Brandt v RR Lifestyle Support Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brandt v RR Lifestyle Support Limited [2022] NSWPIC 114
APPLICANT:	Beate Brandt
RESPONDENT:	RR Lifestyle Support Limited
MEMBER:	John Isaksen
DATE OF DECISION:	21 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment for psychological injury; whether the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; reference to Ponnan v George Weston Foods Ltd and ISS Property Services Pty Ltd v Milovanovic; whether the claim for permanent impairment can be determined without the need for assessment by a Medical Assessor (MA); reference to Etherton v ISS Property Services Pty Ltd; Held– the worker’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; not appropriate for the claim for permanent impairment to be determined by the Commission; referral for assessment of permanent impairment to MA.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury of 28 October 2019. 2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 3. The applicant is to be referred for an assessment of permanent impairment for her psychological injury to a Medical Assessor.
ORDERS MADE:	1. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 28 October 2019 Body Part: Psychological injury Method of Assessment: Whole Person Impairment 2. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) Application to Admit Late Documents filed by the respondent on 11 March 2020.

STATEMENT OF REASONS

BACKGROUND

Beate Brandt, the applicant in these proceedings, claims that she sustained a psychological injury in the course of her employment with the respondent, RR Lifestyle Support Limited.
Ms Brandt was employed by the respondent as a support worker and worked at a number of homes in south west Sydney with people with intellectual disabilities.
Ms Brandt ceased work due to her psychological injury on 28 October 2019.
Ms Brandt was paid weekly payments of compensation until 23 October 2020. A dispute notice was issued by icare on 28 September 2020 wherein liability was disputed on the grounds that the psychological injury sustained by Ms Brandt was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, performance appraisal and/or dismissal.
Ms Brandt makes a claim for 17% permanent impairment as a result of her psychological injury.
Icare issued further dispute notices on 13 January 2021 and 25 August 2021 wherein it determined that Ms Brandt was not entitled to lump sum compensation for permanent impairment because the permanent impairment had not resulted from an injury as required by section 66 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, performance appraisal and/or dismissal (section 11A of the 1987 Act), and
(b) whether the claim for lump sum compensation for permanent impairment made by the applicant can be determined in this part of the dispute (sections 65 and 66 of the 1987 Act, and section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 10 March 2022. 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 Petrie appeared for the applicant, instructed by Mr Petrovski. Mr Stockley appeared for the respondent, instructed by Mr Kim.
The hearing was conducted by telephone in accordance with the protocols set out by the Personal Injury Commission (the Commission) due to the coronavirus pandemic.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent on 11 March 2022.

Oral Evidence

There was no application made to adduce oral evidence or cross examine Ms Brandt or any other witnesses who have provided evidence in statement form.

The applicant’s evidence

Ms Brandt has provided a statement dated 20 November 2021. There is also an unsigned statement from Ms Brandt in the Reply, which was obtained by an investigator retained by the respondent, but counsel for both parties only referred to the statement dated 20 November 2021 in submissions.
Ms Brandt states that she commenced employment as a support worker with the respondent in September 2017, although she had worked at houses run by the respondent while employed with Edmen Community Staffing Solutions from 2016.
Ms Brandt states that she was initially contracted to work with the respondent for 32 hours per week, and that was increased to 36 hours per week in May 2018, but she always worked in excess of those hours, sometimes working up to 60 hours per week.

