BDX v Qantas Airways Ltd
[2023] NSWPIC 217
•12 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | BDX v Qantas Airways Ltd [2023] NSWPIC 217 |
| APPLICANT: | BDX |
| RESPONDENT: | Qantas Airways Limited |
| Member: | Gaius Whiffin |
| DATE OF DECISION: | 12 May 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for entitlement pursuant to section 66; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of the reliability of evidence, including the weight to be given to unsigned statements and whether medical reports prepared in a fair climate; Belmon v Custom Carpets Pty Limited, Onesteel Reinforcing Limited v Sutton, Paric v John Holland (Constructions) Pty Limited (NSWLR), Paric v John Holland (Constructions) (HCA) and ACW v ACX considered; consideration of whether the applicant sustained a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with section, as a result of adverse interactions, bullying, intimidation, isolation, assaults, and threats received arising out of or in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of, that disease; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K and AV v AW considered; Held – the applicant, as a result of workplace incidents to which he was subjected, sustained a psychological injury (being the contraction of a disease) in accordance with section 4(b)(i), in relation to which his employment with the respondent was the main contributing factor; dispute remitted to the President of the Personal Injury Commission for Medical Assessment referral in relation to the degree of the applicant’s whole person impairment. |
| determinations made: | |
The Commission determines:
The applicant, as a result of workplace incidents to which he was subjected, sustained a psychological injury (being the contraction of a disease) in accordance with s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), in relation to which his employment with the respondent was the main contributing factor. The injury will be deemed to have occurred on 1 September 2021, for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act (that being the date agreed upon between the parties).
The Commission orders:
I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as follows:
(a) date of injury: 1 September 2021 (deemed for the purpose of the claim pursuant to s 66 of the 1987 Act);
(b) body systems/parts: psychiatric and psychological disorders; and
(c) method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(d) the Application to Resolve a Dispute and attached documents;
(e) the respondent’s Reply and attached documents;
(f) pages 19-20 only of the applicant’s Application to Admit Late Documents dated 20 January 2023 (noted and amended in accordance with paragraph 14(a) of the attached reasons);
(g) the applicant’s Application to Admit Late Documents dated 31 January 2023 and attached documents; and
(h) the respondent’s Application to Admit Late Documents dated 21 April 2023 and attached documents.
Following the completion of the Medical Assessment process, the matter is to be re-listed before me for a preliminary conference to deal with any unresolved disputes.
STATEMENT OF REASONS
BACKGROUND
BDX (the applicant) is 49-years-old and commenced employment on 22 December 2004 with Qantas Airways Limited (the respondent). He mainly worked for it in its ramp services section, in a supervisory role from 2009.
The applicant alleges that he sustained a psychological injury due to events which occurred during the course of his employment with the respondent. He also alleges that due to this injury, he has been incapacitated for employment since at least 28 September 2020, which seems to be the date when he first claimed compensation from the respondent for the injury, and which the parties agree is the deemed date of his injury in accordance with ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act).
By way of a letter dated 1 September 2021, the applicant made a formal claim upon the respondent for compensation pursuant to s 66 of the 1987 Act. The claim letter alleged that his whole person impairment was 22% as a result of his psychological injury. The claim letter served medical evidence from Dr Rastogi in this regard.
On 6 May 2022 and on 9 May 2022, the respondent issued notices denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim, disputing that the applicant had sustained a psychological injury pursuant to s 4 of the 1987 Act, and therefore also disputing that he was entitled to any compensation whatsoever regarding such an injury.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims compensation pursuant to s 66 of the 1987 Act with regard to his alleged psychological injury.
The ARD also claims ongoing weekly compensation from 29 June 2022 due to the applicant’s incapacity for work as a result of not only his alleged psychological injury, but also an injury to his back which he sustained on 6 April 2019 during the course of his employment with the respondent.
When the ARD was listed before the Commission for a preliminary conference on 18 November 2022 however, the applicant conceded that he was still receiving weekly compensation in relation to his 6 April 2019 back injury.
ISSUE FOR DETERMINATION
The parties therefore agree that the issue in dispute is as follows:
(a) did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with s 4 of the 1987 Act, as a result of adverse interactions, bullying, intimidation, isolation, assaults, and threats received arising out of or in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease.
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 dispute was listed for conciliation/arbitration before the Commission on 30 January 2023. On that occasion, Mr Craig Tanner of counsel appeared for the applicant, instructed by Mr Santone. The applicant was present. Mr Andrew Combe of counsel appeared for the respondent, instructed by Mr Ainsworth, and Ms Carton was also present representing the interests of the respondent as a self insurer.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The issue to be determined (see paragraph 8 above) was agreed upon, and it was also agreed that if I determined that issue in favour of the applicant, the dispute (in relation to the applicant’s entitlement pursuant to s 66 of the 1987 Act) would be referred to Medical Assessment with a deemed date of injury of 1 September 2021 (the date of the letter making the claim for that entitlement) to be noted, and with the body system to be assessed noted to be psychiatric and psychological disorders. It was further agreed that all documents in evidence before me would be referred to the Medical Assessor.
If I determined the issue for determination in favour of the respondent, it was agreed that I would enter an award for the respondent in relation to both the applicant’s claim pursuant to s 66 of the 1987 Act, and the applicant’s claim for weekly compensation with respect to his alleged psychological injury.
If I determined the issue for determination in favour of the applicant, the dispute would then need to be referred back to me for a preliminary conference following the completion of the Medical Assessment process, in order to deal with any unresolved claims. In this regard, it was not clear to me as to the extent of the applicant’s claim for weekly compensation in the ARD, considering the ongoing weekly compensation that he was receiving from the respondent in relation to his 6 April 2019 back injury. There was also inconsistency between the ARD (which claimed weekly compensation from 29 June 2022) and a wages schedule lodged by the applicant on 7 December 2022 (which claimed weekly compensation from 6 December 2019). In circumstances where it may be necessary to consider s 38 of the 1987 Act in order to determine any weekly compensation payable to the applicant, it seemed to me to be preferable for his whole person impairment to be determined through the Medical Assessment process first, in order to see whether s 38(3A) would be applicable to him.
Certain preliminary matters then needed attending to before the arbitration hearing could commence:
(a) the applicant had lodged an application to admit late documents dated 20 January 2023 – he did not seek to rely upon all those documents in his evidence but only pages 19-20 – the respondent consented to the admission of those pages but asked that I note that they were records of the respondent’s which the applicant had amended with commentaries and arrows directing those commentaries to certain records – I was satisfied as to the correctness of the respondent’s assertions in this regard and admitted the pages into evidence on that basis – further pursuant to the agreement of the parties, I amended the final commentary on page 20 from “Cells forged to change 46324 to 28248, add online and add Harassment training” to “Cells changed 46324 to 28248, add online and add Harassment training”;
(b) the respondent had lodged an Application to Admit Late Documents dated 25 January 2023, but did not seek to rely upon those documents in its evidence;
(c) the applicant sought leave to tender in his evidence a two-page extract from his passport, and the respondent consented in this regard – I was provided with a copy of the extract and I ordered that the applicant lodge an application to admit late documents within seven days, attaching the extract – the applicant has since attended to this lodgement and the resulting application to admit late documents dated 31 January 2023 will therefore be admitted into evidence, and
(d) the respondent sought leave to cross-examine the applicant – the applicant did not make any submissions against this application as long as the cross-examination was limited to the issues that the respondent had raised in the schedule which it had lodged with the Commission on 15 December 2022 – I granted the respondent leave on the basis that the cross-examination would be limited to those issues – I considered that the cross-examination would assist me in determining the issue in dispute (see paragraph 8 above) and was therefore in the interests of justice – it would assist in the just, quick, and cost-effective resolution of the dispute and did not represent a significant degree of formality, in accordance with the objects of the Personal Injury Commission Act 2020.
The applicant therefore gave limited oral evidence on 30 January 2023. Following the completion of that evidence, there was insufficient time left from the time allocated for the conciliation/arbitration for both parties to provide their submissions to me. I therefore ordered a timetable for the provision of written submissions, and I thank the parties for their assistance in providing submissions in accordance with the timetable. I will refer to the submissions later in these reasons.
EVIDENCE
Documentary evidence
The following documents were therefore in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Reply (Reply) and attached documents;
(c) pages 19-20 only of the applicant’s Application to Admit Late Documents (applicant’s first AALD) dated 20 January 2023 (noted and amended in accordance with paragraph 14(a) above);
(d) the applicant’s Application to Admit Late Documents (applicant’s second AALD) dated 31 January 2023 and attached documents, and
(e) the respondent’s Application to Admit Late Documents (respondent’s AALD) dated 21 April 2023 and attached documents – I refer to paragraphs 79-81 below with respect to the admission of this application.
Applicant’s documentary evidence
The applicant relies on a statement of his that he signed (at page 1 of the ARD) on 15 July 2022.
He commenced working with the respondent on 22 December 2004. He initially worked as a cleaner, and then in ramp services. He obtained a supervisory role as a coordinator in ramp services, in 2009.
He says that prior to his employment with the respondent, he can only recall drinking alcohol twice in his life.
He outlines a large number of incidents which occurred during the course of his employment with the respondent, and he says that each incident caused him “significant stress and anxiety”. He kept a diary of the incidents.
The first incident occurred in 2007 when BFS assaulted him by grabbing him by his throat. He reported that incident to BGP. He says that he was then repeatedly verbally threatened by CJK.
He says that soon after his promotion in 2009, a printout was distributed throughout the respondent’s meal rooms and on its vehicles at Bay 24. The printout “referred to me as a dog, corrupt and as just a part time cleaner. It asked the question, ‘how do you go from a cleaner to a level 8 coordinator?’”.
He says that also in 2009:
(a) his name was written on the exit door from the respondent’s car park and on the “wall coming down the stairs” – he says the context in this regard was “something like” referring to him as a grub;
(b) BHN told him that “everyone here hates you”;
(c) BIW abused him and called him a “f…ing joke” – he sent an email to his manager (BJO) complaining about this abuse, and was later informed by BKQ that BJO had referred to the email as “like war and peace”;
(d) BLG told him that “you’re a cleaner, you could never tell me what to do as I don’t tell you how many pillows go on a plane”;
(e) BKQ yelled at him “you are doing deals behind peoples back, you are a grub”, and
(f) the back of a toilet door at the respondent’s premises was covered with a mural of him, showing his name and that he had big eyebrows.
