CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Hodgins v Finding Yellow Ltd [2024] NSWPIC 520	
		
APPLICANT:	Glenn Hodgins	
		
RESPONDENT:	Finding Yellow Limited	
		
Member:	Cameron Burge	
		
DATE OF DECISION:	18 September 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in respect of psychological injury; claim denied on basis respondent alleges its reasonable conduct with respect to performance appraisal and/or discipline was the whole or predominant cause of the applicant’s injury; statements sought to be relied on by the respondent were excluded from evidence as they were not signed or otherwise adopted by the witnesses; including the statement of the co-worker whose complaint formed the basis for the disciplinary action relied on by the respondent under section 11A; in the absence of the substantive evidence it is impossible to determine in the respondent’s favour that its actions dealing with that complaint were reasonable; the defence under section 11A is a two-limb test and both must be satisfied; Held – having found the respondent has not discharged the onus of demonstrating its actions were reasonable the defence must fail; the applicant has suffered and continues to suffer partial incapacity for employment as a result of his injury; the respondent will be ordered to pay weekly compensation in accordance with those findings.
	
determinations made:	The Commission determines:
1.	The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 10 July 2022. 
2.	The applicant’s injury was not caused by the reasonable conduct of the respondent with regards to discipline and/or performance appraisal. 
3.	At the date of injury, the applicant’s pre-injury average weekly earnings were $1,803.68 per week. 
4.	As a result of his injury, the applicant suffers partial incapacity for employment, with a residual capacity to work of 12 hours per week at an hourly rate of $60.12 per week. 
5.	The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers’ Compensation Act 1987 as follows:
(a)	from 7 November 2023 to 31 March 2024 at the rate of $865.76 per week, and
(b)	from 1 April 2024 to date and continuing at the rate of $865.76 per week, such award to be adjusted for periodic indexation. 
6.	The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers’ Compensation Act 1987 upon production of accounts, invoices and/or Medicare Australia Notice of Charge. 

STATEMENT OF REASONS
BACKGROUND
1.	There is no issue the applicant, Glenn Hodgins suffered a psychological injury in the course of his employment with the respondent, Finding Yellow Ltd with a deemed date of injury of 10 July 2022. He seeks payment of weekly compensation from 7 November 2023 to date and continuing, alleging he is totally incapacitated for employment. Additionally, the applicant claims a general order for payment of medical and treatment expenses pursuant to s 60 of the Workers’ Compensation Act 1987 (the 1987 Act). 
2.	The respondent denies liability and alleges the applicant’s injury was wholly or predominantly caused by its reasonable actions with respect to discipline and/or performance appraisal. Additionally, the respondent disputes the applicant’s incapacity for employment. 
ISSUES FOR DETERMINATION
3.	The parties agree that the following issues remain in dispute:
(a)	whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, and 
(b)	if not, the extent of the applicant’s incapacity for employment.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
4.	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. 
5.	The matter was listed for hearing before me on 24 July 2024. Mr Stockley, instructed by Mr Brennan, appeared for the applicant. Ms Compton instructed by Ms Faapito appeared for the respondent. 
6.	At the hearing, a preliminary issue arose as to the admissibility of the documents attached to the respondent’s s 78 notice. 
7.	On 15 September 2023, the respondent forwarded to the applicant a s 78 notice disputing liability. It did so via email, and the attachments to the s 78 notice upon which the respondent relied were not forwarded to the respondent as attachments to the email. 
8.	Mr Stockley argued that pursuant to Reg 41 of the Workers Compensation Regulations 2016 (the Regulations), the respondent was thereby precluded from relying on those documents in support of its defence. That application was opposed by the respondent and counsel made lengthy submissions in relation to the issue. 
9.	I accept the applicant’s submission that had the respondent sought to rely on the material in support of the s 78 notice without serving it at the same time as the email, then it would not be able to do so without issuing a further notice at a later time. The terms of the regulation itself make that much clear. However, the difficulty with the applicant’s submission is that at the same time the respondent served the s 78 notice via email, it also served via normal post the same s 78 notice together with all of the attachments upon which it relies. 
