Armener v St Vincent De Paul Society NSW
[2023] NSWPIC 537
•13 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Armener v St Vincent De Paul Society NSW [2023] NSWPIC 537 |
| APPLICANT: | Glen Armener |
| RESPONDENT: | St Vincent de Paul Society |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claimed a psychological injury as a result of exposure to a graphic death at a hostel; dispute as to whether the exposure was the main contributing factor amongst a number of possible factors capable of causing an aggravation to an existing vulnerability; Held – exposure was the main contributing factor to the aggravation of his underlying psychiatric condition; award for the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an aggravation to a psychiatric condition on 14 November 2021 when, whilst in the employ of the respondent, he was exposed to the death of a resident in the hostel in which he was employed. 2. That exposure on 14 November 2021 was the main contributing factor to the aggravation of his underlying psychiatric condition. 3. There will be an award for the applicant for a psychological injury suffered on 14 November 2021. 4. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: a. Date of injury: 14 November 2021. b. Body system: psychological injury c. Method of assessment: whole person impairment. d. Documents to be referred: Application to Resolve a Dispute, Reply and Applications to Lodge Late Documents plus attachments. 5. The matter is to be listed for further preliminary conference before me after the issue of the Medical Assessment Certificate, for directions as to the claim for weekly benefits and medical expenses. |
STATEMENT OF REASONS
BACKGROUND
Glen Armener (the applicant) was employed as a crisis worker by St Vincent de Paul Society (the respondent) at the Matthew Talbot Hostel and then the Vincentian Centre from 6 June 2021 to 10 March 2022.
He alleges that he was injured on 14 November 2021 when, in the course of his duties, he was exposed to a deceased person in very difficult circumstances and, as a result, he suffered an aggravation to his underlying condition of complex-post-traumatic stress syndrome (C-PTSD).
The applicant has not been otherwise employed since his employment was terminated for misconduct.
MATTERS IN DISPUTE
The applicant’s claim is for weekly payments of compensation, a lump sum in respect of whole person impairment and payment of medical expenses.
The respondent rejects the applicant’s claim in its entirety.
PROCEDURE BEFORE THE PERSONAL INJURY 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.
EVIDENCE
There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to Application for Resolution of Dispute (Reply) and attached documents and,
(c) All Applications to Admit Late Documents.
RELEVANT LEGISLATIVE PROVISIONS
The Act
“Section 4
Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
(my emphasis)
CONSIDERATION
The applicant relies on the aggravation of a disease, a diagnosable psychiatric condition, arising from an incident in the course of his employment which was the main contributing factor to the aggravation.
The test of ‘main contributing factor’ involves a consideration of whether there were competing factors (both work and non-work related) causing the aggravation and whether, on a consideration of relevant causal factors, the employment represented the main contributing factor.
I have set out below the discussion of the relevant test by Deputy President Snell in AV v AW.[1]
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision.[112] It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.[113]
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1][2020] NSWWCCPD 9 at [76] to [78].
The applicant’s background
The applicant had a difficult upbringing and has had a very difficult life. He was abused by his stepfather from the age of 12. As a result, he went to live with his grandmother until he was 15 years old. In year 10 he moved to Perth to live with his sister. He was forced to move from that situation because of her partner’s homophobia.
Following this difficult start in life the applicant was homeless and lived on the streets for 13 years. During this period he was heavily reliant on alcohol and used recreational drugs. He had intermittent employment as a kitchen hand, call centre operator or cleaner. He did some couch surfing.
In 2015 he enrolled in a 12-step recovery program for his alcohol addiction. Between 2015 and 2018 he admitted himself into a mental health hospital for depression and suicidal ideation. His longest admission was for approximately one week. He felt better at the end of each admission.
The applicant attempted suicide when he was approximately 15 years old. Subsequently, after consulting a psychologist, he was diagnosed with bipolar disorder and Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Zoloft.
The incident causing the alleged injury
The applicant’s description of the events of 14 November 2021 is set out in his statement which I have extracted below:[2]
“16. On 14 November 2021, around 10:30pm reception received a call from one of the residents stating that one of the other residents wasn’t breathing and was throwing up. I, along with the 4 other staff members on duty heard the call.
