Willow v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Willow v Secretary, Department of Education [2023] NSWPIC 206
APPLICANT:	Stephen Willow
RESPONDENT:	Secretary, Department of Education
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	8 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; issue as to whether respondent established defence under section 11A; St George Leagues Club v Wretowska, Attorney General v K and Hamad v Q Catering Limited applied; Held – the respondent has not established a defence under section 11A; the respondent is to pay the applicant weekly benefits compensation; the respondent is to pay the applicant’s treatment expenses.
determinations made:	1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant weekly benefits compensation as follows: (a) from 5 November 2021 to 4 February 2022 at the rate of $1,900 per week pursuant to s 36(1) of the Workers Compensation Act 1987; (b) from 5 February 2022 to date and continuing at the rate of $1,600 per week pursuant to s 37(1) of the Workers Compensation Act 1987, and (c) the respondent is to have credit for any payments made in the above periods. 3. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Stephen Willow (the applicant) migrated to Australia in 1995 from England. He was employed with the respondent, Secretary, Department of Education, in different schools in varied roles including casual, temporary, full time and permanent roles as a music teacher. In 2011 he was employed full-time with the respondent at the Northern Beaches Secondary College, Cromer Campus as a music teacher. Mr Justin Hong was the Principal of that school.
As a result of events from 2015 to 2018 Mr Willow made a workers compensation claim for psychological injury. He was paid some weekly compensation and treatment expenses in relation to that claim.
On 22 January 2019 a Director of the respondent facilitated his transfer to Chatswood High School.
In these proceedings he alleges he has sustained psychological injury in relation to events from 2015 to 2021. He seeks weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) from 5 November 2021 to 4 February 2022 and pursuant to s 37 from 5 February 2022 to date and continuing. He relies on a deemed date of injury of 5 November 2021.
In response to my Direction, Mr Willow’s solicitors advised:
“The events giving rise to injury fall into 4 main categories.
1. Harassment by Justin Hong and Fiona Bird at Cromer High School between beginning of 2015 and the end of 2015. The relevant events are conveniently referred to in the following:
a. Formal complaint 19 October 2015 at ARD 12 to 17.
b. Formal complaint 30 November 2016 at ARD 18 to 40.
c. The 27 matters summarised in the Applicant’s document headed ‘May 2017’ at ARD pp 99 to 100.
d. The Applicant’s document headed ‘29 November 2017’ at ARD
pp 124 to 136.
2. The department's handling from the end of 2015 to the end of 2018 of the applicant’s complaints about the harassment. The relevant events are conveniently referred to in the following.
a. Email to Allianz dated 15 January 2018 (ARD pp 9 to 11)
3. The harmful reception from teachers at Chatswood High school following the applicant’s compassionate transfer in January 2019. The relevant events are conveniently referred to in the following.
a. Applicant’s statement dated 26 August 2022 at [19].
b. Report of Dr Rastogi dated 26 July 2022 at ARD p174.
4. The department’s mandate that required teaching staff undergo COVID vaccinations in 2021. The relevant events are conveniently referred to in the following.
a. Applicant’s statement dated 26 August 2022 at [20] to [53].
b. Applicant’s supplementary statement dated 11 November 2022 at
[1] to [3].”
The respondent’s counsel advised during the arbitration hearing that ss 4 and 9A of the 1987 Act and ss 289 and 289A of the Workplace Injury Management and Workers Compensation 1998 Act (the 1998 Act) are no longer in issue.[1]
[1] Transcript (T)9.29.
The respondent relies upon a defence under s 11A of the 1987 Act, that Mr Willow’s injury has arisen because of reasonable actions by the respondent in relation to dismissal, discipline and provision of employment benefits.
The respondent’s counsel confirmed that if it did not establish a defence under s 11A, Mr Willow’s capacity for employment is not in issue[2]. The pre-injury average weekly earnings figure (PIAWE) was agreed at $2,000. It was also agreed if Mr Willow is successful a general order can be made for s 60 expenses.[3]
[2] T15.30.
[3] T15.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement
The parties attended an in person conciliation/arbitration hearing on 12 April 2023. Mr Moffet of counsel appeared for Mr Willow instructed by Mr Covic, from Walker Legal. Mr Grant of counsel appeared for the respondent instructed by Ms Malone, solicitor, from Hall & Wilcox.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD-A) dated 14 November 2022 filed by the applicant;
(d)    letter from Walker Legal dated 24 November 2022 setting out the events upon Mr Willow asserts caused his to suffer a psychological injury;
(e)    letters from Hall & Wilcox dated 29 November 2022 and 19 December 2022;
(f)    Application to Admit Late Documents (AALD-B) dated 8 February 2023 filed by the applicant;
(g)    Application to Admit Late Documents (AALD-C) dated 3 April 2023 filed by the applicant;
(h)    Application to Admit Late Documents (AALD-1) dated 14 November 2022 filed by the respondent, and
(i)    Application to Admit Late Documents (AALD-2) dated 23 March 2023 filed by the respondent.