10.	There is no question that service either via email or by post is valid. To the applicant’s credit, he admits he received the s 78 notice and attachments in the mail a short time after they were sent to him. This being so, in my view, there has been valid service of the s 78 notice and the attachments to it via regular post. 
11.	At the hearing, I delivered short oral reasons outlining my decision in relation to the admissibility of that documentation. 
12.	The applicant also took objection to the receipt into evidence of certain statements attached to the s 78 notice on a different basis, namely that they were not signed. Those statements were said to constitute the evidence of: 
(a)	Sam Sooialo, Chief Executive Officer (CEO) of the respondent; 
(b)	Emma Forster, Human Relations (HR) and workforce coordinator of the respondent, and
(c)	Jemah Kalisz, disability support worker employed by the respondent. 
13.	Ms Compton submitted the statements should be allowed into evidence, and their being unsigned is something which would go merely to the weight to be attributed to them. However, in oral reasons given on the date of hearing, I rejected that submission and noted this is a matter in which serious allegations regarding the applicant’s performance and disciplinary matters have been raised, and statement of evidence which has not been adopted by the witnesses seeking to make those statements cannot be accepted by the Personal Injury Commission (Commission). Accordingly, the statements of Mr Sooialo, Ms Forster and Ms Kalisz were rejected and will not be taken into consideration in this matter. 
14.	Ms Compton also submitted there were emails of the applicant to the respondent which he sought to rely on as statements which were also not signed. She submitted in the circumstances those statements should also be excluded from evidence. However, the difference between those emails and the statements upon which the respondent sought to rely is the applicant adopted the contents of those emails in his signed statement and they therefore form part of that evidence. Accordingly, those emails will be in evidence and will be taken into consideration. 
15.	Given the amount of time taken arguing the interlocutory matter, the matter could not be completed on the date of hearing, and accordingly directions were made for the provision of written submissions dealing with the liability issue and the question of the worker’s incapacity. Those written submissions were provided in accordance with the directions of the Commission. 
EVIDENCE
Documentary evidence
16.	The following documents were placed into evidence and taken into consideration: 
(a)	Application to Resolve a Dispute (the Application) and attached documents;
(b)	Reply and attached documents save for the statements of Mr Sooialo, Ms Forster and Ms Kalisz which were not taken into consideration;
(c)	applicant’s Application to Admit Late Documents (AALD) dated 10 July 2024 and attached documents, and 
(d)	respondent’s AALD dated 18 July 2024 and attachments. 
Oral evidence
17.	There was no oral evidence called at the hearing. 
FINDINGS AND REASONS 
The defence pursuant to s 11A
18.	It is trite to comment that the respondent carries the onus of proving a defence under s 11A: see for example Department of Education and Training v Sinclair [2005] NSWCA 465 and Pirie v Franklin’s Ltd [2001] NSWCC 167. 
19.	The test pursuant to s 11A, is a two-limb test and both limbs must be satisfied in order for the defence to be made out. 
20.	The first limb is that the conduct relied upon by a respondent must be the whole or predominant cause of a worker’s injury. In the context of s 11 A, the phrase “wholly or predominantly” has been held to mean “mainly or principally” caused. The test to be applied is a commonsense evaluation of the evidentiary chain in accordance with the decision of Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). 
21.	In accordance with the decision of Deputy President Snell in Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the respondent has provided an opinion from Dr Clarke, Independent Medical Examiner (IME) to support its claim that its actions in relation to discipline and performance appraisal were the whole or predominant cause of the applicant’s injury. Such an approach is appropriate in cases where the applicant’s injury has been caused by a course of conduct rather than a single traumatic event. 
22.	The applicant does not rely on any IME evidence; however, he does rely on the views of his general practitioner (GP) Dr McQueen, his treating psychiatrist, Dr Jensen and treating psychologist, Stephen Peate. 
