BAW v LWB Disability Services South Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BAW v LWB Disability Services South Limited [2022] NSWPIC 539
APPLICANT:	BAW
RESPONDENT:	LWB Disability Services South Limited
Member:	Philip Young
DATE OF DECISION:	10 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; applicant has significant history of psychological conditions and alleges being subjected to intimidating behaviour by employer through several employment events; Held – applying Attorney General v K applicant held perception of real events causing psychological injury and applying Hamad respondent’s section 11A of the Workers Compensation Act 1987 defence not made out due to absence of medical evidence; award in favour of the applicant for weekly payments and general order in respect to section 60 expenses.
determinations made:	1. The applicant in the course of his employment with the respondent between 27 January 2019 and 19 June 2019 suffered psychological injury in the nature of exacerbation of a disease condition in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant’s employment was the main contributing factor to the exacerbation of his disease condition. 3. The respondent’s defence under s 11A of the 1987 Act fails. 4. The applicant had no capacity for work between 12 September 2019 and 17 November 2021. 5. The applicant’s pre-injury average weekly earnings have been agreed at $774.06. 6. Pursuant to s 37 of the 1987 Act 80% of the applicant’s pre-injury average weekly earnings is the sum of $619.25 per week. 7. Award in favour of the applicant in the sum of $619.25 per week pursuant to s 37 of the 1987 Act for the period 12 September 2019 to 17 November 2021. 8. General award in favour of the applicant with respect to s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

BAW (the applicant) is a 35-year-old-man who was employed by LWB Disability Services South Limited (the respondent) as a disability support worker. He commenced employment on 22 February 2018 and alleges a deemed date of injury (disease) of 19 June 2019. This is described as follows:
“The applicant suffered a psychological injury from exposure to unsafe practices by the employer and was subject to unfair treatment and intimidation in the course of his employment”.[1]
[1] Application to Resolve a Dispute (Application) lodged 16 December 2021 at page 7.
The applicant claims weekly payments of compensation from 12 September 2019 pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act) in the sum of $619.25 per week. In addition, a claim is made for medical and hospital expenses totalling $14,780.

ISSUES

The insurer has paid the applicant 16 weeks of weekly compensation up to 11 September 2019 and there is no dispute that the applicant’s pre-injury average weekly earnings were in the sum of $774.06 per week. Accordingly, the claim for weekly payments is from 12 September 2019 to the end of the second entitlement period (130 weeks) which is 17 November 2021.
The respondent disputes injury/disease (s 4) and also relies upon s 9 A and s 11 A of the 1987 Act. Accordingly, the first issue is whether the applicant suffered any injury or disease, second if a s 4 (a) injury was the employment a substantial contributing factor, third if the injury was a s 4 (b) (ii) disease was the employment the main contributing factor to the aggravation, acceleration, exacerbation or deterioration (aggravation etc) of the disease, finally can the respondent establish a defence pursuant to s 11 A of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter came to teleconference on 2 February 2022 and was listed for conciliation and arbitration hearing initially on 7 April 2022. The matter was then heard on 5 May and 15 June 2022. On those occasions Mr Morgan of counsel instructed by Ms Leraci, solicitor, appeared for and with the applicant. Ms Goodman of counsel instructed by Ms Browne and Ms Saleh, solicitors, appeared for the respondent. Ms Harper and Ms Chung were present on behalf of the insurer.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a)    Application and attachments lodged 16 December 2021;
(b)    Reply and attachments lodged on 11 January 2022 (Reply);
(c)    Application to Admit Late Documents (AALD1) and attachments lodged on 28 January 2022 by the applicant;
(d)    Application to Admit Late Documents (AALD2) and attachments lodged on 1 April 2022 by the respondent, and
(e)    Application to Admit Late Documents (AALD3) and attachments lodged 28 April 2022 by the respondent.

ORAL EVIDENCE

No oral evidence was given.