17. The other staff members asked the resident on call to repeat what he had just said as the call was slightly unclear. I, however, had heard that the resident was not breathing and instinctively ran upstairs.
18. When I arrived at the room of the resident, I saw him lying on his bed. The resident’s entire body along with his bed sheets were soaked with blood. It seemed as though blood had been coming out of every orifice of his body.
19. I attempted to put the resident in the recovery position as I had been taught how to do in my first aid training but found it extremely hard to as he was slightly overweight. I then checked for a pulse on his neck and wrist and could not find a pulse. I opened his eyes and found that his pupils were affixed and dilated. I realised he had died.
20. While I was doing this, the acting team leader, Matthew Pacquet had come in and was calling through the radio to reception to tell them what had happened and instructing them to call an ambulance and the police.
21. Following the events, me and Matthew Pacquet were debriefed by the manager and acting manager of the centre. We were asked if were okay to finish the shift to which I replied yes. I finished the shift and went home.”
[2] ARD page 2.
Subsequent events
Following these events the applicant struggled to sleep. He kept having vivid flashbacks. He attended work for the next two shifts. He thought he would feel better if he continued to work and kept busy. However, the symptoms persisted and he took days off work.
Around 15 November 2021 the applicant informed his team leader Matthew Pacquet that he was experiencing symptoms of post-traumatic stress disorder and anxiety.
From the end of November 2021 until January 2022 the applicant worked as a Case Manager at St Vincent DePaul Society. He continued to experience symptoms and took days off work. He returned to work at Matthew Talbot in January 2022. He was referred to the Employment Assistant Program but they did not provide very much help.
The applicant’s employment was terminated on 10 March 2022. The applicant states that the reason for his termination of employment was the number of his absences from work.
On 29 April 2022 the applicant lodged a claim for workers compensation.
Medical treatment
The applicant has been consulting Mr Dion Alperstein, psychologist, for the past five years and still consults him once per week.
His general practitioner (GP) Dr Lisa Struchen referred him to the Sydney Clinic in Bronte. He continues to see Dr Struchen fortnightly. At the clinic he consulted with a psychiatrist Dr Usman Malik who he sees every six months.
He has seen Dr Naresh Verma, consultant psychiatrist for the insurer.
The applicant’s current situation
“38. I have worked very hard to become a happy and healthy person. I got myself off the streets, dealt with my addictions, undertook studies, and got a job that could make me independent and self-sufficient. While my mental health issues were persistent throughout this time, they were manageable. With the proper treatment and medications, I was in a stable and happy condition.
39. However, as a result of witnessing the death of the resident at Matthew Talbot, my preexisting mental health issues aggravated, and I felt like I have ended up exactly where I had started.
40. I struggle to fall asleep as I continuously have flashbacks of what I witnessed. When I do fall asleep, I have nightmares of what I had seen and of what I experienced when I was living on the streets.
41. I struggle to take care of myself or my home. I go days without showering or changing clothes. My house is often in a horrible condition as I lack the energy to clean it up.
42. I often forget to eat. When I do want to eat, I struggle to find the energy to make myself anything.
43. I hesitate to go outside and be around people as I often find that it puts me on edge.
44. Prior to my injuries, I would regularly go the gym. It was my motivation to stay healthy and away from alcohol. Following my injuries, I struggle to find the motivation to go the gym.
45. The only qualification I have is in community work. However, I struggle with the idea of returning to work for Mathew Talbot or anywhere similar as I am afraid I will witness something similar again. As a result of this, I feel like my career has no prospects and that I will be unable to get back on my feet again.
46. I considered myself to be an active and contributing member of society before my injury. I was sponsoring people on the 12-step program. I was involved in programs that aimed to address the causes of homelessness in Sydney. Following my injury, I have lost all the motivation I once had, and I no longer care for anything or anyone.
47. I find it difficult to concentrate on things and I remain unfocused.
48. I am currently taking the following medications for my psychological condition: -
a. Escitalopram b. Seroquel c. Diazepam d. Modafinil.”