Oral evidence

There was no oral evidence. Oral submissions were made by the parties. A written transcript (T) of the parties’ submissions has been made from the sound recording and is available to the parties.

FINDINGS AND REASONS

Legal principles

Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
In Ponnan v George Weston Foods Ltd it was accepted that the meaning of “predominantly caused” is “mainly or principally caused”.[4]
[4] [2007] NSWWCCPD 92, Poonan at [24].
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”.
[5] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
In St Georges Leagues Club v Wretowska[6] Roche DP stated at [110]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). That is especially so in cases concerning a psychological injury where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[6] [2013] NSWWCCPD 64, Wretowska.
The respondent has the onus of proof to establish the elements in s11A.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[7] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[7] [2008] NSWCA 246, Nguyen.

Mr Willow’s submissions

Mr Willow’s counsel submitted that the deemed date of injury is 5 November 2021, being the first day of incapacity and Mr Willow sustained a primary psychological injury arising out of or in the course of his employment with the respondent.[8] He submitted that the s 11A defence has to operate both in relation to the events in 2015 and 2021. It was argued that all of those causative events do not come within the employer’s actions in relation to “discipline”, “dismissal” and/or “provision of employment benefits” and so, he argues, the respondent cannot succeed. Counsel relied upon Wretowska to support his argument.
[8] T10.25.
It was submitted that there was a referral to a psychiatrist, Dr Henson, from a consultation that Mr Willow had with his general practitioner on 12 July 2018. Attention was drawn by Mr Moffet to the corresponding clinical entry where it is recorded that Mr Willow was complaining about the delay in the investigation. It was submitted that this was an investigation into the events at work leading up to November 2015. Mr Moffet submitted that not all of those events related to discipline. He elaborated that those events were not only in relation to what the Principal did, but also what Ms Bird did, as well as events involving the parents.
In relation to 2021 Mr Moffet submitted that on 27 August 2021 when the order was made by the Health Minister it was not something done by the respondent. But when the respondent issued the email on 2 September 2021 he submitted that the language used in that document does not fall within discipline. It was submitted that in that email the respondent encouraged the staff to be double vaccinated and acknowledged it would be challenging for some staff. Therefore, it is argued by Mr Willow that this email communication does not have the character of anything falling within s 11A.
Mr Moffet submits this is important because it was five days after that email that Mr Willow went to see his general practitioner and the doctor lists a whole lot of symptoms demonstrating a worsening of Mr Willow’s psychiatric condition. Mr Moffet submits that this was before there was any discipline proposed by the respondent.
Because of this factual situation, it is submitted that a finding cannot be made that the whole or predominant cause of Mr Willow’s psychological injury was anything falling within s 11A.

