employer’s liability does not cease because of supervening incapacity as a result of external non-work related events (see McCann v Scottish Co-op Laundry Association Ltd [1936] 1 All ER 475; Salisbury v Australian Iron & Steel Ltd [1943] WCR 97 and Doudie v Kinneil, Cannell & Coking Coal Co Ltd [1947] AC 377). The position is well summarised in the text Workers Compensation (New South Wales), 1979, second edition, by C P Mills at 244:

‘The question in every such case is whether, had there been no supervening non-employment event, the worker would, at the date in question be incapacitated by the effects of the employment injury operating as a sole or contributing cause of the incapacity.’

The issue was also considered in Australia Wire Industries v Nicholson (1985) 1 NSWCCR 50 at 55, where McHugh JA, stated of the Workers Compensation Act 1926 (the 1926 Act):

‘The right to compensation for incapacity is given by section 9 [see sections 9, 33 and 36 of the 1987 Act] and not by section 11. Retirement or intention to retire are not relevant to section 9, which is only concerned with total or partial incapacity for work resulting from injury, nor are they relevant to the first two steps in section 11(1).’

The right to compensation under the 1987 Act still arises under section 9, but Division 2 of that Act governs the quantification of weekly compensation. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, compensation payable shall include weekly compensation. Compensation for total incapacity is determined by the application of sections 34 to 37 inclusive of the 1987 Act. As with section 9 of the 1926 Act, retirement or other supervening events are not relevant to determining entitlement to compensation for total incapacity. They are, however, most relevant to the exercise of the discretion under section 40 (section 11(1) of the 1926 Act), as is well illustrated in Hirst [Hirstv Illawarra Health Service (2000) 21 NSWCCR 82] and other authorities such as Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463.”

Roche DP went on to say that “Applying the above authorities, it is irrelevant when Mr Miller applied for leave. The critical question is: whether if he had not taken leave, he was incapacitated during the relevant period as a result of his work injury?”. When that question is asked about Ms Wijanto, I have determined that the answer is yes.
I have determined that the applicant had no capacity for work from 4 February 2019 to 26 July 2020; and capacity for work from 27 July 2020 to date and continuing.
The respondent has submitted that the applicant has no entitlement to weekly benefits pursuant to section 38 of the 1987 Act. The applicant has made no submissions on the application of section 38 of the Act, apart from referring to it in its calculations of what it submitted would be an appropriate award of weekly benefits.
The applicant has capacity for work and has been certified as having capacity for 16 hours per week. On her own evidence, she is working at most for 12 hours per week. She therefore does not satisfy the requirements of section 38(3)(b) of the 1987 Act. I decline to award weekly compensation pursuant to section 38 of the Act.

Weekly benefits and medical expenses

The parties have agreed on the PIAWE of $1,852.50. The applicant has been working in her family business since the end of July 2020. The respondent submitted that she had significant work capacity. It did not expand on those submissions or make a submission as to the type of work for which she has capacity.
The applicant has been certified with capacity to work for 16 hours per week. Her evidence is that she works, at most, 12 hours per week in her family’s business (approximately four hours per day, two or three days a week). Her entitlement to weekly benefits in the second entitlement period is therefore to be determined pursuant to section 37(3) of the 1987 Act.
I accept that the applicant is working in what Dr Das described as a sheltered and flexible environment, in which she nonetheless struggles. She could not expect the same level of support and flexibility from an unrelated employer. She is being paid $300 per week, regardless of the hours she works. For a 12 hour week, that equates to $25 per hour. She has been certified fit to work for 16 hours per week, which, if paid at an hourly rate of $25 per hour, would amount to $400 per week.
Assuming that the applicant’s family is generous in paying her $25 per hour, including for hours she does not work, it seems to me appropriate that I allow for current weekly earnings at the minimum wage rate for 16 hours per week.
The applicant made a submission as to the minimum wage at July 2020, which was $317.44 per week, for a 16 hour week. The minimum wage increased to $20.33 per hour from 1 July 2021. The amount payable for a 16 hour week is $325.28 per week. I determine that the applicant’s current weekly earnings were in accordance with the appropriate minimum wage rates.
There will accordingly be an award for the applicant as follows:
(a) $1,759.87 per week from 4 February 2019 to 6 May 2019, pursuant to section 36 of the 1987 Act;
(b) $1,482 per week from 7 May 2019 to 26 July 2020, pursuant to section 37 of the 1987 Act;
(c) $1,164.56 per week from 27 July 2020 to 30 June 2021, pursuant to section 37 of the 1987 Act, and
(d) $1,156.72 per week from 1 July 2021, pursuant to section 37 of the Act.
I decline to make an award of weekly benefits pursuant to section 38 of the 1987 Act.
It appears that a small amount of weekly benefits was paid, and I will give the respondent credit for any payments made.
The applicant is entitled to an award for payment of her medical expenses, pursuant to section 60 of the 1987 Act, and I make that award.

Interest

Section 109 of the 1998 Act provides:
“109 Interest before order for payment
(cf former s 113)
(1)     In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section--
(a)on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b)on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c)on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not--
(a)authorise the giving of interest upon interest, or
(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
An award of interest pursuant to section 109 of the 1998 Act is discretionary. It may apply to some or all the compensation payable, for the entire period, from the date of the claim to the date of the order, or for a lesser period. The rate of any award of interest is also discretionary. However, whilst the discretion is wide, regard must be had to the facts of the case.