23.	In accordance with established authority, medical opinion can only go to the issue of whole or predominant cause, rather than the reasonableness of any conduct relied on. This is because reasonableness is an objective test and one which must be determined by the Commission having regard to the totality of the evidence, not just medical opinion. The question of reasonableness is one of fact, weighing all relevant factors. The requirement is less demanding than the test of necessity, but more demanding than the test of mere convenience: see Irwin v Director General of Education NSWCC 14068/97, 18 June 1998 per Geraghty J. 
24.	In determining reasonableness, the Commission must have regard to not only the end result of any conduct, but the manner in which it was effected: see Ivanisevic v Laudet Pty Ltd (unreported 24 November 1998 per Truss CCJ). 
25.	The approach long favoured in the Commission and its predecessors has been cited favourably by the Court of Appeal in Commissioner of Police v Minahan [2003] NSWCA 239 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255. 
26.	In its submissions, the respondent was critical of the applicant’s statement in that it contained many assertions which might best be described as hearsay. That criticism is well founded, however, It is also a problem which the respondent’s own evidence suffers from, given the exclusion of the statements of Mr Sooialo, Ms Forster and Ms Kalisz, particularly when the latter was the co-worker who made complaints against the applicant. 
27.	The difficulty for the respondent, in circumstances where it carries the onus of proof is, absent the evidence of the witness who made the complaint against the applicant, it is nigh impossible to determine whether the complaint at the heart of the disciplinary action taken by the respondent was itself reasonable. 
28.	It may be that the administrative actions in the nature of discipline taken by the respondent were procedurally reasonable in and of themselves, however, without the evidence in relation to the substance of the allegations raised against the applicant, it is impossible to determine whether this is in fact the case. 
29.	Of the respondent’s statement evidence, it is noteworthy that Ms Goodsir in her role as team leader, recounts a third-hand version of the complaint made by Ms Kalisz from another worker, then provides a second-hand recounting of Ms Kalisz’s statement herself. 
30.	For her part, Ms Scollay, a fellow disability services worker, recounted that Ms Kalisz had reported the applicant “over a number of work-related matters. She has verbally told anyone that would listen, including myself. I have tried to remain neutral with this conflict, between the both of them”. Indeed, Ms Scollay’s statement is largely exculpatory of the applicant, including in relation to the allegation that he told a patient to “piss off”. Ms Scollay described Ms Kalisz as having been fixated on the incident and said she continually discussed it with co-workers. 
31.	Ms Goldstraw, a fellow disability support worker also provided a statement, however, her evidence was “I never witnessed any incidents between Jemah and/or Glenn, I was never on shift or anything occurred. I never really worked when both were present/on shift”. 
32.	Ms Goldstraw then stated: 
“I first heard of an incident when it was disclosed to me by Jemah. She stated that she had recently put through a complaint about Glenn and was concerned for their upcoming shift, as he would know it was from her.”
33.	As with Ms Scollay’s statement, Ms Goldstraw described the applicant generally in a positive light. She stated:
“Glenn is a person who does sometimes act without thinking, but he always tries to have the client’s best interest at heart. We all have different ways in approaching and speaking to the clients, and have different personalities, but I feel by having the right staff with different personalities, this is how we support all the client’s needs. In my opinion, the comment was inappropriate to speak the way Glenn had spoken.
The comments Jemah stated to me was when she came to pick clients up to take out in the community, was not about the incident but rather Glenn himself. She would refer to him as being lazy, he does nothing on night shifts, and why does not anyone report him to management, then stated what he had not done, for example, mop the floor or fold the washing. Jemah would state (how I feel she was stating) that Glenn does not care for the clients like she felt he should, that he seems cold-hearted.