He then says that in 2011:
(a) his name was written on ground service equipment on 9 March, and
(b) “BDX up c..t” and “scabs” was written in the respondent’s baggage room on 29 September.
He then says that in 2012:
(a) BME told him to “go f..k myself” on 12 February, and
(b) BND, while referring to him, said “all the Deltas are a lazy bunch of c..ts” on 25 April.
He then says that in 2013:
(a) around June, his manager (BOF) allowed BLG to listen to his confidential audit report upon BLG;
(b) BND asked him to “come outside to sort it out”, and also called him a “faggot” on numerous occasions;
(c) around June, BPH told him that “if I unload a plane like I did the other day he would punch me in the face”;
(d) BQI abused him;
(e) a newspaper picture of a man in a bikini was left on his desk on 12 June;
(f) he was assaulted by BZR on 23 July – he was later told by BRJ that “if I had put my hands-on BZR then my feet would not have touched the ground before I was marched out of the gate”;
(g) after he reported the assault by BZR, he was asked by BVI to withdraw the allegations, and he heard that BLG was making allegations that he was a bully – he was not told of any action taken against BZR following his report;
(h) he found graffiti about him in the respondent’s toilets on 11 August;
(i) he was sworn at by BPH on 9 September;
(j) BPH “was aggressive and threatening to me” on 14 September;
(k) CSU abused him in October;
(l) BSC drove towards him aggressively on 29 October – he had also done that twice before;
(m) BQI abused him on 2 December;
(n) he was told that during a staff boat trip around December, he “was the talking point a few times”, and BTB was “vocal in his hatred for me”, and
(o) he was informed on 23 December that BLG did not want him to “check his flights”.
He then says that in 2014:
(a) BZR “eyeballed me driving past” on 12 January – BUA witnessed this and said “gee that guy doesn’t like you”;
(b) he was told on 3 October that BKQ had referred to him as a manager’s “bum boy”;
(c) later on, BKQ called him “bum boy” in front of CTV, and
(d) it was often said in the office that he had “an ashtray on his hat for CTV to ash in”.
He then says that in 2015, CLM called him a “f..ken dog”.
He then says that in 2016:
(a) he was told on 31 May by CMN when applying for a new role to “tread very carefully” as “the process of you getting the job is very political and has caused a lot of issues”;
(b) he needed to leave the room when BVI entered it making insulting comments;
(c) BVI loudly accused him of only eating with managers;
(d) BVI told him that no one liked him on 10 July 2016 – BVI then followed him to his office making “hand signals no one likes me here”;
(e) BWK abused him with screaming and swear words on 5 August;
(f) BXL yelled to him “this is your f…ing job not mine”, and
(g) he noticed the respondent’s iPads had his picture on them on 30 August, “some as if I am getting cuddled by a man”.
He then says that in 2017:
(a) in approximately April, BYM told him to “get over it” when he complained about how his report of BZR’s assault against him was handled by the respondent;
(b) a picture of him asleep was circulated by a number of SMS messages on 23 April;
(c) CAA sent an SMS message on 21 June 2017 referring to him as a “fucking grub”;
(d) CBB spoke to him aggressively on 15 July;
(e) deliveries to his office were not accepted by other members of his team on 17 July, and
(f) on 22 October, someone wrote the word “grub” next to his name in the respondent’s overtime book.
He then says that in 2018:
(a) his attempts on 23 March to invite an indigenous representative to come to his workplace to present a session on cultural sensitivity, proved fruitless;
(b) a box in his office had a penis drawn inside it on 24 March;
(c) his complaints to Liv Bakarich about the abuse being directed towards him were ignored by her on 29 March;
(d) his complaints to CDE about the abuse being directed towards him were ignored by her on 30 March;
(e) CEF made insulting remarks about his wife on 12 May;
(f) on 27 May, he found a razor blade left on his office keyboard;
(g) on 11 September, CFG was aggressive towards him and called him on multiple occasions a “f..king dog”;
(h) he received SMS messages from CFG while he was at home on 21 September, and
(i) “BDX idiot” was written on the back of his office door on 28 November.
He then says that in 2019:
(a) the words “grubs” and “BDX” were written on the back of his office door on 7 January;
(b) he was then required to remove the words from the office door himself;
(c) he was frustrated by the lack of management response to the words that were written on the office door;
(d) CBB aggressively said “I don’t give a f..k” to him on 12 January – in the weeks previous to this, CBB had yelled at him on many occasions and also walked menacingly towards him;
(e) he made a diary note on 21 January about his “dread” in being rostered to work with CBB – he records that he had no confidence in management providing him with any protection in this regard;
(f) on 29 January, CGH looked at him and said in front of others “I want to get ahead in this place and not give people up”;
(g) CFG said to him “the f..ken BDX gate” when he told CFG that certain paperwork was not ready on 31 January – CFG made further comments about there being a BDX door gate, on 9 March, on 11 March, and on 16 March;
(h) BTB “singled” him out on 11 March, questioning his certification to move tugs;
(i) he was unable to access a computer programme on 25 March 2019 and was not provided with assistance from CHI or CAA;
(j) CAA left the “telex” broken on 27 March 2019 for four hours prior to his shift commencing;
(k) he had to do extra work on 27 March as CBB had left work without doing it, and
(l) on 25 November, CIJ questioned him about certification of his expiring, and said “is that your attitude is it”, even though the certification had expired as he had been unable to do the necessary training as he had been off work with an injured back.
He then says that in 2020:
(a) he was singled out by CKL on 3 February for “taking it easy” while he was resting his injured back, and
(b) on 11 March, he was “made fun of the rest of the day about eating cup noodles”.
He says that he injured his back working for the respondent on 6 April 2019, but by June 2020, he was back working for the respondent three to four days per week. He continued however to receive ongoing bullying and harassment, and therefore sought medical attention (including a referral to a psychologist, Fernando Gomez) in June 2020. He then reported the bullying and harassment to the respondent in September 2020 (mistakenly referred to as September 2022 in his statement).
He had around 8-10 sessions with Fernando Gomez, as well as a session with another psychologist (Mathew Stanton) on 12 May 2022. He stopped seeing Fernando Gomez after being laughed at. He has since therefore only had ongoing counselling with his general practitioners, Dr Lee and Dr Toomey. He had not taken psychological medication as he avoided medication after having a bad reaction to Champix in the past.
The applicant then explains how his marriage and family life has broken down due to his psychological injury. He separated from his wife in 2020 as he was “no longer acting as I should and at times I would certainly agree that I would be acting in a destructive matter”. He now lacks contact with his family – when he tried to return home for his children’s birthdays, he was only able to stay for one hour “and then had to leave because I was having a panic attack”. The lack of contact with his family makes him feel very lonely.
He confessed to his wife that since 2007, when he had travelled on a number of occasions to the Philippines, he had extramarital affairs and fathered a child. He was not proud of these actions but considered his travel to the Philippines as a relief from his work stressors – he says:
“All I could think about was how good it would be to get away from work and going to the Philippines was my escape from what was happening at work”.
He says that his depression and associated alcohol consumption became unbearable for his wife to tolerate and for his children to witness. He drinks alcohol heavily every day, often consuming a bottle of vodka in one night. He believes that his drinking of alcohol began to increase from 2007.
He now plans his days around his drinking habits. His alcohol consumption affects his sleeping patterns, and he often wakes with bad dreams in relation to the work events that occurred.
He lists his other symptoms from his psychological injury as:
(a) smoking excessively;
(b) bad eating habits;
(c) anger and frustration – often while shopping;
(d) being loud, confrontational, and intimidating;
(e) being reminded of the work events which occurred when he hears aircraft;
(f) irregularly showering;
(g) feeling “worthless and depressed and without a purpose”;
(h) suicidal thoughts;
(i) exhaustion;
(j) avoiding social interactions;
(k) hypervigilance, and
(l) concentration issues – “my mind wanders easily to ruminate about incidents at work”.
Since leaving his family home, he has been sleeping in tents, in parks, or in his car.
He summarises:
“Most days I feel dead inside and gain no pleasure from life. I cry very often and feel a sense of hopelessness, dread, remorse, regret and fear”.
The ARD contains 11 pages of photographs after the applicant’s statement (pages 17-27). Some, if not all, of these photographs relate to incidents referred to in the statement, but unfortunately, the photographs are not referenced in any way and I have therefore had some difficulty in understanding their significance. It is apparent however that:
(a) there is photographic evidence of the graffiti referred to at paragraphs 24(a) and 24(b) above;
(b) there is photographic evidence of the newspaper picture referred to at paragraph 26(e) above;
(c) there is photographic evidence of the iPad pictures referred to at paragraph 29(g) above;
(d) there is photographic evidence of the roster alteration referred to at paragraph 30(f) above, and
(e) there is photographic evidence referring to the applicant as a “grub” and as a “roadblock”.
As noted at paragraph 14(a) above, the applicant also relies upon two pages of records from the respondent (pages 19-20 of the applicant’s first AALD) in relation to the training courses undertaken by him. The applicant has placed commentaries and arrows on those records and it is clear that he is alleging that at least some of the records are incorrect or have been adjusted/changed. The relevance of the records as well as the applicant’s allegations in relation to them, is not particularly apparent from the records themselves and will be discussed further if dealt with in the parties’ submissions or the oral evidence of the applicant.
As noted at paragraph 14(c) above, the applicant further relies upon an extract from his passport (page 2 of the applicant’s second AALD). The extract contains stamps showing that he arrived in the Philippines on 9 May 2010, and departed from the Philippines on 15 May 2010. Again, the relevance of this extract is not particularly apparent and will be discussed further if dealt with in the parties’ submissions or the oral evidence of the applicant.
In relation to the medical evidence relied upon by the applicant, he consulted with Dr Rastogi on 25 May 2021. Following that consultation, she prepared a report dated 25 May 2021 (at page 46 of the ARD).
The doctor obtains a history that the applicant’s bullying commenced in 2009, and she notes:
“He was called names constantly and verbally abused and denigrated constantly. He was easy target and bullied by different workers and there was name calling, graffiti on walls directed towards him, personal belongings being deliberately damaged, moving and hiding things at work making job difficult and actively trying to undermine him. This was witnessed on many occasions during these encounters by staff members and management, but no action was taken. He had raised grievances on multiple occasions verbally and through emails, but they were dismissed. The management had witnessed graffiti on walls talking about him but again no cation was taken, and he had to scribble it out himself”.