DISCUSSION AND REASONS

Events before 22 February 2018

Although there is not a great deal of evidence to detail events which occurred between the applicant’s commencement of employment with a previous employer on 8 August 2016 and the transfer of employment to the respondent on 22 February 2018,[2] the applicant did receive medical treatment during that period. In particular, Dr Hughes, psychiatrist, saw the applicant at the request of his general practitioner and reported to that general practitioner on 14 September 2017[3] that the applicant had been seeing Ms Browne, psychologist, and was a client of the Sutherland Medical Health Acute Medical Treatment Team at that time. Dr Hughes reported as follows:[4]
“She has a complicated history that I will not reiterate here in detail. Suffice to say she has multiple comorbidities in particular a diagnosis of borderline personality disorder with comorbid PTSD and a chronic depressive disorder (currently fulfilling criteria major depressive episode) that’s had prominent affective dysregulation historically raising the possibility of an additional diagnosis of bipolar spectrum disorder…
She has had multiple psychiatric hospitalisations historically often occurring in the context of dramatic and disruptive emergency department presentations. She has however achieved significantly improved levels of stability in recent years after engaging in dialectical behavior therapy. She also feels that having her physical health problems identified and treated effectively has been a major factor in stabilising her...
I note that there have been a number of stressors in this past year including the remains of a murder friend being found in the Royal National Park, in a high publicity case, a six week placement at Bulli Hospital immediately following a physical assault leading to a concussion in early May, her mum (a major support) moving to Queensland to care for Tash’s dementing grandfather and also her own investment in the case of a disabled child taken from his parents because of their use of medicinal cannabis”.
[2] AALD2 at page 124.
[3] AALD2 at page 1.
[4] AALD2 at page 1.
The applicant’s statement dated 4 July 2019[5] readily concedes that he has had issues associated with multiple medical diagnoses in the past and had previous criminal charges involving the possession of cannabis.[6] The police record[7] indicates that the applicant had a troubled time in 2009 and was required to attend mental health sessions at that time.
[5] Application at pages 50-65.
[6] Application at page 60.
[7] Reply at pages 1-3.
Dr Hughes on 13 October 2017[8] reviewed the applicant and noted that he “seems remarkably improved, “back at work and uni” and he revised his medication. He then reported on 19 February 2018 that the applicant had been an inpatient at Wesley Kogarah for the past three weeks or so[9] but he noted a “significant risk of harm or premature death from misadventure” because of multiple oral opioids, high dose fentanyl patches and other medications. Dr Hughes had the applicant seen by Dr Saunders and Dr Hughes thought the applicant was receiving validation “from his sick role behaviors”.
[8] AALD at page 3.
[9] AALD at page 6.
The applicant was put on a GP Mental Health Care Plan recorded by Sr Pratt on 9 January 2018.[10] This included a referral to psychologist Ms Browne. At the time the applicant’s employment was transferred to the respondent on 22 February 2018 he was awaiting an appointment with Ms Browne.
[10] Application at page 99.

Events between 22 February 2018 and 27 January 2019

Ms Browne in her report of 19 April 2018 refers to her having treated the applicant with psychological therapy for “over five years”.[11] Ms Browne reported to the general practitioner:
“As you are aware, besides a borderline personality disorder/ complex PTSD, Tasha also has a litany of anxiety symptoms. This can include obsessive rumination, some compulsive researching and anxiety in regards to her medical issues”.[12]
[11] AALD2 at page 14.
[12] AALD2 at page 16.
Ms Browne noted the applicant’s excessive use of cannabis and opioid medication and observed that the misuse of medications was such that “unfortunately the medical practitioners she presented to were not informed of this at the time”.
On 25 June 2018 Dr Hughes certified[13] that the applicant fulfilled criteria for gender dysphoria disorder.
[13] AALD2 at page 17.
It is clear that the applicant had several troubling disorders before the transfer of his employment to the respondent.
The applicant commenced the process of transitioning from female to male in July 2018.[14] Several reports are in evidence dealing with this transition process and the reference to androgen replacement therapy, hysterectomy and bilateral mastectomy. These reports include those of Dr Thornley, Dr Farrar, Dr Hughes, Dr Jebejian and Dr Saunders.[15] By 20 November 2018[16] the applicant was wanting to increase his testosterone levels but Dr Thornley would only “be happy for this to occur” if a Dr Davies was happy from a psychiatric perspective “and it would be best to occur after successful detoxification of marijuana”. Unfortunately, Dr Davies was unwilling to review the applicant.[17] Ultimately the applicant was able to see Dr Farrar.
[14] Application at page 42.
[15] See AALD2 from pages 21 to 109.
[16] AALD2 at page 40.
[17] AALD 2 at page 39.
On 30 November 2018 Dr Thornley declined to further treat the applicant because the applicant had allegedly presented to a chemist stating that Dr Thornley had agreed to increase his testosterone injections, which he did not.[18] On 26 October 2018 Dr Saunders in a letter to Dr Hughes expressed his concern that the applicant was being prescribed testosterone in the context of his cannabis use[19] and on 16 November 2018 the applicant’s general practitioner completed a referral to Dr Kearney.[20]
[18] AALD2 at page 72.
[19] AALD2 at pages 58-59.
[20] AALD2 at page 62.
Dr Kearney is a clinical psychologist and he provided a report to the applicant’s previous solicitors dated 16 February 2021. Dr Kearney saw the applicant on 15 November 2018 and was told that the applicant’s relationship with his psychologist had broken down and he was unhappy with his former psychiatrist.[21] A number of specific questions were asked of Dr Kearney and they include the following:
“6. Do you consider there is a direct cause and effect relationship between his employment and his injury? If so, we enclose a copy of 9A of the Workers Compensation Act and request your opinion on whether you feel our client’s employment was a substantial contributing factor to the development of his condition?
No. BAW has unfortunately been suffering from his many conditions for a long period of time.
7. Alternatively, if you consider our client’s condition to be the aggravation, acceleration, exacerbation or deterioration of a disease, is it your opinion that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration and is the aggravation, acceleration, exacerbation or deterioration continuing?
Given BAW’s general day to day difficulties with fluctuating mood and level of functioning, it is difficult to determine whether work factors led to an exacerbation of his difficulties. He did express displeasure with work, and did also become more pre-occupied with work issues during the middle of 2019. Work stress may have been an added complicating factor in the above conditions”.[22]
[21] AALD2 at page 120.
[22] AALD2 at page 121.
Dr Kearney was invited to express a view concerning whether employment was the main contributing factor and whilst he raises the possibility of “work stress” being an added complicating factor he does not confirm that it was the main contributing factor. He continues[23] that “experiences at work may have exacerbated his pre-existing conditions” but puts his opinion no higher than that.
[23] AALD2 at page 122.
As mentioned, from July 2018 the applicant was receiving hormone replacement therapy.[24] There is mention of the applicant telephoning his general practitioner’s office on 18 January 2019 asking if he could “start taking catapres to help with the hot flushes” and Dr Beswisk confirming that he could.
[24] See Application at page 37 report of Dr Chow.
The applicant’s statement dated 4 July 2019[25] readily concedes that he has had issues associated with multiple medical diagnoses in the past and had previous criminal charges involving the possession of cannabis.[26] The police record[27] indicates that the applicant had a troubled time in 2009 and was required to attend mental health sessions at that time.
[25] Application at pages 50-65.
[26] Application at page 60.
[27] Reply at pages 1-3.
The applicant had in fact commenced employment with Aged Disability Home Care (ADHC) on 8 August 2016.[28] As part of a re-organisation of disability care, the applicant’s employment was transferred to the respondent on 22 February 2018. This history of the applicant’s employment becomes relevant in matters which are discussed below.
[28] Application at page 63.
Regardless of the applicant’s prior psychological condition, the evidence overall supports the proposition that when the applicant commenced employment with the respondent on 22 February 2018 he was not carrying any significant psychological condition, or at least he was able to perform his work between 8 August 2016 and 22 February 2018 without any impediment. Ms Gorman, regional manager of the respondent says:
“I do not know the state of health of BAW when he commenced employment with LWB. BAW’s records were received from ADHC when he came across to LWB. BAW would not have been released in this role unless all was clear on the reports”.[29]
[29] Application at page 48.
The events described above lead me to the view that during the period of 22 February 2018 and 27 January 2019 whilst the applicant was having psychological problems, these appear to have occurred in the context of matters outside his employment and the employment conditions do not appear to have presented him with any superimposed psychological injury. He appears to have been struggling somewhat with the replacement therapy, his use of cannabis and his ability to maintain relationships with some of his treating medical practitioners.