The respondent’s version of events
The respondent provided the basis for its denial of liability for the applicant’s claim in a s 78 Notice dated 6 September 2023.
“ISSUES AND REASONS FOR THE DECISION
· On the 29 April 2022 a claim was lodged for an injury suffered at work on the 14 November 2021. Injury was described as you found a client deceased in their room. On the 10 March 2022 you were dismissed from work for misconduct. A certificate of capacity was provided by your nominated treating doctor (Dr Strachan) on the 4 May 2022 with the diagnosis of Post-Traumatic Stress disorder? The certificate provided no capacity for work from the 10/3/2022 – 01/06/2022. You have remained without capacity to engage in employment since.
· CCI accepted provisional liability for your claim on 6 May 2022.
· In order to assess ongoing liability and treatment requirements, CCI arranged an IME with Dr Naresh Verma (Consultant Psychiatrist and Occupational Physician).
· On 6 July 2022 you attended an Independent Examination with Dr Verma, his report dated 18 July 2022 is summarised below:
· Based on the available information the psychiatric diagnosis is borderline personality disorder. I consider that his current mental health symptoms are an exacerbation of his pre-existing borderline personality disorder. There are no active risk issues currently and he does not present as being pervasively depressed, though there is some anxiety of mood currently.
· I do not believe that Mr Armener sustained a diagnosable psychiatric or psychological condition as a result of the workplace. He has a pre-existing borderline personality disorder, which is longstanding.
· There was a mild exacerbation of his underlying borderline personality disorder due to reasonable actions taken or proposed to be taken by the employer with regard to his dismissal. However, I consider that this mild exacerbation has settled. The rationale for my opinion is that he did not appear preoccupied with past work-related difficulties.
· I do not believe that his mental health symptoms were linked to a significant extent to witnessing the deceased body. I consider that his reaction to workplace events represents an exacerbation of his underlying borderline personality disorder, and this exacerbation has resolved.
· I do not believe that Mr Armener has encountered situations or difficulties in the employment beyond that which could be reasonably expected or anticipated.
· I believe that the mild exacerbation of his borderline personality disorder commenced after he was dismissed on 10 March 2022. I believe the cause of the exacerbation was the dismissal.
· His borderline personality disorder is a chronic condition. I consider that there has been some improvement and that the work-related exacerbation has resolved. I consider that he is not working due to an exacerbation of his borderline personality disorder, which I do not believe is related to work currently.
· I do not consider that the current treatment is due to the work-related exacerbation. Therefore, from the compensable injury perspective, I do not think that any treatment is reasonably necessary with assisting him return to work.”
Following receipt of a letter of demand from the applicant’s solicitor, and service of Associate Professor Dr Michael Robertson’s report, the respondent served a further s 78 Notice on 21 February 2023 notifying the applicant of the reasons for its decision to deny liability for his claim. These were:
“
· We dispute that your employment was the main contributing factor to your alleged psychological injury, within the meaning of Section 4 and 4(b) of the Workers Compensation Act 1987.
· Any psychological injury sustained by you in the course of your employment was wholly or predominantly caused by reasonable action taken or proposed to be taken by your employer with respect to performance appraisal and/or discipline and/or dismissal and/or transfer, within the meaning of Section 11A of the Workers Compensation Act 1987
· You have fully recovered from the effects of any psychological injury sustained in the course of your employment.”
The respondent provided an investigation report which set out various issues arising in the applicant’s performance which eventually led to the termination of his employment. These included his conduct during his secondment with St Vincent de Paul involving absenteeism, intimidating behaviours, manipulative behaviours and inappropriate conduct towards a client.
At a meeting on 1 February 2022, addressing the applicant’s absenteeism, the applicant related his absenteeism to the trauma incident at the Mathew Talbot Hostel. Concerns were outlined in a show cause letter dated 18 February 2002. This correspondence detailed intimidating behaviour, use of inappropriate language and undermining of the team leader. There were also concerns in relation to his excessive absences and late notification of absences. Subsequent disciplinary meetings on 21 February 2022 and 8 March 2022 resulted in the termination of the applicant’s employment after the substantiation of complaints by colleagues. The respondent determined that the applicant had engaged in multiple incidents of aggressive and disrespectful behaviour and terminated his employment.