As a result of the bullying, the doctor notes that the applicant began to drink alcohol heavily “as a coping mechanism”.
The doctor then takes a history of the assault on the applicant by BZR in 2013, and she further notes:
“He stated that from 2014 till 2016 there were constant threats and belligerent behaviours and verbal threats of assaults, and he had reported all these incidents, but it went to deaf ears always for years. This was everyday occurrence where he was verbally abused and called ‘dog’ and a ‘maggot’. He was denigrated, disrespected and there were times he had marled physiological arousal and would hide in toilet for his safety and what appears panic attack. He stated during meetings dealing with grievances he was told to be resilient by managers and stay calm and composed”.
The applicant became irritable, withdrawn, and frustrated. He felt unsafe work and continued to use alcohol. He realised that he was psychologically unwell in 2019 when (while he was off work because of a back injury) “it dawned on him about the protracted years of abuse he faced and threats and work being a very unsafe place”. He saw a general practitioner (Dr Lee) and was referred to a psychologist (Fernando Gomez).
The doctor then records the applicant’s current symptoms, including insomnia, nightmares, anger outbursts, irritability, panic attacks, shortness of breath, mood swings, frustration, ruminating, crying, shame, embarrassment, limited concentration, loss of confidence, low self-esteem, social anxiety, isolation, hypervigilance, alienation, despair, and hopelessness. He has significant trust issues with people and has become socially reclusive. He has strained relationships with his partner and children. He has a poor decision-making capacity and is “consumed with resentment and grief and losses he had to incur with protracted abuse finding it hard to cope with day-to-day stressors”.
The doctor takes no history of any psychological issues prior to the applicant’s employment with the respondent, and also takes no family history of psychological issues.
As part of the history that she takes, the doctor also notes:
“He has a three-year-old son form overseas relationship and lives overseas in Philippines. He stated that he flew away to Philippines as an escape from work and avoidance. During his trip overseas he was intoxicated and had relationship and had one son from that relationship and has continued to support him paying child support”.
The doctor then undertakes a mental state examination of the applicant, which largely confirms his symptoms as recorded by her previously in her report.
The doctor diagnoses the applicant with an alcohol abuse disorder and with a major depressive disorder with prominent anxiety. She explains:
“BDX was working for 20 years with no issues. He reported along standing history of being subjected to verbal abuse, intimidation, assaults, humiliation, and scape goating. He was not provided any support for his grievances and not provided a safe work environment. He was subjected to protracted abuse and had issues of trust. He stated since he had time off work for back injury in 2019, it dawned on him about the protracted years of abuse he faced and threats and work being a very unsafe place. He realized he was psychologically unwell.
He has been suffering from severe anxiety with depletion of his confidence culminating into depressive disorder with anxiety and avoidance traits associated with perceived alienation, humiliation and being ostracized, lack of support from the employer. His self-esteem is poor, and he has marked social avoidance with feelings of inadequacy and self-doubts due to culmination of negative events associated with constant dismissal.
He has been significantly emotionally scarred by protracted abuse and working in hostile, abrasive work environment over years causing impairments that impact his functioning socially and vocationally. He has poor emotional regulation, repressed anger and resentment with unresolved grievances that make his functioning challenging and hold a poor vocational prognosis”.
The doctor opines that the applicant’s employment with the respondent was “a substantial and main contributing factor for onset and exacerbation of his psychological condition”. The condition is stable with regular psychological intervention. The condition renders the applicant unfit to work in any capacity and it is not safe for him to return to work. She opines:
“He is vulnerable, easily triggered and has panic attacks that are debilitating. He has impaired social functioning and cognitively has poor decision making and difficulty with comprehension. His vocational prospects in future are poor in open market”.
The doctor then provides a further report dated 25 May 2021 (at page 55 of the ARD) in which she assesses the applicant’s whole person impairment at 22%.
The doctor is asked by the applicant’s solicitors to provide a supplementary report answering a number of specific questions, after reviewing reports obtained by the respondent from Dr George and Professor Mattick. That report is dated 23 June 2022 and is found at page 58 of the ARD.
In the report, Dr Rastogi confirms that her perusal of the reports from Dr George and Professor Mattick does not affect the opinions expressed in her previous report. She disagrees with the opinions in those reports regarding the causation of the applicant’s psychological condition, based upon her examination of the applicant and her reliance upon “treating team reports“. She specifically opines:
“I do not agree with causation and opinions based by Prof Mattick as there is history of multiple work incidents over a significant period of time that have contributed to his psychological injury rather that his obesity or no work factors “.
She also opines that his psychological condition has resulted in weight gain, his family breakdown, and “dangerous behaviours due to poor impulse control”.
She does not see the applicant’s lack of contemporaneous reports of his psychological condition to his treating doctors as affecting her opinion regarding the causation of the condition. She specifically notes that the applicant was fearful of losing his job and only realised that he was “psychologically unwell” when he had time off work for his back injury in 2019 and it “dawned on him about the protracted years of abuse he faced and threats and work being a very unsafe place”.
The doctor is also asked by the applicant’s solicitors to provide a further supplementary report answering a number of specific questions, after reviewing the applicant’s statement (presumably the statement attached to the ARD, having regard to the paragraph references in the report). The report is dated 29 July 2022 and is found at page 61 of the ARD.
In the report, the doctor finds (after reviewing the statement) that the applicant has been consistent with his description of his bullying and harassment since 2007. The statement recounts numerous incidents at work “progressively leading to anxiety and depression and coping with alcohol and risk-taking behaviours with impaired judgement”, and these incidents accord with the summary as to the onset of his psychological symptoms at work which she obtained when she consulted with him.
The applicant’s general practitioner, Dr Toomey, has also provided a medical-legal report (found at page 66 of the ARD). The report is undated, but is provided in answer to a letter from the applicant’s solicitors requesting the report dated 24 June 2022.
The doctor diagnoses the applicant with severe generalised anxiety, severe major depression, and post-traumatic stress disorder. He opines that the applicant’s employment is “the substantial contributing factor to his workplace injury”, and
“BDX’s severe psychological injuries have a direct relationship and arise from his employment. This is from work-place incidences, from being bullied, harassed, verbally threatened, and physically threatened”.
The doctor believes that the applicant’s workplace incidents were the “leading causes” of his weight gain, his hypertension, his alcohol addiction, his “dangerous and promiscuous behaviour”, and his family problems. He believes that he is unfit for work and requires ongoing treatment.
The doctor criticises Professor Mattick’s report, opining:
“Prof Mattick’s huge report did not clearly address the workplace events and its impact on BDX’s health, leading to his ill-health, weight gain, and domestic issues too. In fact, it is quite the opposite, blaming BDX for what happened at the work place!”.
Finally, the doctor also criticises Dr George’s report, opining:
“The report from Dr George is just an agreement with the report from Prof Mattick, and demonstrates no own opinion, and did not offer us any benefits”.
There is also a report found at page 69 of the ARD (addressed to Dr Toomey) from the applicant’s treating psychologist, Fernando Gomez, dated 28 September 2020.
The psychologist notes in relation to the applicant’s 2019 back injury that the applicant informed him that he was “managing his injury well”. However, the psychologist then takes a history from the applicant of “longstanding symptoms of anxiety and depression related to prolonged workplace harassment and bullying”.
The applicant explained to him that the harassment and bullying commenced in 2009, and involved name-calling, signs and graffiti, as well as an assault. There were frequent incidents and they were reported to management, but no action was taken regarding the incidents. At least “a dozen individuals” were involved in the bullying and harassment, and the applicant took detailed notes of the incidents as well as some photographs.
The psychologist takes a history of the applicant’s psychological symptoms as including avoiding social contact, shaking, sweating, ruminating, feeling unsafe, appetite loss, disturbed sleep, family neglect, increased alcohol intake, crying, and thoughts of self-harm. The applicant told him that “he felt ashamed of his situation and, to date, this shame had prevented him from discussing his experience”. He had only decided to talk about his mental health after watching an interview with Greg Inglis discussing mental illness.
The psychologist notes that the applicant became visibly distressed and tearful when discussing the incidents of bullying and harassment.
The psychologist then administers the Depression, Anxiety and Stress Scale (DASS 21) to the applicant and finds his responses to be within the extremely severe range.
The psychologist notes the applicant to have no previous history or family history of psychological problems, and he also notes that the applicant had no previous problems with alcohol.
Finally, the psychologist diagnoses the applicant with symptoms of mixed anxiety and depression, which the applicant associated with incidents of bullying and harassment since 2009 during the course of the applicant’s employment with the respondent. The applicant expressed an intention to him to make a workers compensation claim.
The ARD also contains:
(a) a medico-legal report from Dr Assem dated 12 March 2021 (at page 40) – this report deals with the applicant’s 6 April 2019 back injury in the course of his employment with the respondent, and its relevance to the dispute requiring determination by the Commission is not apparent to me, although I do note that the applicant informed the doctor that he had an ongoing claim for work-related stress due to his perception that he had been bullied by his colleagues at the respondent;
(b) certificates of capacity issued by Dr Toomey dated 6 October 2020, 12 October 2021, and 31 May 2022 (pages 999-1,007) – the certificates all opine that the applicant had no work capacity on the dates when they were issued, and they are consistent in their description of the applicant’s diagnosis as “severe anxiety, depression, bulling and harassment PTSD”, and in their description of how the diagnosis related to work as “work place harassment, bulling and abuse, with adverse reaction” - the certificates also all certify that there were no pre-existing factors relevant to the applicant’s condition, and
(c) extensive clinical notes regarding the applicant’s treatment with Pindari Physiotherapy (from page 72), Fernando Gomez (from page 81), Guardian Exercise Rehabilitation (from page 99), Sydney International Airport Medical Centre (from page 231), Dr Toomey (from page 488), Switch Physiotherapy (from page 940, and Dr Scholsem (from page 996) – I have considered the clinical notes and determined that a great deal of them relate to the applicant’s 6 April 2019 back injury or other matters irrelevant to the particular dispute requiring determination by the Commission – the notes will be discussed further if dealt with in the parties’ submissions or the oral evidence of the applicant.
Respondent’s documentary evidence
The Reply contains a statement from the applicant which he signed on 23 October 2020. It is apparent that when the applicant signed his statement on 15 July 2022 (discussed from paragraph 17 above), he used the statement that he signed on 23 October 2020 and updated and clarified aspects of it. I do not see any obvious inconsistencies between the statements, and I propose to rely upon the statement which was signed on 15 July 2022 unless parts of the statement that he signed on 23 October 2020 are dealt with in the parties’ submissions or the oral evidence of the applicant.