27 January 2019: the air conditioner event

The respondent has addressed a number of incidents which occurred and which affected the applicant from about 27 January 2019. At about 7.15am on that Sunday morning Ms Gorman received complaints from neighbours concerning the noise which was being caused by the air conditioning unit at the home at which the applicant worked.[30] There were three residents in that home[31] and evidently the respondent had approval to operate the air conditioning unit but only outside certain hours.[32] The hours which had been negotiated with the neighbours involved no air conditioning unit noise between 10.00pm at night and 8.00am in the morning.
[30] Reply at page 121.
[31] Application at page 50, Ms Gorman’s statement at [22].
[32] Ms Gorman’s statement at [39].
Ms Gorman contacted the applicant to say that he should turn off the air conditioning until 8.00am. In response, the applicant subsequently contacted the police who evidently advised regarding duty of care and the applicant then contacted the on-call manager, Ms Kenny, without disclosing his conversation with Ms Gorman. Ms Kenny advised the applicant to follow the police advice. It is unclear and there is no evidence as to whether the police when giving the duty of care advice were aware of the negotiated position with the neighbours.
The respondent has suggested that before 27 January 2019 the applicant had asked one of his doctors for medication due to hot flushes.[33] The respondent has submitted that in July 2018 when the applicant commenced the transition from female to male gender the hormone replacement therapy he was experiencing in that transition would account for and more likely be the reason that he wanted the air conditioning turned on, rather than any duty of care in respect of the residents.
[33] Application at page 37, Report of Dr Chow.
In the applicant’s second statement[34] the applicant indicates:
“12. The treatment I received enabled me to function very well with the appropriate treatment. My work capacity and employment history with LWB was unaffected by my pre-existing mental health issue and I was able to perform my duties effectively.
13. Prior to my injury on 27 January 2019, I enjoyed working and took pride in my work. I was also able to participate and enjoy life”.
[34] Statement of the applicant dated 24 November 2021 at [12]-[13].
Accepting what the applicant says about his employment prior to 27 January 2019 dovetails with the proposition that there was nothing in his work before 27 January 2019 which caused the applicant any concern from a psychological viewpoint. The event of 27 January 2019 was quite significant according to the applicant and he states[35] that he was “so upset about the complaint” and was “fearful that the clients would pass away on my shift, so much so that he held continuing concerns that matters after that time if raised would be ignored”.
[35] Application at page 63 at [68]-[69].
The existence of council regulations concerning the air conditioner is the subject of an email of 8 November 2018[36] and several reports that the neighbour had complained about noise as early as 12 December 2017.[37] There was some obvious tension between the respondent generally and the neighbour. The respondent counselled the applicant by email of 31 January 2019[38] which essentially suggests that the applicant should not contact the police but rather management and seeks an explanation from the applicant in that regard. The applicant’s response[39] was that the issue had been going on for 15 months and management had done nothing about it. The applicant claims that he raised the issue with managers “on numerous occasions, each time falling on death ears…” and concludes that whilst the applicant respects the respondent position “…if management aren’t will do (sic) their part to ensure their care, then I will”.[40] The applicant’s email response in my view demonstrates a distaste and disregard for managerial authority. He uses the words “enough is enough” in coming to a position where it is quite clear that he would be rebellious of authority in the future.
[36] Reply at page 126.
[37] Reply at page 124.
[38] Reply at page 121.
[39] Reply at page 121.
[40] Reply at page 121.
The applicant in his submissions[41] quite correctly identifies the matters set out by Roche ADP in K.[42] These matters include the proposition that an “egg-shell psyche” principle applies and that as so long as real events occur, an applicant’s perception of them resulting in a psychological injury enables the Commission to find that causation is established. The learned Acting Deputy President, as pointed out in the applicant’s submissions[43] observed:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, responsible and proportional’”.
[41] Applicant’s submissions dated 24 June 2022 at page 3.
[42] Attorney General’s Department v K [2010] NSWWCPD 76.
[43] Attorney General’s Department v K [2010] NSWWCPD 79 at [19].

