Wong v Source Governance Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wong v Source Governance Pty Ltd [2024] NSWPIC 667
APPLICANT:	Hau Yan (Isabella) Wong
RESPONDENT:	Source Governance Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	3 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses for psychological injury; whether employment is the main contributing factor to the contracting of a disease injury; consideration of AV v AW; extent of worker’s incapacity for a closed period of about six months; Held – worker sustained a psychological injury in the course of her employment by way of a disease injury pursuant to section 4 (b)(i); the worker was partially incapacitated for work for the period claimed by her; award of weekly payments of compensation for a closed period of about six months and the payment by the respondent of reasonably necessary medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent by way of a disease injury pursuant to s 4 (b)(i) of the Workers Compensation Act 1987, with a deemed date of injury of 21 July 2023. 2. The applicant was partially incapacitated for work from 16 March 2024 to 30 September 2024 as a result of her psychological injury. The Commission orders: 3. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,294.25 per week from 16 March 2024 to 31 March 2024 pursuant to s 37 (1) of the Workers Compensation Act 1987 (the 1987 Act); (b) $1,324.20 per week from 1 April 2024 to 30 June 2024 pursuant to s 37 (1) of the 1987 Act; (c) $1,267.30 per week from 1 July 2024 to 31 July 2024 pursuant to s 37 (1) of the 1987 Act, and (d) $1,129 per week from 1 August 2024 to 30 September 2024 pursuant to s 37 (1) of the 1987 Act. 4. The respondent is to pay the applicant’s reasonably necessary medical treatment for her psychological injury pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Hau Yan (Isabella) Wong, the applicant in these proceedings, claims that she sustained a psychological injury while employed as an associate company secretary with the respondent, Source Governance Pty Ltd, in July 2023.
Ms Wong claims that she sustained a psychological injury in the course of her employment with the respondent as a result of having to meet unrealistic work expectations. She ceased work as a result of that injury on 21 July 2023.
Ms Wong was paid weekly payments of compensation until 15 March 2024. Liability for workers compensation benefits then ceased following a dispute notice issued by EML on behalf of the respondent on 29 February 2024. The respondent contends that the psychological injury sustained by Ms Wong is not covered by s 4 of the Workers Compensation Act 1987 (the 1987 Act), in particular that Ms Wong’s employment is not the main contributing factor to her disease injury.
The respondent also disputes that Ms Wong has any total or partial incapacity for work as a result of her psychological injury, or that it is liable for the payment of medical or related expenses as a result of her psychological injury.
Ms Wong did not work until October 2024, when she obtained employment as an administrative assistant. Ms Wong claims weekly payments of compensation for the period from 16 March 2024 to 30 September 2024.
Ms Wong also seeks a general order for the payment of medical expenses for treatment for her psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant’s employment is the main contributing factor to the contracting of her psychological injury (s 4 (b) of the 1987 Act);
(b)    the extent of the applicant’s incapacity for work as a result of her injury between 16 March 2024 and 30 September 2024 (ss 32A, 33, and 37 of the 1987 Act), and
(c)    whether medical expenses incurred for treatment of the applicant’s psychological injury are reasonably necessary as a result of that injury (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 20 November 2024. 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.
Mr Morgan appeared for Ms Wong. Mr Stiles appeared for the respondent.
Ms Wong amended her claim for weekly payments of compensation to a period from 16 March 2024 and 30 September 2024.
Ms Wong amended her description of injury in the Application to Resolve a Dispute (ARD) to delete allegations of interpersonal conflicts and bullying and harassment. There was no objection by the respondent to this amendment.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed to be $2,100.
Ms Wong made an application to have three documents admitted into evidence:
(a)    a supplementary statement dated 14 November 2024;
(b)    A medical certificate from Dr Jeff Lee dated 19 November 2024, and
(c)    A Certificate of Capacity from Dr Jeff Lee dated 19 November 2024.
I allowed the supplementary statement from Ms Wong into evidence because I was of the view that it contained no prejudice to the respondent and was mainly providing an up to date statement regarding Ms Wong’s return to work with a different employer.
I did not allow the two certificates from Dr Jeff Lee into evidence because the representatives for Ms Wong did not advise at the preliminary conference that they intended to obtain such evidence, and they had in any event almost two months to obtain those documents, yet only obtained them the day before the conciliation and arbitration.
In my view, the respondent did not have enough time to consider those documents and to obtain other evidence, such as the clinical notes from Dr Jeff Lee which covered the period of incapacity set out in those certificates, by way of a Direction for Production. I noted that the respondent sought Directions for Production upon other medical providers at the preliminary conference, but not upon Dr Jeff Lee.
A further reason for rejecting the two certificates was the certification in those certificates, in particular the Certificate of Capacity which certified Ms Wong has having no current work capacity from 21 March 2024 to 17 December 2024, conflicted with previous Certificates of Capacity which certified Ms Wong as having some capacity for work, without there being any accompanying explanation from Dr Lee. This placed the respondent at a distinct disadvantage without having the opportunity to investigate this change in opinion by Dr Jeff Lee.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents filed by the respondent on 18 November 2024, and
(d)    Application to Admit Late Documents filed by the applicant on 21 November 2024 (but only the supplementary statement of Ms Wong dated 14 November 2024).

