Booth v Retail Ready Operations Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Booth v Retail Ready Operations Australia Pty Ltd [2024] NSWPIC 103
APPLICANT:	Rosella Dawn Booth
RESPONDENT:	Retail Ready Operations Australia Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	4 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments; medical expenses and permanent impairment for psychological injury; whether the worker sustained injury in the course of her employment; whether there were actual events in the workplace which were perceived by the worker to be hostile or offensive so as to cause her injury; whether the worker’s evidence can be relied upon due to the progression of her psychological condition; reference to Attorney General’s Department v K; whether injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or dismissal; reference to Hamad v Q Catering P/L; Held – the worker sustained an injury in the course of her employment with the respondent; the injury sustained by the worker was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or dismissal; the worker has had no current work capacity since she sustained her injury; awards of weekly payments of compensation for total incapacity and medical expenses and referral for assessment of permanent impairment to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent by way of a disease injury pursuant to s 4 (b)(i) of the Workers Compensation Act 1987 with a deemed date of injury of 17 November 2021. 2. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. 3. The applicant has had no current work capacity since 17 November 2021. The Commission orders: 1. The respondent is to pay the applicant $927.80 per week from 17 November 2021 to 15 February 2022 pursuant to s 36 (1) of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37 (1) of the Workers Compensation Act 1987 as follows: a. $781.30 per week from 16 February 2022 to 31 March 2022; b. $795.70 per week from 1 April 2022 to 30 September 2022; c. $822.50 per week from 1 October 2022 to 31 March 2023; d. $856.50 per week from 1 April 2023 to 30 September 2023, and e. $876.80 per week from 1 October 2023 to date and continuing. 4. The respondent is to pay the applicant’s reasonably necessary medical treatment for her psychological injury pursuant to s 60 of the Workers Compensation Act 1987. 5. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 17 November 2021 Body Part: psychological injury Method of Assessment: whole person impairment 6. The documents to be forwarded to the Medical Assessor are as follows: a. Application to Resolve a Dispute with attachments; b. Reply with attachments; c. Application to Admit Late Documents filed by the applicant on 1 February 2024, and d. Application to Admit Late Documents filed by the respondent on 5 February 2024.

STATEMENT OF REASONS

BACKGROUND

Rosella Dawn Booth, the applicant in these proceedings, claims that she sustained a psychological injury while working as a process worker with the respondent, Retail Ready Operations Australia Pty Ltd.
Ms Booth claims that during the course of her employment she was subjected to repeated harassment, isolation, exclusion, coercion and false accusations by employees of the respondent.
Ms Booth was directed to go home on 10 November 2021 after she was involved in an altercation with another employee. Ms Booth had her employment with the respondent terminated on 16 November 2021 following a meeting with management from the respondent on that same day.
Ms Booth claims that he has been totally incapacitated for work since 16 November 2021 and claims weekly payments of compensation and the cost of medical treatment for her psychological injury. She also makes a claim for a lump sum payment for 22% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent has issued dispute notices on 13 April 2022 and 8 May 2023 wherein liability is disputed on the grounds that Ms Booth did not sustain an injury in the course of her employment, or if such an injury was sustained by her then that injury was wholly or predominantly caused by reasonable action with respect to discipline and/or dismissal.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury arising out of or in the course of her employment with the respondent (s 4 of the 1987 Act);
(b)    whether any psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline and/or dismissal (s 11A of the 1987 Act);
(c)    whether the applicant has been totally or partially incapacitated for work as a result of a work injury (ss 32A, 33, 36 and 37 of the 1987 Act), and
(d)    whether the respondent is liable for reasonably necessary treatment for psychological injury sustained by the applicant as a result of a work injury (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a hearing on 8 February 2024. 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.
Mr Stockley appeared for the applicant, instructed by Ms Azer. Mr Grant appeared for the respondent, instructed by Mr Ainsworth.
The hearing was conducted by video and was recorded.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) are $976.60.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and taken into account in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 1 February 2024, and
(d)    Application to Admit Late Documents filed by the respondent on 5 February 2024.

Oral evidence

There was no application to adduce oral evidence from the applicant or from any other witnesses, or to cross examine the applicant or any other witnesses who have provided evidence.

FINDINGS AND REASONS

Whether the applicant sustained a psychological injury in the course of her employment with the respondent

