CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Wells v Secretary, Department of Education [2024] NSWPIC 147	
		
APPLICANT:	Michelle Wells	
		
RESPONDENT:	Secretary, Department of Education	
		
Member:	Lea Drake	
		
DATE OF DECISION:	26 March 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - The applicant contends the date of injury is the date on which her symptoms originated; respondent contends the date of injury is the date on which the applicant made her claim for compensation; application of 8E of the Workers Compensation Regulation 2016 discussed; Held – the application to contest injury at the conciliation/arbitration when not previously in issue is refused.
 	
determinations made:	The Commission determines:
1.	The applicant’s date of injury was 19 July 2021 (deemed).
2.	It would be manifestly unfair to take the applicant’s absence on leave without pay into account when calculating her pre-injury average weekly earnings (PIAWE).
3.	With respect to her compensable injury the applicant’s PIAWE should be calculated at the statutory maximum rate pursuant to s 34(1) of the Workers Compensation Act 1987 (the 1987 Act) being:
(a)	between 18 March 2022 and 31 March 2022, the sum of $2,282.90;
(b)	between 1 April 2022 and 30 September 2022, the sum of $2,318.10;
(c)	between 1 October 2022 and 31 March 2023, the sum of $2,341.80;
(d)	between 1 April 2023 and 30 September 2023, the sum of $2,395.80, and
(e)	between 1 October 2023 and 23 November 2023, the sum of $2,423.60.
The Commission orders:
4.	The respondent is to make payments of weekly compensation to the applicant pursuant to s 36 of the 1987 Act as follows:
(a)	between 18 March 2022 and 31 March 2022 the sum of $2,168.76 per week;
(b)	between 1 April 2022 and 17 June 2022 the sum of $2,202.20 per week;
(c)	between 18 June 2022 and 30 September 2022 the sum of $1,854.48 per week;
(d)	between 1 October 2022 and 31 March 2023 the sum of $1,873.44 per week;
(e)	between 1 April 2023 and 30 September 2023 the sum of $1,916.24 per week, and
(f)	between 1 October 2023 and 23 November 2023 the sum of $1,938.88 per week.
5.	The respondent is to have credit for payments of weekly compensation already paid.

STATEMENT OF REASONS
BACKGROUND
1.	Ms Michele Wells (the applicant) was employed by the Secretary, Department of Education (the respondent) commencing in 2017.
2.	The applicant has suffered a psychiatric injury in the employ of the respondent. 
3.	The respondent has admitted liability for the injury but contends that the date of injury was 21 March 2022.
4.	The applicant contends that the date of injury was 19 July 2021.
5.	The parties are in dispute as to the appropriate date from which the applicant’s pre-injury average weekly earnings (PIAWE) should be calculated and as to whether the period of the applicant’s leave without pay should be included in that calculation.
MATTERS IN DISPUTE
6.	The applicant contends the date of injury is the date on which her symptoms originated. 
7.	The respondent contends the date of injury is the date on which the applicant made her claim for compensation. 
8.	The application of the term “the unpaid leave period” in regulation 8E of the Workers Compensation Regulation 2016 and its effect on the applicant’s PIAWE is also in contention.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION 
9.	Mr Ian Latham of counsel, instructed by Mr Timothy Driscoll of Beilby Pouldon Costello Lawyers, appeared for the applicant. Mr Stuart Grant of counsel, instructed by Katelyn Cant of Hall and Wilcox Lawyers, appeared for the respondent.
10.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
EVIDENCE
11.	There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before Personal Injury Commission (Commission). 
12.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (ARD) and attached documents; 
(b)	Reply to ARD (Reply) and attached documents;
(c)	submissions from Beilby Pouldon Costello dated 26 February 2024, and
(d)	submissions from Hall and Wilcox dated 13 March 2024. 
The respondent’s submissions
13.	 The insurer assessed the applicant’s PIAWE as commencing 12 months before the last date she worked which was 18 March 2022. The applicant sought a review of the insurer’s decision regarding the quantum of her entitlement to weekly payments of compensation. It refused the application for review and its reasons are set out below.
“Reasons for outcome of review
Allianz received a request for review dated 11/04/2022 where you noted the following:
At this time of the decision dated 31/03/2022 Allianz did not include you returning to your full-time permanent position which was due to commence on the 21/03/2022.
