CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Pierce v Randwick City Council [2021] NSWPIC 488	
		
APPLICANT:	Jordan Mason Pierce	
		
RESPONDENT:	Randwick City Council	
		
Member:	Jacqueline Snell	
		
DATE OF DECISION:	29 November 2021	
		
CATCHWORDS:	WORKERS COMPENSATION -  Claim for weekly compensation and medical or related treatment expenses resulting from primary psychological injury sustained in the course of employment; defence raised under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) with respect to discipline; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; the applicant has an entitlement to weekly compensation payable under section 36 of the 1987 Act between 5 February 2021 and 30 March 2021; the applicant has no entitlement to weekly compensation payable under s 36 of the 1987 Act between 31 March 2021 and 13 April 2021; the applicant has an entitlement to medical and related expenses payable under section 60 of the 1987 Act, being past medical or related treatment particularised in these proceedings at $2,643.70.
	
determinations made:	1.	The psychological injury sustained by the applicant in the course of his employment with the respondent was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline.

2.	The applicant had no current capacity for work between 5 February 2021 and 30 March 2021 resulting from his psychological injury. The applicant has an entitlement to weekly benefits payable under s 36 of the Workers Compensation Act 1987 at the rate of $1,726.99 during this period of no current work capacity.  

3.	The applicant had a current work capacity between 31 March 2021 and 13 April 2021 resulting from his psychological injury. The applicant has no entitlement to weekly benefits payable under s 36 of the Workers Compensation Act 1987 during this period of current work capacity.

4.	The applicant has an entitlement to medical or related treatment under s 60 of the Workers Compensation Act 1987 resulting from his psychological injury, being past medical or related treatment particularised at $2,643.70.

STATEMENT OF REASONS

BACKGROUND

1.	The applicant, Jordan Mason Pierce (Mr Pierce) is employed by the respondent, Randwick City Council (the Council).  He has worked with the Council since 2014 and is employed as a plant operator/multi skilled worker.  Mr Pierce is currently 29 years of age.

2.	In these proceedings Mr Pierce alleges he sustained primary psychological injury in the course of his employment with the Council.  Mr Pierce relies on two deemed dates of injury. The first in time is 21 December 2018 and the second in time is 30 January 2019.

3.	Relevant to the alleged incident occurring on 21 December 2018, Mr Pierce says that in the course of his employment with the Council he was approached by a person who was being pursued by police and was subsequently involved in an investigation, which resulted in psychological injury.

4.	Relevant to the alleged incident occurring on 30 January 2019, Mr Pierce says that in the course of his employment with the Council he was involved in a verbal exchange with his team leader and was struck in the face by his team leader, which resulted in psychological injury.

5.	Mr Pierce claims weekly compensation payable under s 36 of the Workers Compensation Act 1987 (1987 Act) between 5 February 2021 and 13 April 2021 and claims medical treatment expenses payable under s 60 of the 1987 Act, with those expenses referrable to the past particularised in the sum of $2,643.70.  It is noted Mr Pierce was employed by the Council for the entire period during which he claims weekly compensation and continues to be employed by Council

6.	Mr Pierce’s claim for compensation is declined and notices dated 6 September 2019 and 22 June 2021 have been issued to Mr Pierce in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).  

ISSUES FOR DETERMINATION

7.	The parties agree that the following issue is in dispute:

(a)	whether Mr Pierce has an entitlement to compensation payable under the 1987 Act as Council has raised defence under s 11A of the 1987 Act relevant to discipline.

8.	The parties agree that the following issues are not in dispute:

(a)	Mr Pierce sustained primary psychological injury in the course of his employment with the Council;

(b)	Mr Pierce’s pre-injury average weekly earnings (PIAWE) are $1,817.88.

Matters not previously notified

9.	There was debate between the parties as to whether the dispute notices issued to Mr Pierce placed his capacity for work resulting from his psychological injury during the period of his claim, being between 5 February 2021 and 13 April 2021, in issue.  There was also debate between the parties as to whether the dispute notices issued to Mr Pierce placed his need for medical and related treatment resulting from his psychological injury in issue.

PROCEDURE BEFORE THE COMMISSION

10.	Mr Pierce’s claim for compensation came before me for teleconference 6 September 2021.  Mr Lleonart, solicitor, appeared for Mr Pierce and Ms King, solicitor, appeared for the Council.  Ms Harris, Allianz, was present.  Mr Pierce was present.

11.	With Mr Pierce’s claim unresolved at teleconference, his claim came before me for conciliation/arbitration hearing on 28 September 2021.  Mr Morgan of counsel appeared for Mr Pierce, instructed by Ms Pearce.  Mr Perry of counsel appeared for the Council, instructed by Ms King.  Ms Harris was present.  Mr Pierce was present.