There can in my view be no doubt that the applicant regarded what flowed from the air conditioner event as creating an offensive or hostile working environment. It is necessary, however, for the applicant to establish that “a psychological injury has resulted…” and that involves not only an acceptance of the applicant’s perception, but also the existence of an injury which has resulted from that perception.
In matters such as the present one where the applicant presents with an “egg-shell skull” which is extremely thin and plagued with many psychological disabilities, it can sometimes be difficult to show the existence of a superimposed psychological pathology or at least an aggravation (etc) of it. This is no doubt the reason why Dr Kearney struggled with the question as to whether the applicant’s employment played a part in the possible exacerbation of the applicant’s psychological condition which I have earlier set out.
Before looking to the medical evidence to compare it with the test in K, it is necessary to have regard to a number of other events identified by the applicant in the complaints he makes.

The first 19 February 2019 event

The statement of Ms Van Deursen, who was the applicant’s direct manager, confirms that the applicant commenced with the respondent on 22 February 2018, working 16 hours each week.[44] On 19 February 2019 Ms Van Deursen had occasion to counsel the applicant and her statement[45] says that the reason for this counselling was that the applicant was asked to not diagnose patients’ medical conditions because he was not medically trained. It is asserted that the applicant was defiant and said to her that he was studying to become an occupational therapist.
[44] Application at page 182 at [15].
[45] Application at page 182 at [16].
Interestingly, this first event of 19 February 2019 does not appear to be mentioned in either of the applicant’s statements nor dealt with in the applicant’s submissions, notwithstanding that Ms Goodman of counsel identified it as an event in her oral submissions, referring to paragraph 16 of the statement of the applicant’s supervisor, Ms Van Deursen. In the absence of any specific reliance upon by the applicant in his statement or in his submissions, it is unnecessary to consider that event except to note that the respondent refers to it as being partly causative of the applicant’s discontent with his work environment.

The second event of 19 February 2019

As earlier mentioned, the applicant’s employment was transferred to the respondent in about February 2018. By letter dated 19 February 2019 the respondent informed the applicant that he had to attend a “right to respond meeting” because “following a national criminal history check a flagged probity matter have [sic – has] been identified”.
The letter indicates that the applicant was directed to attend a meeting on 1 March 2019 at 12.00pm where he would be “provided with an opportunity to respond to the Declared Court Outcomes”. The letter recognises “the seriousness of these matters”, indicates that the applicant should “not disclose this subject matter to any person” and in fact recognises “that this might be a difficult time for you”. Clearly the respondent was aware that the matters were serious and was also aware that they could present the applicant with a “difficult time” such that he might need to seek assistance for the emotional consequences of the matters raised.
The applicant consulted his union who on 5 March 2019 (after the 1 March 2019 appointed time) pointed out that the applicant’s criminal record had been disclosed to Family and Community Services and he was approved to work with that department as a result.[46] Additionally, the applicant was told that upon transfer all of his employment records were going to the respondent.
[46] Application at page 23.
On 26 March 2019 the respondent retreated somewhat by writing to the applicant including the following:
“Kylie Gorman, Regional Manager, has assessed your responses of any risk that may be associated with your historical offences for our business.
Kylie Gorman has assessed that there is no risk in relation to your historical offences, recommended that your employment is to be maintained with Life Without Barriers and forwarded for endorsement and approval in line with Probative Delegations”.[47]
[47] Application at page 24.
The respondent offers no explanation as to why Ms Gorman made this assessment, does not comment upon whether or not the assertions made by the applicant’s union were correct or not and importantly offers no apology for having raised serious allegations in the first place. It is entirely understandable in those circumstances that the applicant would have felt upset, because his future employment was in jeopardy. The respondent offers no evidence to indicate whether it checked the applicant’s employment records before levelling very serious allegations against him. Ms Gorman provided a statement dated 8 July 2019[48] but does not appear to mention this particular event. Although not mentioned in his first statement of 4 July 2019, the applicant in his second statement of 24 November 2021[49] indicates that the applicant “had a panic attack” when he received the letter and that when he returned to work in March 2019 was made aware that his supervisor had asked other support workers if they knew the applicant had a criminal record.[50]
[48] Reply at page 47.
[49] Application at page 1 at page 3 at [26] – [27].
[50] Application at page 1 at page 4 at [32].
Clearly the event concerning the applicant being called to account concerning his criminal record and his awareness that his supervisor had been asking other workers about it was capable of causing the applicant significant distress, as he alleges.