Respondent’s submissions

The respondent submitted that Mr Willow’s “disorder” relates to events in 2021 and that the events in 2015 are irrelevant. Therefore, it is argued that the psychological injury is wholly or predominantly caused by the reasonable actions of the respondent that required Mr Willow to be vaccinated in late 2021.
It is submitted that Mr Willow’s evidence in his statements is not precise and the “safest evidence” is that contained in the contemporaneous evidence. It is argued that Mr Willow’s general practitioner, Dr Rhee, does not record anything about a psychological condition until towards the end of 2021, and that was the situation for about three years prior to this. Therefore, it is argued that anything that occurred in 2015 can be cut off from consideration by the Commission.
In relation to Mr Willow’s statement that when he arrived at Chatswood High School at the start of 2019, Mr Grant refers to Mr Willow saying that the staff were already informed of the nature of his transfer and he felt he had been labelled as a troublemaker, his reputation was tarnished and he felt they wanted to get rid of him. Mr Grant submitted that there is no justification in the contemporaneous evidence to support these assertions. He submitted that if this was an accurate representation of how he was feeling at the time one would have expected he would have attended on his general practitioner with a flare up of his pre-existing condition that he had subsequent to 2015. Mr Grant submits there was no such attendance or evidence of any psychological symptoms at that time.
Mr Grant drew attention to [20] of Mr Willow’s statement where he says with the announcement of the mandated Covid-19 injections on 27 August 2021 his psychological condition worsened.
He submitted that the statements of Ms Gill and Mr Osland do not support the proposition that Mr Willow was targeted when he commenced at Chatswood High School. He referred to Ms Gill being informed in term 4 that a member of the music staff was going to be filled by a nominated transfer. Mr Grant submitted that it is not remarkable that staff would have been told this, there is nothing sinister in this. Mr Grant acknowledges that Ms Gill states there was some speculation as to who was going to fill the job, but he submits that this is normal type discussion that you would expect in any workplace. He notes that Ms Gill says she found out the person was going to be Mr Willow and at [10] of her statement she denies that she said anything to Mr Willow that she heard the person coming from Cromer to Chatswood High was “trouble”. She says this did not occur and she would not use such terminology.
Mr Grant submitted that Mr Osland in his statement gave evidence that Mr Willow was welcomed to the school in his Principal’s address and staff welcomed him to the school. Mr Osland states he saw no interactions that would indicate that Mr Willow was being targeted. It was submitted that the evidence from Ms Gill and Mr Osland refutes that of Mr Willow. It was also submitted that there was no reference to Mr Willow being targeted in the general practitioner’s notes at the time.
It was submitted by the respondent that the entry in Dr Rhee’s notes for 30 August 2021 is quite specific as the doctor records that Mr Willow told him when he was offered the Pfizer covid vaccine, that he did not want to submit to the “tyrannical government forcing people to undergo an invasive procedure against their wishes”. It was also submitted that it was relevant that Mr Willow later asked the doctor to provide him with a medical contraindication certificate, which the doctor refused.
Mr Grant submitted the next occasion when Mr Willow consulted the doctor was on 6 September 2021 and in the interim he had not demonstrated any psychological symptoms. On 6 September 2021 Mr Willow spoke to the doctor about taking alternate medications for Covid-19 and was informed there was no evidence of their efficacy or safety. Mr Grant referred to Dr Rhee’s note that Mr Willow said he will not have the vaccine even if he gets fired from the New South Wales Department of Education because he does not bow down to compulsion. Mr Grant refers to passages of Mr Willow’s statement about the need for a patient to give informed consent before having the vaccine and the doctor confirming he was not going to force Mr Willow to have the vaccine.
It was submitted that as Mr Willow said his condition worsened at this time, the undeniable conclusion one must come to is that it was the fact that the respondent had mandated that he be vaccinated was the predominant cause of the development of his condition in 2021.
Mr Grant submitted that Dr Wood’s statement sets out the steps being taken by the government and then by the respondent in relation to the requirement that people be vaccinated.
It was submitted that the overriding consideration is that the children must be protected and that teachers are in an unusual position in the community and the requirement for them to be vaccinated was for their protection and also for the children. He submitted a reasonable bystander would regard the action by the respondent to be reasonable.
Mr Grant then listed all the steps taken by the respondent as mentioned in Dr Woods’ statement including the email to all school based staff on 27 August 2021, including reference to the frequently asked questions and internet pages. It is submitted this was the respondent providing information to the staff, which is reasonable. He referred to the email of 2 September 2021 providing an update on the mandatory vaccinations and on 23 September 2021. Mr Grant referred to the vaccine guidelines issued by the respondent on 5 October 2021 and to the determinations of 18 October 2021 which established that all employees of the respondent must be doubly vaccinated and provide evidence of the same.
Mr Grant also referred to the respondent’s actions in November 2021 including the email on 1 November 2021 indicating the Department of Health’s order of 8 November 2021 was approaching and on 12 November 2021 the respondent introduced the policy about the management of conduct in relation to non-compliance.
It was submitted that given the large number of the teaching staff employed by the respondent and the circumstances of late 2021 it is difficult to understand what other steps the respondent could have taken. It was submitted that none of the emails attached to Dr Wood’s statement, described above, could be viewed as bullying or imposing unreasonable requirements upon teachers including Mr Willow. It is submitted that Mr Willow’s adjustment disorder arose around this time, more likely leading up to November 2021. It was submitted that the general practitioner’s notes show the development of Mr Willow’s psychological condition coincides with the vaccine requirements.
Mr Grant submitted that all of this evidence supports his contention that the development of the psychological injury arose wholly or predominantly as a result of the requirement of the respondent that Mr Willow be vaccinated. It was further argued that Mr Willow was not being singled out and he was a person who was going to confront the government, no matter what happened and he was prepared to be fired over the position he took not to be vaccinated.
Dr Ahmad’s report was relied upon wherein the doctor opined that Mr Willow was suffering from an adjustment disorder and that “the development of emotional or behavioural symptoms in response to an identifiable stressor occur within three months of the onset of the stressors.” Mr Grant submits the evidence he has outlined shows the stressor occurred in late 2021. Reference was made to the following passages of Dr Ahmad’s report:
“3.1 Do you consider the claimant sustained a psychological injury arising out of or in the course of his employment? Please provide detailed reasons for your opinion.
In my professional opinion, the claimant did sustain a psychological injury in the course of his employment, however he was suffering from psychological distress already due to on-going issues with the workplace and Department of Education but able to continue his work. It was the COVID vaccine mandate which affected his psychological health the most and he has still concerns about same. [9]
…
3.5 Do you consider the whole or predominant cause of the claimant’s condition was reasonable action taken and proposed to be taken by the employer with respect of discipline, dismissal, retrenchment and/or the provision of employment benefits, in particular the employer’s actions in implementing the COVID-19 vaccination mandate from August 2021 onwards?
In my professional opinion, yes, the whole or predominant cause of the claimant’s condition was reasonable action taken and proposed to be taken by the employer with respect of discipline, dismissal, retrenchment and/or the provision of employment benefits, in particular the employer’s actions in implementing the COVID-19 vaccination mandate from August 2021 onwards.”[10]
[9] AALD-1 p 94.
[10] AALD-1 p 95.