12.	Following my discussions with counsel 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.  

13.	With there being debate as to whether Mr Pierce’s capacity for work resulting from his psychological injury and his need for medical and related treatment resulting from his psychological injury had been placed in issue in the dispute notices issued to Mr Pierce prior to the commencement of proceedings, while Mr Perry maintained leave was not required to put incapacity and the need for treatment in issue, he ultimately made application for leave under s 289A of the 1998 Act, which was opposed by Mr Morgan.  A copy of the recording of Mr Perry’s oral submissions is available to the parties and the parties have copies of both counsels’ written submissions.

14.	While I am of the view the dispute notices issued to Mr Pierce do not clearly identify the nature of the Council’s denial of liability for Mr Pierce’s claim in that they appear to identify the denial as grounded in defence raised under s 11A of the 1987 Act relevant to discipline, 
I am mindful of the principles to consider in the exercise of the discretion contained in s 289A of the 1998 Act as set out in Mateus v Zodune Pty Limited t/as Temp Cleaning Services [2007] NSWWCCPD 227.  Having considered counsels’ submissions, in the circumstances of this particular matter where the evidence lodged with the Commission on behalf of 
Mr Pierce canvasses both Mr Pierce’s capacity for work during the short period of his claim for weekly compensation resulting from his psychological injury and his need for medical and related treatment resulting from his psychological injury  before the Commission I grant leave to the Council to put incapacity and need for medical and related treatment in issue in these proceedings.

EVIDENCE

Documentary Evidence

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

(b)	Application to Resolve a Dispute (ARD) and attached documents;

(c)	Reply, and

(d)	Application to Admit Late Documents dated 21 September 2021 lodged on behalf of Mr Pierce and attached documents (AALD).

Oral Evidence

16.	Neither party sought to adduce oral evidence or cross-examine any witnesses.

FINDINGS AND REASONS 

Review of the evidence

17.	A brief review of evidence follows.

Mr Pierce’s statement

18.	In his statement dated 3 May 2021  Mr Pierce said he had been employed by the Council since 2014 working as a plant operator/multi skilled worker.  He said he was transferred to open spaces/parks and gardens from the waste section in late 2018/early 2019.

19.	Mr Pierce said that on or about 21 December 2018 in the course of his employment with the Council he was approached by a member of the public who was in a highly agitated state and demanded a work truck. Mr Pierce said that he recognised the man. Mr Pierce described himself as being “extremely fearful” and said he gave the man a hat and a jumper, which the man took. The man then left.  Mr Pierce said he was subsequently interviewed by police as they had been pursuing both this particular man and another man. Mr Pierce said he felt extremely fearful about providing a statement because he feared retribution.

20.	Mr Pierce said that on or about 30 January 2019 when he sat to rest his ankle after a couple of hours work, having recently returned to work after an ankle injury and still wearing a moon boot, he was approached by his supervisor who verbally abused him with suggestion that he was lazy. Mr Pierce said he verbally abused his supervisor in retaliation and continued:

“I then tried to push my whipper snipper (which was not turned on) towards him to protect myself as he came towards me. He then punched me repeatedly (I estimate four times in the face).”

21.	Mr Pierce said that while he recovered from the physical effects of the assault, he has been unable to face working again with his team leader.  He said “I am both in fear of him and 
I find it impossible to interact with him”. 

22.	Mr Pierce said that initially he was off work for two weeks.  He said he sought medical review and came under the care of a psychologist, Mr Walker.  Mr Pierce said when he returned to work he was placed on alternative duties in the nursery, where he worked without problem.  However, he said he continued to be fearful and “was certainly not in a position to have any further contact with my former team leader”.  He said “this continues to be the case”.

23.	Mr Pierce explained that in January 2021 he was advised his suitable duties were to be withdrawn and he was to return to his previous role which “would necessarily have meant coming into contact with my old team leader regularly at the Depot and elsewhere”.  He said this caused him significant distress and returned for medical review and was certified unfit for work from 5 February 2021.  With assistance from the union, Mr Pierce returned to work on alternative duties in the nature of beach cleaning on 13 April 2021 and at the time he prepared his statement, it was anticipated Mr Pierce would return to his pre-injury site in a different team for two days each week  

Factual investigation report

24.	The factual investigation report dated 26 March 2019 prepared by Procare C&A Investigations confirmed that during the investigation, interviews were conducted with 
Mr Pierce’s managers, Corey Morris (Mr Morris) and Todd Clarke (Mr Clarke), and also his colleague, Alan Cooke (Mr Cooke).  While an interview was also commenced with William Frew (Mr Frew) who was the team leader with which Mr Pierce had had an altercation on 30 January 2019, when Mr Frew indicated “he did not want to further discuss the matter given that he had only recently returned to work following a suspension” the interview was terminated.  The statements of Mr Morris, Mr Clarke and Mr Cooke are before the Commission.

