Beattie v Home Alloy Truck Bodies Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Beattie v Home Alloy Truck Bodies Pty Ltd [2024] NSWPIC 508
APPLICANT:	Lisa Beattie
RESPONDENT:	Home Alloy Truck Bodies Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	13 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury dispute; respondent argued specific diagnosis had to be found for the applicant to succeed on injury; injury found; dispute under section 11A as to whole or predominant cause of injury and as to whether action taken by employer was reasonable in relation to the provision of employment benefits; respondent bears onus of proof; Held – evidence did not support that the injury was wholly or predominantly caused by the action taken or proposed to be taken in relation to the provision of employment benefits; applicant not precluded from the recovery of compensation for psychological injury because of the provisions of section 11A; claim for lump sum compensation pursuant to s 66 is remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has leave by consent to amend the Application to Resolve a Dispute to rely on a deemed date of injury of 2 June 2023 in respect of the claim for lump sum compensation as a result of psychological injury. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) date of injury: 2 June 2023 (deemed) (b) body systems/parts: psychological (c) method of assessment: whole person impairment. 3. The following documents are admitted into evidence by consent and are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and all attached documents; (b) the late documents filed by the applicant with an Application to Admit late Documents dated 18 June 2024; (c) the Reply and all attached documents, and (d) the late documents filed by the respondent with an Application to Admit late Documents dated 23 July 2024. 4. The matter to be relisted before me for a further conference once the Medical Assessment Certificate is issued in respect of the claim for weekly compensation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, Ms Lisa Beattie (the applicant), seeks weekly compensation and lump sum compensation as a result of psychological injury alleged deemed to have occurred on 23 June 2023 in the course of or arising out of her employment as an accounts administrator.
The respondent is Home Alloy Truck Bodies Pty Ltd (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual NSW Limited (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

At the arbitration, the applicant was granted leave by consent to amend the Application to rely on a deemed date of injury of 2 June 2023 in respect of the claim for lump sum compensation for psychological injury.
It is disputed that the applicant suffered a psychological injury in the course of or arising out of her employment with the respondent.
The applicant bears the onus of proof in relation to injury.
In the event the applicant is successful on the question of injury, the respondent says the applicant is barred from the recovery of compensation under s 11A of the Workers Compensation Act 1987 (the 1987 Act) because her psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in respect of the provision of employment benefits.
The respondent bears the onus of proof under s 11A.
If the respondent is successful in its s 11A defence, there will be an award in its favour.
In the event that that the applicant is successful on the liability question, that is she is found to have suffered a work injury and she is found not to be barred from the recovery of compensation under s 11A, then in respect of the claim for lump sum compensation, the matter would be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 2 June 2023.
In accordance with the authority in Jaffrie v Quality Casings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), the matter would proceed to assessment by a Medical Assessor in respect of the lump sum claim and then once the Medical Assessment Certificate (MAC) issues, the matter would be relisted for a conference to deal with the claim for weekly benefits. The matter proceeded by consent on this basis.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For the applicant:
(a)    Application and attached documents, and
(b)    late documents filed with an Application to Admit Late Documents on 18 June 2024.
For the respondent:
(c)    Reply and attached documents, and
(d)    late documents filed with an Application to Admit Late Documents on 23 July 2024.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek leave to cross-examine the applicant. Counsel for the applicant did not make any application in respect of cross-examination of the witnesses who provided statements in the respondent’s case.

FINDINGS AND REASONS

The applicant alleges that on a deemed date of injury of 2 June 2023 (as amended) she suffered a psychological injury arising out of or in the course of her employment with the respondent as a financial officer. The description of injury on 24 June 2020 (deemed) is “pleaded” in the Application is as follows:
“The claimant was employed by home Alloy Truck Bodies Pty Ltd from 1 November 2010until 24 June 2020. From about 2016 onwards. She alleges that she was subjected to bullying, harassment, and intimidation in the course of her employment. As a result of her employment, the claimant sustained a chronic adjustment disorder with features of depressed mood and anxiety as well as chronic alcohol use disorder.”
The respondent disputes that the applicant suffered a psychological injury in the course of or arising out of her employment with the respondent.