Therefore, it was submitted that while Mr Willow may have had issues in 2015 for a period of time, the absence of attendances on a doctor between 2018 to 2021 in relation to psychological complaints would lead to the determination that in that period of time Mr Willow was not suffering for a psychological disorder. Mr Grant submits that this is contrary to what Dr Rastogi seems to have understood.
In summary, Mr Grant submitted that the overriding strength of the evidence supports that the psychological injury is wholly or predominantly caused by steps that were taken by the respondent, which were reasonable and there should be an award for the respondent.

Mr Willow’s submissions in reply

Mr Moffet submitted that one needs to consider the question asked of Dr Ahmad at 3.5 and to take into account that Dr Ahmad essentially repeats back to the reader the question asked of him. It is submitted that he does not really reason how it is discipline, dismissal, retrenchment or the provision of employment benefits play a role in the cause of the injury. It was also submitted that Dr Ahmad does not go back to his response to question 3.1, which did refer to earlier events than the vaccine mandate playing a part in the causation of Mr Willow’s psychological injury. Mr Moffet submitted that such events do not fall within the categories in s11A.
Mr Moffet said in reference to the 2015 events that thereafter Mr Willow was on leave waiting for an outcome from the respondent about his complaints, about Ms Bird, then in 2016 about Mr Hong and after the meeting in the middle of 2017 he had to see his doctor with symptoms.
It was submitted that Dr Rastogi’s opinion should be preferred as she sees causation as more involved, relating to events over a longer period of time triggered initially by the events in 2015. It is argued that Dr Rastogi took all these events into account including that Dr Henson in August 2018 diagnosed Mr Willow with anxiety, depression and PTSD.
Mr Moffet submitted if the events from 2015 are found to be causative of the psychological injury, including the delay in the investigation, then that can defeat the s 11A defence.
In relation to the respondent’s submissions about Mr Osland’s and Ms Gill’s evidence, it was submitted they do not offer a full denial. It was further submitted, that in any event, Mr Willow was diagnosed a year earlier with a range of psychological conditions including PTSD. Mr Moffet referred to Dr Rhee’s clinical notes at page 282 of the ARD. This is a consultation on 12 July 2018 which refers to there being no progress from the Department of Education, that Mr Willow’s complaint still has not been looked at. It is submitted that as a result of this consultation Dr Rhee made a referral to a psychiatrist, who diagnosed PTSD.
Mr Moffet also referred to Dr Rhee’s clinical notes of August 2021 and the submission of the respondent that this related to the vaccine mandate situation. Mr Willow’s argument is there is nothing at this point in time which falls within one of the matters listed in s 11A. It is submitted that at this time the respondent had not mentioned anything about discipline or termination. It is submitted that the email from the respondent on 2 September 2021, was when the Department of Education was communicating to its staff information that from 8 November 2021 all school and pre-school staff will be required to have had two doses of the vaccine and strongly encouraged staff to have the vaccine before 25 October 2021 to support a staged return of students to schools.
It is also submitted that this email gave information where to get the vaccine and all the contents were messages of encouragement. There were no threats or suggestions of consequences. It was submitted that after this communique that Mr Willow went to his doctor on 7 September 2021 and it is submitted that at this point of time there is no action by the respondent coming within s 11A. Dr Rhee records:
“Pt has been feeling anxious and depressed esp since the announcement that all teachers needed to get the vaccine by November, otherwise they cannot return to work. Even before that- was feeling some stress and anxiety but much worse since this announcement.
Pt feels he can’t really enjoy anything
Pt is fearful he will lose his job
Pt feels tis s coercive threat from the government and it is affecting him a lot
Lately-unable to sleep normally
Waking 3-4 times a night
Feel anxious and agitated
Can still do his job well
Still teaching classes via Zoom
But he feels it will get worse as he is getting close to 8/11/21, which is the deadline set by the government
K10-41/50
Pt agreed he has acute stress reaction due to the government mandate, on the background of his depression/anxiety
Pt feels his thought on the vaccine is irrelevant, as his distress is because of the coercion.”[11]
[11] ARD p 288.
Mr Moffet stresses that, at this point in time, the respondent had not suggested any discipline or termination if staff do not get vaccinated. He said it may be that Mr Willow, or amongst staff, this was the subject of speculation, but there was nothing the respondent did that falls within s 11A. Mr Moffet says this entry by Dr Rhee records the psychological symptoms that Mr Willow had been and was experiencing.