Personally, I would not agree with the statement from Jemah. Glenn does come across as this big, strong, muscular man, he would put on a front that may seem that he is withdrawn to the client, when you get to know him, he is a big, soft-hearted man, he shows his support differently when he is comfortable working around you, that is when you get to know the true person he is. He has come to clients’ funerals or celebration of the life in his own time, has asked staff for help with what to get the clients for their birthdays/Christmas. He is one of those people who tries to get out of doing things especially paperwork, but he would always do anything if you asked him. He has worked with the clients who were at Chidgey Street at the time for a long time, he had a good bond with the clients that not everyone has seen”
34.	Ms Goldstraw also recounted a meeting convened by Mr Sooialo, the CEO, at which he referred to a previous investigation at the house. According to Ms Goldstraw, Mr Sooialo made reference to how a team can become too comfortable in relation to compliance with staff they had to work with. According to Ms Goldstraw, Mr Sooialo said that it was necessary to “change the person or CHANGE THE PERSON” which she felt meant that everyone needed to change, or their jobs were on the line. According to Ms Goldstraw, this caused more anxiety in the workplace. 
35.	Ms Christensen, disability support worker, also provided a statement in which she indicated that she had not seen any incidents between the applicant and Ms Kalisz, however, she did describe the applicant as being lazy. 
36.	Among the documents in evidence is an invitation to an investigation meeting forwarded by Mr Field, corporate services manager to the applicant dated 15 August 2022. That letter suggests an investigation into whether the applicant had on an ongoing basis, bullied and targeted Ms Kalisz, primarily because she had notified management of the applicant’s misconduct. This letter and proposed meeting also form part of the conduct relied upon by the applicant. It is important to note that absent the evidence of Ms Kalisz itself, there is no substantive evidence as to the nature and extent of any alleged bullying by the applicant towards her. 
37.	Whilst I have no difficulty accepting that the applicant and Ms Kalisz had a difficult relationship, the evidence in relation to the substantive matters at the heart of their dispute is, at best, equivocal and on one view largely exculpatory of the applicant. Absent the evidence of Ms Kalisz, I am not satisfied on the balance of probabilities that the conduct relied on by the respondent can be said to be reasonable, as it is not possible to determine the veracity and seriousness of the substantive complaints themselves. Absent that evidence, it is not possible to determine whether the respondent’s actions in relation to the complaints was reasonable in the circumstances. 
38.	The respondent relied on the report of Dr Clarke in asserting its conduct was the whole or predominant cause of the applicant’s injury. In her report dated 30 August 2023, Dr Clarke opined that disciplinary and review processes in the course of the applicant’s employment were the cause of his injury. When asked specifically whether the injury was wholly or predominantly caused by action taken or proposed to be taken with respect to performance appraisal and/or discipline “having regard to the employer’s actions in responding to the whistle-blower complaint”, Dr Clarke stated: 
“it is my opinion that the injury was caused by disciplinary actions and proposed actions taken by the insured. This is also evident in the provided notes of Dr McQueen. 
Mr Hodgins’ history was focused on grievances regarding his colleague making a complaint about him, the insured lodging the incident with the NDIS, the investigation and the colleague’s complaint being upheld. He also expressed anger at further complaints and a view that group feedback after a separate major incident was ‘intimidation’.” 
39.	The applicant submitted that no weight should be afforded to Dr Clarke’s view, as she does not provide a reason as to why these incidents were the whole or predominant cause of the applicant’s injury. 
40.	In my view, there is some merit to that submission. Dr Clarke provides a global statement that it was the applicant’s response to disciplinary matters which was the cause of his injury, however, it is noteworthy Dr Clarke did not have the benefit of the signed statements of Ms Goodsir, Ms Scollay, Ms Goldstraw or Ms Christensen. Dr Clarke did, however, have before her the unsigned material of Mr Sooialo, Ms Forster and Ms Kalisz, which was excluded from evidence before the Commission. 
41.	To the extent Dr Clarke’s findings rely on that evidence, they must be excluded as there is no factual basis for the findings made by Dr Clark. 