The applicant bears the onus of proof in relation to the question of injury. The respondent says that the applicant has not discharged her onus in this regard.
The respondent says that because of how the applicant pleaded her case (as set out above) that is what she must be found to have suffered, that is, a psychological injury with that precise diagnosis of “chronic adjustment disorder with features of depressed mood and anxiety as well as chronic alcohol use disorder”. It is submitted, among other things, that because, in the applicant’s own case, there have been a variety of different diagnoses of psychological conditions made by different medical experts, treating and independent, the applicant cannot succeed.
In the event the applicant is successful on the question of injury, the respondent says that the applicant’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken or proposed to be taken in relation to the provision of employment benefits.
Section 11A of the 1987 Act provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the head of the provision of employment benefits.
The respondent bears the onus of proof in relation to the s 11A defence.
This case must be decided on the balance of probabilities, on the evidence and in accordance with the law.
The respondent says the psychological injury was wholly or predominantly caused by the action of the respondent taken in relation to the provision of employment benefits to the applicant.
The respondent bears the onus of proof on the issue of causation in the context of an s 11A defence.
Counsel for the respondent submitted that I would find that the applicant’s psychological injury, if so found noting it is disputed, was predominantly caused by the reasonable action taken or proposed to be taken by the respondent in relation to the provision of employment benefits to the applicant. This is because the applicant asked for unpaid leave for six weeks and the respondent, after initially rejecting her application, granted her four weeks leave. I note that the applicant points out that her application was for three days unpaid leave each week for six weeks and not six weeks unpaid leave.
The case must be decided on the evidence and in accordance with the law.
The applicant gave evidence in a statement 24 July 2020. She started work with the respondent on 1 November 2010. She experienced no real problems in her employment up until 2016.
She gave evidence that the general manager (and her manager) Mr Fitzer who is also the owner of the business was a “hot head”. She said:
“John Fitzer is the owner of the business; he is a hot head and tends to scream and rant at staff. There has been a high staff turnover at this business mainly because of John’s attitude and behaviour towards staff.”
She goes onto give evidence that she had altercations with Mr Fitzer since May 2016.
In May 2016 the applicant and Mr Fitzer had a “heated” argument.
She had been asked by Mr Fitzer to ring EmploySure (a Human Resource (HR) company that advises employers) because he wanted to get rid of an employee. She had done this at his request before but this time she says she told him to do it himself because he would get angry at her when she relayed EmplySure advice if he did not like the information she was giving him. She says she didn’t want to be put in that position again where he would get upset at her.
The applicant gave evidence as follows:
“…he went from zero to one hundred in two seconds, he absolutely lost it and was screaming from his office, there was no reasoning. He was screaming at me, profanities like ‘bitch’ ‘fuck this’ and everything you can think of he was directing at me. Present during this time was his wife, Jake the general manager and others.”
Mr Fitzer and his wife Donna Fitzer have both given statements of evidence. The precise allegation of screaming profanities at the applicant are denied but their statements support that a heated argument took place between the applicant and Mr Fitzer in May 2016.
The applicant was sufficiently distressed by the conversation that she sought medical attention on 24 May 2016 as she thought she was having a panic attack. She was issued a Workcover certificate but did not submit the certificate.
She returned to work after two days absence.
On her return to work, there was a meeting with Mr Fitzer but she says no apology. She states they just went back to work but from that time there was an “uneasiness”. She gave evidence that:
“…from that day on I felt like I was walking in eggs shells. initially after that meeting he just ignored me and things just got very uneasy. His wife stopped having lunch with me, there was an uneasiness in the work environment from then on, he never acknowledged me with hello, goodbye, nothing. Everything changed.”
She said that there were a lot of little incidents that happened over time like Mr Fitzer yelling at her for forgetting the milk and berating her in front of other staff.
She experienced more stress when she had to deliver the news to the factory workers that they wouldn’t be paid good Friday when they had preciously been informed to the contrary. The applicant as distressed at having to perform this task. She says that “she felt like a lamb to the slaughter”.