In order to determine your pre-injury average weekly earnings (PIAWE), Clause 2 of Schedule 3 of the Workers Compensation Act 1987 requires that the average of your ordinary earnings during the relevant period must be determined expressed as a weekly sum and take into account any overtime and shift allowance payments that is permitted to be included in under the
section.
The ‘relevant period’ is defined by Schedule 3, clause 2 (2) of the Workers Compensation Act 1987
(2) 	Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
We note therefore your relevant period is 19/01/2021 to 17/01/2022,
It further states in Schedule 3, clause 2(3)( a) of the Workers Compensation Act 1987
(3) 	The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)-
(a) 	to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
And Division 2 of states the following regarding adjustments for unpaid leave
Further to this, Division 2 BE of the Workers Compensation Regulation 2016 states the following in relation to Adjustment for unpaid leave in relation to Schedule 3, clause 2(3)(a) of the Workers Compensation Act 1987
8E Adjustment for unpaid /eave-Schedule 3, clause 2(3)(a) of 1987 Act
(1) 	The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period-
(a) 	no earnings in the employment were paid or payable to the worker, and
(b) 	the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.
(2) 	The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.
The PIAWE report provided by the Department of Education, indicates you held the following assignments.
• 	Teacher at Queanbeyan High School from 28/01/2020 to 31/12/2020
• 	Casual Teacher at Queanbeyan High School from 01/02/2022 to 01/08/2023
We note at the time of your injury you were on leave without pay from your contact and were only engaged in casual employment.
It is acknowledged that you have indicated you were scheduled to return to your full-time permanent position as of 21/03/2022. However, as noted above, your PIAWE is calculated utilizing the 52 weeks prior to your deemed date of injury being 18/01/2022.
Therefore, taking into consideration the legislation noted above, and the assignment summary and the employment information/status provided by the Department of Education and yourself your PIAWE is calculated as follows.
The initial relevant period is from 19/01/2021 until 17/01/2022 being 52 weeks
From this a material change was applied from 01/02/2022 when ceased working your contract and engaged casual employment. Therefore weeks 19/03/2021 to 20/01/2022 were excluded. Further to this, the Week 21/01/2022 to 03/02/2022 were removed so as to align your relevant period to your pay cycle.
As a result, your relevant period is determined to be 6 Weeks
Your Earnings for the relevant period are: $6,900.15
Therefore your PIAWE is calculated as follows:
= Total Earnings/Relevant Period
= $6,900.15/ 6 weeks
= $1,050.03
As a result it is determined that your PIAWE remain as per the decision completed on the 31/03/2022.”
14.	At the conciliation/arbitration, relying on the “interests of justice”, the respondent sought to challenge injury, having previously accepted the claim and paid compensation.
The applicant’s submissions
15.	The applicant’s solicitors sought a PIAWE based on the applicant’s earnings for the 12 months predating 19 July 2021, the date when she submits she was injured.
16.	The applicant’s evidence as to injury is relevant to her submission and it is set out in her statement. I have therefore extracted the relevant parts below.
“24. 	I managed the first lock down in April 2020 reasonably well and performed well.
25. 	In March 2021, asbestos was found in three classrooms, and this was a stressful experience. 
26. 	I was supporting the staff who were distressed by this.
27. 	Then, one of our male staff members was diagnosed with asbestosis and I (as we all did) became fearful he would die. The EAP services were involved to support the other staff members (and myself) given the anxiety and our concerns about our physical health.
28. 	On 11 March 2021, we were advised that the school had put in a Workcover claim to DoE Incident Hotline for the entire faculty as we had all been exposed to the asbestos. This distressed me and other members of the workplace. This was not formally processed through to the workers compensation insurer due to an oversight beyond my control. This was remediated in February 2023 and workers' compensation claim number was provided to me being 770519178185. Allianz advised me that this was then merged with my other claim number as they are based on the same incident.
29. 	I personally reached out to EAP services for my own emotional support and addressed my symptoms of anxiety.
30. 	It took almost three months to do a deep cleaning of the three classrooms where the asbestos was found. During this period, I was stressed and in a panic. I was managing ten staff during that time and there was marked anxiety and anger among the staff. This anger was partially directed at me as the Department of Education provided clearance to return to the classrooms without appropriately cleaning and removing the asbestos from the spaces.