The Reply then contains the following documents that have not been signed or adopted by their authors:
(a) a ‘record of conversation’ between an investigator (Vicki Sandilands) and CNO;
(b) a statement of BZR;
(c) a statement of CRT;
(d) a statement of BYM, and
(e) a ‘performance item report’ of the respondent’s.
On 14 April 2023, I caused a direction to be issued by the Commission allowing the respondent to lodge signed copies of these documents prior to 21 April 2023. The signed documents would then be admitted into evidence if not objected to by the applicant prior to 26 April 2023. I noted in the direction:
“The Commission has noted that there are a considerable number of documents in the respondent’s reply (between pages 28 and 74) that are not signed or adopted. The documents include a record of conversation, statements, and a performance item report. The weight to be given to the documents is currently affected. The above orders are made in order to provide both parties with procedural fairness and in order to comply with the Commission’s guiding principle pursuant to s 42 of the Personal Injury Commission Act 2020.”
Pursuant to the direction, the respondent lodged an application to admit late documents dated 21 April 2023 (respondent’s AALD) in which CRT’s statement is signed, and in which the performance item report is verified by Byron Fleury (a regional workers compensation manager of the respondent’s). The applicant initially objected to the respondent’s AALD by correspondence dated 22 April 2023, but then withdrew the objection by an email to the Commission on 24 April 2023. The respondent’s AALD will therefore be admitted into evidence.
The statement of CRT which he signed on 21 April 2023 is found at page 1 of the respondent’s AALD. He commenced employment with the respondent in March 2018 and became its ramp manager 12 weeks later. BYM reported to him and the applicant reported to BYM. He makes the following general comments in relation to the applicant and his allegations:
“My impression of BDX is that he is pretty fragile. He came across as someone who was always confused and offended by things that any reasonable person would not be offended by. He did have a sense of entitlement and aspired to build his career with Qantas.”
“I think, fundamentally, a lot of what BDX is alleging in this claim is unreasonable or untrue. BDX’s claim has been potentially orchestrated to benefit himself at a point in time when he had been stood down due to the pandemic and would potentially be made redundant.”
“BDX listing 40 plus people in his claim of bullying and harassment speaks of the reality around the claim as it lends itself to exaggeration and mistruths about 40 plus people being involved in a mass conspiracy.”
He says that the applicant first reported a psychological injury to BYM on 9 October 2020. He says that BYM then recorded:
“’Spoke to BDX today, an Intelex was completed. BDX has alleged that he has been subject to constant bullying and harassment within the workplace. He has alleged that this has been occurring since 2009 in the form of abusive text messages, phone calls, graffiti, assault, intimidation and threatening behaviours. I have offered EAP and escalated. I will obtain a Statement from BDX and follow up with Case Management’.”
He says that the applicant was asked to write a statement, so that the respondent could investigate the applicant’s allegations, but he did not do so as he “had no interest in pursuing an investigation to determine wrongdoing but was only interested in receiving benefit from the claim rather than dealing with grievance and any behavioural issues that did exist”. BYM made telephone calls to the applicant chasing the statement on 2 November 2020, 9 November 2020, and 16 November 2020. BYM then instigated an investigation into the applicant’s allegations on 15 November 2020. COR was appointed to investigate, and she advised BYM that she had contacted the applicant on 21 December 2020 and offered to assist him with the grievance process, but the applicant had declined. BYM then last attempted unsuccessfully to telephone the applicant on 21 January 2021.
CRT then deals with the applicant’s allegation of not been trained in grievance policies and procedures. He refers to the allegation as “ridiculous” and claims that the applicant had a recurring requirement to undertake refresher courses on the respondent’s policies and procedures. He says:
“If BDX wasn’t happy with all his managers over the better part of 13 years—that by some freak chance, he didn’t get on with any of his managers since 2009—he could have gone directly to any of the HR professionals readily available to him and lodged a grievance directly with them….I think the bigger issue here has been that BDX refused to follow the grievance policies and procedures. I hesitate to use the word ‘whinger’ but BDX was always voicing a complaint about people in the workplace, but when he was asked to follow the procedures and give us the complaint in writing, he refused to do this.”
In relation to the applicant’s allegation of graffiti, CRT concedes that “BDX is a grub” was written on a toilet wall. He also concedes that CFG (whom the applicant accused of writing the graffiti) “was someone that we had trouble with from time to time”. He says that the use of graffiti in the workplace was common and that there was a “juvenile mentality that pervaded the workforce”. He believes however that the applicant’s reaction to the graffiti “was disproportionate to the seriousness of the act”.
CRT then deals with an allegation made by the applicant that CFG had sent the applicant an abusive text message complaining about a gate been put up in the ramp supervisor’s office (probably the incident referred to by the applicant at paragraph 32(g) above). He was not shown the message and he suspects that “this incident was the same as other incidents whereby BDX refused to provide the evidence of the text message and therefore it was not investigated”.
CRT says that he was aware of tension between the applicant and his fellow ramp supervisors. He in fact says that he had “never encountered so much tension within such a small workgroup”. He believes that the tension came from the applicant taking a lot of sick leave or being lazy, and maintains that the applicant’s peers were just frustrated, with the frustration not manifesting itself into bullying or harassment.
In relation to a complaint made by the applicant that he was sworn at, CRT says that he was “aware that everyone spoke to everyone like this” and was “trying to reign in this language”. He again complains that the applicant did not properly report inappropriate actions in order to give the respondent an opportunity to investigate those actions. He says:
“I was so focused on improving the culture within Ground Service that I spent most of my day investigating incidents, seeking statements from witnesses, writing Warning Letters and chasing up disciplinary action. I know that I have said to BDX: ‘BDX, I want to help you: I know that it is my job to help you. But I can’t help you if you won’t back up what you have described to me’….Time and again, BDX would refuse to provide anything but anecdotal reports with scant details about names, dates, times, or witnesses – none of this would be forthcoming. I got the impression that BDX liked talking about it but didn’t actually want to fix it.”
He gives an example of how pursuing the correct disciplinary procedures could be successful by discussing the disciplinary procedures which were used in relation to BKQ and which had the effect of changing BKQ’ behaviour. Interestingly, he describes BKQ:
“BKQ was a Union Delegate and a real thug. He is an example of someone who spoke rudely to people and used profanities like BDX gave the example of above”.
In relation to the applicant’s allegation of being assaulted (presumably the incident referred to by the applicant at paragraph 26(f) above), CRT advises that he was not working for the respondent at the time but considers it “inconceivable that we would not have had cameras recording it”.
Finally, CRT advises that he was not aware of, nor had he received any complaints in relation to, racism in the workplace. He makes the point that the respondent celebrated indigenous culture and there were many workers who spoke about their indigenous heritage with pride.
The other signed document in the respondent’s AALD (at page 17) is a performance item report in relation to the applicant that has been verified by a workers compensation manager as being a true copy. The report details the procedures followed by BYM and COR in investigating the applicant’s complaints of bullying and harassment, and it is consistent with the account outlined by CRT in his statement (see paragraphs 83-84 above).
I do not intend to give much weight to the unsigned statements in the Reply from BYM (at page 62) and BZR (at page 35). These documents remain unsigned despite my 14 April 2023 direction, and I therefore cannot be satisfied as to the extent to which the alleged authors of the statements adhere to the comments made in them. Certainly, if there is any inconsistency between the applicant’s signed evidence and comments made in the unsigned statements (which are otherwise not supported by signed evidence), I intend to prefer the applicant’s signed evidence.
Nevertheless, from BYM’s unsigned statement, I note the following:
(a) he was indirectly the applicant’s manager between 2010 and 2015, and directly the applicant’s manager from 2015;
(b) he describes the applicant as “quite intelligent”, as well as “organised and quite articulate” - the applicant filled in as a duty manager and “was a good operator and knew the rules and knew his job”;
(c) he confirms that when the applicant raised his psychological injury claim, he requested (but did not receive) a statement from the applicant supporting the claim;
(d) he confirms that the applicant kept a “black book” in which he recorded work incidents;
(e) he denies telling the applicant to “get over it” as recorded and alleged by the applicant (see paragraph 30(a) above);
(f) he disagrees that the applicant was not given any bullying and harassment training and alleges that there were clear instructions as to how to report incidents - the respondent had a colour-coded training matrix which would identify persons who had not completed mandatory training (such as code of conduct and bullying and harassment courses);
(g) he maintains that the respondent’s management team always investigated and took action when there were disagreements in the workplace or breaches of the respondent’s policies regarding code of conduct and bullying and harassment;
(h) he did not witness the applicant being bullied or harassed by anyone; and
(i) he maintains that the respondent provided “a safe and supportive system of work”, but yet he advises that “there was a lot of banter in the workplace” which was “very unprofessional at times” - he says:
“I likened the workplace to a schoolyard with a lot of different characters: your strong and weaker ones, and there were a lot of arguments”.
In relation to BZR’s unsigned statement, I note the following:
(a) he alleges that the applicant was not bullied, but was in fact a bully himself – the applicant was a “standover guy” who was “out to get anyone he could because that gave him Brownie points” – the applicant would “just niggle you like sticking a pin in you constantly, every day” – the applicant was “good at doing reports” especially to get staff terminated, and he filled out a lot of paperwork “complaining about multiple people” - he describes as “hilarious” the proposition that the applicant did not know how to lodge a complaint - he says:
“BDX knew the game; he would be very verbal and just push until someone snapped. Then he could turn around and say this guy attacked me and get you kicked off. With BDX, he’d fabricate the story: he’d make it bigger than it really was. He’d go in and do the paperwork and be thinking that this will end up in his file as him doing good”;
(b) he claims that he was not aware about graffiti being written about the applicant, although he agrees that there was “a lot of graffiti around everywhere” and that “you just turned a blind eye to the stuff”, and
(c) he advises that the applicant did not have many friends at work and that:
“People didn’t like BDX because of his personality: who he was, and he was a grub. If he thought he could step on you, he did. But that MO wasn’t the reason BDX got the name ‘the grub’. He was called ‘the grub’ and ‘the maggot’ because he came back from his trips to the Philippines and bragged about what he did over there. Some of the things that he would talk about doing over there were disgusting”.