25.	Relevant to the first incident occurring on 21 December 2018, it was reported Mr Pierce had said he felt unsupported by his managers after the incident occurred and the Council had failed to follow up with him so as to ensure his wellbeing.  It was also reported the Council had indicated that despite suggestion from the police that Mr Pierce was familiar with the two men who they had been pursuing and had aided their escape, his managers had assured 
Mr Pierce they did not believe he was involved in any wrong doing and referred him to the Employee Assistance Program (EAP) for support.

26.	Relevant to the second incident occurring on 30 January 2019, it was reported Mr Pierce said he had a verbal altercation with Mr Frew, which turned physical with Mr Frew having “punched him in the face three times”.  It was also reported that following internal investigation, while Mr Frew conceded he had shoved Mr Pierce who he described as being “in his face and antagonistic”, he said he had not punched Mr Pierce with a closed fist.  It was reported that subsequent to this incident, Mr Pierce was issued with a final warning (having previously been issued with two prior warnings relevant to his behaviour towards colleagues and supervisors) and Mr Frew was issued with a first and final warning.  Although Mr Pierce reportedly accepted his final warning, he was perturbed about being required to work around Mr Frew at some future time.

Return to work planning

27.	There are a number of file notes created by Ryan Zammit (Mr Zammit), Manager Infrastructure Services, relevant to meetings held with Mr Pierce on 14 July 2020, 24 July 2020, 6 November 2020 and 17 November 2020 regarding his return to his pre-injury role with the Council.  It is evident from the file notes that Mr Pierce expressed concern about returning to work at his pre-injury site and had requested the opportunity to work in an alternate team.  In a documented meeting on 17 November 2020, Mr Zammit noted 
Mr Pierce as “agitated” and also noted:

“[H]e did say at a few different stages that no one listen to him that they weren’t taking his mental health into consideration that he works well at the nursery why can’t he just be left there.”  

Mr Zammit described Mr Pierce as basically leaving this meeting “in a huff” and consequent on an offsite meeting on 25 November 2020, a period of respite was granted until 11 January 2021 for Mr Pierce to commence the return to work plan.

28.	In correspondence dated 25 November 2020 and 29 January 2021 the Council provided 
Mr Pierce with details of his transitional return to work plan.  The return to work plan provided for Mr Pierce’s transition to his pre-injury role by 26 March 2021.

29.	In a file note created by Mr Zammit dated 11 February 2021, Mr Zammit documented meetings he had with Mr Pierce during the week ending 5 February 2021 and it is evident from this file note Mr Pierce was concerned about his safety and was reluctant to comply with the return to work plan absent agreement from his treating doctor.

30.	Under cover of letters dated 17 March 2021, 18 March 2021 and 22 March 2021 the Council advised Mr Pierce of a number of meetings that had been arranged with him to discuss his return to work plan, none of which Mr Pierce attended.

Treating medical evidence

Malabar Medical Centre

31.	It is evident from the clinical records of Malabar Medical Centre that Mr Pierce has a past history of problematic alcohol and drug use and a past history of psychological injury in the nature of depression and anxiety.  Mr Pierce had been prescribed anti-depressant medication for a number of years and had come under the care of a psychologist.  It is also evident Mr Pierce sought medical assistance after being suspended from work in about mid 2018 and consideration was given by Dr Watson to Mr Pierce attending anger management courses.  Later that same year, on 23 October 2018, Mr Pierce presented to Dr Thomas with complaint of an assault occurring outside of work, and when Mr Pierce presented to 
Dr Watson on 9 November 2021 he said he was “not going well” with an Apprehended Violence Order having been taken out against him as a result of the assault that had occurred against the backdrop of a relationship breakdown.  When Mr Pierce returned to consult with Dr Watson on 29 November 2018 Dr Watson noted “court resolved reduced AVO sorted with boss and no hassles feels weight off his shoulders”.  However, when 
Mr Pierce presented on 13 December 2018 Dr Watson noted in part “court issues settled stress with boss r/v in new year”.

32.	While Mr Pierce made no complaint of the incident occurring on 30 January 2019 when he attended on Dr Cotton on 5 February 2019, with Dr Cotton having noted in part “Coped ok with work today”, when he returned to consult with his usual treating general practitioner, 
Dr Watson, on 8 March 2019, Dr Watson made the following note relevant to Mr Pierce’s “increased anxiety”:

“beginning of year assaulted by the ganger of the truck at work
this person was put on leave without pay
ongoing stress at work
has been told he was responsible due to his actions
Jordan denies this
fearful to go to the Storey st yard
is involved with union who is supporting his case.”