Oral evidence

There was no application to cross examine the applicant or to adduce oral evidence from the applicant.

FINDINGS AND REASONS

Whether the applicant has sustained an injury in the course of her employment

The applicant’s evidence

Ms Wong provided a statement to the insurer of the respondent on 12 September 2023. Ms Wong has also provided further statements dated 30 July 2024 and 14 November 2024.
Ms Wong states that she commenced employment as an associate company secretary with the respondent in late March 2023, working 32 hours per week.
Ms Wong states that she gradually became overwhelmed with the work tasks and responsibilities that were assigned to her. She states that the respondent seemed to be short staffed and she was asked to support multiple new businesses. Ms Wong states that a number of staff went on leave in June and July 2023, and she was given additional responsibilities during this period. She states that she found it difficult to carry out her tasks and became increasingly stressed and anxious.
Ms Wong states that she spoke to Hasaka Martin, an Executive Director who was based in Melbourne, regarding her concern about aspects of her role, but she did not report to him of her thoughts of being overwhelmed by her work.
Ms Wong states that she spoke to Sarah Wilson, an Executive Director, in June or July 2023 about decisions she was required to make, and Ms Wilson reviewed Ms Wong’s concern and assisted her.

Ms Wong states:
“The pressure and constant communication, and increased workload, and need to learn at an exponential speed made me begin to experience fear and anxiety. The workplace became incredibly toxic for me, and my symptoms progressed from low mood and anxiety to panic attacks and a complete loss of self-confidence. My job description had gone from vague and entry-level, to assuming full responsibility during my part-time working days.”
Ms Wong states that she took a half day off work to take her young son to a doctor, but she continued to receive messages and calls from her manager and clients. She states that this was her last day at work.
Ms Wong states that during this time she confided in her general practitioner, Dr Jeff Lee, and was referred to a psychiatrist, Dr Julian Lee, and a psychologist, Sarah Piper.

Other lay evidence

Sarah Wilson has provided a statement dated 29 September 2023. She states that she is employed by the respondent as an Executive Director.
Ms Wilson states that she had multiple conversations with Ms Wong in relation to Ms Wong’s work. She states that quite a few staff went on leave in June and July 2023, including Hasaka Martin, which was not an ideal situation. Ms Wilson states that she provided guidance and support to Ms Wong during this time, and she would have thought that Ms Wong would have felt supported and have a clear direction after the meetings.
Ms Wilson states that Ms Wong never advised her that the workload was too high, and that Ms Wong wanted to keep her clients.
There are some brief notes from Hasaka Martin in a document headed “Summar Document – Context” dated 21 August 2023 in the Reply. That document confirms that Hasaka Martin went on leave from the last week of June 2023 and returned to work on 17 July 2023.
The notes state that between April and June 2023 Ms Wong was looking forward to getting her own clients and enjoying learning her job. The notes state that Ms Wong indicated that she had been busy while Mr Martin was away but “got through it” with support from another employee.
There is a note that on 18 July 2023, Ms Wong was happy to retain clients, rather than have those clients moved.
There is a note that Mr Martin spoke to Ms Wong’s husband on 23 July 2023 to advise that Ms Wong had been in hospital, but no further context on her condition was provided by her husband.
There are also some notes from Shannon Coates, Managing Director, in that document. There is a note that Mr Coates spoke by telephone with Ms Wong on 6 July 2023 while Mr Martin was on leave, and Ms Wong said she had enjoyed working with Ms Wilson and was getting good feedback and mentoring. It is also noted that Ms Wong mentioned she was not sure exactly what work she needed to do for the several company secretaries that she was supporting and Mr Coates provided her with some advice.
There is also a note that Mr Coates and Ms Wong travelled to an initial client meeting on 10 July 2023, and that at no point did Ms Wong voice any concerns about her capacity or ability to manage her role.