BZR also denies physically assaulting the applicant on 23 July 2013 (as alleged by the applicant – see paragraph 26(f) above), although he admits to a verbal altercation, calling the applicant a “grub” while very close to his face. BZR says that he was stood down following the applicant’s allegation, and eventually cleared of any physical assault. He refers to and quotes from a letter he received from Andrew McKernon (duty manager) dated 29 July 2013 detailing the allegation, and he also refers to and quotes from a letter that he sent in reply. He says that he provided the investigator taking his statement with copies of both of these letters, and he also says that there were numerous witnesses (who were interviewed at the time) to only a verbal altercation occurring on 23 July 2013. The respondent has not however provided the Commission with the letters referred to by BZR, nor with any other documentation regarding its investigation into the applicant’s allegation that he was physically assaulted on 23 July 2013.
In considering the unsigned statements from BYM and BZR, I will be exercising great caution regarding their contents, as approved by Roche DP in Belmon v Custom Carpets Pty Limited [2008] NSWWCCPD 126. Although the strict rules of evidence do not apply to proceedings before the Commission, I am nevertheless cognisant of the observations of Allsop P in Onesteel Reinforcing Limited v Sutton [2012] NSWCA 282 (Sutton) at [2]:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].”
In assessing the weight to be given to the unsigned statements and in drawing my conclusions, I will be finding the material in the statements to be less than satisfactory, considering that the statements have not been signed.
I intend to give no weight to the ‘record of conversation’ (page 28 of the Reply) between CNO and an investigator (Vicki Sandilands). Not only is this record not signed or adopted by CNO, but it is also not verified by Vicki Sandilands as an accurate record of her conversation with CNO. The respondent does not even rely upon a signed report from Vicki Sandilands outlining or summarising her investigation. The record remains unsigned and unverified despite my 14 April 2023 direction.
I have also considered the contents of the ‘record of conversation’ and find that it does not assist me in determining the issues before me. I can be neither confident that the record is accurate, nor that CNO adheres to the comments allegedly made by him in the record. In this regard, the record specifically advises that CNO did not want the record transcribed in a statement for him to sign. It seems that he was not willing to give a statement, signed or otherwise.
In accordance with Sutton, I find the ‘record of conversation’ as a result to be entirely unsatisfactory material (rather than less than satisfactory material) with no probative value.
The respondent relies on medical evidence first from Professor Mattick. The psychologist initially reported on 27 November 2020 (page 75 of the Reply), following a lengthy clinical assessment of the applicant, which included the administering of psychological tests.
Prior to obtaining a history of the alleged workplace stressors experienced by the applicant during the course of his employment with the respondent, the psychologist obtains a background from the applicant which includes:
(a) a history both that the applicant had not had any previous treatment at all for any emotional disturbance or mental health problems prior to his workplace events, and that the applicant had not had “any personal, family, or social problems separate from the events in the workplace” or any “traumatic life events”;
(b) a history that prior to the workplace events, the applicant was “energetic and full of life and optimistic and happy”;
(c) a conflicting history of the breakdown of the applicant’s relationship with his partner - at one stage, the psychologist records that the relationship breakdown occurred 10 years ago but they had lived together since, but then records that the applicant had enjoyed “family stuff” until recent events - the psychologist also records that the applicant “started to withdraw from the family” as the workplace events were proceeding - the psychologist further records that while the applicant was off work in relation to his back injury during 2019, he reflected upon his 10 year history of travelling to the Philippines and what he put his partner through during this period - the psychologist finally records that the applicant’s treating psychologist (Fernando Gomez) had advised the applicant that he required stable accommodation which was not possible with his partner “because they have become estranged reportedly”, and
(d) a history that the applicant had been stood down from his employment with the respondent due to the onset of the COVID pandemic - in relation to a potential return to work he was “worried about adverse actions…for example, staff saying hello to everyone except me or mocking me or ridiculing me, or being punched in the face or having graffiti about me…or a razor blade on my keyboard…or people yelling, ‘Dog’ or ‘faggot’ or ‘give up’.”
The history taken however by the psychologist of the specific workplace events alleged by the applicant to have led to his psychological condition is surprisingly brief (considering the detail provided by the psychologist regarding other matters). He does obtain a history however of graffiti directed against the applicant, conflict between the applicant and his trade union, and verbal abuse directed against the applicant. He also has access to the statement that the applicant signed on 23 October 2020 (although does not go through its contents).
The applicant explains to the psychologist that this background of workplace events “has formed a part of the change in my behaviour and emotions”. He tells the psychologist that:
“he became aggressive, with ‘zero tolerance of the family and a very short fuse…and alcohol and sex became my release…I only drank after I started working at Qantas…and when I got to the level 8 job…I’d go to the Philippines…and get drunk…and even when I returned to Australia I’d have a bottle of Wild Turkey every day’, referring to a 700 mL bottle a day”.
The applicant then explains to the psychologist that he admitted that he had a problem in July 2020, when he consulted with Dr Lee and was referred to a psychologist, Fernando Gomez.
The applicant advises the psychologist that his current symptoms include anger and abuse (an example being given of anger and abuse directed to his daughter), melancholy, sarcasm, crying, avoiding crowds and being reclusive in general, loss of motivation, and drinking alcohol (often half a bottle of vodka per day).
The psychologist examines the applicant for signs of anxiety, post-traumatic stress disorder, and depression. He notes that the applicant complained of a variety of symptoms of anxiety and depression (including episodes of panic, sweating, chest pain, muscle tension, loss of motivation, anger and irritability, social withdrawal, not smiling, feelings of worthlessness, thoughts of self-harm, and a “flat, unwavering affect”. He advises however that he does not consider the applicant to be suffering post-traumatic stress disorder as:
“I point out for the information of the reader that Post-Traumatic Stress Disorder can only be diagnosed where an individual has been exposed to actual or threatened death, serious injury, or sexual violence. These have not occurred in BDX’s case based on the information before me, and certainly the bullying and harassment in the workplace are not suitable stressors for Post-Traumatic Stress Disorder.”
The psychologist then administers to the applicant the Beck Anxiety Inventory and the Beck Depression Inventory-II. The tests reveal extreme results, but the psychologist is concerned about overstatement or exaggeration, opining:
“Whilst I acknowledge that BDX did appear tense and dysphoric at the assessment today, the extreme endorsement of symptoms on the Beck Anxiety and particularly the Beck Depression Inventory did not fit with his presentation. One would expect a person with such severe anxiety and depression, by his self-report, to be quite obviously and severely disabled and unable to function in the assessment.”
The psychologist therefore administers to the applicant the Minnesota Multiphasic Personality Inventory – Second Edition – Restructured Form. The psychologist opines that the applicant’s subsequent results are “in the range which would be deemed to be indicative of overstatement”, and he therefore summarises:
“However, I do accept that he may be unhappy, dysphoric, and angry, but he is exaggerating the extent and severity of symptoms currently given this information.”
And:
“This excessive endorsement of rare and unusual symptoms does not mean that he has no symptoms at all, but I believe that he is very markedly overstating the extent and severity of them given his responses to the Beck Inventories and given his responses on the symptom validity assessment.
12.11.1My interpretation is that he may suffer an Adjustment Disorder with depressed and anxious mood, but the severity of this is likely much less than he presents. (He may simply be unhappy and upset by a hostile workplace - see later).
12.11.2 I also point out that his symptoms coincide with separation from his wife, and also a change in employment status, with him being stood down in the context of the COVID pandemic.
12.11.3 This, and some uncertainty which he expressed with regard to changes in Qantas employment of ground staff, should not be excluded from the consideration of his reported current symptoms.”
And:
“The examination suggests that he does report sufficient symptoms to be diagnosed with an Adjustment Disorder with anxious but mainly depressed mood. However, he exaggerates his problems, and symptom validity assessment indicates overstatement of emotional disturbance.”
The psychologist then however goes on to speculate that while the applicant’s diagnosis “would suggest” an adjustment disorder, it “is also quite possible” that the applicant is simply unhappy with the workplace events that he was subjected to, and only experiencing “a normal stress reaction to unpleasant life events”, which would not be a diagnosable psychological disorder. The psychologist opines that firm conclusions are difficult because of the applicant’s exaggeration.
In relation to causation, the psychologist opines that “Taken at face value it would appear that his employment was a substantial contributing factor to his reported emotional distress”. However, the psychologist then mentions non-work-related factors (specifically the applicant’s child in the Philippines, the applicant’s partner being aware of the child, the relationship between the applicant and his partner breaking down, the applicant’s estrangement from his family, and the threats from the COVID pandemic to his job security) and concludes that the role of these factors is unclear because of the applicant’s exaggeration.
The psychologist provides a further report dated 18 November 2021 (page 107 of the Reply) after being provided with further documentation by the respondent’s solicitors. While that documentation is not specifically listed, it is apparent that the doctor had access to various clinical records from BYM Cross Medical Centre (Dr Toomey) and Fernando Gomez, as well as Dr Rastogi’s 25 May 2021 reports. In the report, the psychologist is asked to comment on a number of issues by the respondent’s solicitors.
The psychologist is especially critical of Fernando Gomez for not assessing the applicant for exaggeration when he “endorsed every single symptom of emotional disturbance presented to him on questionnaires, all leading to a self-report of extremely severe stress, anxiety and depression on more than one occasion”. In the context of compensation seeking, Fernando Gomez has not:
(a) met the requirement of the Psychology Board of Australia that assessments should include “considerations of reliability and validity and the possible role of malingering and impression-management strategies”, and
(b) met the requirements of the Black Dog Institute that assessments should “consider issues relating to causation and the possibility of symptom exaggeration or malingering” and that “clinical observation alone is not always a reliable means of detecting symptom exaggeration”.
The psychologist also notes that according to the applicant’s general practitioner’s clinical notes, the applicant is morbidly obese and has been since 2016. The psychologist sees this as highly likely to be a significant contributor to the applicant’s emotional functioning, a factor which has not been acknowledged by the applicant’s treating practitioners. The psychologist observes:
“he claims that these events were going on for a decade. This is important as he showed no complaints of emotional disturbance until the recent past. He saw his general practitioner, on many occasions and there is no reference to depression, anxiety, or stress associated with the workplace. Again, I bring attention to the fact that the onset of his morbid obesity is associated with the development of his emotional distress, and this is more convincing given his claim that he has experienced untoward behaviours towards him in a ten-year period but only developed symptoms relatively recently.”
The psychologist diagnoses the applicant (based upon the applicant’s self-report) with an adjustment disorder. He does not trust the self-report due to issues of exaggeration, but is still willing to accept that the applicant “may have developed an Adjustment Disorder”.