The applicant’s evidence

Ms Booth has provided statements dated 11 April 2022, 10 October 2023 and
24 January 2024.
Ms Booth states that she commenced employment as a process worker with the respondent in the poultry department at Erskine Creek in May 2016.
Ms Booth states that she started to have problems from about 2017 and provides details of those problems as follows:
(a)    receiving instructions to slow down in the packing work. Ms Booth feels that this was because the other workers ganged up on her;
(b)    another worker, BVL, was quite intimidating and on one occasion asked Ms Booth for the night numbers and then a [redacted], BWM, approached
Ms Booth and said that if she did not reach the night number she “would be out of here”;
(c)    another worker sticking his middle finger up at Ms Booth as he drove past in a car;
(d)    other workers leaving their boots outside Ms Booth’s locker which caused her on one occasion to trip over some boots;
(e)    her lunch being stolen on a few occasions;
(f)    the other workers speaking in their first languages which made Ms Booth feel uncomfortable and excluded;
(g)    applications for leave being denied in December 2020 and October 2021, and
(h)    being asked to sign a statement by one of the supervisors, BXN, in October 2021, and being told by BXN that if she did not sign that statement then he would sign it on her behalf.
Ms Booth concedes in her third statement that she was given leave in December 2020 and January 2021, but recalls that on one occasion she applied for leave for a special occasion and it was denied.
Ms Booth states that her work colleagues would not talk to her, no one would join her on her lunch breaks, and those colleagues would get up and move to a different table if she tried to join them.
Ms Booth states that she felt isolated, targeted and disliked and was too afraid to confront her supervisor, BXN, about this because she did not want to make matters worse and so she kept silent.
Ms Booth states that the respondent’s policy of workers only speaking English on the production line became stricter in 2020 and 2021, but the issue persisted and it created a very uncomfortable and intimidating environment.
Ms Booth denies that she hit a co-worker, Nabo, and believes “that this complaint was made up so they could get rid of me.” Ms Booth also denies that she chased Nabo around the production line because the line is too small for that to be possible, and she would never do such a thing.
Ms Booth states that on 10 November 2021 she was sent home by BWM because there had been a complaint made about her on the production floor. She states that she had another meeting with BWM and Shereen from HR on 16 November 2021 and was told that they had no option but to terminate her from that day onwards because of complaints from team leaders and because of her performance. Ms Booth states that she has not worked since
16 November 2021.
Ms Booth states that she was told by BWM that there was CCTV footage of Ms Booth hitting and chasing Nabo. She states that she responded with words to the effect that she was glad the incident had been caught because it did not happen, and she requested a copy of the footage. She states that the security footage has never been provided to her.
Ms Booth states that she does not have any personal problems which could have caused or been a factor in the claim she has made for workers compensation benefits.

The evidence of other lay witnesses

BZU

BZU has provided two statements dated 31 July 2023. BZU states that she is employed as a [redacted] with the respondent.
BZU states that she has found Ms Booth to be a nasty and very difficult person.
BZU states that she does not know anything about boots being left outside Ms Booth’s locker, Ms Booth’s lunch being stolen, or workers speaking in other languages.
BZU states that on 10 November 2021 she was filling the gap on the conveyor when
Ms Booth started yelling at her. She states that she said to Ms Booth to fill the gap or the meat would fall on the floor. She states that Ms Booth kept saying “no” aggressively and then Ms Booth hit her on the right hand.
BZU has also provided a handwritten statement dated 10 November 2021 which is consistent with her statement dated 31 July 2023 and also includes: “After this I walked and Rosella was angry and was chasing me.”

BOP

BOP has provided statements dated 24 March 2022 and 24 January 2024.
BOP Foster states that she is employed as a [redacted] with the respondent.
BOP states that she has supervised Ms Booth in the past and Ms Booth has always been a very difficult employee to deal with.
BOP states that she does not know anything about boots being left outside Ms Booth’s locker or Ms Booth’s lunch being stolen. She states that everyone on the floor speaks English.
BOP states that on 10 November 2022 she saw Ms Booth with BZU on Line 24. She states that BZU asked Ms Booth to empty the reject drumsticks because they were going onto the floor and Ms Booth replied: “why should I?” BOP states that BZU started to pick up drumsticks from the floor and Ms Booth hit BZU on her hand. She states that Ms Booth chased BZU around the presentation line when BZU walked off.
BOP has also provided a handwritten statement dated 10 November 2021 which is consistent with her statement dated 24 March 2022.

BVL

BVL has provided statements dated 22 March 2022 and 30 January 2024. BVL states that she is employed as a [redacted] with the respondent.
BVL states that there were no instructions to go slow and no one in ganged up on
Ms Booth. She states that she does not know anything about boots being left outside
Ms Booth’s locker, Ms Booth’s lunch being stolen, or workers speaking in other languages.
BVL states that she asked for the night number from Ms Booth and was told to “piss off.” BVL states that she told the [redacted], BXN, that Ms Booth did not give her the night number and does not know what happened after that. BVL denies that she intimidated Ms Booth. She states that she spoke reasonably to Ms Booth.

BXN

BXN has provided statements dated 4 April 2022 and 24 January 2024.
BXN states that he is employed as a [redacted] with the respondent.
BXN states that he has no knowledge of Ms Booth been given instructions to slow down in packing work, boots being left outside Ms Booth’s locker, or Ms Booth’s lunch being stolen. He states that team members are allowed to speak in their own language in the locker room, but English is only spoken on the factory floor.
BXN states that he is not the ‘[redacted] identified by Ms Booth, but believes she is referring to BYL.
BXN states that Ms Booth never mentioned to him either formally or informally that she felt she had been bullied or threatened or intimidated.

BQF

BQF has provided statements dated 24 March 2022 and 17 July 2023. BQF states that she is [redacted] for the respondent.
BQF states that Christmas is a busy period and employees know that is difficult to get leave at this time of year. She states that the respondent’s records show that Ms Booth took annual leave or did not work between 23 and 28 December 2020 (except on
27 December 2020) and from 31 December to 4 January 2021 (except on 3 January 2021). BQF states that the respondent’s policy is for an employee to give six weeks’ notice for leave and that Ms Booth had special isolation leave and was off for two weeks in
August 2021 and had not time off in October 2021.
BQF states that the respondent is very strict in having an “English only” guideline for those working on the factory floor because production line teamwork is critical to the success of the respondent’s business.
BQF recalls an incident in October or November 2021 when she was conducting a random drug and alcohol test and heard a lot of screaming and yelling. She states that she found Ms Booth yelling and screaming at BWM and that Ms Booth was saying things such as “everyone’s spying on me; everyone’s got it in for me”.