The medical evidence

There are clinical notes from Blacktown Hospital. Ms Wong attended the Emergency Department of Blacktown Hospital on 22 July 2023 in the company of her husband. It is apparent from those clinical notes that Ms Wong was in a very unsettled condition, and that much of the details recorded in those notes were derived from her husband.
The brief notes on attendance by Ms Wong include: “Has 2 kids. Couple struggling for parenting. Possibly stressed” and “Possible childhood MH issue (husband not sure of). Post natal MH issue.”
The more detailed notes for that attendance include seeing a psychologist some four years ago for postnatal depression but denying any past admissions to a mental health ward or to an emergency department.
The notes include the following from an assessment of Ms Wong:
“Pt yesterday was talking to her father in Hong Kong on the phone.
Stated she has never reached out to her parents to ask for help.
Stated was asking for support because she is currently struggling with her son’s challenging behaviour.
Reports after talking to her father she started feeling anxious, feels present but not there.
Stated was unable to sleep due to feeling restless, unable to settle and fall asleep.
Mentioned has other stressors including ongoing family issues and recent behaviour issues with some and the challenges with parenting.”
The notes also record that Ms Wong was a poor historian, with poor eye contact and hyperventilating at times. The notes state that further information was provided by Ms Wong’s husband and includes the following:
“Reports she has had to look after mother and brother emotional well-being due to their mental health issues.
Stated recently their son having challenging issues and facing parenting struggles.
Reports pt has also some work-related stress due to staff shortages.
Also adds that their relationship also getting affected due to feeling overwhelmed with parenting.
Reports a bit of financial struggles husband not working for 2 weeks.”
The clinical notes indicate that Ms Wong was discharged into the care of her husband. However, Ms Wong was admitted to Hornsby Hospital three days later. The notes on admission include the following:
“Husband reports consumer suffers from insomnia and acute behavioural disturbance for last four days. Husband reports Isabella is talking in a low tone and not sleeping for few days. Isabella struggles with the behavioural issue of their first son and she believes her parenting style contributed to son’s behaviour.
Son has behavioural issues and having some tics lately.
Husband reports Isabella has a low level of confidence and struggles with her current job. Recently she changed the job, and she finds difficulty in the new role as two companies has integrated recently. Husband reports that she is good worker, but she thinks she is not working up to the mark, which stresses her lately.
She reports there is difficulty in understanding the new role and the tasks.
She reports she thinks her parenting style is contributing to the child’s behaviour and feeling guilty about this.”
The notes record the recent triggers to be “child’s behavioural issue” and “stressful work environment”. The notes also record that Ms Wong had a distressed affect and there were delayed responses in her speech.
The notes record that her parents separated when she was in primary school, that her mother has always had anxiety, and that she has witnessed her mother’s self-harm with a knife when she was a teenager.
There are notes from a psychiatric review undertaken by Dr Ching Long Ho on 27 July 2023. Dr Ho records that Ms Wong is cooperative and interactive, and that she was conscious and alert. The notes include the following:
“She reported she has been under immense stress in recent times.
She has switched to a new job two months ago.
She reported the job was problematic and anxiety provoking.
She also reported parental struggles.
Their 7yo son has some behavioural challenges.
This is marked by temper tensions and uncooperativeness.
She said mother has always turned down requests for help with childcare.
She reported parents fought a lot. Mother would self-harm with a knife, with children present.
Her brother was admitted to a psych ward for self-harm and SI.
She reports this was two weeks after she had the birth of her second child.”
Ms Wong was discharged from Hornsby Hospital on 31 July 2023.
The clinical notes from Hornsby Hospital also include records in late 2017 and early 2018 of Ms Wong having psychological difficulties following the birth of her second child.
There is a discharge summary from Blacktown Community Health Centre dated 9 August 2023 which includes:
“Prior to admission that she felt overwhelmed with multiple stressors ‘felt like things exploded’. She also related her distress to not coping with her son (7yo). She describes her mood as fluctuating, sometimes sad and cry, but she is able to accept the emotional changes.”
There are clinical notes in evidence from Dr Jeff Lee, who takes over as Ms Wong’s general practitioner after her discharge from Hornsby Hospital. The first consultation which has Dr Lee has with Ms Wong is on 13 August 2023 and is by telephone and it is recorded that Ms Wong’s husband spoke on her behalf. Dr Lee records that Ms Wong was admitted two Hornsby Hospital for one week with “cause combined stress” of “kids, work, birth trauma.”
Dr Jeff Lee records a consultation on 15 August 2023 which includes: “oldest son has a tic” and:
“Stress and anxiety also from work
anxious before meetings, presentations
1 month
over overwhelmed
as to colleagues went on leave.”
Dr Jeff Lee has provided a report dated 1 August 2004 wherein he states that Ms Wong has had a panic disorder, but with a good prognosis with ongoing treatment. He opines:
“The patient’s current condition is likely due to a combination of both workplace stressors and other factors, but the main contributing factor would be related to workplace stressors, as per the history given by the patient.”
Dr Jeff Lee referred Ms Wong to Dr Julian Lee, psychiatrist. The clinical notes from Dr Julian Lee’s first consultation with Ms Wong on 19 August 2023 are in evidence, and include the following:
“Work stress +++ since last month.
Had a very busy day at work on 21/7/23.
- Took the afternoon off to take care of her son, despite heavy workload.
- Called her father afterwards, crying +++
Presented to Blacktown ED on 22/7/23 with panic attacks
Started experiencing auditory hallucinations (father’s voice, not commanding or derogatory in nature), agitated +++”
Dr Julian Lee records that Ms Wong has no previous psychiatric history or previous admission to hospital for mental health, apart from her recent admission to Hornsby Hospital.
Sonia Lalwani, psychologist, has provided a report dated 23 July 2024 at the request of Ms Wong’s lawyers. Ms Lalwani writes that Ms Wong’s symptoms and characteristics were evaluated over a period from 18 December 2023 to 12 March 2024.
Ms Lalwani records that Ms Wong struggled under high demands and lack of support at work during a particularly stressful period in June and July 2023. She records “on the date incident” that Ms Wong was unexpectedly burdened with additional tasks in the morning and continued to receive demands from a colleague’s client after she left the workplace later that day to take her son to a medical appointment, and that this exacerbated her emotional and mental strain. Ms Lalwani writes:
“Ms Wong felt unsupported by her workplace, especially given their awareness of her prior mental health challenges, and perceived continued pressure to handle excessive workloads.”
Ms Lalwani writes that Ms Wong’s case illustrates a family predisposition to mental health issues and records Ms Wong experiencing stress related to her children’s behaviours. However, Ms Lalwani concludes:
“Despite these contributory factors, current work stressors had become the proverbial ‘last straw’ or the primary significant factor that prompted Ms Wong to seek medical advice and therapy, as well as to file for work cover.”