Respondent’s further submissions

Mr Grant referred to the wording of s 11A which refers to “…reasonable action taken or proposed to be taken”. He argues because Mr Willow had told his doctor in September 2021 that he feared his employment would be terminated, “the question of discipline was well and truly in play”.[12] He submits this was an obvious possibility. He made reference to the decision of Wood DP in Webb v State of New South Wales[13] at [139] “the authorities in Heggie and Sinclair above that require the whole process involved in the employer’s action be taken into account in the assessment of whether or not action constitutes discipline”. Mr Grant submitted that the process started in August 2021 and relates to discipline and specifically relates to dismissal or the possibility of dismissal.[14]
[12] T50.24.
[13] [2019] NSWWCCPD 50, Webb.
[14] T51.
In relation to Mr Moffet’s submission about the events going back to 2015, Mr Grant submitted that with psychiatry you are dealing with different disorders. They are not the same. He submitted that the disorder Mr Willow was treated for in 2018 by Dr Henson was anxiety, depression and PTSD whereas in 2021 he has been diagnosed with an adjustment disorder. He submits Dr Rastogi did not make this distinction. Mr Grant submits that it is only on 21 September 2021 that Dr Rhee records psychological symptoms that there is any suggestion of a psychiatric disorder coming into play. He repeated his earlier submission that by this time Mr Willow knew termination of employment was a consequence if he did not comply because he discussed that with Dr Rhee.

Mr Moffet’s further submissions

Mr Moffet submitted that the cases that Mr Grant referred to about the process of discipline and how long it runs for, involved an investigation and he submits that is different in character to an announcement by a Minister or a head of a department which applies to everyone. Finally, he added it was not reasonable action by the respondent to not let staff work remotely if they were not vaccinated.