BSE

BSE has provided a statement dated 22 March 2022. BSE states that she is employed as a supervisor with the respondent.
BSE states that she would supervise Ms Booth almost every day. She states that the team leaders complained that Ms Booth would not listen when she was spoken to. She states that Ms Booth would become aggressive in the way she talked and would walk off if BSE tried to make a point with her.
BSE states that Ms Booth preferred to stay in the one place on the production line and only wanted to do what she liked to do.
BSE states that it was hard to find somewhere for Ms Booth to work because of her attitude as the team leaders did not want her working on their lines.

Other documentary evidence from the respondent

There is a ‘Discussion Record’ and also handwritten notes both dated 5 July 2019 which refer to a meeting with Ms Booth regarding her refusal to follow a direction from a line manager. The handwritten notes include a reported response from Ms Booth that she was working “not to my best performance because I wasn’t feeling well”, but there were other workers who were not doing their job properly.
There is a ‘Manager Report’ dated 24 June 2020 which refers to Ms Booth refusing to listen to any team leader or supervisor and that this has happened too many times.
There is a ‘Record of Conversation – [redacted] dated 10 July 2020 made by BRX which records details of ongoing accusations made by Ms Booth of line leaders spying on her. It is recorded that Ms Booth states:
“I just feel that team members are watching me.
I have no friends.
People talk in their own language etc.”
There is a ‘Manager Report’ dated 29 July 2021 which records that Ms Booth said she could go for a break whenever she wanted.
There is a ‘Record of Conversation – [redacted]’ dated 3 November 2021 made by BRX which refers to ongoing underperformance and refusal to follow reasonable instructions from line managers by Ms Booth. The document refers to Ms Booth intentionally working slowly. The document also includes Ms Booth’s response that she is doing her job and that people are “bullying me and picking on me”.
Five days later there is another ‘Record of Conversation – [redacted]’ created by BRX regarding further complaints of Ms Booth’s ongoing underperformance and refusal to follow reasonable instructions from line managers. The document also refers to Ms Booth stating that she had worked slowly due to a union strike, although BRX writes that there was never any strike. Ms Booth states in her most recent statement dated 24 January 2024 that she did not mean “a strike in the literal union sense”.
That document also includes details set down by BGX, [redacted], which records:
“Rosella strongly believes that she has been bullied for an extensive period of time. When asked when this all started and for tangible explanations, Rosella was unable to confirm dates, people and situations other than the recent complaints being submitted.”
Ms Antonio concludes that Ms Booth presents with paranoid tendencies but did not display any risk factors towards a manic psychological episode.
There is a ‘Record of Conversation – [redacted]’ dated 10 November 2021 made by
BRX, which follows the alleged altercation between Ms Booth and BZU on the production line. The document records that Ms Booth denied hitting BZU and chasing her. The document records that Ms Booth claimed that people were picking on her, including ‘Mona’ who had told Ms Booth that she was useless and ‘Meredith’ who struck her on the leg with a shovel. The document also records that Ms Booth claimed that the [redacted], BKU, had asked her if she was having an affair with another employee.
There is a ‘Record of Conversation – [redacted]’ the following day which is again created by BRX. The document records that Ms Booth was informed by BRX that the allegation made by Ms Booth regarding BKU was really serious, but that Ms Booth stated that it was not a false allegation. The document also records that Ms Booth started shouting at BWM, who was present at the meeting, and that Ms Booth stated that he was harassing and bullying her with questions. The document also records that Ms Booth said: “I will not be improving my performance and you can do what you like”.
There is a ‘Discussion Record Behaviour’ document dated 16 November 2021, which appears to be created by BWM and refers to a meeting on that day between BWM, BRX and Ms Booth, with BGX as a support person for Ms Booth. The document refers to the meetings conducted with Ms Booth on 3, 8, 10 and 11 November 2021, and refers to Ms Booth being consistently dishonest in her responses to questions asked of her and her refusal to take any ownership for her actions. The document states that Ms Booth’s actions are considered a breach of the respondent’s Code of Conduct, and that the respondent relies upon Ms Booth’s statements in those meetings, statements from other employees, and CCTV footage.
The document records that Ms Booth still refused to improve her performance and that she stated that she was not concerned that she might lose her job. The document does not specifically state that Ms Booth’s employment is terminated, but the appropriate outcome on the final page highlights “Termination of employment.”

