BJP v Employers Mutual Management Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BJP v Employers Mutual Management Limited [2023] NSWPIC 286
APPLICANT:	BJP
RESPONDENT:	Employers Mutual Management Limited
Member:	Lea Drake
DATE OF DECISION:	19 June 2023
DATE OF AMENDMENT:	3 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation, whole person impairment and treatment expenses for an alleged psychological injury due to bullying and intimidation of the applicant by a supervisor of the respondent; are there special circumstances sufficient to establish an exemption to the notice provisions of the legislation; was the alleged bullying and intimidation by a supervisor the main contributing factor to any aggravation of an agreed underlying psychiatric condition; Held – the circumstances of the applicant’s employment with the respondent was not the main causative factor in the aggravation of the underlying psychiatric condition suffered by the applicant.
determinations made:	1. If the applicant suffered an aggravation to his underlying psychiatric condition whilst in the employ of the respondent arising from his adverse interaction with his manager, that circumstance of his employment was not the main contributing factor to the aggravation of his underlying psychiatric condition. 2. The Application for Resolution of a Dispute is dismissed.

STATEMENT OF REASONS

BACKGROUND

BJP (the applicant) was employed by Employers Mutual Management Limited (the respondent) as a Business Development Manager from 2011 until he resigned his employment on 15 July 2013.
He alleges that his manager, Ms Kylie Archer, informed him that he was surplus to requirements and her management of him left him feeling demeaned and humiliated. He alleges that his interactions with his manager aggravated an underlying psychiatric condition causing him to develop a diagnosable psychiatric condition related to his employment, as a result of which he has not worked since he resigned his employment in 2013.
The deemed date of injury is 15 July 2013.

MATTERS IN DISPUTE

The applicant’s claim is for weekly payments of compensation, a lump sum in respect of whole person impairment and payment of medical expenses.
The respondent rejects the applicant’s injury claim. It has also raised the applicant’s failure to provide notice of the claim in a timely fashion as a bar to proceedings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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

EVIDENCE

There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered by me in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to Application for Resolution of Dispute (Reply) and attached documents and,
(c)    Wages Schedule.
The applicant alleges that, as a result of his workplace conflict with Ms Archer, his self-esteem and self-image as a competent worker were shattered. He alleges that he never recovered from the effects of this interaction. His treatment by this manager was more damaging to him because he had previously been a workaholic.
The applicant has not been otherwise employed since resigning from the respondent. He has attempted to obtain work but has been unsuccessful. He has experienced a number of health problems, including a diagnosis of non-Hodgkin’s lymphoma and has had frequent general practitioner and other treatment. He has undertaken a course of study, a Master in Business Administration (MAB), to improve his job prospects.
The applicant’s wife provided a statement supportive of his claim. She stated that the applicant was very upset by his treatment at work and had never forgotten about it. It had resurfaced in recent years and affected him more dramatically now than in the past.

RELEVANT LEGISLATIVE PROVISIONS

The Workplace Injury Management and Workers Compensation Act 1998

“Section 254
(1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)     the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 .
(my emphasis)

Section 261
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
(my emphasis)

The Workers Compensation Act 1987

“Section 4
Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
(my emphasis)

CONSIDERATION

Notice

Notice of injury is required to be given as soon as possible after injury. This requirement is to be interpreted liberally in favour of the worker. If a special circumstance designated in the legislation is established a worker may be excused from the obligation to give notice of an injury. The onus to establish a special circumstance is with the applicant, including absence of prejudice to the employer.
In this application the applicant has relied on a special circumstance existing.
I am satisfied and find that the applicant made the respondent’s manager Mr Wilson aware of difficulties he was having in the workplace. I am satisfied that Mr Wilson investigated the possibility of conflict in the workplace arising from the applicant’s relationship with his new manager Ms Kylie Archer. Whilst the full extent of the applicant’s alleged difficulties might not have been brought to the attention of the respondent, I find there was sufficient notice to activate an exception.
I am also satisfied and find that, although the applicant might have had some general knowledge concerning insurance arising from his employment, and had attempted to claim under an income protection policy, he had no particular knowledge of the time limits arising in compensation cases.
Given my findings in the preceding paragraphs I am satisfied and find that there are special circumstances entitling the applicant to claim compensation outside the notice period set out in the legislation.