When refusing liability the respondent also made reference to the applicant’s many past difficulties and other stressors.
The applicant’s medical evidence
Associate Professor Michael Robertson
The applicant relied on the medical report of Dr Robertson,[3] consultant psychiatrist, dated 30 November 2022. Dr Robertson examined the applicant by teleconference on 29 November 2022. He reviewed the letter of instruction from the applicant solicitors, the applicant’s statements, the medico-legal report of Dr Verma, s 126 documents, and two notices served by the respondent.
[3] ARD page 26.
Dr Robertson took an extensive history from the applicant which included those matters already outlined in this decision but also included allegations of bullying behaviour including exclusionary alliances and mobbing behaviour by co-workers. Dr Robertson summarised the applicant’s description of his mental state following the 14 November 2021 incident as follows:
“Following this incident, Mr Armener experienced deterioration in his mental state with recrudescence of symptoms of C-PTSD including nightmares and flashbacks of this traumatic incident as well as some from his childhood; psychological hyperarousal including irritability, sleep disturbance, impaired cognitive function and an exaggerated startle reflex; hypervigilance and; psychological dissociation. Despite these symptoms and worsening psychological distress, he continued to work and had a one-month placement at Vincentian Home”
The applicant provided information to Dr Robertson as to his current status.
“…his symptoms have improved marginally since ceasing duties, although he remains at a loss and is at time quite dysphoric. He has ongoing hyperarousal and hypervigilant symptoms and intermittent symptoms of PTSD”
The applicant considered the complaints made by colleagues to be vexatious and overstated or confected grievances. He denied being aggressive or hostile in his interactions with co-workers. He described the actions of the employer as an attempt at constructive dismissal.
Dr Robertson provide the following conclusions.
“ASSESSMENT
Mr Armener is a 37-year-old man, currently in receipt of a Centrelink benefit. He presents with complex posttraumatic stress disorder (C-PTSD) and a previous substance use disorder that is currently in remission through his participation in a
12-step recovery program.Mr Armener experienced a prejudicial childhood in his family of origin, which has explanatory power to his later difficulties in adolescence and adult life through persistence of C-PTSD and substance use problems with various exacerbations including drug-induced psychosis and suicidal behaviour.
Mr Armener had clearly experienced a torrid period in his late adolescence and early adulthood, although seemed to have made good his circumstances through engagement in a recovery process for his substance use and is participating in well-conduced psychological therapy in which he developed psychological insight. Mr Armener purportedly began his duties at Matthew Talbot in a much better mental state than he had demonstrated as a child.
There were significant previous mental health problems although they were evidently more stable at that point.
Mr Armener experienced exacerbation of his previous C-PTSD following being retraumatized by a particularly graphic medical emergency in which a patient exsanguinated in the workplace. For Mr Armener, this was an extremely traumatic experience. Moreover, there appeared to be significant interpersonal conflict in the workplace. Mr Armener categorises the behaviour of his colleagues as bullying and that the employer had acted in his view unreasonably in attempting a constructive dismissal. The latter interpretation is not a medical matter, but rather Mr Armener’s perspective on the employer’s conduct and he argues that the employer’s use of disciplinary action was both misplaced and unsound.
An IME psychiatrist cannot determine this particular aspect of the history.
The narrative of Mr Armener’s workplace psychological difficulties situates the incident of November 2021 as the most significant factor in the causation of the moderately severe exacerbation of Mr Armener’s previous C-PTSD.
Mr Armener had concurrent psychosocial stressors, including series of bereavements throughout 2022. These were co-contributing factors although the substantial factor contributing to the exacerbation of his previous C-PTSD was the traumatic incident involving the death of a client in November 2021.
I disagree with Dr Verma’s interpretation of the history, in particular his emphasis on the disciplinary proceedings as being the sole determinant of the exacerbation of Mr Armener’s previous mental health problems. Dr Verma seems to have minimised the trauma of the client’s death, particularly given Mr Armener was not an individual of normal fortitude.