The applicant have evidence that Mr Jerome Romero, her coworker, was “pushed out” and witnessing Mr Fitzer’s behaviours towards Mr Romero in this regard. This is confirmed by the evidence from Mr Romeo that he found Mr Fitzer aggressive in his manner towards him and that he resigned because he felt he was being pushed out.
The applicant gave evidence that she was conscious of what had happened to Mr Romero and that and that she was stressed by this behaviour from Mr Fitzer towards Mr Romero that she went and saw her general practitioner (GP). She cannot remember having time off.
The applicant gave evidence that she wanted a redundancy as she saw that as a way of getting out of the stressful situation at work but she was denied the redundancy.
The applicant gave evidence that she wanted unpaid leave three days a week for six weeks because her daughter was having a baby. She made the application on 23 June 2002 for leave to commence 29 July 2020 (about one month’s notice).
The respondent initially denied the leave on the basis that they could not afford her to be away during the end of the financial year.
Counsel for the applicant points out that the leave request was for a period commencing one month after the end of the financial year.
The evidence from both the applicant and Mr and Mrs Fitzer confirms that a heated argument took place between the applicant and Mr Fitzer when he initially denied her leave.
The applicant was so stressed by this conversation and she sought medical treatment from her usual GP practice but her usual GP Dr Capa was not available so she saw Dr Lee. She says Dr Lee was so concerned he wanted her to see Dr Capa the following Monday which she did.
Overnight Mr Fitzer changed his mind, at the urging of his wife, and determined to grant the leave for a period of one month. However the applicant did not return to work having been certified unfit by her GP Dr Capa.
The applicant was so distressed by the “heated” conversation with Mr Fitzer that she sought medical attention from her GP. Dr Kappa records a history which notes as follows:
“blood pressure high
Chest pains
Stress and anxiety
Long standing issue”
The applicant gave evidence that Dr Capa wanted to issue a Workcover certificate but the applicant told him she just wanted to resign. He advised her to see a psychologist, Ms Molloy, before she made a decision about resigning. She says she saw Ms Molloy the psychologist who told her it was a workcover claim. She returned to see Dr Capa who issued the Wokrkcover certificate. She has not returned to work with the respondent since 24 June 2020. At the time she gave the statement to the investigator dated 24 July 2020 (that is, one month after she left work) she says she was seeing her psychologist (Ms Molloy) on a weekly basis. She says she believes all her stress is from the demeaning and belittling way she has been treated by Mr Fitzer going back to 2016 when she says he first yelled at her and abused her. She gave evidence that she was suffering ongoing psychological symptoms as a result and that she had to continue seeing her psychologist until she could get “her stress and anxiety back to a normal level”, she sits on the lounge all day doing nothing which makes her feel depressed, and she stopped socialising with her friends.
It seems that the applicant was referred by the GP for treatment by a psychologist Ms Molloy. There is no evidence from Ms Molloy tendered in the applicant’s case. The respondent says that an inference should be drawn that evidence from Ms Molloy would not assist the applicant. The failure to tender evidence from Ms Molloy is not fatal to a determination of the applicant’s case in her favour on the question of injury although I take it into account. I have to weigh all of the evidence before me and decide on the balance of probabilities whether it is more likely than not that the applicant suffered a psychological injury in the course of or arising out of her employment with the respondent.
The evidence before me from Dr Capa is that the applicant continued to suffer psychological symptoms and Dr Capa continued to issue the applicant Workcover certificates.
In the applicant was referred to another psychologist M Dillack. Ms Dillack provided a report dated 5 January 2021. She recites a history that the workplace represented a long term stressful environment for the applicant. She refers to the GP and the previous treating psychologist Ms Molloy as having diagnosed the applicant as suffering from an adjustment disorder as a result. I note, as said earlier, that there is no direct evidence of the diagnosis made by Ms Molloy from Ms Molloy herself. I do note that by the time Ms Dilek writes her report dated 5 January 2021 she has already seen the applicant three times. Since the applicant left work on 24 June 2020, the period not covered by the report from a treating psychologist is not a lengthy one and in that period the applicant has continued to see her GP Dr Capa whose clinical notes are in evidence.