In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Pet Foods Pty Ltd[2005] NSWWCCPD 9, Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSW CCR; Healey v McPherson Binding Pty Ltd(1989) 5 NSWCCR 139).”
In the matter of Kaur v Thales Underwater Systems Pty Ltd [2011] NSWWCCPD 6, President Keating said at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
The phrase “duly made” has been held to mean “fully particularised” and was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [2020] NSWWCC 36, in which Arbitrator Isaksen referred to the decision of Arbitrator Wynyard in Shanika Cooper v G & W Mudgee Concreting Pty Ltd & Ors (WCC6411/18) and his own decision in Lavelle v David Paul Browne & Ors (WCC533/19). Arbitrator Wynyard took a similar approach in Mudgee Explorer Tours Pty Ltd v Clarke [2021] NSWPIC 41.
The applicant submitted that her claim was “duly made”, at the latest, by 26 October 2020, when Dr Khan’s report was served. The respondent submitted that this date was 29 March 2021, when the evidence from Workers Doctors was served.
There may, of course, be different dates of claim for different forms of compensation. The claim made on 26 October 2020 was for permanent impairment compensation (on which interest may not be awarded).
I assume the claim that was “reasonably excused” by iCare on 13 August 2020 was one for weekly benefits. Dr Lim issued the first COC on 7 August 2020 and provided a report of that date. The applicant’s evidence is that she decided to lodge the claim on 7 August 2020, she attended Dr Lim on 4 August 2020, and he helped her fill out the forms on 7 August 2020.
I therefore assume she notified iCare of her claim on or about 7 August 2020. There is no evidence that the claim was particularised at that stage, or, indeed, that particulars were requested.
A factual investigation was arranged and the report of Quantumcorp is dated 26 October 2020. There is no evidence of when the report was commissioned, but it must have been after iCare received notification of the claim in August 2020, but before the claim for permanent impairment compensation was made on 26 October 2020.

ICare arranged for the applicant to be examined by Dr Das in September 2020. It responded to her claim for permanent impairment compensation on 24 November 2020. It did not respond to her claim for weekly benefits (and, I assume, medical expenses) until 1 February 2021, when it accepted liability. It would have been open to the applicant to submit a formal claim once she was notified of a “reasonable excuse”; and the notice informed her that she could do so, after which iCare would have had 21 days in which to determine liability.
The applicant’s solicitors requested on 29 March 2021 that iCare review its decision that the applicant had not yet reached maximum medical improvement, so that permanent impairment was not capable of assessment. They also referred to the dispute notice dated 24 March 2021. Although they did not request a review of the decision communicated in that notice, they requested further information. The Application was lodged on 30 March 2021.
It is not possible to know when the claim for weekly benefits was “duly made”, that is, fully particularised. That may not have been until the Application was lodged. In the circumstances, I do not believe it is appropriate that I exercise my discretion to award the applicant interest on the award of weekly benefits, pursuant to section 109 (1) of the 1998 Act, and I decline to do so.

Claim for permanent impairment

The medical dispute as to the applicant’s permanent impairment, if any, as a result of the injury, is remitted to the President for referral to a Medical Assessor for assessment.

Contravention of the 1998 Act

The applicant made no submissions on this issue. The respondent submitted that, having accepted liability, it was open to it to change its decision and dispute liability, if it obtains further information. That is undoubtedly correct, provided that it complies with the legislation and any applicable guidelines.
In the absence of submissions from the applicant, I do not believe it is necessary that I deal with this issue.
I observe, however, that section 278 of the 1998 Act provides that nothing in Division 2 of Part 3 of the Act (Claims for weekly payments) prevents the acceptance of liability and the commencement of weekly payments before the end of the provisional liability period. I do not see that it has any application in this matter. It merely means that an insurer is not obliged to wait until the expiry of any period for which it has accepted provisional liability, before it accepts liability and pays weekly benefits. It does not have to do so.
Section 283 of the Act provides that it is an offence to fail to determine a claim as and when required by Part 3, unless there is a reasonable excuse for the failure. A reasonable excuse must be one that the Workers Compensation Guidelines (the Guidelines) provide is a reasonable excuse. ICare had notified the applicant of a “reasonable excuse” not to commence payment of weekly benefits on 13 August 2020. Its reasons included that it needed more information to establish when she told the respondent about the injury, and to establish that an injury had occurred and was work related.
The Guidelines include as “reasonable excuses” that the injury is not work related and that the injury was notified after two months. In the circumstances, it does not appear that there was a breach of section 283 of the 1998 Act in any event.
The respondent did make submissions as to the application of section 80 of the 1998 Act. It submitted that, as the applicant had not received weekly compensation, except for one week, section 80 did not apply.
Section 80 of the 1998 Act provides for required periods of notice when an insurer discontinues or reduces payments of weekly compensation. Section 80(2) provides that the section applies only if a worker has received weekly payments for a continuous period of at least 12 weeks.
The applicant did not receive weekly benefits for a continuous period of at least 12 weeks. That would have been the case when the section 78 notice was issued on 24 March 2021, even if iCare had complied with its obligation to commence payments of weekly compensation after accepting liability on 1 February 2021. It was therefore not in breach of section 80 of the 1998 Act. It should, however, have commenced payment of weekly benefits after accepting liability. There is no explanation for why this did not occur. I have not been requested by the applicant to take any action in this respect, and I decline to do so.

The orders are as set out in the Certificate of Determination.

[2021] NSWPIC 345

13 September 2021