Medical evidence

The clinical notes from St Clair Medical Practice are in evidence. There are attendances by Ms Booth for depression on 10 April 2012 and 16 November 2012.
There is an entry made by Dr Wadhera on 21 March 2018 of Ms Booth doing factory work for two years and “work place issues jealousy”, with the offer of a referral to a psychologist.
There is an entry made by Dr Wadhera on 12 October 2018 which refers to depression and insomnia, and another offer for referral to a psychologist. A list of symptoms includes: “No stress at work”.
There is an entry made by Dr Wadhera on 26 April 2019 of: “Some stress at work.”
There does not appear to be any further reference to an attendance by Ms Booth for psychological problems until an entry made by Dr Wadhera on 28 December 2021 of a telephone consultation which is identified as a situational crisis, and which also includes a query as to whether Ms Booth is upset from work.
The next reference to an attendance by Ms Booth for psychological problems is on
19 February 2022 which includes: “was bullied at work and had false accusations at work and was sacked”.
There is a discharge summary from Nepean Hospital for admission by Ms Booth to the mental health ward of that hospital from 28 December 2021 to 10 January 2022. The discharge summary records that Ms Booth’s family reported an eight month history of paranoid behaviour. The discharge summary records that Ms Booth complained four or five months earlier of being bullied at work, but that management had investigated this and found no causes for this. It is also recorded that Ms Booth’s behaviour became more bizarre after she was dismissed from her job for assaulting a work colleague. The diagnosis identified in the discharge summary is psychosis.
There are clinical notes in evidence from St Marys Community Health Facility from
18 January 2022 to 13 December 2022 where Ms Booth has had ongoing treatment for her psychological condition. The notes taken at Ms Booth’s initial attendance on
18 January 2022 by a medical officer include:
“Started as bullying at work place after new [redacted] BWM started. States work colleagues bullying her. Incident reported about her assaulting work colleague so she was terminated from her work but Pt denies this. She believes everything is related to workplace issues and she is mentally well.”
Those notes also record that Ms Booth reports that her neighbours have been keeping constant watch on her and her ex-employer has been conspiring against her with her neighbours.
Dr Rastogi, consultant psychiatrist, has provided a report at the request of Ms Booth’s lawyers dated 27 August 2022. Dr Rastogi is provided with a substantial amount of material including Ms Booth’s initial statement, some statements from other witnesses, and clinical notes from St Marys Community Health Facility and St Clair Medical Practice.
Dr Rastogi records that Ms Booth alleged from the commencement of her employment with the respondent in 2016 that she was bullied by her supervisor and teammates by being isolated, excluded, given excessive workloads, deprived of lunch breaks and being made to feel unwelcome. Dr Rastogi records that Ms Booth made numerous reports to the production manager and that her grievances were acknowledged and action was taken by the respondent, however Ms Booth faced more intimidation, and her work became an unsafe place for her.
Dr Rastogi records that all the floor managers ganged up against her and the team leaders had written complaints about her conduct and work performance given to a new manager.
Dr Rastogi records that the last straw for Ms Booth was being accused of hitting a team leader, which Ms Booth states was not true and which was recorded on CCTV. She records that Ms Booth felt alienated and ostracised, and she had a few days off work. Dr Rastogi records that Ms Booth attended meetings with the respondent but there was no outcome to this issue despite her persistence to seek proof and the video recording.
Dr Rastogi records that Ms Booth was called for a meeting on 16 November 2021 and was intimidated to write a statement, but she refused to sign any document. She records that
Ms Booth was asked if she could speed up her pace of work as there were constant complaints raised about her slow work performance by different team leaders and then she was terminated on the spot.
Dr Rastogi records that Ms Booth’s psychological condition declined significantly and she reported having a nervous breakdown and having two admissions to Nepean Hospital with psychosis in December 2021 and February 2022.
Dr Rastogi diagnoses Ms Booth as having a brief psychotic disorder in recovery and social anxiety disorder. Dr Rastogi opines:
“Ms Booth reported numerous incidents since start of her job in 2016 of being bullied, harassed, ostracized, alienated, intimidated, false accusations and unwelcomed at her workplace. There were false accusations placed against her that were never substantiated. She persevered working in the hostile work environment. She was constantly criticized for her slow pace and work performance. She was then terminated without warning for slow performance. This culminated into a psychotic episode needing two inpatient psychiatric admissions and she was diagnosed with Schizophrenia.”
Dr Rastogi opines that Ms Booth sustained a primary psychological injury associated with an accumulation of work events in the absence of any pre-existing psychological vulnerabilities. She opines that Ms Booth’s current condition “is directly attributed to a series of bullying and harassment incidents with racial discrimination and false accusations and lack of support and coercion by her employer”. Dr Rastogi considers that Ms Booth’s employment has caused the disease process.
A/Prof Robertson, consultant psychiatrist, has provided reports at the request of the respondent dated 22 March 2023, 17 August 2023 and 21 November 2023.
A/Prof Robertson is provided much of the same material as was given to Dr Rastogi for his report dated 22 March 2023. A/Prof Robertson records in that report that Ms Booth’s supervisor and teammates created an exclusionary alliance leading to Ms Booth being isolated and excluded in the workplace, along with unreasonable workloads, the denial of meal breaks and verbal and occasional physical intimidation. He records that complaints made by Ms Booth to the respondent were largely ineffectual, which caused an escalation of the bullying behaviour and an increasingly difficult work environment.