33.	Mr Pierce continued to consult with Dr Watson throughout 2019 and it is evident that he suffered anxiety associated with any proposed return to work at his pre-injury site at Storey Street. On 6 September 2019 Dr Watson noted Mr Pierce’s claim for compensation was disputed and with Mr Pierce “happy at nursery and thinks they would be happy for him to continue” and wrote “advised to liaise with HR / work re change in role permanently”.

34.	Mr Pierce subsequent came under the care of Dr Tran and on 5 February 2021 Dr Tran recorded the following history:

“Was attacked by another employee	
Was moved out of that division
States being bullied, harassed to move back to old division
Will be moving back to same depot & come in contact with other employee
Anxiety has flared
States has meeting on Tuesday where will discuss with boss re moving back to old  depot
Boss is aware of previous history
Patient has previously been to anger management.”

35.	Mr Pierce continued to consult with Dr Tran during 2021 and raised his concerns about returning to work and when last reviewed on 7 April 2021 Dr Tran relevantly recorded:

“Will be working at the beach but has to check in at the depot.”

36.	In his report dated 5 February 2021 Dr Tran wrote in support of Mr Pierce not returning to the Storey Street site:

“… I understand that he is due to be moved back to the Storey St depot as part of his work. As you know he has had a previous physical altercation with another employee at that location. After the altercation Jordan was moved to the Baker St nursery. He has enjoyed his time there and has had no issues with other colleagues at that location. He has a history of anxiety/depression, and the proposed relocation back to the Storey St depot has impacted his mental health. If the proposed move occurs, he will be in contact with the colleague that he had the altercation with. He advises me he has fears for his physical safety at Storey St, and is not aware of any arrangement being made to ensure his safety in the workplace. I am writing to you to consider keeping him at Barker St, until such arrangements are made.”

37.	In his report dated 26 April 2021, in response to specific questioning Dr Tran wrote:

“I believe the incident in January 2019 is a significant contributing factor to Jordan’s anxiety, because without it Jordan would have no issue attending work. He has been working at RCC since January 2019 in an environment that he feels relatively comfortable at because he doesn’t come into contact with the alleged perpetrator. My understanding is that if the alleged assault didn’t occur, Jordan would still be at his original division and depot, and there would be no issues with him attending work.

At this stage I think that if RCC is able to place Jordan where he will not be working or coming into contact with the alleged perpetrator that he will not necessarily need any medical treatment. However, if RCC aren’t able to place him elsewhere and he is asked to work in an environment where he may be in contact with the alleged perpetrator then he will likely need psychological input to help him manage his anxiety. I think this would be a poor outcome and that every effort should be made to eliminate if not minimise the contact between them by placing them both in two different divisions and depots.

… If arrangements are made as described I see no reason why Jordan can’t continue working at RCC as he has been since 2019 even after the alleged assault”.

38.	There are a number of Certificates of Capacity relevant to Mr Pierce’s capacity to work during the period of his claim for weekly compensation, which have been issued by 
Dr Tran.

39.	The first certificate in time provided diagnosis in terms of “[A]nxiety, stress arising from return to work plan arising from assault at workplace” and medical management in terms of “[T]ime off work until Randwick Council develop appropriate RTW plan”.  On this occasion Mr Pierce is certified totally incapacitated for work from 5 February 2021 until 19 February 2021.  

40.	In the second certificate Mr Pierce is again certified totally incapacitated for work, this time up until 5 March 2021, with the following comment made by Dr Tran: 

“Patient needs to have meeting regarding return to work plan prior to being issued a clearance to return to work.
Please kindly organise the meeting and the patient will followup for clearance certificate.”

41.	In the third certificate Mr Pierce remained certified totally incapacitated for work up to 12 March 2021, with the comment previously made by Dr Tran remaining current. In the fourth certificate Mr Pierce remained certified totally incapacitated for work up to 22 March 2021, with the comment previously made by Dr Tran again remaining current. In the fifth certificate, while Mr Pierce remained certified totally incapacitated for work up to 30 March 2021, Dr Tran certified him “fit for pre-injury work from 31 March 2021” but with the note:

“*** Will be able to work at Maroubra beach in waste department from 31/3/2021 onwards on full duties as per return to work plan***”

42.	While a further certificate was issued by Dr Tran on 7 April 2021, the second page of the certificate (which would ordinarily canvass Mr Pierce’s capacity for work at that point in time) is not before the Commission. 