The diagnosis of borderline personality disorder is a peripheral issue in this matter.
Most clinicians would see both borderline personality disorder and C-PTSD as interchangeable1; both conditions interrogate the legacies of traumatic childhood including disordered attachment and the experience of interpersonal and at times sexual trauma.
…
From a clinical perspective, there was a work-related exacerbation of Mr Armener’s previous C-PTSD primarily attributable to the death of a client in graphic circumstances in November 2021 and interpersonal conflicts in the workplace subjectively experienced as bullying.”
Dr Robertson stated that the applicant had reached a state of maximal medical improvement and provided a whole person impairment assessment of 17% with a deduction for his previous mental health problems.
Dr Dion Alperstein
Dr Alperstein is a clinical psychologist who has been treating the applicant since March 2016 with variable frequency. He outlined the applicant’s history and his treatment. An extract from his report of 21 June 2023[4] is below.
“...
Up until November 2021, he was doing well and therapy was largely aimed at maintaining his lifestyle and navigating interpersonal relationships. Prior to his incident he was living in private rental for the first time, supporting himself through meaningful employment and was remaining abstinent from substance use. He also demonstrated a sound ability to maintain this relatively higher level of functioning despite significant relational stressors, including loss/ grief of loved family members. Clinically, this demonstrated an improvement in C-PTSD, consistent with recent changes in a more refined and developed self-identity, ability to regulate emotions and navigate relationships.
Context for clinical opinion
Having supported Mr Armener through his C-PTSD for numerous years and through countless stressors, I strongly believe that Mr Armener’s deterioration in functioning is not largely attributable to his C-PTSD history but instead more accurately represents an acute PTSD response to his workplace trauma. Attributing Mr Armener’s change in functioning to his past trauma does not fit with the evidence that he had successfully managed C-PTSD symptoms very effectively in the years leading up to the workplace incident, as evidenced by his level of functioning and personal achievements. Mr rmener has navigated significant stressors while attaining tertiary education, employment and leaving government funded housing for the first time in his life. He has also abstained from a long-term dependency to substances. Mr Armener’s C-PTSD has certainly been exacerbated by the workplace trauma but the impact on his functioning and the most distressing symptoms relate directly to the workplace incident, consistent with an acute PSTD response. I would assert that attributing Mr Armener’s current PTSD symptoms to his C-PTSD is discriminatory as it does not allow him to suffer an understandable human response to an acute trauma that someone without
C-PTSD is readily afforded.As a clinical psychologist that has treated Mr Armener for the past 7 years, I believe that I am well positioned to comment on the impact of the workplace incident in November 2021 as I am the only qualified health professional to have seen firsthand Mr Armener’s state of mind and functioning prior to, during and after the incident. I firmly believe that Mr Armener continues to suffer from an acute PTSD as a direct result of the workplace incident.”
[4] ARD page 46
The applicant’s submissions
The applicant’s counsel submitted that the applicant had been doing well prior to this incident. He was engaging in active treatment. Although he continued working immediately after the incident, by the time he saw Dr Alderstein on 22 December 2021 he was experiencing significant symptomatology and his condition was worsening. The applicant is still experiencing flashbacks to that incident and continuing incapacity.
The applicant’s counsel submitted that I should accept the 14 November 2021 incident as an injury which aggravated the applicant’s underlying C-PTSD, an effect which is continuing and has reached maximum medical improvement.
The applicant seeks that this application be referred to the President for a referral to a Medical Assessor in relation to whole person impairment.
The respondent’s submissions
The respondent submitted that the applicant had had an extraordinarily complex life full of adverse circumstances including abuse and homelessness, a diagnosable condition of PTSD which can be triggered by innocuous events, itinerant random employment and an addiction to crystal methamphetamine and alcohol. All of these issues have been and are still capable of being significant contributing factors to the applicant’s condition.