In relation to Dr Rastogi’s diagnoses of a major depressive disorder and an alcohol use disorder, the psychologist does not agree with the diagnoses in the absence of the doctor assessing the applicant’s exaggeration and assessing “criteria including a range of behavioural problems associated with alcohol”. The psychologist also opines that the applicant probably has a long history of drinking heavily, noting that his general practitioner’s clinical notes mention his alcohol consumption on 13 May 2008 and on 30 March 2012.
When specifically asked by the respondent’s solicitors as to whether the documentation now provided to the psychologist assisted him to determine causation, he answers in the negative, adding:
“Again, I think there is exaggeration, there is the issue of obesity, there are the previous issues in his relationship and involvement in sexual activities (presumably with individuals other than his wife), his travel overseas, and the long-standing reported bullying, which only reportedly led to symptoms, at least in terms of his presentation for care, much more recently.”
Then, when specifically asked by the respondent’s solicitors regarding whether the applicant’s employment was the main contributing factor to the applicant’s psychological condition, the psychologist first advises:
“Again, I believe that BDX is exaggerating his emotional disturbance very markedly so that his self-report may simply be invalid. His willingness to endorse every single symptom as affecting him, in the context of compensation seeking, after reportedly developing symptoms because of behaviours in the workplace, makes his apparent symptoms quite out of proportion with what one might reasonably expect of an individual who was bullied or harassed. Again, Dr Rastogi’s failure to deal with the likely exaggeration and the likely strong relationship between BDX’s obesity and his reported feelings of depression make Dr Rastogi’s opinion less satisfactory that it might otherwise be. As such, I do not agree that his employment can be seen necessarily as the main contributing factor to his psychological injury or wellbeing. I will point out again that he claims that he put up with behaviours in the workplace for ten years, but it was only more recently after the development of marked obesity so that he was morbidly obese that his symptoms became manifest.”
And then advises:
“Again, BDX is exaggerating his symptoms, claiming that he suffers every symptom presented to him, after behaviours in the workplace, with his presentation being disproportionate to what one might expect, and this ignores the other issues about compensation seeking, about obesity causing symptoms, and about the quality of his relationship with his family members.
As such, I do not agree that his employment with Qantas is either a main contributing factor to his psychological symptoms or a contributing factor exacerbating or causing deterioration of his psychological symptoms.”
And further advises:
“As such, if you take BDX’s view as accurate, his workplace caused all his difficulties. Again, I do not think that this is a simple matter. There are complex issues about his background, his sexually transmitted diseases indicative of sexual activity more broadly, his gradual obesity, the likely relationship to anxiety and depression because of obesity, his exaggeration of symptoms, and what appears to be a rather embittered approach to blaming Qantas for all of his difficulties. Again, I do not agree there is simple causation here, but rather a much more complex set of motivations and background issues which are set out above.”
And finally summarises:
“I think BDX’s situation and total well-being, and its causes, are complex for the reasons set out above and in my previous report.
BDX may have been subjected to inappropriate behaviours in the workplace and this appears likely. However, he appears to have coped with those for many years. He then became obese, certainly over the last three or so years through to 2019.
Obesity is strongly associated with depression, especially Major Depressive Disorder, but also with anxiety. There is a causal relationship.
In addition to that, he was drinking heavily for many years probably, and involving himself in sexual behaviour presumably outside of the family. This raises the issue of family relationships.”
The respondent also relies upon medical evidence from Dr George. The doctor’s report is dated 14 March 2022 and found at page 127 of the Reply.
The doctor obtains a history including:
(a) the applicant was suspended from school on at least one occasion;
(b) the applicant was convicted of a number of minor criminal offences between the ages of 15 and 18;
(c) the applicant had worked for the respondent since 2004, but was currently not working for it due to the COVID pandemic;
(d) the applicant had not had any mental health issues prior to 2009;
(e) the applicant had only had the one long-term relationship (26 years), which broke down in late 2020 - the relationship appeared to the doctor to be “unstable much of the time”;
(f) the applicant had three children with this partner – he admitted to the doctor that he had not built a relationship with these children;
(g) the applicant was living from his car since his relationship with his partner ended, and
(h) the applicant “had been involved in a few physical altercations recently and one assault of a person who was staying at a friend’s place with him. He was escorted out of a Woolworths store as well”.
In relation to the applicant’s drinking history, the doctor records that he did not drink alcohol before 2009 but had been “drinking every day for a decade”, between a half bottle of vodka per day and one and a half bottles of vodka per day. He had had no treatment for his excessive drinking.
The doctor also records that the applicant had travelled to the Philippines on 50-60 occasions where he drunk excessively and had sex with Filipino women. He contracted sexually-transmitted diseases in this regard, and fathered a child. He decided to eventually tell his partner about his activities in the Philippines (including the child that he had fathered there) following treatment with his psychologist. His partner then told him to leave the family home.
The applicant advises the doctor that he blames work bullying for his drinking, and his trips to the Philippines which were “in order to release tension”. However, the only details that the doctor records of this work bullying are contained in the following paragraphs:
“He then stated ‘all my mental health problems started when I got a promotion from Cleaning to being a Coordinator.’ He said that he was subject to bullying at that stage. At the same time, he said his GP noticed that he was abusing alcohol.
He alleged that due to the stress of his work and bullying from workmates, he would ‘drink to get away from stress’.
He alleged that the cause of his excess drinking from around 2009 onwards was due to the bullying and harassment from other cleaners, with whom he worked previously. He said that he was vilified and called all types of names such as a maggot and others. He said that it related to his becoming a Ramp Coordinator and that, often, he would find foul, derogatory comments made about him scribbled on walls.
He said that, over time, in relation to the bullying behaviour, he complained to the Ramp Manager, Coordinator Manager and the Airport Manager. He said that he gained little support for his complaints. He said he kept photo evidence of his vilification and he maintained diary notes, which he showed to Managers. He said he took records of when he was assaulted as well. “
The doctor diagnoses the applicant with an “alcohol use disorder in association with borderline personality disorder”. He explains that a borderline personality disorder “is characterised by pervasive pattern of instability of interpersonal relationships, self-image and affects with marked impulsivity, beginning by early adulthood”. The doctor also opines that the applicant had evidence of an antisocial personality disorder developing in his earlier life.
In relation to specific questions posed to the doctor by the respondent’s solicitors:
(a) the doctor considers that Professor Mattick “has demonstrated objective validated evidence, which demonstrates exaggeration of symptoms presented by BDX” although the doctor notes that he “did not, necessarily, notice inconsistent or exaggerated responses” from the applicant;
(b) the doctor does not believe that any functional psychiatric diagnosis can be made in relation to the applicant as he is intoxicated on a daily basis - he does not believe that “one can diagnose any clinical condition with any confidence as a result”;
(c) the doctor states only “I do not believe that this can be validated” when asked to provide an opinion as to whether the applicant “suffered a personal injury arising out of or in the course of employment”;
(d) the doctor states that he has no way of knowing if the applicant’s alcohol consumption related to alleged bullying in the workplace, and
(e) when asked to provide an opinion as to whether the applicant suffered an aggravation of a pre-existing disease in the course of employment, the doctor states only:
“I do not, necessarily, believe this to be the case. I believe that his borderline personality disorder commenced during his adolescence and continued through his adulthood years”.
The Reply contains some specific clinical records from Fernando Gomez, psychologist.
There are three reports from the psychologist, being a report dated 28 September 2020 (discussed at paragraphs 69-76 above), a report dated 27 April 2021 (page 156 of the Reply), and a report dated 5 June 2021 (page 159 of the Reply).
In the 27 April 2021 report, the psychologist notes that the applicant is homeless, eating and sleeping poorly, drinking heavily, and chain-smoking. He was maintaining sporadic contact with his partner and children, which often resulted in minor conflict. He was angry and resentful towards his employer, fearful of coming into contact with past colleagues, and ruminating significantly about his “past episodes of ‘bullying and harassment’ in the workplace over many years”. The psychologist was attempting to “reorientate BDX away from his ruminations about his experiences at work” by introducing “some level of lifestyle balance and predictability via activity scheduling”, but the applicant was unresponsive and the psychologist opines:
“At present he appears to see his lifestyle as a coping mechanism and is not able to see it as an exacerbation of his condition”.
In the 5 June 2021 report, the psychologist advises that due to “unhealthy interactions” between the applicant and him (based upon opposing views as to the direction to which the applicant’s treatment should take), he would be stepping down as the applicant’s treating psychologist. He summarises their disagreement as follows:
“Increasingly, I do not think I can offer him the unconditional validation he seeks. In my view his decision to remain homeless and his periodic unwelcomed and unannounced intrusions to his family home place his relationships at risk and increase his feelings of alienation. He eats poorly and drinks excessive amounts of alcohol. He holds the belief that allowing time for reflection will resolve his problems, whilst I am of the opinion that this is harmful and leads to increasing unproductive self-focussed ruminations”.
The psychologist then confirms the differences of opinion between himself and the applicant in this regard, and how they had resulted in the applicant becoming hostile towards him, in an email he sent to the respondent’s solicitors on 24 November 2021 (page 160 of the Reply). He says that he wrote to the applicant following their last meeting on 31 May 2021 recommending that he seek alternative psychological treatment. He also says that he cannot opine as to the applicant’s prognosis because he has not had any contact with him for six months.
The clinical records from the psychologist also contain (page 150 of the Reply) an account (unsigned and undated) provided to him by the applicant, presumably by email and then printed out by the psychologist. Although the weight to be given to this account is as a result questionable, it provides a summary that is generally consistent with the applicant’s statement evidence. Specifically, the account records the following:
“My experience was daily for a decade. Every day I dreaded going to work, I dreaded walking around the airport, including when I passed people as it usually resulted in some form of abuse, a smart remark, a confrontation or being ignored”;
“In my workplace, at my desk I received intimidation from staff and abuse, almost daily and often many times a day. This was witnessed on multiple occasions by management and other staff”;
“After hurting my back and being at home for 8 months, I became aware of how nasty and hard I had become. When I returned to work I stated to other staff that Qantas has made me a miserable and horrible person. I blocked out all emotions and just kept on keeping on to provide for my family”;
“The trips overseas were my way of taking a break and CPQ had told me and encouraged me to take time off from work and go overseas with my mates, she told me once I can see you are going to explode and said just go overseas”;
“CPQ, BDX and CQS would often talk to me and I wouldn’t even be aware as I was thinking about work and what to do tomorrow to avoid this person or that person, how I could counter a coordinated attack to try and get me demoted or fired”;
“The drinking started when I worked at Qantas and became such a problem that I used to pay a girl to watch me sleep so I didn’t choke on my vomit when I was overseas on my breaks to deal with my job and more and more the alienation at home”, and
“I would come home and drink immediately every day, the kids knew the kind of day I had when I walked in the door. I was using alcohol to deal with my job as it was the only way I could mask the fear and pain.”