Dr Rhee

Records are before the Commission from Dr Rhee, Gordon Family Medical Practice, with consultations spanning the period 26 August 2013[15] to 24 February 2022.[16] On 13 February 2014 Dr Rhee records that Mr Willow had been warned by his Principal at school about complaints about him by students, although he was not told the detail about them. He eventually received a formal warning. Mr Willow told the told that he “feels like he has sword of Damocles over his head”. He was unable to go to work, felt anxious, could not sleep or function well. The doctor records he had applied to take a leave of absence from the Department of Education. The doctor records that he gave counselling to Mr Willow.[17]
[15] ARD p 262.
[16] ARD p 292.
[17] ARD p 268.
He was seen throughout 2014 for various rashes and was going to Thailand at the end of the year and was given the Hepatitis A vaccine.[18] He attended the doctor for a few times in 2015 for various medical conditions. On 19 October 2015 he saw Dr Rhee and told him he had been anxious, off his food, had sleeping problems due to worrying a lot at night, had butterflies in his stomach and felt his heart was beating quicker. It is recorded that he had been having trouble at work due to the Principal’s actions and Mr Willow was finding it hard to cope. He was unable to attend work that day. It is noted that he had accusations brought upon him by the students via the Principal without any basis or evidence. The doctor notes he gave Mr Willow counselling. On 18 November 2015 he saw Dr Rhee again for counselling and it is stated that the Principal blocked his nominated transfer and from doing the school musical.[19] On 23 November 2015 he saw Dr Rhee and advised he had a meeting with the Principal but it was called off after five minutes after an argument with his support person. Mr Willow had a depressed mood and was going to seek counselling through the Department of Education.
[18] ARD p 271.
[19] ARD p 272.
On 30 November 2015 Dr Rhee noted that Mr Willow presented with reactive anxiety from bullying at school and on 10 December 2015 he was approved for one year’s leave without pay and he told the doctor he needed to escape the toxic environment at work. He was still very stressed.[20]
[20] ARD p 273.
On 5 April 2016 it is recorded that three weeks earlier he had pain around the right shoulder when on playground duty. There is no mention of psychological complaints in this consultation or throughout attendances in 2016.
On 29 May 2017 Dr Rhee records that Mr Willow had a meeting with the Department of Education relating to his previous complaint against the Principal and he had to revisit the events of 1.5 years ago. It is noted he felt more stressed and anxiety symptoms had come up.[21] On 19 September 2017 he saw Dr Rhee about a wart on his nose and the doctor also records they had a discussion about previous workplace issues. On 21 December 2017 Mr Willow saw Dr Rhee and told him he was still having ongoing issues with the secondary school Principal at Cromer. He felt anxious, had excessive worry for most days for well over six months. He can have episodes of shortness of breath, he is sweaty, agitated, shaky, feels down and demoralised constantly. He is also restless, irritable at times and can get teary and often finds it hard to sleep. The doctor administered the DASS test and he had an extremely severe result for depression and stress and sever for anxiety.[22] He wanted to make a workers compensation claim and he could not afford to see a psychologist.
[21] ARD p 277.
[22] ARD p 278.
On 16 January 2018 he saw Dr Rhee again and had seen psychologist, Ammata Pathanak. There was a discussion about changing his workcover certificate as fit to return to work but not at Cromer High School with the current Principal. He has panic attacks thinking about returning there.[23] Over the next six months there are ongoing psychological complaints recorded and the situation about return to work discussed. On 12 July 2018 it is noted there is still no progress from the Department of Education and his complaints have not been looked at. At this time Mr Willow was working three days per week casually at Turramurra High School as a casual teacher. A referral was given to Dr Henson.[24]
[23] ARD p 279.
[24] ARD p 282.
On 22 August 2018 Dr Rhee records that Mr Willow received an email from the school saying a year seven student made a complaint about him and he was summoned to a meeting with the Principal and Head Teacher. Apparently he felt very anxious when summonsed but it turned out to be a minor issue. He felt unsupported, bullied in the meeting, and feels shaken, tearful and depressed since. He was going to see Dr Henson again. He felt unable to work at Turramurra High School.[25] On 23 August 2018 it is noted that it triggered severe anxiety and panic symptoms. He wanted to work casually at different schools. On 21 September 2018 it is recorded that he has been unable to work at Turramurra High due to mental health issues.[26]
[25] ARD p 284.
[26] ARD p 285.
There are no entries in Dr Rhee’s records after 17 October 2018 to 30 December 2020. Psychological issues are not mentioned at these consultations. Then the next entry is 7 July 2021 in relation to a flare up of eczema.
On 30 August 2021 Dr Rhee saw Mr Willow and in this consultation he say he does not want to submit to a tyrannical government forcing people to undergo an invasive procedure against their wishes. This is a reference to the respondent mandating vaccines for all teachers by 8 November 2021. Mr Willow asked for a medical contraindication certificate but the doctor declined as there were no medical grounds for the same.[27]
[27] ARD p 287.
On 6 September 2021 Mr Willow asked for Ivermectin for Covid-19 and the doctor explained that there is no evidence of its efficacy or safety. Mr Willow said he disagreed with this opinion of the doctor. He told the doctor that he will not have the vaccine even if he gets fired from the NSW Department of Education. He wanted a zoom meeting for the next day to get a general practitioner mental health plan done to get a psychologist referral and it is recorded “he agreed he might have a psychological issue that makes him get very anxious of the vaccine and when people are making him do something”.[28]
[28] ARD p 288.
On 7 September 2021 Dr Rhee recorded that Mr Willow had been feeling depressed and anxious especially since the announcement that all teachers need to get the vaccine by November, otherwise they cannot return to work. The doctor records:
“even before that- was feeling some stress and anxiety but much worse since the announcement
Pt feels he can’t really enjoy anything
Pt is fearful he will lose his job
Pt feels this is a coercive threat form the government and it is affecting him a lot
Lately-unable to sleep normally
Waking up 3-4 times a night
Feels anxious and agitated
Can still do his job well still teaching classes via Zoom
But he feels it will get worse as he is getting close to 8/11/21, which is the deadline set by the government.
K10-41/50
Pt agreed he has acute stress reaction due to the government mandate, on the background of his depression/anxiety
Pt feels his thought on the vaccine is irrelevant, as his distress is because of the coercion…”
The mental health plan is dated 7 September 2021 and refers to “diagnosis: acute stress reaction on background of past history of anxiety/depression”. Presenting issues are “severe stress, feeling agitated, anxious, frequently waking up from sleep”. Other relevant information is “government mandate that all teachers must be vaccinated against COVID-19”.[29]
[29] ARD pp 196-197.
Thereafter, there are several more consultations on 21 September 2021, 22 September 2021, 8 October 2021, 4 November 2021, 19 November 2021 and 2 December 2021 where he rails against the requirement to be vaccinated. On 8 January 2022 it is recorded he went to a gathering on 2 January 2022 where he caught covid and then there are further consultations in February 2022.
On 12 July 2022 Dr Rhee reported to Mr Willow’s solicitors he advises that he has been Mr Willow’s doctor since 2013 and that he saw him on 30 August 2021 mentioning the vaccine mandate requiring teachers to be vaccinated by 8 November 2021. He said Mr Willow was fearful he would lose his job. But he did not want to be forced to receive the vaccine against his wishes. Dr Rhee states “Subsequently he started to feel depressed and anxious, he started to experience anhedonia, sleep disturbances, agitation and anxiety, feeling helpless and having panic attacks.” Dr Rhee says the symptoms have continued. He confirms he provided referral to see a psychiatrist on 21 September 2021 and a psychologist on 7 September 2021.[30]
[30] ARD p 191.
Dr Henson wrote to Dr Rhee on 17 August 2018 diagnosing anxiety, depression and posttraumatic stress disorder.[31]
[31] ARD p 183.
Dr Rhee had provided a report for the insurer on 31 January 2018 relating the events from 20 November 2015 and the sequelae. Dr Rhee stated Mr Willow meet the DSMV criteria for a major depressive disorder and generalised anxiety disorder. On 23 February 2018 Dr Rhee wrote to the respondent to support Mr Willow’s transfer on compassionate grounds away from the Cromer campus.[32]
[32] ARD p 189.

