Adzic v PartyLite Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Adzic v PartyLite Pty Ltd [2024] NSWPIC 714
APPLICANT:	Danny Dragoljub Adzic
RESPONDENT:	PartyLite Pty Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment in relation to psychological injury; injury in the nature of aggravation to pre-existing condition; whether respondent was the last employer whose employment was a substantial contributing factor to the aggravation of the applicant’s condition; Held – the evidence does not establish the applicant’s post-injury subsequent employment was a substantial contributing factor to the aggravation of his psychological condition; matter remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment.
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 18 May 2021. 2. The applicant’s injury was in the nature of an aggravation of a pre-existing psychological condition. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 18 May 2021 (deemed). Body system referred: Psychological injury. Method of assessment: Whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondent’s Application to Admit Late Documents dated 10 December 2024 and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Danny Adzic, suffered a psychological injury in the course of his employment with the respondent, PartyLite Pty Ltd, with a deemed date of injury of 18 May 2021.
The applicant’s injury was in the nature of an aggravation to a pre-existing psychological condition.
The respondent denies liability for the injury, and alleges that it was not the employer who last employed the applicant in employment which was a substantial contributing factor to the aggravation of his condition, noting the applicant had worked for two subsequent employers and exhibited psychological symptoms whilst in their employ.

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether, given neither of the applicant’s subsequent employers are joined to the proceedings, the respondent was the last employer who employed the applicant in employment which was a substantial contributing factor to the aggravation of his condition.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 17 December 2024. The applicant was represented by Mr Carney instructed by Mr Petrovski. The respondent was represented by Mr Stiles instructed by Mr Wares.

EVIDENCE BEFORE THE COMMISSION

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attachments;
(b)    Reply and attachments, and
(c)    respondent’s Application to Admit Late Documents (AALD) dated 10 December 2024 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the respondent was the last relevant employer