Injury

In this application the applicant relies on the aggravation of a disease, a diagnosable psychiatric condition, arising from the conditions of his employment with the respondent, in circumstances where that employment was the main contributing factor to the aggravation.
The test of ‘main contributing factor’ involves a consideration of whether there were competing factors (both work and non-work related) causing the aggravation and whether, on a consideration of relevant causal factors, the employment represented the main contributing factor.
I have set out below the discussion of the relevant test by Deputy President Snell in AV v W.[1]
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision.[112] It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.[113]
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1][2020] NSWWCCPD 9 at [76] to [78].
The medical evidence before me in this application is not of great assistance, excepting for the examination of the clinical notes. Dr Abhishek Naresh, psychiatrist, qualified by the applicant’s solicitors, was not provided, for his first consultation with the applicant, with a complete or reliable chronology of significant factors in his history. His first report of 9 December 2021 is therefore of limited assistance. It contains a detailed history of the applicant’s alleged poor relationship with Ms Archer, but he denied any history of mental illness in the family and reported a happy childhood with no abuse or trauma. From this very limited history Dr Naresh concluded that
“…employment is the substantial and main contributing factor to the injury. My rationale for this is apart from the alleged incident described by BJP there were no other psychosocial stressors contributing to him to develop the injury.”
Dr Naresh provided a supplementary on 23 September. It stated:
“BJP has denied a previous history of mental illness. He admits to seeing his GP when his mother passed away, he was grieving his mothers death and saw his GP for support. He denies suffering from clinical symptoms of depression. Hence I am of the opinion this was a normal grief reaction and not a major depressive episode. I note Dr Malik has denied BJP suffering from depressive symptoms due to the alleged bullying as he has no record of seeking help for his work related stressor. I note the claimant was suffering from cancer and alleges being focused on his physical health at that point in time as he was worried he would die from cancer and ignored his alleged depressive and anxiety symptoms. On the balance of probabilities I am of the opinion the main contributing factor for his alleged psychological injury is his work which is due to the alleged bullying, harassment.”
On 1 March 2023 Dr Naresh was provided with further documents, including documents from the Rosemeadow Medical Centre. This was the first time he had seen these documents. He was asked if it was still his opinion that the alleged bullying by the respondent’s manager was the main contributing factor to the aggravation of his underlying condition. He responded:
“I have reviewed the documents provided to me by the referrer. Documents from Rosemeadow Medical Centre states the claimant had presented to his GP on multiple occasions with depressive and anxiety symptoms from 2016 onwards which was in the context of the death of his mother, marital conflict with his wife and his chronic pain. However no mention of work related stress has been documented in the documents of Rosemeadow Medical Centre. The claimant in his statement dated 2nd December 2022 has alleged that when he lost his mother it was just a grief reaction. The claimant alleges having mentioned the alleged bullying and harassment at EML to his GP Dr Tran and the other doctors he saw during this time. The claimant alleges Dr Tran did not take this issue serious and for some reason has failed to document his alleged history of bullying in his notes. I have reviewed the report of psychologist Angela Parasher who states the claimant having discussed with her his alleged history of bullying at EML and the impact it had on him. The alleged work place bullying occurred from 2011 to 2013 which was before the alleged other stressors, hence on the balance of probabilities work place bullying appears to be the main contributing factors which heralded the onset of his depressive and anxiety symptoms. His mothers death did not lead to his depressive symptoms and it was a grief reaction. Also the claimant has alleged having discussed his bullying with his treatment providers and this has been reflected in his psychologist report Angela Parasher. Hence I am of the opinion his alleged bulling which occurred between 2011 and 2013 remains the main contributing factors for his psychological injury.”
It is conceded by the applicant’s counsel and it is common ground that there is no mention of any workplace difficulties in the applicant’s treating doctor’s reports or notes until he consults psychologist, Ms Angela Parasher.
The absence of any reference to workplace issues in the treating doctor’s reports and notes is not necessarily determinative, but it can be significant and I believe, in the circumstances of this application, it is of great significance.
I have taken into account the likelihood that busy treating doctors may not take detailed notes in relation to all possible causative factors conveyed to them by a patient relevant to the development of a patient’s condition. Treating doctors are most often concentrating on treatment outcomes in a busy workplace environment. The mention of particular causative factors can be overlooked. I acknowledge that.
However, I consider it significant that the applicants treating doctors between 2011 and the applicant’s consultation with Ms Paresher, make no mention of any adverse workplace circumstances or conflicts, let alone the possibility that workplace circumstances might have been a causative factor in the development of his psychiatric condition.
Given what the applicant says about the circumstances of his employment and his state of mind at the time of his ceasing work, I believe it would have been more likely than not, if in fact the applicant considered them significant, that such factors would have been discussed by the applicant with his treating doctors immediately following his departure from the employment of the respondent. The applicant’s evidence is that he was bullied, demeaned and humiliated. At that time such matters were likely to be front of mind for the applicant.
It is not as if the applicant’s treating doctors overlooked possible causative circumstances and did not take detailed notes. He has a long history of care with his treating doctors, dealing with many personal difficulties. Detailed notes concerning significant matters are taken by his doctors. Factors discussed with the applicant’s treating doctors, likely to have contributed to the aggravation of his underlying psychiatric condition were numerous and involved significant personal issues. They included the following:
(a)    domestic violence in his childhood;
(b)    as escape from the threat of death in Eastern Europe;
(c)    his family’s escape from Eastern Europe;
(d)    childhood school bullying;
(e)    anxiety arising from his mother’s threatened suicide;
(f)    the suicide of his mother;
(g)    acute grief following the suicide of his mother;
(h)    his mother’s suicide note which apparently laid blame on the applicant to some extent;
(i)    his fractured relationship with his sister;
(j)    his relationship difficulties with his wife and children;
(k)    financial difficulties, particularly after his wife became unemployed;
(l)    his wife’s several infidelities;
(m)     his fear of further infidelities;
(n)    his history of relationship infidelity in his past;
(o)    his cancer diagnosis with non-Hodgkin’s lymphoma;
(p)    his military service and history, and
(q)    although his clinical notes refer to a lack of male friends in Australia, there is also a reference to his having multiple friends with mental health issues.