Dr Khan, consultant psychiatrist, has provided reports at the request of Ms Wong’s lawyers dated 27 June 2024 and 12 August 2024.
In his report dated 15 September 2023, Dr Khan records that Ms Wong was quite busy in her workplace because people were on leave and others had left the company, and she was feeling overwhelmed. He records that Ms Wong had a half day off work on 21 July 2023 to take her son to the medical centre, but she continued to receive communication from her manager as well as her clients. He records that Ms Wong became acutely psychotic soon after and began to hear her father’s voice when her husband was talking and had feelings of self blame that her son had a motor tic. Dr Khan records that Ms Wong was not sure why she felt this self blame so intensely at this time.
Dr Khan records Ms Wong’s attendance at the Emergency Department at Blacktown Hospital and a more extended admission to Hornsby Hospital. He records that Ms Wong in the past was referred for psychological treatment due to problems in dealing with the birth of her second son and her younger brother engaging in self harm at around the same time.
Dr Khan diagnoses Ms Wong as having an adjustment disorder with anxiety. He also considers that she developed a brief psychotic disorder, but that this condition is now in remission.
Dr Khan writes that Ms Wong had struggled with some symptoms of anxiety approximately six years ago which required her to briefly engage in psychological treatment, but she was asymptomatic and in good health prior to the subject workplace injury.
Dr Khan opines that Ms Wong’s psychological injury “was caused by protracted workplace stressors whereby she felt overwhelmed, overworked, unsupported, ignored and dismissed by her employer.”
Dr Khan disagrees with an opinion from Dr Xia, psychiatrist, that family and interpersonal conflicts, genetic loading and previous childhood experiences were the predominant cause of Ms Wong’s psychological condition. Dr Khan writes:
“If she was so mentally unstable due to these factors, she should have stopped working because of these factors but this was clearly not the case. Ms Wong stopped working due to the buildup of her workplace stressors over time whereby she felt overwhelmed, overworked, unsupported, ignored and dismissed by her employer.”
Dr Xia has provided a report at the request of the respondent’s lawyers dated 19 February 2024.
Dr Xia records that Ms Wong said that the respondent was short staffed during June and July 2023 due to other employees being on leave, and that she also felt like she was working for two companies due to a merger. She records that Ms Wong said her workload did not lessen after other staff had returned from leave.
Dr Xia records that Ms Wong received ongoing work calls while she was at a doctor’s appointment with her son who has a motor tic. She records that Ms Wong felt “very emotionally unstable” following this medical appointment. Dr Xia records that Ms Wong presented to Blacktown Hospital the following day because she did not “feel right.” Dr Xia records Ms Wong’s admission to Hornsby Hospital a few days later.
Dr Xia records that Ms Wong had a “difficult time” and was feeling low in mood following the birth of her second son. She records that Ms Wong’s brother has been diagnosed with Bipolar Affective Disorder and that her mother and maternal grandmother are anxious people. Dr Xia records an occasion when Ms Wong’s mother became overwhelmed and stabbed herself in the leg with a kitchen knife in front of Ms Wong and her brother.
Dr Xia diagnoses Ms Wong as having a psychotic disorder with marked stressors that is in remission, as well as Generalised Anxiety Disorder.
Dr Xia is asked if Ms Wong’s workload and interactions at work were a substantial contributing factor to her psychological injury, and she responds:
“Based on the collateral information, I would consider Ms Wong’s non-work-related stressors, specifically her son’s behavioural issues, his motor tic, and reports of him being bullied at school, as well as her interpersonal conflict with her mother and grandmother within a very short period of time to be more substantial contributing factors to the deterioration of her mental health.”
Dr Xia is asked if Ms Wong is suffering from an aggravation or exacerbation of a pre-existing condition, and she responds:
“… I believe that it is likely that Ms Wong was suffering some symptoms of anxiety prior to her alleged work injury…She describes significant genetic loading with regard to her mother and grandmother’s anxious personalities, which are also likely to have impacted her developmentally, as well as her brother’s diagnosis of a significant mood disorder. In my opinion, Ms Wong has suffered an exacerbation of her anxiety, triggering the development of a Generalised Anxiety Disorder.”
Dr Xia also writes:
“…in my opinion, Ms Wong’s mental health symptoms and diagnoses are predominately associated with non-work-related factors including her adverse childhood experiences, the genetic loading, her interpersonal conflict with her mother and grandmother, and the stresses associated with raising her child.”