Although the applicant presented his case in the alternative pursuant to ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act), the case was largely presented by both parties as an aggravation of a pre-existing condition. In my view, that is the appropriate construction of the applicant’s injury.
Section 16 of the 1987 Act relevantly provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:…
(b)Compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
There is no issue, the applicant had suffered from pre-existing psychological conditions as a result of difficult and traumatic events in his life. In 2015, he was diagnosed with thyroid cancer which subsequently went into remission, and in 2018, his 15-year-old son tragically died. There is no issue that as a result of these matters, the applicant suffered psychological condition in the broad nature of depression.
There is also no question that the applicant had a significant amount of stress in his employment with the respondent. The applicant commenced employment with the respondent in October 2004 as a director of finance and operations. His duties entail controlling financial operations, warehousing, logistics, human resources, IT, administration and marketing.
In 2015, the respondent was taken over by a private equity firm which aimed to cut costs and reduce staff members. In his statement, the applicant deposes to a number of difficulties brought about by the overseas management of the company which led to significant redundancies, staff cuts and severe increase in his workload. He stated:
“8.     Behaviour from the new management located overseas from the United States and Europe started in 2014 when they began bullying me. They were calling staff stupid and held a meeting about the new manifesto, stating that if staff did not agree, they should see HR and resign.
9.     In February 2018, I was brought into the confidence of EU HR and the President and coerced into helping them push out a long-standing employee, Jenny Messenger, who had been with the company for 14 years. Jenny, an elderly staff member in her late 60s, was the managing director at the time….finding these tactics morally reprehensible, I went against their wishes by consulting our local (Australian) legal counsel instead of the US in-house legal advisors, who were adamant that she should not receive any redundancy, even though her position was later made redundant. After almost six months, they had no choice but to make Jenny redundant in August 2018...
10.    I was working up to 78 hours a week and working late at night. I had to take calls in the early morning to talk with the US and Europe teams. We used to have 29 staff at the beginning, and it was reduced to 10 staff when I left. In early 2021, three executives resigned within six weeks and were not replaced, and the burden was placed on me to take over their roles. I covered too many roles and worked excessively...
12.    By March 2021, I requested a long break (three months on service leave). This was never approved. Symptoms consistent with chronic burnout, anxiety, depression, and cognitive/memory decline.
13.    They offered me a redundancy on 18 June 2021 after 17 years in the workplace. However, after initially agreeing to a redundancy and after I signed a resignation letter to that effect, they tried to renege on the agreement (reference email from Michelle Tassinari, US HR Manager, 15 July 2021).
14.    I protested this decision to the Luminex CEO, to whom HR reported, providing him with an email where HR offered me the redundancy. He then agreed to honour their original agreement stating, ‘My decision yesterday was made without complete information. The company will stand by its prior written commitments.’ All this took an incredible toll on my mental health as HR were not at all interested in responding to or treating my mental health and cognitive decline seriously.
15.    In the end, I was forced to resign on 1 July 2021 due to lack of support, shortage of staff, and the toxic work environment where they were happy to pile on the pressure and had managers resign to reduce the redundancy payouts.”
There was no issue the applicant obtained subsequent employment with two companies, Monat Australia in July 2021 and CASF on 9 January 2023. Those positions were also in executive roles, however, the applicant stated they were not as stressful as those in which he had previously worked with the respondent.
For the applicant, Mr Carney submitted that whilst there were clinical records post-dating the applicant’s injury, there was no satisfactory medical opinion which provided a causal link sufficient to establish the subsequent employment was a substantial contributing factor to any aggravation suffered by the applicant.
For the respondent, Mr Stiles submitted the clinical records of the applicant’s treating practitioners reveal stressors consistent with that which he suffered whilst working with the respondent during the course of his later employment.
The applicant relies on the opinion of two treating general practitioners, two psychologists and treating psychiatrist, Dr Omana. He also relies on the opinion of independent medical examiner (IME), Dr Saboor.
The records of each of the applicant’s treating practitioners establish injury by way of aggravation whilst in the employ of the respondent. For his part, IME Dr Saboor takes a lengthy history, and which includes the applicant’s post-injury employment record. Dr Saboor relevantly said:
“Mr Adzic reported he was off work for a year, and he reported substantial improvement in his condition. He reported that a previous colleague offered him a job and he took the job at the new firm. He stated he was there for six months. The last three months of working at this job, he was triggered by work and experienced stress and tightness of chest. He reported that he stopped work and now he is working in another role. He stated that he stepped down from his previous role to a similar company and in a lower position. He stated after one year of work, he was promoted to finance manager. He stated that he could not manage and was overwhelmed. He was provided with assistance and support.
Mr Adzic reported that reduced his hours because he was not coping and was taking Wednesday’s off. He has been working eight hours a day, four days a week for the past year.
He reported that when he stopped working at the time, he applied for workers compensation and his claim was accepted and he was unsure whether this was closed as he did not pursue the claim. He contacted lawyers regarding loss of income. He stated that his income had been reduced to approximately $100,000.00 per year since the injury.”
Having taken into account the accurate post-injury employment record, Dr Saboor relevantly summarised the applicant’s condition as follows:
“He was off work for one year and he reported some improvement during that period. He returned to a new job which he stopped after six months. He has a new role in a lower position in a smaller company. He has been working for the past year in this role. He has reduced his hours because he was overwhelmed. He continued to experience ongoing psychological problems and has been treated since 2016 with medication and seeing a psychologist and psychiatrist and denied having a past history of mental illness prior to 2014…
Based on his provided history and reason that he developed this psychological injury between 2015-2021 at his previous job; He has not made full recovery; and he presents with chronic ongoing psychological symptoms; I am of the opinion that his current condition is due to his work-related injury and his employment was a substantial contributing factor to the development of his psychological injury.”
Mr Carney submitted Dr Saboor’s findings should be accepted, consistent as they are with the treating material which, although recording difficulties at subsequent employment, make no causal connection between that subsequent employment and the aggravation at issue. Mr Carney emphasised the fact the applicant had never recovered from the aggravation at issue, which continued in his new roles.
In support of that submission, Mr Carney took the Commission to the entries of Gladstone Practice, Psychologist. In an entry on 5 July 2022, the records under the heading “employment” state:
“Thinking about returning to work part-time. Fear that he would be unemployable if he does not start to work soon. Though it is nice to have opportunity to recover without being overwhelmed in work. Often have been seen as ‘someone who can get things done’, ‘It won’t fall through if you give it to Dave’.
Note challenges with setting limits and advocating for self-anger at how he was not allowed to take a break, et cetera.”
In an entry on 30 August 2022, the applicant was considering taking a lower stress role and was advised to try a less demanding job.
Further entries up to and including 1 November 2022 continued to refer to the applicant’s employment with the respondent as the cause of his difficulties. By 16 May 2023, the first review for some six months, the applicant was struggling to concentrate and was making mistakes at work, and he was finding the role as challenging as that which he had previously held with the respondent. The applicant was reporting staff issues and challenges were triggering for him.
Mr Carney submitted that none of the clinical entries demonstrated a causal link between subsequent employment and the applicant’s aggravation, such as to enliven the provisions of s 16(1)(b).
Mr Carney also noted the respondent’s IME, Dr Sherman, provided two reports, within a short period of time. In Dr Sherman’s first report dated 31 May 2024, he found the applicant’s employment with the respondent was the main contributing factor to the aggravation of his psychological condition, notwithstanding having a history of his post-injury employment. Dr Sherman in that report said:
“After leaving PartyLite Pty Ltd, an associate was starting a company and invited him to join. However, after four months, he found that the work was too stressful and he left.
He then took a year off work before commencing his current role.
He said even now he is struggling. Six months before this assessment, he had reduced work to a four-day week. He takes every Wednesday off.
He is thinking of working only three days a week. His psychiatrist has suggested he change careers and do something like gardening.”
In his second report dated 25 June 2024, Dr Sherman confirmed he had received additional documentation, including treating medical records. In light of that material, Dr Sherman was asked whether the applicant suffered a disease injury with the respondent and replied in the affirmative, noting the injury was an aggravation of a pre-existing condition in the nature of a generalised anxiety disorder or adjustment disorder.
When asked to consider whether the applicant suffered further aggravation of his injury while working for both Monat Australia and CASF, Dr Sherman replied:
“My opinion is that employment with Monat Australia was a substantial contributing factor to an aggravation of a pre-existing psychological condition.”
Dr Sherman provided a similar brief opinion in relation to the employment at CASF, saying “My opinion is that it was a substantial contributing factor to an aggravation of a pre-existing psychological condition.”
Mr Stiles submitted Dr Sherman’s view, when combined with an examination of the treating material, should be preferred to that of Dr Saboor. He stated an examination of the totality of the evidence would demonstrate such a causal connection.
As is always the case, it is necessary in matters of questions of causation to apply a commonsense test, as set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. I have done so in this matter. Nevertheless, the IME report upon which the respondent relies in asserting the applicant’s subsequent employment as a substantial contributing factor to the aggravation lacks cogent reasoning as to why that is the case. Dr Sherman’s reasoning as to the post-injury employment being a substantial contributing factor to an aggravation is, at best cursory and provides no substantive explanation as to why this is the case. Correlation is not causation, and in my view the absence of a cogent explanation by Dr Sherman as to why the applicant’s post-injury employment is said to have been a substantial contributing factor to the aggravation of his condition renders the opinion unpersuasive as it is a bare ipse dixit statement, and I am unable, absent reasoning from the IME, to accept his view in this regard.
On balance, I am of the view that the applicant had not recovered from the work-related aggravation at issue when he commenced previous employment, and his symptoms at that subsequent employment were simply manifestations of his ongoing issues, rather than being caused by those workplaces per se. Correlation is not of itself evidence of causation, and absent an expert opinion which explains the basis for an alleged causal connection between the subsequent employment and the applicant’s ongoing issues, I am not minded to find that such a connection exists.
In the circumstances, in my view, the preponderance of the lay and medical evidence does not satisfy the requirements of s 16 of the 1987 Act in establishing that the subsequent employment was a substantial contributing factor to the applicant’s condition, and accordingly, the matter will be remitted to the President for referral to a Medical Assessor to assess the applicant’s degree of whole person impairment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 714

19 December 2024