I do not accept that, if the conditions of the applicant’s employment were so significant in the applicant’s history, that it would not make it into the treating doctor’s notes on at least one occasion. But it does not, neither when it first occurs, nor when it was building up as a more important issue as the years went by as suggested by [redacted].
Details of other personal matters are dwelt upon at length. Nothing is mentioned about workplace issues until the applicant consults Ms Paresher from which time the workplace issue is elevated to be the main contributing factor in the aggravation of his psychiatric condition.
I have considered the medical opinions provided in this application. I have given particular consideration to the opinion of Dr Naresh. Dr Naresh was provided with a cascading set of histories, commencing with the vanilla version provided by the applicant at his first consultation and ending with the provision of a full set of clinical treatment notes concerning the applicant. Despite his supportive conclusion regarding causation, I am not persuaded that any workplace conflict experienced by the applicant was the main contributing factor to the aggravation of his underlying condition.
Guided by Deputy President Snell in AV v AW, my consideration of this issue must be an evaluative process weighing work related and nonwork related issues when determining whether an event/experience/injury is a main contributing factor. I have followed that course.
Having done so I consider it unlikely that there is a continuing aggravation to the applicant’s underlying psychiatric condition arising from any conflict in the respondent’s workplace with his supervisor Ms Archer.
However, if I am in error and the applicant suffers an aggravation to his underlying psychiatric condition arising from a workplace injury with the respondent, I am satisfied and find that any aggravation arising from that workplace injury was not the main contributing factor to that aggravation.

SUMMARY

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

[2023] NSWPIC 286

19 June 2023