A/Prof Robertson records that Ms Booth was unreasonably accused of poor performance. He records that Ms Booth ceased duties after she was falsely accused of assaulting a fellow worker and felt coerced into signing a full statement implicating herself in that incident. A/Prof Robertson also records details from Dr Rastogi’s report of Ms Booth being subject to unreasonable behaviour in the workplace.
A/Prof Robertson records that Ms Booth’s symptoms rapidly deteriorated and she developed an acute paranoid psychosis and was admitted to the mental health unit at Nepean Hospital.
A/Prof Robertson diagnoses Ms Booth as having had a previous paranoid psychotic episode which has fully resolved with the implementation of antipsychotic treatment. He considers that Ms Booth currently presents with a significant and persistent anxiety disorder.
A/Prof Robertson opines:
“The scientific literature is clear in demonstrating a causal association between bullying behaviour in the workplace and an array of psychopathological states and physical health problems, including brief psychotic episodes and persisting states of anxiety. Assuming the account of the bullying behaviour is valid and reliable come out this was the substantial and main contributing factor of to Ms Booth’s brief psychotic episode and her persisting generalised anxiety disorder.”
A/Prof Robertson opines that there is no evidence of pre-existing psychiatric disorder or significant vulnerability to Ms Booth’s psychological disturbance.
A/Prof Robertson provides a further report dated 23 August 2023 after consideration of additional material including Ms Booth’s personnel file. A/Prof Robertson writes that the documents appear to indicate that Ms Booth may have been experiencing psychiatric problems for a long time because of evidence of declining performance dating from 2018 and bizarre disturbances of behaviour since 2020 which are referred to by her colleagues and in her personnel file.
A/Prof Robertson is asked if the opinion in his previous report was based upon the veracity of the allegations made by Ms Booth and he responds:
“This is a difficult issue upon which to adjudicate. The presence of an evolving paranoid psychosis raises questions about the reliability of Ms Booth’s account of events in the workplace. That said, there may be some aspects of her alleged grievances that had a basis in reality; the subjective experience of this through the prism of her evolving psychosis would have made these experiences more prejudicial from her perspective. The question of which version of events is to be preferred is ultimately a legal rather than medical one, however on the balance of probability Ms Booth’s account of bullying appears less reliable in light of the information indicating a more prolonged period of prodromal psychotic disturbance.”
A/Prof Robertson is then asked if his opinion would be altered if the allegations made by
Ms Booth were not real or actual events and he responds:
“Apropos of my previous response, I cannot adjudicate on which version of events is preferable. That said, an evolving episode of paranoid psychosis would lead to Ms Booth not coping with her workplace challenges. This would have likely established a cyclical process of perceived workplace difficulties, further exacerbating her deteriorating mental state. The additional information lends credibility to the hypothesis that Ms Booth’s grievances with her employer where delusional rather than grounded in fact. A reasonable “middle ground” would be to acknowledge there may have been routine workplace stressors, that would have been of little significance to an individual of “normal fortitude”, which presented a significant psychological affront to Ms Booth.”
A/Prof Robertson also writes:
“The challenge in this matter remains parsing what can be considered credible “workplace stress” independent of the effects of Ms Booth’s declining mental health and its effects on her capacity to cope with otherwise minor “hassles” or challenges in the workplace. As noted, the information seems to indicate a longer period of psychiatric disturbance, favouring the hypothesis that Ms Booth’s evolving psychotic disturbance what's [sic] the basis of her experience of workplace stress.”
In his final report dated 21 November 2023, A/Prof Robertson is provided with a list of incidents which have been set out in the summary of the applicant’s evidence in this decision. He is asked to assume that those incidents did not occur and that only English was spoken on the factory floor, and he is then asked if Ms Booth’s employment was the main contributing factor to the contraction of any disease condition. A/Prof Robertson responds:
“On the background assumption that these were not demonstrably true, employment would have had a minimal contribution to the evolution of her psychotic illness.”
A/Prof Robertson then opines:
“Any theoretical attribution of cause to the nature and conditions of her employment and the origin of Ms Booth’s severe and persistent mental illness was predicated on the assumption that there were interpersonal stressors in the workplace. The background assumption you have asked me to make indicates that employment would have had no causal significance in the onset of her illness.”
Dr Rastogi has provided a supplementary report dated 29 January 2024 in response to the three reports of A/Prof Robertson and further statements from other witnesses and the records of meetings by management with Ms Booth, particularly those which occurred in November 2021.
Dr Rastogi maintains her opinion that Ms Booth suffered a psychological disease injury in the course of her employment and that employment is the main contributing factor to that disease. Dr Rastogi opines:
“It is not uncommon given the exposure to such hostility and intimidation with chronic exposure to trauma and abuse over the period of 6 years, one would lose their judgement and ability to reason and developed either complex PTSD features or psychotic symptoms. In the absence of any pre-existing vulnerabilities, the causation of her psychotic episode was attributed to workplace events.”