Peter Walker 

43.	Mr Pierce has previously come under the psychological care of Mr Walker and in what is described a “progress report”, which is dated 21 May 2019, Mr Walker relevantly wrote to 
Dr Watson under whose general medical care Mr Pierce was at that point in time:

“Thank you for referring Jordan, who has returned to the practice in the context of a difficult workplace incident and a relationship issue…

Jordan is presenting in a similar way as he did in 2014. The key stressors include being assaulted by a colleague and feeling that the process has been poorly managed by his employer and an interaction with an ex-partner that has been confusing and re-traumatising…”

44.	In his subsequent report dated 23 February 2021, Mr Walker wrote:

“I am writing in relation to Jordan, who attended today for his first appointment in approximately 1 year. He reports that he has been managing his work responsibilities and mental health well. He stated that in late 2020, he was advised that he would be returning to the Storey St yard. It is my understanding that he has been working at the Barker St nursery for 16 months without issue.  It is my opinion that a move back to Storey St would be detrimental to Jordan’s mental health. He fears for his safety and mental health and these fears appear to be reasonable.

I would appreciate any flexibility that may be afforded to Jordan at this time”.

Independent medical evidence

Dr Allan 

45.	Dr Allan provided an independent medical examiner’s report dated 22 May 2019.  Dr Allan reported a history of the workplace incidents occurring on 21 December 2018 and 30 January 2019.  He described the latter incident as the “main incident”.  Dr Allan noted a past history of psychological injury in the nature of depression and anxiety and noted too 
Mr Pierce had continued to benefit from the use of antidepressant medication since the age of 16.  Dr Allan noted a history of drug and alcohol use, with Mr Pierce saying at the time of assessment that he has had no drug use in the last five months and was drinking around half a bottle of wine “at least two to three days of the week”.  Dr Allan noted that relevant to his alcohol use, while Mr Pierce denied alcohol “as ever being a significant problem for him”, he conceded that “on the odd night I will drink more”.

46.	Following mental state examination, Dr Allan provided diagnosis and opinion in the following terms:

“Mr Pierce has a long-term Major Depressive Disorder with features of an anxious mood.  This has been exacerbated at various points in his life due to stressors and has again been exacerbated due to the alleged stressors occurring in December and January, which I have described above.  His treatment is reasonable although I note his psychological treatment has only just commenced.  He has only seen a psychologist on two occasions.  He has returned to working in full capacity in an alternative environment.  I am confident that if he was to return to a previous workplace and again working alongside Mr Frew, he would again lose capacity.  He would likely feel more depressed, ruminative and anxious in such circumstance.”

47.	In response to specific questioning, Dr Allan provided opinion Mr Pierce suffered long term major depressive disorder with the workplace incidents in December 2018 and January 2019 exacerbating of his pre-existing psychological injury.  In providing his opinion, Dr Allan accepted the predominant cause of the deterioration of Mr Pierce’s mental health and capacity for work, which occurred in March 2021 was a direct result of the disciplinary action taken against both him and Mr Frew as a result of the incident occurring on 30 January 2019.

48.	Dr Allan considered Mr Pierce needed to continue with his treatment, and while he considered Mr Pierce had capacity to work full hours in an alternative position, he said he should not return to work with Mr Frew.

49.	In his supplementary report dated 28 June 2019 following review of the statements provided by Mr Morris, Mr Clarke and Mr Cooke, Dr Allan confirmed his previously expressed opinion remained the same.

Dr Chow

50.	Dr Chow provided an independent examiner’s report dated 28 May 2021.  Dr Chow took a history of the workplace incidents occurring on 21 December 2018 and 30 January 2019.  
Dr Chow noted Mr Pierce had no issues with Mr Frew until the incident occurring on 30 January 2019.   Dr Chow also noted a past history of psychological injury in the nature of anxiety and depression with Mr Pierce consulting with a psychologist on a regular basis and benefiting from anti-depressant medication “for years”.  However, relevant to his anti-depressant medication, Dr Chow reported Mr Pierce had ceased use six months prior to the incident occurring on 30 January 2019 and had not recommenced use.

51.	Following mental state examination, Dr Chow provided diagnosis and opinion in terms of chronic just disorder, with the incident occurring on 30 January 2019 being a substantial contributing factor to injury.  In response to specific questioning, Dr Chow considered 
Mr Pierce to be unfit to work under the supervision of Mr Frew, but able to work full time under the supervision of an alternate team leader.  Dr Chow considered Mr Pierce needed to continue to meet with his psychologist for psychological support.

52.	In his supplementary report dated 20 September 2021 Dr Chow provided opinion the totality of Mr Pearce’s work difficulties (including the December 2018 incident, the 30 January 2019 incident and the subsequent issues relevant to his proposed return to work with 
Mr Frew) were the main contributing factors to the psychological injury sustained by 
Mr Pierce.