Dr Rastogi

Dr Rastogi, psychiatrist, provided a medico-legal report for Mr Willow’s solicitors dated 26 July 2022.[33] The doctor outlines the history briefly about the events in 2015 leading up to the treatment by Dr Henson in 2018 and the granting of compassionate transfer to Chatswood High School at the start of 2019. Dr Rastogi relates the history that Mr Willow also sets out in his statement that when he arrived at the school staff were already advised he was a compassionate transfer and assumptions were made he was a troublemaker and his reputation was tarnished. He said he felt unwanted and developed paranoia.
[33] ARD p 172.
Dr Rastogi deals with the 2021 events in quite a broad brush approach whereas Mr Moffet broke down the events surrounding the mandate step by step and submitted that the psychological injury developed before Mr Willow was told he faced discipline or dismissal. However, under the diagnosis Dr Rastogi does seem to date the commencement of the psychological injury to the mandate and coercion to have vaccination while he was still seeking clarification, because Dr Rastogi that his anxiety was further aggravated by being served with misconduct allegations.
Dr Rastogi does lend some support to the whole dealings with the respondent contributed to the psychological injury because she says, “he felt discriminated, ostracised and emotionally depleted by the chronic negative experiences by [the] Department with [the] mandate being the last straw to his decline”.[34] The doctor returns to this in answering question e. ii.
[34] ARD p 178.

Dr Ahmad

Dr Ahmad, psychiatrist, provided a medico-legal report for the respondent dated 31 October 2022. At [45] above I have quoted the most relevant opinion of his report, which were cited in the respondent’s counsel submissions.

Determination

I do not propose to summarise Mr Willow’s various statements and the annexures to his first statement given both counsel have referred to the relevant parts in their submissions, which I have summarised earlier in these reasons. I have, however, spent some time setting out the attendances on Dr Rhee this is because the main dispute in this case relates to what factors were causative of Mr Willow sustaining a psychological injury.
Mr Willow contends a broader range of factual scenarios caused his psychological injury going back to events in 2015, whereas the respondent argues it was the requirement to be vaccinated for Covid-19.
However, the facts are more nuanced in this matter because Mr Willow’s counsel argues even if one focuses only on the 2021 actions of the employer, Mr Willow developed a psychological injury by September 2021 when the employer had not raised anything about discipline or dismissal. The respondent also seems to date the psychological injury from this time but argues this was part of the disciplinary process.
I find the evidence of Dr Rhee to be the most relevant because he has been Mr Willow’s general practitioner since 2013. I consider this fact does put him in a superior position in terms of him witnessing Mr Willow’s mental health over the years than either of the two medico-legal specialists notwithstanding they are psychiatrists. I accept the submission of the respondent that to some extent Mr Willow’s statements are not sufficiently precise to be useful to determine the causative events and they are not written contemporaneously but looking back to the past. I consider Dr Rhee has provided very detailed and careful notes and his progress notes do provide an accurate account of Mr Willow’s presentation over many years.