A summary of the submissions from the parties to the dispute

Mr Morgan on behalf of Ms Wong submits that Ms Wong’s employment is the main contributing factor to the psychological injury she sustained in July 2023.
Mr Morgan submits that there is no indication of Ms Wong suffering any psychological problems before she commenced work with the respondent in March 2023 and was then subjected to significant demands due to a lack of staff and an excessive workload. He submits that when an interrogation is made of the cause of the acute manifestation of symptoms in July 2023, it can only be her employment with the respondent.
Mr Morgan submits that a review of all the evidence, with the exception of the opinion of Dr Xia, supports a conclusion that Ms Wong’s employment is the main contributing factor to the psychological injury she sustained in July 2023, and even Dr Xia concedes that Ms Wong experienced problems in her workplace.
Mr Morgan submits that although Dr Khan does not use, or engage in, the words “main contributing factor” when addressing the question of causation, it is readily apparent from his report that he considers Ms Wong’s employment to be the cause of her injury. Dr Khan opines that Ms Wong’s psychological injury “was caused by protracted workplace stressors.”
Mr Stiles on behalf of the respondent submits that it is apparent from the details recorded in the clinical notes from Blacktown Hospital and Hornsby Hospital that there were several factors weighing upon Ms Wong’s state of mind which were not related to her work, including difficulties with her son, her relationships with her parents, and financial issues. He submits that an objective review of that contemporaneous material makes it clear and overwhelming that Ms Wong’s employment is not the main contributing factor to the psychological injury she sustained in July 2023.
Mr Stiles submits that the opinion from Dr Xia should be preferred because Dr Xia is the only expert who has obtained a proper history of Ms Wong’s past personal life and the circumstances leading up to the acute onset of psychological symptoms in July 2023. He submits that although Dr Xia has not seen the clinical notes from the hospitals, the history which she does obtain and the conclusions she reaches are consistent with the details recorded in those clinical notes.
Mr Stiles submits that Dr Xia is fair and balanced in her report wherein she concedes that Ms Wong’s employment is a factor in the onset of her psychological condition, but given several other factors she refers to in her report, Ms Wong’s employment cannot be regarded as the main contributing factor to her injury.

Determination

I accept from a review of the lay evidence that Ms Wong found her employment with the respondent to be very stressful, especially in June and July 2023. Ms Wong states that she became increasingly stressed and anxious during this period of time when there was a lack of staff due to people being on leave.
Ms Wilson confirms that there were quite a few staff on leave in June and July 2023 and that this was not an ideal situation. The notes attributed to Mr Martin indicate that Ms Wong was busy while Mr Martin was away for almost four weeks but that she “got through it.”
Ms Wong also states that she began to experience fear and anxiety when she was having to learn aspects of her work “at an exponential speed.” The need for ongoing for support for Ms Wong is confirmed by Ms Wilson’s evidence that she had multiple conversations with Ms Wong and provided guidance and support to Ms Wong.
There is other evidence which suggests that Ms Wong’s experience in the workplace was not as stressful as she has subsequently claimed in her statements and to medical practitioners, such as Ms Wilson stating that Ms Wong never informed her that that the workload was too high and that she understood that Ms Wong wanted to keep her clients, or the note made by Mr Martin that Ms Wong was happy to retain her clients.