Submissions

53.	Mr Perry made oral submissions during the arbitration hearing on 28 September 2021 and when it became evident the arbitration hearing would not conclude during the allotted time, 
I issued directions for lodgement and service of written submissions on behalf of Mr Pierce and for lodgement and service in reply on behalf of the Council.  This has now occurred.  A copy of the recording of Mr Perry’s opening submissions is available to the parties.  The parties also have copies of Mr Morgan’s submissions and those made in reply by Mr Perry.  
I have considered counsels’ submissions and am grateful for the assistance provided to me in this matter.

Determination

Defence raised under s 11A(1) of the 1987 Act

54.	It is not disputed Mr Pierce sustained psychological injury in the course of his employment with the Council.  The Council has however raised defence under s 11A(1) of the 1987 Act relevant to discipline.  The Council has the onus of establishing such defence (see Pirie v Franklins Ltd and Department of Education and Training v Sinclair ) and there are two aspects to such defence.  

55.	Firstly, Mr Pierce’s injury must be “wholly or predominantly caused” by actions taken or proposed to be taken on behalf of the Council regarding one of the categories referred to in 
s 11A(1), and in Mr Pierce’s case the Council relies on discipline. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited with comment provided that medical evidence is required to determine this causation issue. It is accepted “wholly” and “predominately” are different concepts and it is accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation to be applied being that described in Kooragang Cement Ltd v Bates; Ponnan v George Weston Foods Ltd and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.  Secondly, if it is established Mr Pierce’s psychological injury was “wholly or predominantly caused by the Council’s actions regarding discipline, then the Council is required to establish Council’s actions were “reasonable”.

56.	Looking first at whether the psychological injury sustained by Mr Pierce was wholly or predominantly caused by actions taken on behalf of the Council with respect to discipline, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska Deputy President Roche said at [101]:

“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury.  Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011, and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”

57.	It is also important to note the relevance of perception in matters such as this. In State Transit Authority of NSW v Fritzi Chemler it was determined a perception of real events, which are not external events, can satisfy the test of injury and in Attorney General’s Department v K Deputy President Roche provided at [52] a useful summary of the relevant authorities:

“(a)	employers take their employees as they find them.  There is an ‘egg-shell psyche’ principle which I the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chelmer at [40]);

(b)	a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chelmer at [54]);

(c)	if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]):

(d)	so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan).

(e)	there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and

(f)	it is not necessary that the worker’s reaction to the events must have been rational, reasonable and proportionate’ before compensation can be recovered.”

58.	Mr Pierce said that when he was advised by the Council that his suitable duties were to be withdrawn and he was to return to his pre-injury role, which “would necessarily have meant coming into conflict with my old team leader regularly at the Depot and elsewhere”, he experienced significant distress, sought medical attention and was certified unfit for work from 5 February 2021. File notes prepared by Mr Zammit confirm that during the return to work meeting on 17 November 2020 Mr Pierce was “agitated” and while consequent on a further off site meeting on 25 November 2020 a period of respite was granted until 11 January 2021 to commence his return to work plan, Mr Pierce remained reluctant to comply with a plan that would see him return to his pre-injury role by 26 March 2021 because he remained concerned about his safety and his treating doctor had not signed off on the plan.  The clinical records of Malabar Medical Centre evidence that ever since Mr Pierce consulted with Dr Watson on 8 March 2019 he expressed concern about returning to work at the Storey Street site, and on 6 September 2019 Dr Watson spoke to Mr Pierce about trying to secure a permanent role at the nursery where he was “happy” in his work.  It is also evident from the clinical notes of the medical centre that when Mr Pierce attended on Dr Tran on 5 February 2021 (being the date from which his claim for weekly compensation is made), Dr Tran included the following history:

“…
States being bullied, harassed to move back to old division
Will be moving back to same depot & come into contact with other employee
Anxiety has flared
States has meeting on Tuesday where will discuss with boss re moving back to old depot
Boss is aware of previous history.”

59.	In his report dated that same day, Dr Tran wrote in support of Mr Pierce not returning to the Storey Street site and in his subsequent report dated 26 April 2021, Dr Tran recommended that “every effort should be made to eliminate if not minimise” contact between Mr Pierce and Mr Frew by placing them in different teams and different worksites.  Likewise, in his report dated 23 February 2021, Mr Walker provided opinion a return to the Storey Street site would be detrimental to Mr Pierce’s mental health in that he “fears for his safety and mental health”.  On that occasion Mr Walker recommended “flexibility” be afforded to Mr Pierce regarding the proposed return to work at the Storey Street site.  