31. 	Staff were angry and as I was the Head Teacher they debriefed and directed that anger towards me because they didn't feel as though the Department was taking the situation seriously. It took the school, me and the principal seeking external reporting to prove to the Department that it wasn't safe to return.
32. 	I was supporting the staff with no time for my own debriefing. I was also having to support staff with additional negative student behaviours as they were not able to access practical rooms for their lessons. This jeopardized their learning, and a number of year 12 students were not able to complete their VET qualifications as they lost 3 months of practical learning that meant they didn't complete their competencies.
33. 	This was emotionally overwhelming and. extremely distressing to manage staff and maintain optimism whilst living with fear that one of our staff members was critically unwell from exposure and would possibly die. This caused me immense anxiety and fear and caused me distress with the work environment being destabilized.
34. 	I came to a breaking point with my emotional reserves depleted in June 2021 during the school holidays. I then became suicidal.
35. 	I reached out to lifeline and saw a psychiatiist in July 2021. I was on Escitalopram and Lamotrigine for ten years and the psychiatrist changed her medication to Desvenlafaxine, Quetiapine and Clonidine over a month.
36. 	I then continued working full time but relinquished one of my head teachers positions as I was stressed and could not cope. My anxiety was debilitating.
3 7. 	I reported to my employer that I was feeling anxious, being emotionally labile, tearfulness and being extremely sensitive and vulnerable.
38. 	I had time off work which led to my average weekly earnings dropping with the inability to continue to work at the same capacity.
39. 	I pushed on to work and put on a brave face.
40. 	I would breakdown at home, and I had chronic insomnia. My motivation and drive diminished, and I became socially isolated. I was struggling to cope with the demands and work in a stressful work environment. I continued to have absences from work and have exhausted my sick leave.
41. 	During the second lockdown due to pandemic in September 2021 I was exhausted and depleted completely.
42. 	Then, during October 2021 holidays I again was feeling mentally affected. I felt alone, isolated, and I stayed in bed with poor motivation and drive and became very reclusive.
43. 	I reported poor self-care and struggled with day-to-day functioning. I reported feeling numb and emotionally disconnected.
44. 	So, I went to see my GP who recommended stress leave, but I had exhausted my sick leave already since the asbestos stressors. I resumed full duties in term 4 but I was short fused, and my personality changed.
45. 	I had poor frustration tolerance and displayed marked anger and disappointment. I was not working at my full capacity, and I was really disappointed in myself. I described myself as a high achiever and felt I was always in sinking sand. I was too ashamed and embarrassed to let the staff know about my emotional detetioration. But it was obvious that I was struggling.
46. 	I was ashamed and thus reluctant to commence a workers compensation claim. So instead, I applied for 12 months of leave without pay for 2022.
47. 	I was frequently seeing my GP during Term 4 for numerous reasons, with her stating that it would be best if l took leave as I had lost my capacity for work.
48. 	During the summer holidays I only felt marginally better and because I had bills to pay and the school had not been able to find a suitable replacement for me, I felt obliged to casual teach to my own detriment.
49. 	I worked five days in a row and had to take four days off work to recover as I was bed bound. After the first two weeks I was barely able to work more than one day before requiring time off. I was depressed, lacked drive, and had anhedonia. I felt hopeless and helpless, and I felt like I had no other options.
50. 	I pushed myself as I did not want to let down the school, but it depleted my emotional stores, and I was repeatedly at breaking point every single day. Every day that I worked in a casual capacity I would spend the breaks in the toilet crying until I had to go back on duty.
51. 	It all came too much and so; I went to consult my GP on 21 March 2022 and I made a claim for workers compensation. Unfortunately, the insurer accepted a claim with an injury starting in 2022 not back in 2021 when my symptoms commenced and so my weekly wages PIAWE rate) was much less than my pre-symptom average weekly rate of pay.
52. 	Due to the mistake outlined in point 28, I was told by Allianz that my injury date and my loss of work capacity started on the 21 March 2022 under the claim number 770519170671.
53. 	Allianz (workers' compensation insurer) claimed that my change from full time employment in 2021 to leave without pay and casual work in 2022 created a material change which altered my PIAWE. My loss of capacity occurred in Tenn 4 2021 when Iapplied for leave without pay for 2022 because I knew I wouldn't be able to continue working.