The 11 April 2019 event

The applicant’s supervisor Ms Van Deusen completed a Supervision Form on 11 April 2019. The discussions concerned petty cash and the respondent’s directive that any expenses more than $15 should be discussed with the team leader.[51] Additionally, the applicant was told that office administration work could only be done when all clients had gone to bed, which the applicant confirmed that he did. There was a complaint that there was no outing for clients last Friday which was a safety concern for the applicant because of some equipment problems with a wheelchair hoist.[52]
[51] Reply at page 207.
[52] Reply at page 207.
The respondent identifies this incident and an alleged refusal to take clients on outings.[53]
[53] Statement of Ms Van Deursen at Reply at page 184 at [17].
The applicant’s case does not focus on this event other than to broadly state the following:[54]
“88. The basic factual matrix is a disagreement over air conditioning in late January is followed with what the applicant understandably saw as threats and intimidation in February associated with a historical criminal record that had already been dealt with but took more than a month to resolve in late March and then ongoing conflict April through May until the applicant went off work in June”.
[54] Applicant’s submissions dated 24 June 2022 at page 10.
Viewed in isolation, the direction concerning petty cash and the comment concerning administration work might be regarded by a reasonable person as trivial matters. The difficulty for the respondent is, however, that this was not an isolated event and adds to events which have already occurred so that in the totality even if the applicant responded unreasonably, the applicant developed a perception that he was being targeted by the respondent.

The 6 May 2019 event

This event is the subject of a supervision summary of the same date completed it would seem by the applicant’s supervisor, Ms Van Deusen. It includes allegations that the applicant took over at an appointment,[55] put a patient at risk by not using her walking apparatus and strapping the patient into her wheelchair.[56] Additionally, the applicant was counselled for not putting a patient’s alarm on, organising other people’s folders and initiating paperwork in other workers’ folders.[57] Additionally, there was no need to buy easter eggs for patients and doing an online shop order for $683 and excessive salted butter and lasagnas and margarine. Several of these allegations were alleged to be contrary to the Code of Conduct, a code which the respondent generally refers to in its supervision form but does not specifically cite.
[55] Reply at page 6.
[56] Reply at page 6.
[57] Reply at page 6.
This event in my view, added to events which had earlier occurred as set out above, compounded the applicant’s perception that he was facing a hostile environment, consistent with the principles in K.

The 9 May 2019 event

This incident is recorded as having occurred when a patient was taken out for a birthday dinner.[58] Ms Van Deursen reported that although the patient had a fall and was startled but laughing and not indicating any pain,[59] the applicant created a spectacle by insisting that the patient had injured her ankle and the applicant allegedly exaggerated the situation.[60]
[58] Reply at page from page 23.
[59] Reply at page 15.
[60] Reply at page 14.
The applicant subsequently participated in completion of a supervision form but the generation of the email by the applicant’s supervisor on 14 May 2019[61] following a complaint by a fellow disability worker without first putting allegations to the applicant does suggest that the applicant’s supervisor had pre-judged the matter without first seeking the applicant’s response to the allegations.
[61] Reply at page 14.

The 6 June 2019 event

A meeting occurred on 6 June 2019 between the applicant, Ms Van Deursen and Mr John Potter.[62] This “work performance guidance session” concerned an alleged complaint by a patient and according to the applicant’s supervisor[63] resulted in the applicant being told to adopt “a softer approach” to patients and consider whether he would be “moving to another house”. Again, this event was capable of upsetting the applicant given his “egg-shell skull” and events which have already occurred and are set out above.
[62] Reply at page 187.
[63] Reply at page 187 at [37].
The applicant says in relation to this meeting:[64]
“54. I was not advised that the meeting on 6 June 2019 was a disciplinary meeting. I had only been advised that it was supervision session. The word ‘meeting’ was never used. The documents and supervision form layout also reflect his.
55.    Anxious about the contents of the supervision session, I requested that Angelic Van Deursen, the team leader/ supervisor, provide me with an agenda of the meeting via email on 6 June 2019. Angelic did not provide me with an agenda and told me that it was just a supervision meeting in relation to a client expressing some concerns from when I was on a shift. In this email, Angelic advised me that it was not a formal grievance and I did not need a support person at the supervision session.
56.    When I received the notification of the supervision session, I was confused that senior management, John Potter, was sitting in on the supervision session as I had been informed that it was not a formal grievance but rather a supervision session.
57.    Following the conclusion of the supervision session, I was never issued the outcome in writing or received a Disciplinary Action Plan, per the Performance Improvement and Disciplinary Police [sic – Policy] Guideline. I was also not provided with sufficient time, being two days, to prepare for this discussion, which is also stated in the Policy Guideline”.
[64] Application at page 6 at [54]-[57].
It would appear that the respondent had ample opportunity to address the applicant’s assertions set out above but has not produced any evidence as having done so. In those circumstances I accept the applicant’s evidence, which is in substance that he was somewhat ambushed by this meeting at which his job was in jeopardy and to which he reacted psychologically having regard to the importance of the meeting and his inability to properly prepare for it, as well as previous events set out above.