Downplaying the significance of the 14 November 2021, counsel for the respondent submits that Mr Purchase, the Accommodation Manager, Metropolitan Region, for the respondent gave evidence that the applicant was showing no signs of mental disturbance at work following the 14 November 2021 incident. An extract of his evidence is below:
“27. I was called by both Glen and his other support worker, Matthieu Pacquet, advising that unfortunately a client had just passed away in his room at Matthew Talbot Hostel. They both sounded coherent, sounded upset but they were calm and collected. They had followed correct procedure by calling me. I called my manager, Damian Royce (as Shane Jarrett was on leave at the time) and then went to support Glen and Matthieu. On arrival at Matthew Talbot Hostel I greeted both staff, checked in with them to see how they were going. They advised that the ambulance were on site and so were the Police, and that they were awaiting the arrival of the Coroner. In that time, I had Glen in my office with the door shut and I provided emotional support. I provided the exact same support to Matthieu. Within an hour of my arriving at the Hostel, Damian Royce arrived at the Hostel. In turn, Damian also spoke with each of the staff members and provided emotional support. EAP and professional supervision were offered to both Glen and Matthieu.
28. Glen was still calm and collected and said he wanted to resume their duties, as did Matthieu. Glen and Matthieu did not go back to the scene upstairs nor did they ask to.
29. Both Glen and Matthieu finished their shift at 6.30am on 15 November 2021. I offered both Glen and Matthieu support in the form of EAP, professional supervision and time away from the service if they needed it - I didn't give a time frame on this time away explaining to them that trauma can occur any time after the incident.
30. Prior to Glen taking approximately one week off work after this incident, I spoke with Glen and again offered EAP. Glen advised me that he did not need this service as he had his own support person to speak with.
31. When Glen returned to work, he said he was ok and fine to resume to his duties. I asked him if he needed support with that and he said no. At the time, Glen seemed to fit back into his duties rather well. It was only through official supervision, which we had once a month (but all staff can and do talk with me every day), we discussed again about Glen's potential about doing TA Facilitation at Vincentian House (something he had hinted with me prior to this). Glen was successful in gaining the secondment of TA Facilitator at Vincentia House.
32. After the incident which occurred on 14 November 2021, Glen did not really bring up the incident. We would talk about the man involved, more of a reflection, but Glen did not appear to be affected workwise about the incident. He did talk about the opportunity to move forward in his profession in the role of TA Facilitator at Vincentian House.
33. There were problems at Vincentian House in that he did not turn up for work and periods of time, calling in sick, didn't call in sick, came to work and then went home again. I am aware that Glen had said to Sanat Heweston, his absenteeism related to the stress of the incident which occurred on 14 November 2021 at Matthew Talbot Hostel.[5]”
[5] Reply page 51.
Counsel referred to the second report of Dr Robertson as a rehash of his previous report, in which he identified other contributing factors and reviews of Dr Verma’s opinion.
Also, he submitted that it is significant that there was no immediate mention of the 14 November 2021 incident in the applicant’s treating medical notes. The first reference is on 22 December 2021[6]. I have extracted the note below.
“Glen reported a traumatic event a few weeks ago, which had led to a PTSD symptoms re past trauma, a lapse, disssociative symptoms and a reduction in overall functioning. Glen explained that at work in a crisis accommodation he walked into a client’s room and found them dead. He said that the circumstances were very confronting with blood everywhere and he attempted to resuscitate the client for some time. Glen said that this reminded him of a trauma when he was living on the street and a friend shot herself in the head in front of him as a suicide. Glen said that he had been experiencing flashbacks to this time and an overall hypervigilance to threat. Glen said that at times he has been paranoid that others were trying to harm him and this had prevented him from leaving his home and attending work. He reported poor sleep and nutritional/diet intake. On one occasion he took a sleeping pill to get rest and he had no memory of four 48 hours and found his place to be ‘a mess’. The majority of today’s session was spent providing psycho education on PTSD and the rationale for treatment. Discussed grounding exercises and distress tolerance strategies so that Glen can gain a sense of safety in the short term.”
[6] ARD page 723.
There had been some improvement noted by Dr Alderstein[7] on 10 January 2022.
[7] ARD page 728.