42.	Moreover, Dr Clarke’s opinion does not provide any insight into whether, how and to what extent they are based on her expertise or, given the lack of detail as to the matters upon which she relied in forming her opinion, the extent to which the excluded material helped form the basis of her opinion. 
43.	I do not raise these matters as a criticism of Dr Clarke, as she could not have known these matters were to be excluded from evidence, however, the absence of a factual basis for an expert opinion is sufficient reason to exclude that opinion and to give it no weight. 
44.	For these reasons, I do not accept the views of Dr Clarke as to whether the respondent’s conduct relied upon was the whole or predominant cause of the applicant’s injury. 
45.	Moreover, as indicated, I am not satisfied on the balance of probabilities that the respondent, relying as it does on substantial hearsay evidence, has satisfied the evidentiary onus of establishing its actions were reasonable, as it is impossible without the source material and statement evidence upon which it relied to determine whether it was reasonable to accept the veracity of the complaints made by Ms Kalisz in the first place. 
46.	For these reasons, the defence pursuant to s 11A will fail. 
Incapacity for employment
47.	In relation to capacity, the respondent submitted the applicant’s condition had resolved by the time he was assessed by its IME, Dr Clarke, in August 2023. However, that opinion stands in contrast with the view of treating psychiatrist Dr Jensen found in their report of December 2023, at which time she recommended antidepressant for treatment of the applicant’s depressive episode. Further, treating psychologist Stephen Peate reported in October 2023 that the applicant’s disorder would limit his capacity and that he would require a graded return to work in the future. 
48.	The difficulty in the applicant’s position is that there is no independent medical opinion which supports a finding that he has no capacity for employment during the period claimed. As noted, Dr Jensen provides no specific opinion on capacity, while Mr Peate appears to indicate that the applicant has some ability to return to work on a graduated basis. 
49.	Dr Clarke provided an opinion in her report as follows:
“it is my opinion that Mr Hodgins’ condition has resolved, however, he may benefit from psychological support in addressing his anger regarding the actions of the insured. No psychiatric barrier to pre-injury duties was evident on examination, thus he is fit from that perspective, however, other factors may prevent this.”
50.	I do not accept Dr Clarke’s opinion in total, as it stands in contrast with the views of the applicant’s treating practitioners who plainly find that he still suffered from some impairment in late 2023. However, those opinions do not satisfy me that the applicant is totally incapacitated for employment. 
51.	The applicant’s pre-injury hours were 30 per week, and his Pre-Injury Average Weekly Earnings (PIAWE) is agreed at $1,803.68 per week. Given the applicant’s evidence and that of his treating practitioners, I am satisfied he continues to suffer from incapacity for employment, partial in nature. Doing the best I can having regard to the totality of the evidence, I find the applicant has a residual capacity to earn of 12 hours per week at his preinjury rate of pay.
52.	As noted, there is no question the applicant’s PIAWE was $1,803.68 per week at the commencement of the period claimed on 7 November 2023. The period claimed entirely encompasses s 37, and as such, the full weekly amount in dispute is $1,442.94 per week from 7 November 2023 to 31 March 2024, following which there will be an increase pursuant to the PIAWE pursuant to periodic indexation. Given 80% of the applicant’s hourly rate was $48.09 per hour, it follows that for the period 7 November 2023 to 31 March 2024, whether his incapacity for employment totalled $865.76 per week, and the respondent will be ordered to pay weekly benefits to him for that period accordingly. 
53.	I am satisfied on the evidence before me that the applicant’s incapacity for employment, albeit partial, persists. Accordingly, the respondent will be ordered to pay the applicant weekly compensation based on a partial incapacity for employment and a residual capacity of 12 hours per week. His residual incapacity, therefore, continues at the rate of 18 hours per week. The respondent will therefore be ordered to pay the applicant weekly compensation at the rate of $865.76 per week from 1 April 2024 to date in continuing, subject to the indexation order in effect on and from 1 April 2024. 
SUMMARY
54.	For the above reasons, the Commission will make the findings and/orders set out on page 1 of the Certificate of Determination.