The 8 June 2019 event

The next incident occurred just two days later. The applicant had taken film of a customer and this was very distressing to either the customer and the customer’s relatives, or both. Ms Van Deursen made the point that no one had given permission to the applicant to record any film or sound and the applicant should not have done that.
This was of course an error on the part of the applicant and one which should have not been made, yet it is clear that there were several reasons by this time for the applicant to be concerned about his continued employment. Although as Ms Goodman of counsel submits the applicant’s behaviour was very erratic, this must in my view be considered in the context of his “egg-shell skull’ psyche and his perception of events which actually occurred.

The medical evidence

Dr Farrar, consultant psychiatrist

Dr Farrar in her report of 30 November 2018[65] noted that the applicant had multiple specialists involved in his care and was seeing Dr Kearney and Ms Dwyer. In 2018 the applicant had undergone five admissions to psychiatric institutes.[66] There was at that time no suggestion of any involvement of the applicant’s work in terms of his conditions. In her report of 14 June 201[67] Dr Farrar recorded that the applicant’s “work can be stressful and there had been recent incidents regarding care of disability clients, which have concerned BAW…”.[68] Dr Farrar’s opinion was that the applicant’s “symptoms and function have remained reasonably stable, although there have been recent stressors at work”.[69]
[65] Application at page 42.
[66] Application at page 42.
[67] Application at page 45.
[68] Application at page 45.
[69] Application at page 45.
These stressors are again identified in Dr Farrar’s report of 26 July 2019.[70] Dr Farrar expressed the opinion that the applicant’s various disorders “have been exacerbated by workplace stressors and Work Cover”.[71] They continued to be emphasised in Dr Farrar’s next reports of 3 September 2019 and 15 October 2019[72] and Dr Farrar provided Work Cover certificates for October to November 2019.
[70] Application at page 47.
[71] Application at page 47.
[72] Application at pages 50-51.
On 11 February 2020 Dr Farrar reported an opinion consistent with her earlier diagnosis of workplace exacerbation. This diagnosis was continued by reports of 7 April 2020,[73] 8 May 2020,[74] 30 June 2020[75] and 28 July 2020.[76]
[73] Application at page 57.
[74] Application at page 58.
[75] Application at page 59
[76] Application at page 60.
Dr Farrar continued to review the applicant and has provided further reports of 25 August 2020,[77] 22 September 2020,[78] 25 September 2020,[79] 20 October 2020,[80] 17 November 2020[81] and several further reports all pointing out that in her opinion the applicant’s psychological disorders were exacerbated by workplace stressors. Significantly, these reports were all within the period of weekly compensation claimed and by and large continue to certify that the applicant is unfit for work.
[77] Application at page 61.
[78] Application at page 62.
[79] Application at page 63.
[80] Application at page 64.
[81] Application at page 65.
Dr Farrar has consulted with the applicant on many occasions and as treating psychiatrist is in my view best placed to express an opinion concerning the involvement of the applicant’s work in exacerbating his conditions and his capacity for work.
In terms of diagnosis, this is clarified in Dr Farrar’s report dated 29 July 2021[82] where Dr Farrar says:
“In my opinion, BAW has suffered with a combination of depression (depressed mode, suicidal ideation) and anxiety-related symptoms (anxiety, panic, sleep disturbance, vivid dreams, hypervigilance, paranoid ideation, avoidance, dissociation) developing after exposure to multiple and specific work-related stressors”.[83]
[82] Application at page 31.
[83] Application at page 31.
Dr Farrar goes on to express the opinion that the applicant’s employment with the respondent was “the main contributing factor to his psychological injury, as his symptoms occurred in conjunction with and following his workplace stressors”.
Dr Farrar’s opinion is clearly supportive of the applicant with the only reservation being that the applicant had returned to work between 23 March 2019 and 18 June 2019.[84]
[84] Application at page 26.
Dr Chow, psychiatrist, examined the applicant and provided a report dated 12 August 2021. The respondent has submitted[85] that Dr Chow “was unaware of the extensive nature of the applicant’s pre-existing psychological condition”. Dr Chow was however equipped with the following historical matters:
(a) 8 reports of Dr Farrar;[86]
(b) the report of Dr Synnott (dated 17 July 2019)[87] and the history in Dr Synott’s report[88] that the applicant had consulted many psychiatrists and five psychologists in his past psychiatric history,
so the respondent’s submissions that Dr Chow was not at all aware of the “extensive nature” of the applicant’s pre-existing psychological condition is technically true but in my view overlooks the fact that Dr Chow had access to information relevant to the magnitude of that past history.
[85] Respondent’s submissions in reply dated 11 July 2022 at page 4 at [22].
[86] Application at page 35.
[87] Application at page 35.
[88] Reply at page 163.
I do not accept the proposition that Dr Chow’s opinion should be given “no weight”.[89] Because Dr Chow had Dr Farrar’s report (or at least eight of them) the past medical and psychiatric history is outlined in the report of Dr Farrar of 30 November 2018 which is the first report identified by Dr Chow as having been in his possession.[90]
[89] Respondent’s submissions in reply at page 4 at [24].
[90] Application at page 35.
Dr Chow comes to the view that the applicant presents with major depressive disorder[91] “as a result of workplace difficulties”.[92] Dr Chow’s opinion is that “the workplace difficulties have aggravated BAW’s underlying psychiatric condition”[93] and that his employment with the respondent “is the main contributing factor to” the aggravation (etc) of that pre-existing condition.[94] As at 28 July 2021 Dr Chow was of the view that the applicant was totally unfit for work.[95]
[91] Application at page 39.
[92] Application at page 39.
[93] Application at page 40.
[94] Application at page 40.
[95] Application at page 41.