A summary of the submissions made by the parties in this dispute

Mr Stockley on behalf of Ms Booth relies very much in his submissions on the opinion of A/Prof Robertson because he contends that those reports involve a more analytical approach to Ms Booth’s claim than that undertaken by Dr Rastogi. He submits that the respondent’s case cannot be any worse for Ms Booth than the opinion from A/Prof Robertson, and yet A/Prof Robertson supports a finding of injury.
Mr Stockley submits that A/Prof Robertson supports a finding that Ms Booth had a vulnerability to the provocation of a florid psychotic episode when exposed to hostile events in the workplace which a more robust individual might be able to withstand without any pathological response. He submits that this is analogous to the many disputes before the Commission involving orthopaedic injuries where a worker might have a pre-existing condition or vulnerability but there is an aggravation caused by work which allows for compensation to be paid to the worker.
Mr Stockley submits that while Ms Booth’s grievances might be delusional due to her developing psychotic illness, there were real events in the workplace which Ms Booth found to be hostile. He refers to Ms Booth falling into a vicious cycle of perception of hostile events in the workplace followed by aggravation and further deterioration of her psychological condition.
Mr Stockley acknowledges that the respondent has “the benefit of numbers” in regard to the amount of witnesses who have challenged various allegations made by Ms Booth. However, he submits that there is evidence which can be relied upon to support the claims of
Ms Booth’s perception of a hostile workplace such as the record made by BGX on
8 November 2021 that Ms Booth believed she had been bullied for an extensive period of time and the failure by the respondent to produce the CCTV footage of the incident with
BZU on 10 November 2021 despite requests made by the applicant for that footage.
Mr Grant for the respondent submits that the psychological episode which ultimately led to Ms Booth’s admission to Nepean Hospital in late 2021 involved a disconnection with reality, to the extent that this colours the evidence provided by Ms Booth and means that her evidence cannot be relied upon to support the claim she has made.
Mr Grant submits that a perception of a hostile workplace must be derived from real events, but Ms Booth cannot rely upon her own evidence of what events were real in the workplace because of the psychotic condition she was suffering from. Mr Grant refers by way of example to the incident between Ms Booth and BZU on 10 November 2021. Ms Booth disputes that she struck BZU and chased her, but that those allegations are supported by a third party, namely BOP.
Mr Grant refers to there being no attendances by Ms Booth upon any doctors for psychological problems prior to her termination of employment in November 2021 except for the reference to “work place issues jealousy” in October 2018. He refers to the note taken in that consultation of “No stress at work”. Mr Grant submits that the issues of bullying only arise after the psychotic event occurs, so that there must be doubt as to whether the allegations made by Ms Booth have any basis in reality.
Mr Grant submits that the Commission cannot be satisfied that any of the events referred to by Ms Booth did occur because she was delusional and therefore she cannot establish that either her psychological condition has developed due to her employment or has been aggravated by her employment to the requisite degree that is required by the legislation for her to succeed with her claim.

Determination

The clinical notes from St Marys Community Mental Health Clinic indicate that Ms Booth has been treated by Dr Jabeen, consultant psychiatrist, but there is no comprehensive report provided by that specialist. The issue of the cause of the deterioration in Ms Booth’s psychiatric condition in late 2021 which led to her incapacity for work therefore rests very much with the opinions of Dr Rastogi and A/Prof Robertson.
Counsel for both parties in their respective submissions expressed a preference for the opinion provided by A/Prof Robertson over that of Dr Rastogi. Mr Stockley submits that A/Prof Robertson undertakes a more analytical approach to Ms Booth’s claim than that undertaken by Dr Rastogi. Mr Grant submits that a “fair approach” is taken by A/Prof Robertson to the issue of causation.
I agree with those submissions. A/Prof Robertson initially opines that there can be a causal association between bullying behaviour in the workplace and an array of psychopathological states, and that if Ms Booth’s accounts of bullying behaviour are valid and reliable then her employment was the substantial and main contributing factor to her brief psychotic episode and persisting generalised anxiety disorder.
In his next report, A/Prof Robertson begins to query Ms Booth’s version of events when he considers that from a review of material provided to him indicates that Ms Booth may have been experiencing psychiatric problems for a long time. He concedes that the question of which version of events is to be preferred is ultimately for legal determination, but he is prepared to accept that a “middle ground” may be that Ms Booth still had “a significant psychological affront” to routine workplace stressors which would have little significance to a person of “normal fortitude”.
In his final report, A/Prof Robertson opines that Ms Booth’s employment would have had a minimal contribution to the evolution of her psychotic illness, but that opinion is based upon an assumption that he is asked to make that the incidents complained of by Ms Booth did not occur.
I agree with submissions made by Mr Grant that Dr Rastogi takes a simplistic approach to the issue of causation, merely accepts the versions of events proffered by Ms Booth, and does not engage in any consideration of whether the details provided to her by Ms Booth might be affected by the psychological condition which Ms Booth developed in late 2021.
By way of example, Dr Rastogi proceeds on an assumption that Ms Booth had her employment terminated without warning for slow performance, whereas the documents from the respondent which were created from the five meetings held with Ms Booth between
3 November 2021 and 16 November 2021 set out multiple incidents of concern to the respondent and which led to the termination of employment.
Dr Rastogi also opines that Ms Booth’s psychological condition is directly attributable to racial discrimination, however I could not identify any such instance recorded by Dr Rastogi in the history she obtained from Ms Booth. Ms Booth complains of other employees speaking in their own languages in her own evidence, but no record is made by Dr Rastogi of this.
I agree with Mr Stockley that A/Prof Robertson supports a finding of injury caused by
Ms Booth’s employment, but that is contingent on there being certain events in the workplace as described by Ms Booth which did occur, and which were perceived by Ms Booth to be so hostile or offensive as to cause her psychological injury.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), DP Roche said in regard to the claim for a psychological injury at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”