Ms Dilek writes in a report dated 5 January 2021 at a time of having had three treatment sessions with the applicant:
“Ms Beattie has been referred by her GP Dr Capa for the treatment of her depression, anxiety, panic attacks and sleeping disturbances. Ms Beattie reported long term workplace harassment, bulling and ill-treatment from her manager who is also the business owner”.
This report makes clear the psychological symptoms for which the applicant is being treated, namely depression, anxiety, panic attacks and sleeping disturbances. She writes she has had three sessions to date.
Again the consistent history has been given about the issues in the workplace having taken place over a long period.
Ms Dilek is provided with a copy of Dr Newlyn independent medical examiner (IME) report and is asked to make specific comment. Se is specifically asked to comment on Dr Newlyn’s opinion that the applicant does not have diagnosable psychological injury and her symptoms are caused by a conflict with her boss. Ms Dilek writes:
“Dr Newlyn’s report page 10 indicates that there had been long term issues of discomfort in her workplace by the owner/manager of the company. Lisa had indicated to Dr Newlyn that she ‘…had the feeling of stress and tight chest caused by the events.’ Lisa reported that she felt these symptoms on a daily basis especially in the last four-five years of her work.
Dr Newlyn states that Ms Beattie’s mental status examination did not meet DSM-V diagnostic criteria for the diagnosis is a clinical psychiatric diagnosis but rather a conflict between her boss which matter of clinical concern.
In my opinion when a staff member is exposed to long term stressful work environment and this becomes a ‘clinical concern’ which leads to not being able to continue working under such stressful circumstances, then this most likely will affect one’s psychological well being resulting in depression, anxiety and adjustment disorder as it is the case with Ms Beatttie as diagnosed by her GP and previous treating psychologist.
Dr Newlyn’s report does not define or explain in depth the duration, nature and/or context of ‘conflict with boss’ in his psychiatric diagnosis.”

She goes onto answer in respect of diagnosis:
“In my opinion Ms Beattie current diagnosis and symptoms are caused by her workplace as a consequent to workplace bullying, harassment being micro managed and being over worked. Ms Beattie reported that her boss on a regular basis yelled, swore, threw things in the office etc most likely resulted in Ms Beattie not being able to cope working with her boss on a daily basis.”
Counsel for the respondent submitted that Ms Dilek did not answer the question about what is the current diagnosis. However Mr Dilek’s report has to be read as a whole. She refers to what she is treating the applicant for on referral from the GP, namely depression, anxiety, panic attacks and sleeping disturbances, and she has referred to the diagnosis of adjustment disorder made by the GP and her prior psychologist as being a diagnosis most likely to be consistent with the history given of long term workplace conflict.
I note there was a medical case conference on 18 May 2021 with the rehabilitation provider, the insurer and Dr Capa. This is contained in the report of Ms Nicola Jeffries (from “32 and Sunny”) dated 1 July 2021 closing off the return-to-work program.
Dr Capa is recorded as reporting that the applicant was continuing to experience significant psychological symptomatology and he had referred her to a psychiatrist, Dr Selwyn Smith. The report records:
“Dr Capa indicated that Ms Beattie was suffering from significant psychological symptoms as a result of her workplace incident.
Dr Capa reported that Ms Beattie was suffering from Post traumatic stress disorder.
Dr Capa reported that he was unsure when Ms Beattie will be able to return to work but anticipated it will be at least three months before she could consider a return to work.
Dr Capa stated that Ms Beattie would bever be able to return to her pre-injury employer.
Dr Capa advised that he has referred Ms Beattie to dr Selwyn Smith psychiatrist. Dr Capa reported that following the consultation with Dr Smith he will have more advice as to Ms Beattie’s ongoing prognosis.”
In view of persistent and what he describes as “significant” psychological symptomatology the GP, Dr Capa, referred the applicant to a psychiatrist Dr Smith who saw the applicant on 8 June 2021 and provided a report back to the GP dated 1 July 2021.