Dr Hughes, psychiatrist

Dr Hughes in his report of 14 September 2017 identifies the applicant’s long history of mental health issues.[96] There are a series of reports from Dr Hughes which have earlier been mentioned leading up to the applicant’s gender reassignment.[97]
[96] AALD2 lodged 1 April 2022 at page 1.
[97] AALD2 at pages 1 – 17.

Ms Amanda Brown, psychologist

Ms Brown assisted the applicant with dialectical behaviour therapy in the context of his past emotional issues.

Professor Saunders, physician

Professor Saunders was involved in the treatment of the applicant’s cannabis and opioid addictions in late 2018.[98]
[98] AALD2 at page 58.

Dr Synnott, psychiatrist

Dr Synnott has provided three reports at the request of the respondent and its solicitors. In his first report of 17 July 2019[99] after obtaining a history from the applicant he expressed his opinion that the applicant:
“…in relation to the claimed workplace difficulties that started in January 2019, he describes experiencing sufficient psychological symptoms to meet the diagnostic criteria of an Adjustment Disorder with anxiety and depressed mood; it was likely superimposed on a raft pre-existing psychiatric difficulties and a significant psychological vulnerability – the exact nature of which is unclear…”.[100]
[99] Reply at page 159.
[100] Reply at page 166.
Dr Synnott provided a supplementary report dated 5 August 2019.[101] In that report he confirmed his prior diagnosis but was unable to determine the extent to which the applicant’s meeting regarding work performance contributed or impacted on his psychiatric state.[102]
[101] Reply at page 228.
[102] Reply at page 228.

Dr Synnott provided a further supplementary report dated 11 April 2022.[103] This further report refers to the fact that at the initial independent medical examination on 15 July 2019 the applicant did not wish to discuss his past medical, psychiatric and personal history. Dr Synnott did have some material and history at that time. Nevertheless, Dr Synnott comes to a view about the applicant’s psychiatric difficulties and says that they give reason “to question the credibility and veracity of BAW’s history”[104] and in view of further information including the reports of Professor Saunders and Dr Kearney as well as Dr Hughes’ comments suggests that these reports question the applicant’s “behavour and motivations” in his dealings with medical practitioners.[105]
[103] AALD3 at page 42.
[104] AALD3 at page 44.
[105] AALD3 at page 48.
The overall conclusion adopted by Dr Synnott is that he believes there is “reason for medical professionals to have no confidence in assigning a psychiatric diagnosis or diagnoses”.[106]
[106] AALD3 at page 54.
That opinion comes from an independent medical examiner who has examined the applicant on one occasion and changes his opinion after seeing earlier material which claims to question the applicant’s truthfulness.

Discussion: medical evidence

The applicant has support from Dr Farrar who was for the relevant period his treating psychiatrist. Additionally, Dr Farrar and perhaps to a lesser extent Dr Chow have details of the applicant’s psychiatric history which information was contemporaneously available to them when treating the applicant and providing independent medical opinion respectively. Dr Synnott on the other hand appears to be surprised by the applicant’s background history and expresses this concern in his second supplementary report. This would appear to be so notwithstanding that at the time of Dr Synnott’s first examination of the applicant he had a factual report in his possession including a statement of the applicant referring to his previously criminal charges and court action and a number of his mental disorders which were “exacerbated by” workplace stressors against a history of attention deficit disorder, bipolar disorder and gender identify disorder.[107]
[107] Applicant’s statement of 4 July 2019 at Reply at page 61 at [22]-[24].
The changing of Dr Synnott’s opinion must in my view be examined in the context of his having been equipped with information relevant to the applicant’s prior psychological disorders when he first saw the applicant in July 2019. His earlier diagnosis directed little scrutiny towards that prior history except to mention that the applicant did not wish to discuss it.
In the circumstances I prefer the opinion of Dr Farrar that the applicant’s employment with the respondent exacerbated his prior psychological conditions resulting in total unfitness for work (except for a short period of employment) during the period claimed.