54. 	I tried to have the insurer correct this, but I have been met with excuses.
55. 	I became home bound and could not leave the house for almost four months.” 
17.	In relation to determining the date of injury the applicant relies on the evidence of Dr Miller who treated the applicant between 29 September 2021 and 21 March 2022. Dr Miller expresses her opinion that the applicant was injured in April 2021 whilst trying to manage an asbestos problem at her school. Dr Rastogi, in his report of 11 October 2021, diagnosed an adjustment disorder with anxiety arising from the asbestos interaction in March 2021. Dr Boulton concludes that the date of injury arising from her employment was March 2021 and her employment was a substantial contributing and main factor to the injury. Dr Cutototti identified the applicant’s injury as related to the asbestos problem on 19 July 2021. This is supported by Dr Miller. 
18.	Applying Schedule 3 cl 2 of the 1987 Act and regulation 8E, the applicant submits that the applicant’s PIAWE should be adjusted to set aside the unpaid 12 months leave which the applicant accessed because of her injury. Its inclusion has had the effect of unfairly considerably reducing the PIAWE of the applicant.
CONSIDERATION
Injury
19.	The respondent sought to contest injury at the conciliation/arbitration in the “interests of justice”. In this application, I am not persuaded that the interests of justice are served by a late contest regarding injury. 
20.	The respondent submits the applicant’s history regarding the dissolution of a previous abusive relationship without adverse effects and a very much earlier period of anxiety is unreliable or not credible. 
21.	The evidence brief filed by the applicant was available to the respondent from 4 December 2023. There was no application to cross-examine the applicant on her mental health history.
22.	The respondent had ample opportunity to contest injury at an earlier date and did not do so. There is no material before me which persuades me to reject the applicant’s evidence regarding her prior mental health or the history she provided to her treating doctors.
23.	The application is refused.
 Date of injury
24.	I have considered the reports of the reports of the applicant’s treating doctors and the applicant’s statement. I am satisfied and find that the applicant was injured in the course of her employment as a result of the stress of her obligations and the interactions which arose from the discovery of asbestos in the respondent’s premises and the diagnosis of asbestosis in a fellow employee. I find that the applicant’s employment was the main contributing factor to the development of her condition and incapacity.
25.	I am satisfied and find that the applicant’s deemed date of injury was 19 July 2021 when on applicant’s evidence she suffered incapacity.
Treatment of the applicant’s period of unpaid leave
26.	The identification of a period of leave without pay is a relatively straightforward proposition, clearly identifiable in industrial and employment contexts. Member Isaksen has helpfully recently considered this issue in Al Kibbah v Chandler Macleod Group Limited:
“68. 	In making this finding in favour of the applicant’s case, I am also mindful of what was also said in Alcan at [47]: ‘The meaning of the text may require consideration of the context which includes the general policy of a provision, in particular the mischief it is seeking to remedy’.
69.	The mischief which regulation 8E seeks to remedy was set out in the second reading speech of the Workers Compensation Legislation Amendment Bill 2018 which was read by Mr Scot MacDonald in the Legislative Council on 19 September 2018 when it was stated in regard to amendments made to the calculation of PIAWE:
‘Consistent with this adaptable and flexible approach is a regulation-making power to adjust the relevant earning period to accommodate changes in the worker’s earnings circumstances and the ability to align the calculation of weekly payments with an injured worker’s normal pay cycles.’ 
70.	The applicant’s ‘earnings circumstances’ did change for the four weeks he travelled to Turkey and the one week when he was recovering from a sprained ankle. Consistent with the ‘mischief’ which regulation 8E seeks to remedy (Alcan) as set out in the second reading speech, the periods of leave which the applicant took in both those circumstances and for which he did not receive any pay, should not be included in the calculation of PIAWE.”
27.	The Court of Appeal has recently considered the application of Regulation 8E. That appeal involved different considerations to those involved in this application, in particular, an absence from the workplace during which workers compensation was paid. Although the Deputy President’s decision was overturned on that discrete issue, I agree with the general approach and remarks of DP Wood to the effect that the intention of the legislation was to apply fairness to the calculation of PIAWE.
28.	The applicant took the period of unpaid leave as a result of the injury she had sustained in the course of her employment. No matter the date of injury, fairness and an accurate calculation of her real average pre-injury earnings, requires the elimination of the applicant’s period of leave without pay from the calculation of the applicant’s PIAWE.
SUMMARY 
29.	For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.