60.	While Dr Allan provided independent medical opinion that the predominant cause of 
Mr Pierce’s psychological injury, which he said occurred in March 2021, was a direct result of the disciplinary action taken against him and Mr Frew (and here I note the warning letters issued to Mr Pierce and Mr Frew occurred many months prior to March 2021) he was of the view Mr Pierce should not work with Mr Frew and should not return to the Storey Street site.  Dr Allan went so far as to say of Mr Pierce:

“I am confident that if he was to return to a previous workplace and again working alongside Mr Frew, he would again lose capacity.  He would likely feel more depressed, ruminative and anxious is such circumstance.”

61.	Dr Chow has provided independent medical opinion the workplace incidents occurring in December 2018, 30 January 2019 and the issues arising relevant to Mr Pierce’s proposed return to work with Mr Frew were the main contributing factors to the psychological injury sustained by Mr Pierce.

62.	Following review of the evidence, with particular reference to the evidence discussed above, and consideration of counsels’ submissions I do not accept that the psychological injury sustained by Mr Pierce was either “wholly” or “predominantly” caused by actions taken by or on behalf of the Council with respect to discipline, but rather was caused by the unfortunate incident occurring on 30 January 2019 involving Mr Frew and the actions taken by or on behalf of the Council relevant to Mr Pierce’s proposed to return to work at the Storey Street site where the incident referred occurred and there was probability that Mr Pierce would interact with Mr Frew from time to time. 

63.	Mr Perry made lengthy submissions relevant to the defence raised under s 11(A) of the 1987 Act and if for the sake of argument, one was to accept Mr Pierce’s psychological injury was wholly or predominantly caused by action taken by or on behalf of the Council with respect to discipline (which I do not accept), the Council has the onus relevant to the reasonableness of its actions.  When considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd; Melder v Ausbowl Pty Ltd) and in Irwin Gerahty J said:

“… the question of reasonableness is one of fact, weighing all the relevant factors.  That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment.  Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

64.	In Northern New South Wales Local Health Network v Heggie  Sackville AJA usefully set out at [61] the following statements of principle regarding s 11A (1):

“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care.  The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”

65.	While it may be certain steps taken by the Council relevant to discipline resulting from the incident occurring on 30 January 2019 were reasonable (for example the issuing of the final warning to Mr Pierce in circumstances where he had previously been issued with two prior warnings and the issuing of a first and final warning to Mr Frew), it is evident Mr Pierce suffered psychological injury after the incident occurring on 30 January 2019. If I was to accept submission made by Mr Perry that “[U]p to and including the termination of his temporary period in the nursery, the applicant was dealt with under a disciplinary program by Mr Ryan Zammit”, it would appear that the length of the disciplinary program resulting from the incident occurring on 30 January 2019 continued for a period in excess of two years, which cannot be considered reasonable action when it is evident the Council knew or ought to have known of Mr Pierce’s continuing psychological fragility resulting from the incident occurring on 30 January 2019.  For the sake of completeness, I do not accept Mr Perry’s submission that Mr Zammit’s meetings with Mr Pierce as evidenced in his file notes dated between 14 July 2020 and 11 February 2021 were disciplinary in nature as it is evident on the face of the file notes that his meetings with Mr Pierce were relevant to his returning to work in his pre-injury role with the Council.

Capacity

66.	It is not disputed Mr Pierce sustained psychological injury in the course of his employment with the Council and as I have determined the Council cannot rely on defence raised under 
s 11A(1) of the 1987 Act, it may be Mr Pierce has an entitlement to weekly compensation payable under s 36 of the 1987 Act.

67.	Section 33 of the 1987 Act provides:

“If total or partial incapacity for work results from an injury, the compensation payable by an employer under this Act to the injured worker shall include a weekly payment during incapacity.”

68.	The provisions of s 36 of the 1987 Act require consideration as to whether an injured worker does or does not have “current work capacity”, which is defined by s 32A of the 1987 Act:

“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment.”

69.	Assessment of Mr Pierce’s capacity for work from 5 February 2021 to 13 April 2021 involves consideration of whether during this closed period of nine and a half weeks he had no current work capacity or had a current work capacity as defined by s 32A of the 1987 Act.  This requires consideration of Mr Pierce’s capacity to undertake not only his pre-injury employment, but also his capacity to undertake suitable employment, irrespective of its availability.