Section 11A

The respondent seeks to raise a defence pursuant to s 11A of the 1987 Act. Section 11A (1) is in the following terms:
“11A (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”.
The respondent has asserted[108] that the various supervisions in events of 19 February 2019, 11 April 2019 and 6 June 2019, constitute “discipline” in accordance with Kushwaha.[109] I have no hesitation in accepting that those three events constituted “discipline”, but there are several other difficulties I think for the respondent in establishing a s 11A defence.
[108] Respondent’s submission in reply dated 11 July 2022 at [26]-[28].
[109] Kushwaha v Queanbeyan City Council [2002] NSWCC 25 at [154].
First, the initial work event which triggered a perception by the applicant that he was being treated unfairly was the “air conditioning” event. This event in my view was neither performance appraisal nor discipline but arose out of a simple request by the supervisor concerning the air conditioning unit. Second, the first 19 February 2019 event, whilst identified by the respondent in submissions, amounts to simply a reprimand by the respondent to the applicant. Whilst it adds to the multifactorial nature of events, it does not appear to trouble the applicant in any significant way.
Third, the “National Criminal History check” event, whilst it might be generally referred to as “supervision”, was of some significance because it potentially jeopardised the applicant’s employment and was of a serious nature. The respondent called the applicant to a meeting about this serious matter, but the matter does not in my view constitute discipline, but rather was a stated allegation seeking explanation in circumstances where the respondent should have done its homework before levelling such a serious allegation. To the extent that this event was, however, “discipline” I am clearly of the view that it was not “reasonable action”.
Third, the event of 11 April 2019 may well have been discipline and might have been reasonable action, but there is no evidence offered by the respondent that this event was such that the applicant’s psychological condition was “wholly or predominately” caused by it.
Four, the 6 May 2019 event may also be a contributing factor, but again there is no medical evidence at least that the applicant’s psychological condition was wholly or predominately caused by it. The 9 May 2019 incident does not appear to be relied upon by the respondent but it must be remembered that an email was generated by the applicant’s supervisor on 14 May 2019, without first putting allegations to the applicant, suggesting that in any event this was not reasonable action.
Five, for reasons earlier mentioned, the meeting of 6 June 2019, whilst it may constitute discipline, was never pre-warned to the applicant to that effect. Additionally, for the several reasons earlier mentioned including that the applicant was somewhat ambushed in this meeting, it was hardly reasonable action.
Six, the 8 June 2019 event constitutes error on the applicant’s part and was reasonable action on the part of the respondent, but again there is no evidence of a medical nature to suggest that it was this event in respect of which the applicant’s psychological condition was wholly or predominately caused.
Both parties in their submissions made reference to Hamad[110] and it is important to record the effect of that decision as set out by Deputy President Snell:
“There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in section 11A (1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the applicant’s statement and the medical histories. Proof of which of those factors, which potentially provide a defence under section 11A (1) were the whole or predominate cause of the psychological injury, required medical evidence on that issue. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience”.
[110] Hamad v Q Catering Limited [2017] NSWWCCPD 6.
The respondent does not adduce any evidence that the identified reasonable disciplinary matters were the cause of the applicant’s psychological injury. Furthermore, there is no medical evidence sufficient for this Commission to find that the applicant’s injury was wholly or predominately caused by the respondent’s reasonable actions.
In those circumstances, the respondent’s s 11A defence fails.

Capacity

Dr Farrar in her report dated 29 July 2021[111] confirms that she certified the applicant as having no capacity for employment from 19 June 2019 to 29 July 2021. Dr Chow saw the applicant by Telehealth on 28 July 2021 and provides a report of 12 August 2021.[112] At that time Dr Chow regarded the applicant as “totally unfit for work” with the applicant’s prognosis “likely to remain ongoing”.[113]
[111] Application at page 25 at page 26.
[112] Application at page 34.
[113] Application at page 39.
Dr Farrar saw the applicant on 16 November 2021 (the day before the expiration of his weekly payments entitlements) and certified the applicant with no recurrent work capacity through to 18 December 2021. Although Dr Synott on examination of the applicant on 15 July 2019 regarded the applicant at that time capable of working at an alternative workplace,[114] the respondent does not point to any evidence to support the view that the applicant has capacity for work during the period claimed.
[114] Application at page 165.

FINDINGS AND ORDERS

The applicant in the course of his employment with the respondent between 27 January 2019 and 19 June 2019 suffered psychological injury in the nature of exacerbation of a disease condition in accordance with s 4(b)(ii) of the 1987 Act.
The applicant’s employment was the main contributing factor to the exacerbation of his disease condition.
The respondent’s defence under s 11A of the 1987 Act fails.
The applicant had no capacity for work between 12 September 2019 and 17 November 2021.
The applicant’s pre-injury average weekly earnings have been agreed at $774.06.
Pursuant to s 37 of the 1987 Act 80% of the applicant’s pre-injury average weekly earnings is the sum of $619.25 per week.
Award in favour of the applicant in the sum of $619.25 per week pursuant to s 37 of the 1987 Act for the period 12 September 2019 to 17 November 2021.
General award in favour of the applicant with respect to s 60 expenses.

[2022] NSWPIC 539

10 August 2022