Counsel submitted that there was no medical support for the statement[8] by the applicant referred to a file note from the Albion Centre where, when the applicant was speaking to a support person about the complaints made about him at work and is noted as having said, “….he continues to experience PTSD from work incident where he discovered a deceased client.”
Conclusion
[8] ARD page 731.
I have reviewed the material regarding the applicant’s employment and make the findings set out below.
· The applicant has a life-long history of issues involving many adverse personal issues and has serious underlying mental health issues.
· For the respondent the applicant was a quintessentially vulnerable “eggshell” employee.
· The applicant was exposed to a horrific incident on 14 November 2021 when he found a resident who had died by way of exsanguination and was covered in blood and faeces.
· Before the termination of his employment, the applicant was in conflict with fellow employees and management. Whilst I am not in a position to finally determine the cause or extent of that conflict, I am satisfied that, more likely than not, the applicant’s personal behaviour, contributed to the conflict and was misconduct justifying termination of employment.
· On balance I am satisfied, having considered the reports of Dr Alderstein, that the absenteeism and erratic behaviour of the applicant arose, at least in part, as a result of his reaction to the events of 14 November 2021.
· The respondent followed a fair procedure in relation to the investigation of the allegations against the applicant. There was no attempt at a constructive dismissal. He was dismissed for misconduct which was established by the respondent’s investigation.
· The termination of the applicant’s employment and the termination procedures were not main contributing factors to the injury to the applicant.
· Had I found that the respondent’s actions in relation to the termination of the applicant’s employment was the whole or predominant cause of the injury to the applicant I would have found that its actions were reasonable.
· The delay between 14 November 2021 and 22 December 2021, when the applicant first informed Dr Alderstein of his reaction to the incident, does not persuade me to reject the credibility of the applicant’s response to this incident. He identified symptoms and sought treatment. In the consultation with Dr Alderstein the applicant identified the serious consequences he was experiencing caused by the trauma of the incident.
I have considered the conflicting medical reports provided by Dr Robertson, Dr Alderstein and Dr Verma. I prefer and am persuaded by the opinion of Drs Robertson and Alderstein. I agree with the submission of counsel for the applicant that Dr Verma does not deal with the issue of continuing symptomatology. He concludes that any aggravation suffered by the applicant has ceased without providing any persuasive reasoning for that conclusion.
An applicant may be injured by an event whether they have had a previously difficult life experience, or their life had been an incident free idyll up to that date. Each case must be determined on its own facts. Some workers may be upset by such an event but move on without any long-term effects. Others may be affected for a short while and recover. Others may be permanently damaged. Workers who have a past history of adverse circumstances or vulnerabilities are not to be treated any differently to those who have a blank canvas in relation to such circumstances. It may be that somebody who has an existing psychological vulnerability, such as the applicant, may be more vulnerable than others to such an event.
I consider the applicant be one of those more vulnerable persons. I do not consider that his tragic past history and vulnerability, which provides other possible explanations for his incapacity, should necessarily mean that this graphic event is less likely to remain a contributing factor to the aggravation of his underlying condition.
I am satisfied and find that the workplace incident of 14 November 2021 was the main contributing factor to the aggravation of the applicant’s underlying condition.
In doing so I have taken into account the applicant’s life which was, as described by the respondent’s counsel, littered with extensive and serious psychological issues which waxed and waned over time. I have also taken into account the applicant’s perception of conflict in the workplace and the proceedings which led to the termination of his employment. I have considered the personal losses in the applicant’s family.
Although the respondent’s counsel submitted that it was incorrect to say that the applicant was thriving in the employment of the respondent prior to this incident I prefer the evaluation of his psychological state and successes provided by Dr Alderstein.
Guided by Deputy President Snell in AV v AW,[9] my consideration of this issue must be an evaluative process weighing work related and nonwork related issues when determining whether an event/experience/injury is a main contributing factor. I have followed that course.
[9] [2020] NSWWCCPD 9 at [76] to [78].
Having done so I am satisfied that there is a continuing aggravation to the applicant’s underlying psychiatric condition arising from the workplace incident experienced by the applicant on 14 November 2021.
SUMMARY
For the reasons set out above the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
0