70.	Mr Pierce has explained that when he was advised in January 2021 that his suitable duties were to be withdrawn, which would of necessity place him back in contact with Mr Frew, he suffered “significant distress”.  Mr Pierce’s distress in returning to work at the Storey Street site is echoed in the file notes created by Mr Zammit relevant to the Council’s return to work planning for Mr Pierce, and his reluctance to return to work in accordance with such planning in the absence of agreement by Dr Tran is evidenced in Mr Zammit’s file note dated 11 February 2021.  Certificates of Capacity issued by Dr Tran certify Mr Pierce as totally incapacitated for work resulting from psychological injury sustained in the course of his employment with the Council from 5 February 2021 up until 30 March 2021 with diagnosis provided in terms of “[A]nxiety, stress arising from return to work plan arising from assault at work” and while Dr Tran certified Mr Pierce “fit for pre-injury work from 31 March 2021” such certification came with the note:

“*** Will be able to work at Maroubra beach in Waste department from 31/3/201 onwards on full duties as per return to work plan ***”

Dr Allan provided independent medical opinion in his report dated 22 May 2019, which pre-dates the period of Mr Pierce’s claim for weekly compensation between 5 February 2021 and 13 April 2021, that while Mr Pierce had capacity to work full hours, he should work in an alternate position to his pre-injury position and he should not return to work with Mr Frew.  
Dr Chow provided identical independent medical opinion in his report dated 28 May 2021, which post-dates the referred period of Mr Pierce’s claim for weekly compensation.

71.	I accept that during the period between 5 February 2021 and 30 March 2021 Mr Pierce had no current work capacity as certified by Dr Tran.  I prefer the opinion of Dr Tran to those of 
Dr Allan and Dr Chow as Dr Tran is Mr Pierce’s treating general practitioner and he was afforded the opportunity to medically review Mr Pierce during this period of his alleged work incapacity, being an opportunity not afforded to either of the independent medical examiners.  Dr Allan only had the opportunity to assess Mr Pierce many months prior to 5 February 2021 and Dr Chow only had the opportunity to assess Mr Pierce after 13 April 2021.

72.	I also accept that during the period 31 March 2021 to 13 April 2021 Mr Pierce had current work capacity and was able to return to full time suitable employment, irrespective of its availability at that particular point in time. A Certificate of Capacity was issued by Dr Tran in which he essentially certified Mr Pierce fit to return to full time work in suitable employment on 31 March 2021, and both Dr Allan have provided opinion Mr Pierce was fit for full time work in suitable employment which did not involve working with Mr Frew.  I am comforted in my conclusion that Mr Pierce had current work capacity and was able to return to full time suitable employment, irrespective of its availability, by comment made at [87] by Deputy President Snell in Gradan Bathrooms:

“The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured work would be able to work.”  

Quantification of entitlement to weekly compensation

73.	Mr Pierce’s PIAWE is $1,817.88.  

74.	Between 5 February 2021 and 30 March 2021 Mr Pierce had no current work capacity.  He has an entitlement to weekly compensation payable under s 36(1) of the 1987 Act as follows:  

$1,817.88 x 95% = $1,726.99

75.	Between 31 March and 13 April 2021 Mr Pierce had a current work capacity and was able to return to fulltime suitable employment, irrespective of its availability. Mr Pierce has no entitlement to weekly compensation during this period.

Treatment

76.	It is not disputed Mr Pierce sustained psychological injury in the course of his employment with the Council. As I have determined that the Council cannot rely on defence raised under s 11A(1) of the 1987 Act, it follows Mr Pierce has an entitlement to medical related treatment payable under s 60 of the 1987 Act resulting from his injury, including past medical or related treatment particularised in these proceedings at $2,643.70, which are relevant to Mr Pierce’s attendances on his treating general practitioners at Malabar Medical Centre and his treating psychologist, Mr Walker after the workplace incident occurring on 30 January 2019.  Both Dr Allan and Dr Chow in their capacity as independent medical examiners agree Mr Pierce benefits from treatment for his psychological injury.

SUMMARY

77.	It is not disputed Mr Pierce sustained psychological injury in the course of his employment with the Council.

78.	The psychological injury sustained by Mr Pierce in the course of his employment with the Council was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the Council with respect to discipline.

79.	Mr Pierce’s PIAWE is agreed at $1,817.88.  Mr Pierce had no current capacity for work between 5 February 2021 and 30 March 2021. Mr Pierce has an entitlement to weekly benefits payable under s 36 of the 1987 Act at the rate of $1,726.99 during this period of no current work capacity.  Mr Pierce had a current work capacity between 31 March 2021 and 13 April 2021 and was able to return to fulltime suitable employment, irrespective of its availability.  Mr Pierce has no entitlement to weekly benefits payable during this period of current work capacity.

80.	Mr Pierce has an entitlement to medical or related treatment  payable under s 60 of the 1987 Act resulting from his psychological injury, being past medical or related treatment particularised in these proceedings at $2,643.70.