83. However, DP Roche said in Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K) at [54]:

“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”

I accept from not only Ms Wong’s evidence, but also the evidence from Ms Wilson, that Ms Wong perceived herself to be working in a hostile environment, especially in June and July 2023, when there were staff shortages and Ms Wong was having difficulties in keeping up with her workload, and this became very stressful for her.
The critical issue is whether that stress which Ms Wong did experience in her employment with the respondent is the main contributing factor to the psychological injury she sustained in July 2023.
Mr Morgan did not specifically identify which part of the definition of ‘injury’ s 4 of the 1987 Act should apply to Ms Wong. There is no medical evidence which identifies a particular incident as the cause of her psychological injury which would satisfy s 4 (a).
Although there is evidence of events in the past which might be factors in the development of Ms Wong’s psychological injury in July 2023, and Dr Xia opines that it is likely that Ms Wong had some symptoms of anxiety prior to July 2023, I do not consider there is sufficient evidence from the medical material that Ms Wong was suffering a pre-existing psychological injury, disease or condition in July 2023 which would involve the application of s 4 (b)(ii).
If Ms Wong is to succeed then she needs to satisfy the provisions of s 4 (b)(i) of the 1987 Act whereby she has sustained a disease injury ‘that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease’.
The decision of AV v AW [2020] NSWWCCPD 9 (AV v AW) addresses the requirements of s 4 (b)(ii), but DP Snell provided a very helpful application of the term ‘main contributing factor’ as it appears in both sub-cls of s 4 (b) at [77]:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”
DP Snell then said at [78]:
“The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.”
Mr Stiles points out that there is no reference to Ms Wong’s employment in the clinical notes from Blacktown Hospital, which is her first attendance at a hospital following the onset of acute psychological symptoms. However, I consider that caution needs to be exercised in relying upon this particular piece of evidence.
Those clinical notes record that Ms Wong was a poor historian, and the notes also reveal that Ms Wong was in a very unsettled condition, including observations of hyperventilating and random talk. It is also apparent that most of the information conveyed to the hospital staff was from Ms Wong’s husband. I therefore do not consider that the information contained in those notes can be relied upon with any confidence.
That conclusion might also apply to the clinical notes on admission to Hornsby Hospital three days later because those notes include observations of Ms Wong being distressed and providing delayed responses, and much of the recorded history is provided by her husband. However, the record made of a summary of Ms Wong’s recent triggers on her admission, being her child’s behavioural issues and a stressful work environment, is consistent with the details recorded by Dr Ho two days later when Dr Ho finds Ms Wong to be cooperative, interactive and alert.
Those records made at Hornsby Hospital are similar to the details recorded by Dr Jeff Lee when he initially sees Ms Wong about two weeks later of Ms Wong having concerns about her son and being overwhelmed at work.
Those contemporaneous records from Hornsby Hospital and Dr Jeff Lee lead me to conclude that although there may have been some long-standing issues which had caused some stress for Ms Wong, such as difficulties with her parents and her brother, the substantial contributing factors to the psychological injury sustained by Ms Wong in July 2023 were having to deal with her son’s problems and the stress she experienced at work. However, as DP Snell noted at [78] in AV v AW in regard to s 4 (b)(ii), but which can equally be applied to s 4 (b)(ii):
“The test of ‘main contributing factor’ in s 4 (b)(ii) is more stringent than that in s 4 (b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.”
There may not be “one ‘main contributing factor’” to a disease injury, and that is ultimately the conclusion which is reached by Dr Xia in this dispute. However, from my review of the evidence, the onset of Ms Wong’s acute psychological symptoms in July 2023 coincides with the stress which she was experiencing at work, and the following opinion provided by Dr Khan encapsulates Ms Wong’s circumstances at the time she attends Blacktown Hospital on 22 July 2023:
“If she was so mentally unstable due to these factors, she should have stopped working because of these factors but this was clearly not the case. Ms Wong stopped working due to the buildup of her workplace stressors over time whereby she felt overwhelmed, overworked, unsupported, ignored and dismissed by her employer.”
Although there were other factors affecting Ms Wong’s psychological condition, these were long-standing factors, and they had not caused Ms Wong to be incapacitated for work in the past. Nor had such long-standing factors caused Ms Wong to seek medical treatment, except for some treatment following the birth of her son some six years prior the events of July 2023.
I therefore prefer the opinion that is reached by Dr Khan that the psychological injury sustained by Ms Wong in July 2023 was caused by protracted workplace stressors. I prefer that opinion over the opinion provided by Dr Xia.
This is because Dr Xia does not engage in a consideration as to what actually caused Ms Wong to have an acute onset of psychological symptoms and to cease work in late July 2023. Dr Xia refers to several factors over an extended period rather than the immediate cause of her injury in July 2023.
Mr Stiles is critical of Dr Khan in failing to use or engage in the words “main contributing factor” when addressing the question of causation. However, Dr Khan does opine that as Ms Wong’s psychological injury “was caused by protracted workplace stressors whereby she felt overwhelmed, overworked, unsupported, ignored and dismissed by her employer.”
Deputy President P Roche observed in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
I have set out an evaluative process whereby I have concluded from a review of the lay and medical evidence, and my preference for the opinion of Dr Khan, that Ms Wong’s employment is the main contributing factor to the psychological injury she sustained in July 2023.
Mr Stiles is also critical of Dr Khan in failing to obtain a full and comprehensive history of Ms Wong’s past personal life and circumstances leading up to the acute onset of psychological symptoms in July 2023, especially when the report from Dr Khan is compared to the report from Dr Xia.
I do not agree with that criticism. Dr Khan is aware of difficulties which Ms Wong had following the birth of one of her sons and which coincided with problems involving her brother. Dr Khan does not record the same negative comments regarding Ms Wong’s mother and grandmother as Dr Xia does, but he does record that they were less involved in her upbringing. Dr Khan has also perused the report of Dr Xia, which does set out several factors which may have contributed to Ms Wong’s psychological condition, and addresses Dr Xia’s opinion in his own report.
Dr Khan has not had the benefit of perusing the clinical records from Blacktown Hospital and Hornsby Hospital, but the contents of his report reveal that he does have a good understanding of the circumstances which took Ms Wong to both hospitals in July 2023.
I therefore consider that the report from Dr Khan has been provided in a ‘fair climate’ and can be relied upon to support the finding I have made in favour of Ms Wong.
I should add that I consider no assistance is provided by Ms Lalwani, other than to corroborate Ms Wong’s complaints that her work with the respondent was very stressful. The statement made by Ms Lalwani that the respondent was aware of Ms Wong’s prior mental health challenges is not supported by any evidence. It might be that Ms Lalwani has a misunderstanding of the chronology of events. Otherwise, it must be viewed as advocacy on the part of Ms Lalwani.
There will be a finding that Ms Wong’s employment is the main contracting factor to the contracting of her psychological injury in July 2023.