I find, applying the principles in Nguyen, that the arrival of Mr Willow at Chatswood High in 2019 was unlikely to involve, as he now characterises, that people wanted to get rid of him and saw him as a troublemaker. The way he expresses this sentiment it was from the outset before anyone got to know him, just by virtue of him being a nominated transfer and he suspected they had been told of his past run-ins with Mr Hong at Cromer. I accept the evidence from Mr Osland and Ms Gill that he was welcomed to the school, in the way that new teachers are welcomed. I am fortified in coming to this conclusion because Mr Willow did not complain about such matters to Dr Rhee. In the past he did inform Dr Rhee of his feelings when he felt mistreated at work and so I find it significant that he did not do so at the start of the 2019 school year, or subsequently.
As noted previously, there are no entries in Dr Rhee’s records after 17 October 2018 to 30 December 2020.
I am also not persuaded that the events preceding the transfer are causative of the psychological injury now suffered by Mr Willow. I acknowledge that it is difficult in psychological injury cases to tease out the causative factors, because even events some time in the past can resurface with more recent events and determining causation in psychological injury cases are not as clear cut as in physical injury cases where objectively it can be more easily determined that one injury has resolved. Dr Rastogi does lend support to the proposition that it was Mr Willow’s accumulated experience with the respondent and the vaccine mandate was the final straw.
These types of issues were discussed in Hamad v Q Catering Limited.[35] In that case at [88] Deputy President Snell in found:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[35] [2017] NSWWCCPD 6, Hamad.
However, I do not accept that Dr Rastogi’s analysis of the various events is detailed enough to provide assistance to determine which factors were the whole or predominant cause of the psychological injury. Turning back to Dr Rhee’s notes for assistance, there is no evidence that Mr Willow continued to suffer psychological symptoms once his compassionate transfer was approved at the end of 2018 and commenced in 2019. Thereafter, there is a long period of time when there is no medical evidence before the Commission to demonstrate that his prior psychological condition was persisting.
In Attorney General v K[36] Roche DP summarised at [52] various principles about causation in psychological injury cases, as follows:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[36] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K’s case.
Following the transfer in 2019 I cannot find, for the reasons expressed above, that there were real events occurring concerning which were causing a persistence or resurfacing of Mr Willow’s psychological injury.
That leaves the events in 2021 as being the whole or predominant cause of the psychological injury. However, I find that Mr Moffet’s argument is persuasive that the psychological injury was caused by the requirement to be vaccinated. This was a real event arising out of his employment with the respondent. Had he not been a teacher, the vaccine mandate would not have applied to him and he would have been like any member of the public able to choose to be vaccinated or not.
As found in K’s case so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind. The requirement for a teacher to be vaccinated was real. It clearly affected Mr Willow’s psyche as the entries in Dr Rhee’s records in August and early September 2021 demonstrate. The fact that Mr Willow seemed to be acting irrationally asking for Ivermectin and referring to the government as “tyrannical”, or not taking his doctor’s advice is not to the point. He may have had a flawed perception of the effect of vaccination but as found in K’s case that does not matter in workers compensation cases, it is sufficient that he has had a psychological injury from real events in the workplace.
I accept his counsel’s submission that Mr Willow sustained his psychological injury before the respondent ever advised that there would be disciplinary steps taken or dismissal if teachers did not get double vaccinated.
The respondent relied upon Webb to submit that the whole process was one of discipline. I do not accept that argument. In Webb the facts were vastly different, and these cases are fact sensitive. As Mr Moffet demonstrated the first series of emails sent by the respondent were couched in terms of encouragement, to persuade teachers to get vaccinated, to give them information where to obtain it etc. It was not until months later that discipline and dismissal were raised, and before then Mr Willow clearly was unwell psychologically.
It was on 7 September 2021 that Dr Rhee undertook the mental health plan for Mr Willow and refers to “diagnosis: acute stress reaction on background of past history of anxiety/depression”. Presenting issues are “severe stress, feeling agitated, anxious, frequently waking up from sleep”. Other relevant information is “government mandate that all teachers must be vaccinated against COVID-19”.[37]
[37] ARD pp 196-197.
I find this plan, and the corresponding clinical entry, to be significant because they demonstrate how ill Mr Willow had become psychologically and he was referred for treatment.
The respondent cited the fact that Mr Willow told the doctor that he was fearful of losing his job, and he was prepared to be fired, as raising the elements in s11A of discipline and dismissal. In my view, the fact that Mr Willow was worried about his employment does not equate to actions being taken by the employer to discipline or terminate him. The fact is, at this time, when Mr Willow developed his injury the respondent had not taken such action. It was an evolving and fast changing situation. It may well have been the case that the danger with the virus could have passed or the respondent may have chosen different options to deal with the situation. I find one cannot judge the actions of the employer by what happened subsequently and treat it as a foregone conclusion that discipline or dismissal would have occurred. There is a need to judge what were the actions of the employer that caused the psychological injury and I find in Mr Willow’s case it was the mere fact that he was told he was required to be vaccinated. As noted by Dr Rhee at the end of the consultation entry for 6 September 2021 “he agreed he might have a psychological issue that makes him get very anxious of the vaccine and when people are making him do something”.[38]
[38] ARD p 288.
I find that the evidence from Dr Ahmad at [3.1] supports such a view as he states, “It was the COVID vaccine mandate which affected his psychological health the most”. I accept Mr Willow’s submission that the doctor’s answer to question [3.5] does no more than parrot back the question and, as such, provides no assistance to determine what was the whole or predominant cause such as discussed in Hamad.
Therefore, I find the whole or predominant cause of the psychological injury was as a result of the requirement as a teacher to be vaccinated and this did not fall within any of the list of matters in s 11A. I accept it could not be the provision of employment benefits as the vaccine was not being provided by the employer, and for the reasons above I find it was not discipline or dismissal.
Given the findings made above, it is not necessary that I consider the issue of reasonableness. Even if the employer’s actions were reasonable, the whole or predominant cause has to be one on those matters in s 11A. I find that the respondent has not made out a defence under s 11A and that Mr Willow is entitled to an award of compensation.

Weekly compensation

There is no dispute in relation to Mr Willow having no capacity for employment. His PIAWE is agreed at $2,000 per week.
The respondent is to pay the applicant weekly benefits compensation as follows:
(a) from 5 November 2021 to 4 February 2022 at the rate of $1,900 per week pursuant to s 36(1) of the 1987 Act being 95% of his PIAWE, and
(b) from 5 February 2022 to date and continuing at the rate of $1,600 per week pursuant to s 37(1) of the 1987 Act being 80% of his PIAWE.
The respondent is to have credit for any payments made in the above periods.

Medical expenses

Mr Willow ’s counsel sought a “general order” in relation to medical expenses. The respondent did not oppose the same in the event that Mr Willow was successful in relation to establishing liability. I order that the respondent is to pay Mr Willow’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 206

8 May 2023