Ms Booth could have assisted her claim by providing more specific details of when and over what period of time during the five and a half years she worked for the respondent that her work colleagues did not talk to her and would move away from her during their breaks. She could have provided the names or identified some of those employees to allow for further interrogation of these complaints. Ms Booth does not even identify when more specific incidents of unreasonable conduct occurred, such as boots being left outside her locker or her lunch being stolen, over the five and a half years of her employment.
There is a lack of details of complaints made by Ms Booth to the respondent regarding her being the subject of unreasonable conduct despite Dr Rastogi recording that Ms Booth made numerous reports of being picked on and intimidated on the production line and A/Prof Robertson recording that Ms Booth made contemporaneous complaints to the respondent, but which were largely ineffectual.
There is also, as noted by Mr Grant, a lack of any attendances by Ms Booth upon her general practitioner for treatment for psychological problems associated with her work until the termination of her employment in November 2021.
There is nonetheless certain evidence which does support the claims made by Ms Booth that she perceived certain events in the workplace as being hostile.
There is the entry made by Dr Wadhera on 21 March 2018 of “work place issues jealousy” and the offer of referral to a psychologist. This is consistent with Ms Booth’s claims of being targeted and disliked by other employees. There is the entry made by Dr Wadhera on
26 April 2019 of “some stress at work.”
Mr Grant refers to the entry made on 12 October 2018 of “No stress at work”, but I am prepared to infer that this was but one answer to multiple questions being completed by
Ms Booth at that consultation. My preference in my approach to those clinical notes is for what is actually recorded by the doctor, and there are references to stress related to
Ms Booth’s work on two occasions some six months either side of the attendance on
12 October 2018.
I would agree with a submission made by Mr Stockley that caution should be exercised in considering the details contained in the discharge summary from Nepean Hospital because those details appear to have been provided by understandably concerned members of
Ms Booth’s family. However, bullying behaviour in the workplace is recorded in the initial consultation which Ms Booth has at St Marys Community Mental Health Clinic on
18 January 2022 and which she will attend for many months thereafter for ongoing treatment.
There is also evidence from the records of the respondent. The ‘Record of Conversation – Manager’ dated 10 July 2020 is created in the context of Ms Booth complaining of employees spying on her, but that document also records Ms Booth stating that she has no friends and people talk in their own language.
The ‘Record of Conversation – Manager’ dated 3 November 2021 is created in response to alleged underperformance and refusal to follow instructions by Ms Booth but it also contains the allegation made by Ms Booth that people are “bullying me and picking on me.”
The ‘Record of Conversation – [redacted]’ dated 8 November 2021 also relates to underperformance and refusal to follow instructions but also includes the observations made by BGX, [redacted], that Ms Booth believes that she has been bullied for an extensive period of time. BGX shares the frustration which I have identified of Ms Booth being “unable to confirm dates, people and situations” of such a bullying, but nonetheless it is recorded by BGX that Ms Booth is adamant that this bullying has occurred.
The ‘Record of Conversation – Manager’ dated 10 November 2021 records that people were picking on Ms Booth, including ‘Mona’ who had told Ms Booth that she was useless and ‘Meredith’ who struck her on the leg with a shovel.
The clinical notes which have been referred to and those records made by officers of the respondent support Ms Booth’s own evidence that she was isolated and disliked by other employees.
The events which follow the incident between Ms Booth and BZU on 10 November 2021 also support Ms Booth’s claim that she was not being treated fairly by officers of the respondent. I am satisfied from a review of the evidence that Ms Booth did initiate an altercation with BZU because that is corroborated by a third party, namely BOP.
However, there is no record made by the respondent that Ms Booth was allowed to view the footage and Ms Booth states that she was not provided with a copy of the CCTV footage despite making such a request. There is no evidence from BWM and BRX in regard to this. Irrespective of the denial of the altercation made by Ms Booth, it is reasonable to accept that the failure to allow Ms Booth access to view footage which formed part of the respondent’s reason for terminating her employment added to the unfair behaviour and conduct of other employees of the respondent which she perceived had been occurring to her for some years.
A review of the evidence reveals that unfortunately Ms Booth was not liked on the factory floor. BSE states that it was hard to find somewhere for Ms Booth to work because of her attitude as the team leaders did not want her working on their lines. The meetings which were conducted between 3 November and 16 November 2021 were in response to allegations of poor behaviour by Ms Booth. Mr Stockley refers to “the benefit of numbers” in regard to the amount of witnesses who have complained about Ms Booth’s behaviour and dispute the allegations she has made.
However, the test to be applied from Attorney General’s Department v K is whether there were events which occurred in the workplace which a worker perceived to be offensive or hostile and which resulted in a psychological injury, irrespective of whether the worker’s response was ‘rational, reasonable and proportional’. The evidence from other employees can of course be pertinent to this question, but ultimately a determination is required as to whether the injured worker perceived real events in the workplace to be offensive or hostile.
From my review of the evidence, in particular the notes made by Dr Wadhera in 2018 and 2019, the records made by officers of the respondent in July 2020 and November 2021, and Ms Booth’s own evidence (notwithstanding the lack of detail provided in that evidence), I am satisfied that Ms Booth meets the test set out in Attorney General’s Department v K and that her employment was the main contributing factor to the psychological injury she sustained in late 2021.
An overarching argument pursued by the respondent is that the Commission cannot be satisfied that any of the events referred to by Ms Booth did occur because she was delusional due to her psychotic condition.
However, I do not consider that is supported by the opinion of A/Prof Robertson, whose opinion I have preferred. A/Prof Robertson is prepared to accept that Ms Booth’s employment is the substantial and main contributing factor to her psychological condition if the accounts of bullying behaviour are found to be valid. I have provided my reasons as to why I consider there were incidents in the workplace where Ms Booth was subjected to unreasonable conduct by other employees.
Thereafter, A/Prof Robertson accepts that notwithstanding the development of paranoid psychosis, there can be a “middle ground” whereby Ms Booth had “a significant psychological affront” to routine workplace stressors which would have little significance to a person of “normal fortitude”. In my view, that opinion amounts to a logical and reasonable assessment of the cause of Ms Booth’s psychological condition when placed against the material which I have reviewed.
Neither A/Prof Robertson or Dr Rastogi identify Ms Booth as having a pre-existing psychological disorder or disease. It therefore follows that the injury sustained by Ms Booth meets the provisions of s 4 (b)(i) of the 1987 Act by way of a disease which is contracted in the course of employment and in which employment is the main contributing factor to the contraction of that disease.
Although Ms Booth did not attend Dr Wadhera until 28 December 2021, the deemed date of injury should be 17 November 2021, being the day after the last meeting that Ms Booth had with officers of the respondent and the first date when Ms Booth could not work due to her psychological injury.