The claim for weekly benefits of compensation

The applicant’s evidence

The applicant states in her statement dated 30 July 2024 that she is “completely debilitated” since her psychological injury. She states that being responsible for duties at work makes her feel very nervous and incredibly anxious. She states that her lack of self esteem and motivation would make it impossible for her to cope in a professional environment.
The applicant states in her statement dated 14 November 2024 that she returned to work as an admin assistant with Sunrice Pty Ltd in October 2024. She states that she is working seven hours per day for three days per week. Ms Wong states that her return to work was only due to financial necessity and obligations which needed to be met.

Ms Wong does not provide any evidence of her duties as an admin assistant or her rate of pay. However, she has chosen not to seek any weekly payments of compensation since commencing that employment.

The medical evidence

Dr Jeff Lee issued a Certificate of Capacity on 25 January 2024 which certified Ms Wong as having capacity for some type of employment for four hours per day for four days per week. He included considerations for suitable employment to be “work in the mornings” and “for mentally low demanding tasks”.
Dr Jeff Lee issued a Certificate of Capacity on 22 February 2024 with the same considerations for suitable employment, but with a capacity for some type of employment for eight hours per day for three days per week.
The clinical notes from Dr Jeff Lee include an entry on 22 February 2024 of a case conference regarding a possible return to work for Ms Wong. The entry includes that Ms Wong prefers autonomous work such as research, and she is: “Not good at admin and dealing with people”.
An entry by Dr Jeff Lee on 12 June 2024 includes: “She has been job searching” and “gets anxiety sometimes”.
There is a report from Dr Malhotra, which appears to have written in late November 2023, in regard to injury management of Ms Wong. Dr Malhotra writes that he had a telehealth consultation with Ms Wong on 17 November 2023 and that Ms Wong said that she feels motivated to work, but there are some days she does not feel she can work. Dr Malhotra writes that Ms Wong stated that she thought she could manage two hours of work per day for four days a week from her home.
Dr Malhotra writes that he spoke to Dr Jeff Lee on 21 November 2023 and there was an agreement between those two doctors that Ms Wong’s current work capacity was two to three hours per day for two to three hours per week. Dr Malhotra writes that Dr Lee stated he aimed to gradually increase Ms Wong’s work capacity and the suggestion of the jobs of compliance officer, company secretary, and customer service advisor were suitable for Ms Wong.
Dr Xia found Ms Wong to be tense and her mood was anxious during the examination for the report dated 19 February 2024. Dr Xia found Ms Wong to the alert and engaged appropriately throughout the assessment, with no indication of significant cognitive impairment. She concludes that Ms Wong’s mental health has significantly improved since the subject incident.
Dr Xia noted that Ms Wong was “currently rated” to have capacity to work for four hours per day for four days per week. Dr Xia recommended that based upon Ms Wong’s current presentation she should consider work opportunities in positions where there were appropriate supports and a reduced need to make autonomous decisions.
Dr Xia also recommended that Ms Wong not travel further from her home than Rouse Hill or be required to be independent for significant periods of time. Dr Xia writes that these limitations were likely to significantly restrict the occupational opportunities available to Ms Wong.
Dr Khan found on his examination in June 2024 that Ms Wong’s thought content comprised enduring symptoms of anxiety, but he also found her cognition was predominantly intact and she had appropriate insight and judgement.
Dr Khan considered Ms Wong to be totally incapacitated “due to the ongoing impact of the subject injury on her mood regulation, motivation, energy, sleep patterns, ability to tolerate stress and pressure, coping mechanisms, self-confidence and self-esteem”.
Ms Lalwani last saw Ms Wong in March 2024 and states that Ms Wong may not currently be prepared to re-enter the workforce due to the work stressors she might have to face, the lack of accommodation for Ms Wong’s mental health needs in the workplace, and Ms Wong’s reduced self-confidence and self-esteem.