He took a history consistent with what the applicant has reported to all those that have treated her of longstanding issues at work as follows:
“She stated that during her work with her employer she has been exposed to demeaning bullying and harassment behaviour. She dated the onset of her symptomologies to approximately 2016. At that time, she went ff work on sick leave but did not submit a workers compensation claim. With ongoing deterioration in her working environment she went off work on 24 June 2020. She has experienced heightened levels of anxiety, she has been reluctant to utilise medications but has been consulting with yourself and a psychologist. She has felt under pressure to reintegrate into her place at work but has bot been able to muster the emotional resources.”
He went on to make a diagnosis as follows:
“Lisa demonstrates clear and convincing symptomologies of an adjustment disorder with mixed depressive and anxiety chronic in duration. She clearly has no capacity to reintegrate into her full pace of work. She has lost a marked degree of self esteem and self confidence . she may have the capacity to reintegrate into an alternative work role if that could be found for her.”
He noted he respected her wishes not to take psychotropic medications.
He noted that “she clearly needs ongoing psychological support”.
The applicant relies on reports from Dr Bertucen, psychiatrist, the IME who was qualified on her behalf to provide an independent expert opinion. Dr Bertucen provided three reports dated 14 October 2021, and 19 April 2023 (x2) respectively.
Again he took a history consistent with the other evidence before me of long standing issues at work. He records the history in detail which goes back to the incident in May 2016.
He then goes on to record in detail the significant psychological sequelae as a result of injury which are consistent with the report that the applicant made to her GP and psychologist Ms Dilek.
He conducted a mental state examination of the applicant.
He went on to make a diagnosis as follows:
“In my opinion, Ms Beattie has suffered a chronic adjustment disorder with features of depressed mood and anxiety, in partial remission over the last six months.”
As to current disabilities he writes:
“Ms Beattie reports a number of purely psychological disabilities and limitations as a result of her workplace injury including marked anxiety at the prospect of returning to any work, even for an alternative employer (or homebased work) due to loss of confidence and demoralisation, impaired libido, appetite disturbance dysregulation of diet) demotivation to exercise, social withdrawal and loss of interest in previous hobbies, hazardous increase in her cigarette and alcohol consumption moderate impairment of concentration, focus and memory inter alia.”
Dr Bertucen attributed causation to the factors at work as per the history taken. This is not limited to the leave dispute but extends to incidents in her employment dating back to 2016.
Dr Bertucen had been provided with the reports of Dr Newlyn dated 26 August 2020 and 5 July 2021 and expressed fundamental disagreement with same as follows:
“I have had the opportunity of reviewing reports by Dr Thomas Newlyn dated 26 August 2020 and 5 July 2021. I fundamentally disagree with the findings of Dr Newlyn’s report in that Dr Newlyn appears to suggest that Ms Beattie has not suffered from any diagnosable psychiatric illness (age 11 of his initial report – …no clinical psychiatric disorder). Dr Newlyn would however appear to have somewhat contradicted this view by stating elsewhere in his report that Ms Beatties conflict with Mr Fitzer became a ‘clinical concern’. Both Ms Beatie’s treating psychologist, Ms Dilek as well as Dr Smith contradict this view and in my opinion, Ms Beattie’s history (being subject over a number of years to consistent psychological abuse from an employer) and her presenting symptomatology do in fact conform appropriately with the DSM-V criteria for a chronic adjustment disorder.”
In October 2021 the applicant was referred by her GP to another psychiatrist Dr Sawyer who again recorded a history of long standing issues at work. He considered that the applicant psychological symptomatology was sufficient to establish a diagnosis of post-traumatic stress disorder.
The weight of the applicant’s medical evidence, both treating and independent supports a finding that she suffered a psychological injury in the course of or arising out of her employment with the respondent. It did not result from one incident, the heated argument about the rejection of her unpaid leave application, but rather as a result of long standing issues with navigating the behaviour of her manager and owner of the business. It is not necessary to decide who said what but it is enough in the circumstances of this case to be satisfied that heated arguments took place from time to time between the applicant and Mr Fitzer, the last of which was about a request for unpaid leave. I am satisfied that heated arguments took place because all of the evidence supports that. All of the doctors who have given opinions in this case take a consistent history of long standing issues at work. Counsel for the respondent did not submit otherwise.