FINDINGS AND REASONS
Did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with s 4 of the 1987 Act, as a result of adverse interactions, bullying, intimidation, isolation, assaults, and threats received arising out of or in the course of his employment with the respondent, and to which that employment was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease.
“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) 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.”
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General), Roche DP discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
The first matter therefore for me to consider is did the events in the workplace recounted in the applicant’s statement evidence as being responsible for his psychological condition, occur.
The respondent submits that the events did not occur because they were not contemporaneously reported to the applicant’s general practitioner. Further, BZR denies physically assaulting the applicant (see paragraph 97 above) and BYM denies telling the applicant to “get over it” (see paragraph 95(e) above).
I have already outlined that I do not intend to give significant weight to the unsigned statements of BZR and BYM. I prefer the signed statement evidence of the applicant where there are inconsistencies.
In relation to the only signed statement evidence relied upon by the respondent, from CRT, there is nothing in his statement directly contradicting that the events complained of by the applicant did not occur. There are general comments (see paragraph 82 above) about the applicant making unreasonable, untrue, and exaggerated allegations, even suggesting that the applicant was alleging a “mass conspiracy”, but none of the events complained of by the applicant are specifically denied, presumably because CRT only commenced his employment with the respondent in March 2018.
CRT also (see paragraph 85 above) notes that if the applicant had had grievances in the past, he could have complained using the correct policies and procedures. This proposition ignores the many complaints made by the applicant about events in the workplace that are referred to in his statement evidence, in relation to which there is no contrary evidence. Of course, as CRT only commenced his employment with the respondent in March 2018, he would not have been aware of these complaints. Whether the complaints were lodged using the correct policies and procedures is not known, but I accept that the complaints were made in some form.
Further, CRT’s evidence that BZR’s physical assault of the applicant would have been recorded by cameras if it had occurred is merely supposition, especially as the assault occurred prior to CRT commencing his employment with the respondent.
I accept the submission of the applicant that indeed, both the signed and unsigned statements relied upon by the respondent provide support to the applicant’s version as to the events which occurred during the course of his employment with it. In this regard:
(a) CRT accepts that there was graffiti written about the applicant, and that graffiti was common in the workplace – see paragraph 86 above;
(b) CRT concedes that CFG was a difficult employee – see paragraph 86 above;
(c) CRT was aware of tension between the applicant and his fellow supervisors – see paragraph 88 above;
(d) CRT was aware of bad language in the workplace – see paragraph 89 above;
(e) CRT concedes that BKQ was a “real thug” – see paragraph 90 above;
(f) BYM describes the workplace as a schoolyard, where lots of arguments occurred – see paragraph 95(i) above;
(g) BZR concedes that there was a lot of graffiti in the workplace – see paragraph 96(b) above;
(h) BZR advises that the applicant had few friends at work and was called “the grub” and “the maggot” – see paragraph 96(c) above, and
(i) BZR concedes that on the date when the applicant alleged that BZR physically assaulted him, there was a verbal altercation during which the applicant was called a grub very close to his face.
I therefore agree with the applicant’s submission that his statement evidence as to the events which occurred in the workplace is largely unchallenged by the respondent with specific reliable evidence to the contrary. Further, I find that the applicant’s memory as to the events is likely to be highly reliable as he recorded the events contemporaneously in a diary (see paragraph 20 above). BYM (see paragraph 95(d) above) was also aware of this “black book”.
The applicant tells Dr Rastogi that he realised he was psychologically unwell and commenced treatment for his psychological condition in 2009 when he was off work because of a back injury and had time for the “protracted years of abuse” during his employment with the respondent to dawn upon him. I have no reason to doubt this evidence of the applicant, in relation to which he was not cross-examined. I also accept his oral evidence (see paragraph 144 above) that he felt embarrassed by the events which occurred in the workplace and was therefore reluctant to discuss them contemporaneously with his general practitioners.
Having regard to this evidence, as well as the applicant’s contemporaneous recording of the workplace events in his diary, and indeed the photographs referred to at paragraph 43 above, I do not believe that there was any obligation upon or need for the applicant to contemporaneously report each workplace event that he was subjected to his general practitioner, in order for it to be accepted that the event actually occurred. I do not agree with the respondent’s submission that the events did not occur because he did not report them to his general practitioner.
Dr Rastogi also considers the lack of contemporaneous reporting of the incidents leading to the applicant’s psychological condition (see paragraph 61 above) but accepts that he was fearful of losing his job, and only realised the significance of the incidents as leading to him becoming psychologically unwell when he had time off work in 2009 to consider the incidents.
I accept the applicant’s statement evidence, and therefore accept that the workplace incidents referred to in it were real events which occurred during the course of the applicant’s employment with the respondent. In this regard, I accept the applicant as a witness of truth.
The respondent asks me to draw negative inferences regarding the applicant’s credit following his cross-examination. I do not do so. I appreciated the opportunity to hear oral evidence from him, and was able to witness his demeanour while he was giving that evidence. I have also since listened to a sound recording of the evidence again. My overall impression of the evidence was that he answered questions without significant obfuscation, while doing his best to remember the circumstances surrounding events which occurred many years ago. He made necessary concessions.
He was in my opinion embarrassed about the subject matter of most of the cross-examination, being the sexually-transmitted diseases which he acquired during his travels to the Philippines. This embarrassment may explain why he was occasionally evasive (see paragraph 142 above) during the cross-examination. I do not however believe that any evasiveness in this regard has any significant effect upon his credit in circumstances where he agreed that the sexually-transmitted diseases did cause him concern, shame, and stress.
Having found that the incidents complained about in the applicant’s statement evidence were real events which occurred during the course of his employment with the respondent, the next matter for me to consider is their psychological effect upon him.
The applicant says in his statement evidence that each incident caused him significant stress and anxiety (see paragraph 20 above). He tells Dr Rastogi (see paragraph 50 above) that he gradually became irritable, withdrawn, and frustrated. He realised he was psychologically unwell in 2019.
Fernando Gomez (see paragraph 76 above) diagnosed the applicant with anxiety and depression in a 28 September 2020 report, and noted that the applicant associated those symptoms with the bullying and harassment that he had received in the course of his employment.
CRT (see paragraphs 82 and 86 above) describes the applicant as “fragile”. His reaction to graffiti was “disproportionate to the seriousness of the act” and he was “offended by things that any reasonable person would not be offended by”.
Whether or not CRT’s observations are accurate, it seems to me that in accordance with Attorney General, the applicant has certainly perceived the events that occurred in his workplace to create an offensive or hostile work environment, following which he sustained a psychological injury. These were real events, and there is no need for the applicant’s perception of them to pass any reasonableness test.
Dr Rastogi considers that these real events were causative of the applicant’s psychological condition (see paragraph 56 above), and Dr Toomey agrees (see paragraph 65 above). Professor Mattick also (see paragraphs 112 and 118 above) includes the events as one of the factors causing the psychological condition. Only Dr George considers otherwise, and for reasons which I will explain later, I do not intend to rely upon that doctor’s opinions.
Applying these conclusions, I find that real events occurred in the course of the applicant’s employment with the respondent which affected his psyche. The events led to the applicant perceiving a hostile working environment, and seeking medical treatment. An injury which resulted is compensable – see Attorney General as well as State Transit Authority of New South Wales v Chemler [2007] NSWCA 249.
It is not enough however for the applicant’s employment to be simply a contributing factor to his psychological injury. For the injury to be compensable, pursuant to s 4(b)(i) of the 1987 Act, employment must be the main contributing factor to its contracture.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV, where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“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.
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.”
The applicant believes that all his psychological issues arose from the workplace incidents that he was subjected to. Those incidents (and their psychological sequelae) then in turn led to the breakdown of his family relationships (see paragraph 36 above), his travel to the Philippines for relief (see paragraph 37 above), and his alcohol consumption (see paragraph 38 above).
The applicant’s general practitioner, Dr Toomey, also considers (see paragraphs 65-66 above) that the applicant’s “severe psychological injuries have a direct relationship and arise from his employment”, and that the workplace incidents that he was subjected to were therefore the “leading” cause of his weight gain, family problems, alcohol addiction, and “dangerous and promiscuous behaviour”. The doctor refers to the incidents as involving bullying, harassment, verbal threats, and physical threats. This description is consistent with the incidents described in the applicant’s statement evidence, which I have accepted were real events that occurred during the course of his employment with the respondent.
Dr Toomey has treated the applicant since at least 16 May 2008, and I believe that he is therefore in a strong position (if not the best position) to provide opinions as to what causative factors have been relevant in the development of the applicant’s psychological condition. I intend to give significant weight to these opinions of the doctor.
Dr Rastogi also confirms Dr Toomey’s opinions, following taking a reasonably detailed history from the applicant of the workplace incidents that he was subjected to (see paragraphs 47 and 49 above), which is consistent with the incidents described in the applicant’s statement evidence.
She provides a detailed diagnosis and explanation for the development of the applicant’s psychological condition (see paragraphs 55-56 above), and she specifically concludes that his employment with the respondent was the “main contributing factor for onset and exacerbation of his psychological condition”. She disagrees with the opinions of Dr George and Professor Mattick, specifically mentioning (see paragraph 59 above) the history of “multiple work incidents over a significant period of time” that Professor Mattick does not seem to have afforded sufficient weight.
She considers these incidents, rather than obesity or non-work factors, to be the contributing factors to the applicant’s psychological condition. She also considers (see paragraphs 61 and 63 above) non-work factors such as his alcohol abuse, his weight gain, his family breakdown, and his “dangerous behaviours” to be consequent to that psychological condition and the incidents at work.
The respondent submits that neither Dr Toomey nor Dr Rastogi were provided with a ‘fair climate’ in which to provide their opinions. It cites the decisions in Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505 and Paric v John Holland (Constructions) Pty Limited [1985] HCA 58.