Determination

It would appear from the medical records from Dr Jeff Lee, and the Certificates of Capacity that he has issued, that Ms Wong’s psychological condition was improving to the point where she had some capacity for work in late 2023 and early 2024. This is confirmed by the details recorded by Dr Malhorta in November 2023 and in the report from Dr Xia in February 2024.
I consider that considerable weight should be given to the opinion of Dr Lee regarding Ms Wong’s capacity for work because he has had the benefit of monitoring her condition on a regular basis from soon after she was discharged from Hornsby Hospital in August 2023. Dr Lee considered that Ms Wong was capable of undertaking 16 hours of work per week in late January 2024 and 24 hours of work per week by late February 2024.
The considerable weight to be given to the opinion of Dr Lee, which is supported by the opinions of Dr Malhorta and Dr Xia, is to be preferred over the opinion of Dr Khan. Dr Khan opines in June 2024 that Ms Wong is totally incapacitated for work, but his reasons are expressed in very general terms, and he does not consider why several other experts, including Ms Wong’s general practitioner, have concluded that Ms Wong has at least a partial incapacity for work.
Although Dr Jeff Lee increases Ms Wong’s capacity for work to 24 hours of work per week in late February 2024, the Certificate of Capacity which he issues still recommends that Ms Wong work only in the mornings. Dr Xia also recommends four hours per day for four days per week at this time. It therefore is reasonable to conclude that 16 hours of work per week (four hours per day for four days) is the maximum amount of hours that Ms Wong could work at the time her weekly payments of compensation were terminated.
Both Dr Jeff Lee and Dr Xia also consider that Ms Wong should be limited to low demanding jobs. I consider this to be reasonable having regard to the significant psychological injury sustained by Ms Wong. Dr Xia concedes that Ms Wong’s limitations were likely to significantly restrict her occupational opportunities. Nonetheless, Ms Wong’s past work experience and the restrictions on her work capacity recommended by Dr Lee and Dr Xia would indicate that Ms Wong could at least undertake basic clerical and administrative tasks.
The ‘Characteristics’ set out for a Level 2 employee under the Clerks – Private Sector Award 2020 meet the restrictions on work capacity set out by Dr Jeff Lee and Dr Xia at the time Ms Wong’s weekly payments of compensation ceased. Those Characteristics include:
‘Employees at this level perform routine clerical and office functions requiring an understanding of clear, straightforward rules or procedures and may be required to operate certain office equipment. Problems can usually be solved by reference to established practices, procedures and instructions.’
The hourly rate for a Level 2 employee with over a year’s experience in clerical work as at 16 March 2024 was $24.11 per hour. That rate increased to $27.67 per hour on 1 July 2024.
Ms Wong does not provide any evidence of her duties as an admin assistant or her rate of pay since she commenced employment with Sunrice Pty Ltd in October 2024, so it might be that she is working in a senior and responsible role with this new employer. Ms Wong also does not provide any evidence as to how in a period of two months in August and September 2024 she progressed from being “completely debilitated” to be being able to work for seven hours per day for three days per week.
In the absence of such evidence from Ms Wong or some accompanying medical evidence, I find it unlikely that Ms Wong would have suddenly been able to do 21 hours of work per week. It is more likely that her capacity to work gradually improved over the six months she was out of the workforce.
In weighing up the limited evidence that is available, and in drawing an inference that at some time prior to 1 October 2024 Ms Wong would have reached a capacity of 21 hours per week, I find that Ms Wong’s capacity to work 16 hours per week should end on 31 July 2024. That is two months prior to her commencement of employment with Sunrice Pty Ltd.
The applicant’s PIAWE are agreed at $2,100. Ms Wong is entitled to indexation of PIAWE on 1 April 2024 pursuant to s 82A of the 1987 Act, which increases PIAWE to $2,137.60.
The award of weekly compensation to be made in favour of Ms Wong is calculated as follows:
Period  PIAWE           80% of PIAWE           Ability to earn             Award
16/3/2024 – 31/3/2024 $2,100            $1,680  $385.75  $1,294.25
1/4/2024 – 30/6/2024    $2,137.60       $1,710  $385.75  $1,324.20
1/7/2024 – 31/7/2024    $2,137.60       $1,710  $442.70  $1,267.30
1/8/2024 – 30/9/2024    $2,137.60       $1,710  $581  $1,129

The claim for medical expenses

There will be an order that the respondent is to pay the applicant’s reasonably necessary medical treatment for her psychological injury pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 667

3 December 2024