The s 11A defence

The respondent relies in the alternative on s 11A (1) of the 1987 Act and claims that the whole or predominant cause of Ms Booth’s psychological injury was reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or dismissal.
Section 11A (1) of the 1987 Act provides:
“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.”
Mr Grant submits that the psychological injury sustained by Ms Booth occurs in close proximity to the meetings between 3 and 16 November 2021 which involve discipline and ultimately dismissal of Ms Booth from her employment with the respondent. He submits that the action taken by the respondent which is set out in the records created by the respondent in relation to those meetings reveals that such action was nothing less than reasonable.
In Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), DP Snell said at [88]:
“…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.”
Although Ms Booth’s cessation from work and the need for intensive psychological treatment occurs soon after the meetings which occur between 3 and 16 November 2021, I do not consider that the circumstances of this dispute fall within what is contemplated in Hamad of a single instance of major psychological trauma, with no other competing factors, and which does not require the opinion from an appropriate expert.
This is because it is apparent from the lay and medical evidence which has been reviewed in this dispute that Ms Booth was developing symptoms of stress and anxiety well before those meetings occurred. There is not only the evidence from Ms Booth but also the attendances she made upon Dr Wadhera in 2018 and 2019 for treatment for stress due to her work and the record made in July 2020 by BRX of concerns that Ms Booth had regarding her situation in the workplace.
Furthermore, the opinion of A/Prof Robertson, whom I have preferred throughout this decision, considers that the psychological injury sustained by Ms Booth evolved over a period of time and refers to declining performance dating from 2018 and disturbances of behaviour since 2020.
Therefore, a conclusion cannot be reached that the action taken by the respondent, particularly between 3 and 16 November 2021, was the whole or even the predominant cause of the psychological injury sustained by Ms Booth.
In my view, the respondent needs to meet the test imposed in Hamad of providing medical evidence which addresses the defence provided for by s 11A (1) of the 1987 Act.
A/Prof Robertson does not do this and there is no other expert opinion which addresses this issue.
I therefore determine that the respondent has failed to establish a defence pursuant to s 11A (1) of the 1987 Act.

The claim for weekly payments of compensation

Ms Booth states in her statement dated 10 October 2023 that she has not returned to any type of work since 16 November 2021. She states that she is only able to do basic household chores and only cook easy meals. She states that her concentration has declined, and she cannot handle stress and making decisions.
There are no Certificates of Capacity in evidence since 22 April 2022, presumably because workers compensation liability was declined soon after that. The Certificate of Capacity issued by Dr Wadhera on 22 April 2022 certified Ms Booth as having no current work capacity.
Dr Rastogi only saw Ms Booth on one occasion some 18 months ago. Dr Rastogi opined at that time that Ms Booth had been unfit to work in any capacity since November 2021 and “remains totally incapacitated for the future.” Dr Rastogi made an assessment of 22% whole person impairment which included class 5 for Adaptation and her assessment: “Total impairment as she has no capacity to work due to extreme poor stress coping, anxiety and cognitive barriers.”
A/Prof Robertson has also only seen Ms Booth on one occasion, although that was about 12 months ago. A/Prof Robertson did not provide any specific opinion on Ms Booth’s capacity for work. However, he did place her within class 5 for Employability and wrote:
“The primary barriers to employment appear to be her highly reactive mental state, her impaired concentration, her poor interpersonal resilience and variably impaired motivation and drive.”
Mr Grant did not seek to argue against a finding that Ms Booth has had no current work capacity since 16 November 2021. The medical evidence strongly supports a finding that
Ms Booth has had no current work capacity since 16 November 2021, notwithstanding that there has been no recent medical evidence addressing the issue of capacity for work.
There will therefore be a finding made that Ms Booth has had no current work capacity since 16 November 2021 and there will be awards of weekly payments of compensation pursuant to s 36 and s 37 of the 1987 Act, starting with PIAWE agreed at $976.60, and indexation thereafter pursuant to s 82A of the 1987 Act.

Other entitlements

There will be an order that the respondent is to pay Ms Booth’s reasonably necessary medical treatment for her psychological injury pursuant to s 60 of the 1987 Act.
The assessments of whole person impairment made by both Dr Rastogi and
A/Prof Robertson are in excess of 15%, which would entitle Ms Booth to a lump sum payment pursuant to s 66 of the 1987 Act. However, no agreement was reached by the parties regarding a level of permanent impairment which would be acceptable to both parties in the event that Ms Booth was to be otherwise successful with her claim.
I am also mindful that the assessment of permanent impairment made by Dr Rastogi was some 18 months ago and the assessment made by A/Prof Robertson was made some
12 months ago, and that cl 1.6 of Part 1 of the Fourth Edition of the ‘NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment’ provides that:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant’s relevant medical history and all available relevant medical information.”
In the circumstances of this dispute, I consider it appropriate for there to be a referral to a Medical Assessor to assess the degree of whole person impairment.

[2024] NSWPIC 103

4 March 2024