It argues that neither doctor was aware of the stress conceded by the applicant that he experienced when he was being treated for sexually-transmitted diseases between 2008 and 2011.
In ACW v ACX [2022] NSWPICPD 19, Snell DP summarised:
“51. In Paric No. 1 Samuels JA said:
‘It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.’
52. In Paric No. 2 the High Court said:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’
53. In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) discussed the above principles in the context of the Commission. The discussion remains applicable since the relevant commencement of the 2020 Act. Her Honour said:
‘82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.’”
I reject the submission of the respondent and am satisfied that the opinions provided by Drs Toomey and Rastogi provide a satisfactory basis upon which I can make my findings. I do not find the weight that I intend to give to those opinions to be affected by the failure of the doctors to mention the applicant’s sexually-transmitted diseases. In this regard:
(a) I note both doctors mentioned the applicant’s promiscuous behaviour (which of course led to him acquiring the sexually-transmitted diseases) and opined that the behaviour was caused by (rather than was causative of) his psychological condition;
(b) I note that Dr Toomey has treated the applicant since 16 May 2008 and was well aware of the applicant’s history of sexually-transmitted diseases – even if another member of his medical practice provided relevant treatment, he would have had access to and regularly reviewed the applicant’s clinical notes – armed with the experience of treating the applicant for many years and his knowledge of the applicant’s medical history, he did not consider mentioning any stress associated with the sexually-transmitted diseases as being a factor in the causation of the applicant’s psychological condition;
(c) I note that Dr Rastogi had access to the applicant’s general practitioner’s clinical notes revealing his treatment for his sexually-transmitted diseases – she specifically advised that she took those notes into account in preparing the reports, and she also advised (see paragraph 59 above) that she relied upon “treating team reports” in coming to her opinions, when confirming that she did not agree with the opinions expressed by Dr George and Professor Mattick – she therefore had access to the applicant’s history of treatment for his sexually transmitted diseases, but did not consider mentioning any stress associated with those diseases as being a factor in the causation of the applicant’s psychological condition;
(d) I also note that Professor Mattick had access to the applicant’s general practitioner’s clinical notes (confirmed by his 18 November 2021 report – page 107 of the Reply) and notes the history of sexually-transmitted diseases in those notes – he also however did not consider mentioning any stress associated with those diseases as being a factor in the causation of the applicant’s psychological condition;
(e) I further note that Dr George obtained a history of the applicant’s sexually-transmitted diseases (see paragraph 123 above) but did not consider mentioning any stress associated with those diseases as being a factor in the causation of the applicant’s psychological condition;
(f) I accept the submission of the applicant that it is not the role of a forensic examiner to contemplate factors which are not causative of injury – if Drs Toomey and Rastogi did not consider the applicant’s sexually-transmitted diseases to be a factor in the development of his psychological condition, it is understandable that they would not be mentioned in their reports – importantly, they both mentioned other non-work factors as being relevant (such as the applicant’s weight gain, his family breakdown, his alcohol consumption, and his promiscuous behaviour) to the applicant’s psychological condition, but they still considered the work incidents to be the main factor, and they also considered the work incidents to be responsible for the non-work factors they mentioned, and
(g) I note that it appears from his general practitioner’s clinical notes and his oral evidence (see paragraph 143 above) that the applicant has not contracted any sexually-transmitted diseases after 2010 or 2011, at least some eight years before he began to get treatment for his psychological condition – I accept the submission of the applicant that there was no temporal link between the diseases and the development of the psychological condition.
The respondent further submits that the Commission should accept the opinion of Professor Mattick as to other factors outweighing employment factors as contributors to the applicant’s psychological condition.
Professor Mattick diagnoses the applicant with a probable adjustment disorder although his opinions waver in this regard (see paragraphs 110, 111, and 116 above). He finds the applicant to be exaggerating his symptoms, making diagnosis difficult.
He also seems to waver in his opinions regarding the causation of the probable adjustment disorder, opining that (see paragraph 112 above) at face value, it would appear to be the workplace incidents that the applicant was subjected to, but then mentioning a range of other factors (including the applicant’s family breakdown, his employment uncertainty, his child in the Philippines, his drinking history, and his obesity).
He later opines (see paragraph 119 above) that employment was not “necessarily” the main contributing factor to the applicant’s psychological condition before finally expressing the view that employment was neither “a main contributing factor to his psychological symptoms or a contributing factor exacerbating or causing deterioration of his psychological symptoms”. Many times in his reports, he acknowledges causation of the applicant’s condition to be complex.
In my opinion, the weight to be given to Professor Mattick’s views is affected by his wavering. He seems to accept that there were workplace incidents that the applicant was subjected to and that were in some way responsible for his psychological condition. He then raises non-work factors and that causation is complex because of these factors. However he does not really then address what he regards as a complex question in enough detail. He does little more than opine that because of the non-work factors, the workplace incidents could not be the main contributing factor. He does not compare the relevance of each factor to causation or evaluate how each factor contributes to the applicant’s psychological condition. He does not explain if or why he considers the non-work factors to be more relevant to causation than the applicant’s workplace incidents.
As a result, in my opinion, Professor Mattick does not provide enough reasoning for his opinion that employment was not the main contributing factor to the applicant’s psychological condition. Importantly, the psychologist also does not consider that most of the non-work factors identified by him as contributing to causation were factors alleged by the applicant to have arisen from his psychological stress as a result of the workplace incidents that he was subjected to. This is despite the psychologist taking a history from the applicant (see paragraphs 103 and 105 above) that he “’started to withdraw from the family’ as the workplace events were proceeding”, and that the workplace events changed his behaviour and emotions so that “alcohol and sex became my release”. The psychologist also fails to consider whether the applicant’s weight gain and obesity were in fact caused by a psychological condition as a result of work incidents (a position accepted by Drs Toomey and Rastogi – Fernando Gomez also noting how the applicant’s psychological condition was leading to him eating poorly and drinking excessively - see paragraph 129 above).
I tend to agree with Dr Toomey’s criticism of Professor Mattick’s report – see paragraph 63 above.
I am also not convinced that Professor Mattick took an adequate history of the extent of the workplace incidents that the applicant was subjected to, in order to properly consider their contribution to the development of the applicant’s psychological condition. I have already noted the brevity of the history he recorded (see paragraph 104 above) and I also note that the psychologist did not record (see paragraph 108 above) that the applicant had been assaulted by BFS and BZR.
In circumstances where I have accepted the evidence of the applicant that the events recorded in his statement evidence occurred, I propose to accept Professor Mattick’s ‘face value’ comment (see paragraph 112 above) as well as his comment (see paragraph 119 above) that “if you take BDX’s view as accurate, his workplace caused all his difficulties”.
As indicated at paragraph 195 above, I do not intend to rely upon the opinions of Dr George. In this regard:
(a) he diagnoses the applicant with an underlying borderline personality disorder – a diagnosis not made by any other medical practitioner, especially Dr Toomey (who having had the experience of treating the applicant since 16 May 2008, would have been in the best position to consider such a diagnosis) – I do not accept the diagnosis;
(b) his recording of the workplace incidents that the applicant was subjected to (see paragraph 124 above) is limited (similar to Professor Mattick’s) – I am not convinced that an adequate history was taken in order for the doctor to properly consider their contribution to the development of the applicant’s psychological condition;
(c) I find Dr George’s opinion to be contradictory – he does not believe that a confident functional psychiatric diagnosis can be made (see paragraph 126(b) above) but still diagnoses the applicant with an underlying borderline personality disorder as well as an alcohol use disorder;
(d) I accept the applicant’s submission that he does not explain how his diagnosed borderline personality disorder did not affect the applicant’s ability to work prior to the incidents referred to in the applicant’s statement evidence, yet after the applicant was subjected to those incidents, the applicant’s ability to work and function was affected, and
(e) he does not exclude (by using the words “I do not, necessarily, believe this to be the case” – see paragraph 126(e) above) the concept of the applicant suffering an aggravation of a pre-existing disease in the course of his employment.
Aside from Dr Toomey, it seems that the only medical practitioner to specifically treat the applicant’s psychological condition was a psychologist, Fernando Gomez. The evidence presented from the psychologist is consistent with:
(a) the applicant providing a history to him of the workplace incidents (including BZR’s assault) that the applicant was subjected to that was consistent with the applicant’s statement evidence – see paragraph 71 above;
(b) the applicant becoming visibly distressed when discussing these incidents with him – see paragraph 73 above;
(c) the applicant associating his psychological condition with the workplace incidents – see paragraph 76 above;
(d) the applicant “ruminating significantly” about the workplace incidents as recorded by him in his 27 April 2021 report – to the degree that his focus was attempting to “reorientate BDX away from his ruminations about his experiences at work” – see paragraph 129 above, and
(e) the applicant and himself having “unhealthy interactions” (which led to the breakdown of their treatment relationship) due to his attempts to lead the applicant away from “increasingly unproductive self-focused ruminations” – see paragraph 130 above.
The evidence from Fernando Gomez is therefore supportive of the applicant’s focus during treatment being on the workplace incidents that he was subjected to. The applicant and the psychologist discussed non-work factors, such as the applicant’s living arrangements and family issues, but from my reading of the psychologist’s records, it appears that those non-work factors were overwhelmed by the applicant’s ruminations regarding his work incidents.
In summary, I intend to rely upon the medical evidence of Drs Toomey and Rastogi, which I find to be supported by the evidence presented from Fernando Gomez, and to be more reliable than the evidence presented by Professor Mattick and particularly Dr George. In considering the medical and other evidence in its entirety (with significant weight being given to Dr Toomey’s opinions), I am comfortably satisfied that employment events (being the incidents outlined in the applicant's statement evidence) were the main contributing factor to the contracture of the applicant’s psychological condition. In weighing up the competing causative factors as required by AV, I find the employment events to outweigh non-work events in the causation of the applicant's condition.
SUMMARY
I therefore find that as a result of workplace incidents to which the applicant was subjected, he sustained a psychological injury (being the contraction of a disease) in accordance with s 4(b)(i) of the 1987 Act, in relation to which his employment with the respondent was the main contributing factor. The injury will be deemed to have occurred on 1 September 2021, for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act (that being the date agreed upon between the parties – see paragraph 11 above).
In accordance with that agreement between the parties, the dispute will now be remitted to the President for referral to a Medical Assessor, in order that the applicant’s whole person impairment from the injury that I have found is assessed. All the evidence that I have considered (see paragraph 16 above) will be provided to the Medical Assessor.
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