What counsel for the respondent did submit was that I would not be satisfied that the applicant had discharged her onus of proof in relation to injury because she very specifically pleaded her case as one of an adjustment disorder. That in this case I would have to find she suffered from an adjustment disorder because that is how her case was pleaded. Because there are a variety of differing opinions as to diagnosis I would not be able to so satisfied that she suffered an adjustment disorder and her case must therefore fail on the question of injury.
Counsel for the respondent also relied on the opinion of the IME qualified to provide an opinion on behalf of the respondent Dr Newlyn who was the specialist psychiatrist who saw the applicant most proximate to her leaving work. Dr Newland saw the applicant at the request of the respondent and provided report dated 26 August 2020 and a further report on 5 July 2021.
Consistent with the other evidence Dr Newlyn records a history of long term difficulties at work.
He conducted a mental state examination and says she does not have sufficient symptomatology to rate a psychiatric diagnosis but he does say that her symptoms are such as to be of clinical concern and she was receiving treatment from a psychologist (Ms Molloy).
In later reports Dr Newland does go onto diagnose the applicant as suffering from a psychiatric disorder but opines that it is not a work injury because it relates to her dissatisfaction with how the insurer was handling her case.
I am not persuaded by the respondent‘s submission that I have to find the actual diagnosis of chronic adjustment disorder for the applicant to discharge her onus of proof. Notwithstanding the injury is pleaded in the application in these terms, the commission is not a court of strict pleadings. In my view what I have to be satisfied on the balance of probabilities after weighing the totality of the evidence in the balance is that the applicant has suffered a psychological injury in the course of or arising out of employment with the respondent.
When I weigh Dr Newlyn’s opinion in the balance with the other evidence, I take into account that he considered her psychological symptoms as a result of what occurred at work became as clinical concern such that treatment by a psychologist was necessary but that he didn’t consider they amounted to a diagnosable psychiatric disorder.
When I weigh Dr Newlyn’s opinion against all of the other evidence and when I weigh all of the evidence in the balance and taking into account the consistent history taken by all of the doctors that there were longstanding issues at work, that treatment for psychological symptoms as a result was first sought in May 2016 and then again on 24 June 2020 when she went off work and has remained so under the certification of her treating GP Dr Capa, I prefer on the question of injury the opinions of Dr Capa, Ms Dilek, Dr Betucen, Dr Sawyer and Dr Smith that the applicant suffers psychological symptoms sufficient to establish in the opinions of those treating her and the expert opinion of Dr Bertucen, a psychological disorder that meets DSM-V criteria. Psychological symptoms can evolve over time, they can wax and they can wane, they can improve with treatment, they can relapse. What is critical for me to be satisfied of is not the actual diagnosis (that will be a matter for the medical assessor using his/her clinical expertise on the day of examination who, under the Guidelines for the Evaluation of Permanent Impairment, must be satisfied as to a psychiatric diagnosis before an assessment of impairment can be made) but that her psychological symptoms have resulted in a diagnosable psychological condition that has resulted from her perception of real events that took place at work. I prefer the opinions of the applicant’s treating GP Dr Capa, treating psychologist Ms Dilek, treating psychiatrist Dr Smith and Dr Sawyer and IME Dr Bertucen to that of Dr Newlyn in this regard.
I am satisfied that the applicant has discharged the onus of proof in relation to injury. I am not satisfied that I have to find an the specific diagnosis of the psychological condition from which she suffered as a result.
This means the applicant has succeeded on the question of injury.
Turning then to the respondent’s defence under s 11A.
The respondent bears the onus of proof.
The respondent relies on the defence that the applicant’s psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in relation to the provision of employment benefits. The respondent counsel did not press any argument that it was as a result of the rejection of the applicant’s request for a redundancy.
Firstly in relation to the dispute whether a request of unpaid leave is the provision of an employment benefits. There is no definition in the 1987 Act. There is no appellate or presidential decision dealing with this question. The applicant’s counsel submitted that a request for leave is a not an employment benefit is a right and a right can’t be a benefit. I do not agree that a request for unpaid leave is a right and not a benefit. A worker may be entitled to paid leave but they are not necessarily entitled to unpaid leave. Paid leave is fettered by defined period of entitlement as per a contract or in default the law. Unpaid leave is discretionary. I consider it falls under the definition of provision of employment benefits.
The respondent’s counsel made much of the argument that the applicant was requesting unpaid leave of six weeks. It seemed to be suggested that the applicant was making an unreasonable request.
It is not the reasonableness of the applicant’s action that requires determination but rather whether the action of the employer was reasonable in relation to the provision of employment benefits. It is not reasonable to behave towards an employee in a manner that involves yelling. An employer is in a position of power towards an employee and yelling at an employee when they ask for leave is not reasonable.
But in any event, for the respondent to succeed in its defence under s 11A I would have to be satisfied that the applicant’s psychological injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken in relation to the provision of employment benefits.
The evidence in this case does not support that the action taken in relation to provision of employment benefits (unpaid leave) was the whole or predominant cause of the applicant’s psychological injury. This is because all of the medical experts took a consistent history of long standing issues in the employment.
Moreover the IME Dr Newlyn who was qualified to provide an opinion on behalf of the respondent does not support a finding that the request for unpaid leave (or the provision of employment benefits) was the whole or predominant cause of the applicant psychological injury.
In the case of Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad) Deputy President Snell said as follows:
“43. The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to ‘all of the incidents at work’ (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to ‘the claim as defined by the Application’, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
44.   The Acting President, in Shore at [42] and [52], said:
‘The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.’
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.
45. The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
46.   In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is ‘mainly or principally caused’. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as ‘the leading authority on causation in workers compensation claims’, applied – ‘causation is a question of fact to be determined on the evidence in each case’ (at [79]).
47.   The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his ‘commonsense evaluation of the sequence of events’: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were ‘within the realm of common knowledge and experience’: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
48.   There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
‘…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.’
49.   In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
‘The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.’
50.   The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
‘It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.’
51.   Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.”

Deputy President Snell dealt with the causation issue at stake in that case making it clear that the onus is on the respondent in respect of the s 11A defence:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In that case, Deputy President Snell found that:
“The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its ‘reasonable action taken or proposed to be taken’ with respect to discipline.”
Dr Newlyn provided a report dated 26 August 2020. He again has taken a consistent history of long term issues at work. He considers that she does not have a diagnosable psychiatric disorder as a result of what happened at work but rather conflict with her boss became a matter of clinical concern. He says she doesn’t need psychotropic medication but would benefit from psychological counselling.
He states:
“There were long term difficulties and a 2016 documented incident. Her story is supported by Jerome’s statement. However her conflict with her boss did not cause a clinical psychiatric disorder.”
Dr Newlyn’s opinion in his report dated 26 August 2020 cannot be advanced to support a s 11A defence that the applicant’s psychological injury was wholly or predominantly the result of reasonable action taken or proposed to be taken by the employer in relation to the provision of employment benefits (unpaid leave) because he clearly attributes causation (of what he describes as “conflict with her boss that became a matter of clinical concern”) to long standing issues of conflict with her boss at work dating back to May 2016. His subsequent reports attribute causation to her dissatisfaction with the insurer’s response to her claim so that cannot justify a s 11A defence which is concerned with reasonable action of the employer and not the insurer.
For the section 11A defence to succeed in this case, there must be medical opinion to support the s 11A defence that the psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken, in this case, in relation to the provision of employment benefits. For the reasons I have set out throughout, there is no such medical opinion in this case.
When I weigh all of the evidence in the balance, I am not satisfied that it is more likely than not that the applicant psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer in relation to the provision of employment benefits.
This means the respondent defence under s 11A fails and the applicant is not precluded from the recovery of compensation for psychological injury.
This means that the matter will be remitted to the President for referral as follows:
The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a)    Date of Injury: 2 June 2023 (deemed)
(b)     Body systems/parts: psychological
(c)     Method of assessment: whole person impairment.
The documents to be forwarded to the Medical Assessor are those admitted into evidence by consent in these proceedings.
In accordance with the authority of Jaffarie the matter is to be relisted once the MAC issues in respect of the claim for weekly compensation.

[2024] NSWPIC 508

13 September 2024