Ms Brandt states that she was subjected to unjust bullying from January 2018 onwards when Bronwyn Lewis was promoted to House Manager. Ms Brandt states that there were a number of occasions between February and April 2018 when Ms Lewis would yell at her or treat her with hostility. These occasions included the following:
(a)    accusing Ms Brandt of stealing a coffee table from a house when
Ms Brandt had obtained the consent of the owner of the table, being another employee, that she could take it home. Ms Brandt states that she should have told Ms Lewis, but did send an email in response to hostile questioning of her by Ms Lewis, but never received a response to that email;
(b)    yelling at Ms Brandt in regard to letters addressed to a resident which had not been dealt with by Ms Brandt, when Ms Brandt had not been made aware by the respondent that she was responsible for this paperwork;
(c)    making a hostile phone call to Ms Brandt on 17 February 2018 which left Ms Brandt in tears, and
(d)    making degrading comments to Ms Brandt on 28 March 2018 which caused Ms Brandt to break down and cry.
Ms Brandt also states that her hours of work were reduced from the time that Ms Lewis became House Manager, yet the houses managed by the respondent were short staffed and casuals were engaged to do shifts.
Ms Brandt states that the constant hostility by Ms Lewis towards her and the reduction in her shifts were beginning to overwhelm her.
On 3 May 2018 Ms Brandt made a written complaint to Jenna Nowlan, the Area Manager. A copy of that complaint is included in the ARD. The two page letter commences:
“I apologise for having taken time with writing to you, I have just been too emotional through all the stress I'm feeling lately and also scared for the safety of my job, I feel that some things I need to get off my chest could be damaging and I don’t like being a snitch but it's gotten to the stage that something needs to be done.”
Ms Brandt then lists six issues of concern, one of which is bullying, harassment and intimidation from Ms Lewis, although there is no further mention of Ms Lewis in that letter.
Ms Brandt states that she had a meeting with Ms Nowlan on 7 May 2018 and
Ms Nowlan assured her that she would look into the issues raised in her complaint and speak to Ms Lewis.
Ms Brandt writes two further emails to Ms Nowlan on 14 May 2018, which are also in the ARD. One of the emails appears to be about issues within the house she is working in. The other email includes difficulties Ms Brandt is having with Ms Lewis, including Ms Lewis telling another employee of the complaints that had been made by Ms Brandt. Ms Brandt states that she does not wish to work with Ms Lewis without a third party being present. She states that “I find myself constantly in tears in regards to all of this” and “my work life is being turned into misery of late”.
Ms Brandt states that for the rest of 2018 she kept her head down and got on with her job, although she was experiencing migraines and feelings of anxiety and depression.
Ms Brandt states that on 24 September 2018 she was suspended from working at one of the houses, but that this suspension was withdrawn 48 hours later. She states that she was not informed as to the reason for the suspension. She states that she was suffering extreme anxiety and attended her medical practice at Queen Medical Centre and told the doctor she saw that she was stressed about work. Ms Brandt states that she was given a medical certificate stating that she was unfit for work.
Ms Brandt wrote another letter of complaint on 24 October 2018, a copy of which is included in the ARD. The complaint is in regard to not being informed of the accusations leading to her suspension the previous month, having her hours of work reduced (which led to a significant drop in her income), and errors in the calculation of her pay. The complaint followed discussions which Ms Brandt had with Ms Lewis on 11 and 12 October 2018 regarding some of these issues.
Ms Brandt states that Ms Lewis stood down from her role as House Manager in February 2019. She states that her relationship with the new House Manager,
Ms Stewart, was fine until 19 September 2019.
Ms Brandt states that on 19 September 2019 she received a letter to attend a meeting after she had told Ms Stewart she had lost her licence for three months because she had been found to be “driving under the influence”. She states that she was nervous about telling Ms Stewart about this because a colleague had lost her job when she lost her licence.
Ms Brandt states that she could not attend the planned meeting on 23 September 2019 because of migraines, and then took annual leave until 23 October 2019 to cover most of the time she did not have a licence. She states that on 22 October 2019 she received a letter informing her that she had been suspended from work and the meeting was to occur on 25 October 2019.
Ms Brandt states that the meeting on 25 October 2019 occurred over the phone with the Operations Manager, Pravin Chand, and Sonya Kral from HR. Ms Brandt states that at the meeting she was told that she was suspended because she did not have a licence. She states that she asked if she could take unpaid leave for the next four weeks, and she reminded them they considered that she went “far and beyond” for the respondent. Ms Brandt states that at the end of the meeting she was told she might be dismissed.
Ms Brandt states that she saw her doctor on 26 October 2019. She states that her migraines were getting worse, that she was constantly crying and could not sleep.
Ms Brandt states that she was certified unfit for work and has not worked since.
Ms Brandt states that on 11 November 2019 she received an email from the respondent stating that her employment was terminated. The letter of termination refers to Ms Brandt failing to hold a driver licence, which is an inherent requirement of her role, and failing to disclose her licence suspension to the respondent, and that it was likely that Ms Brandt was working while under the influence of marijuana.
Ms Brandt states that she continues to experience severe symptoms of anxiety and depression.

The evidence of other witnesses

There is no evidence from any other witnesses regarding events which Ms Brandt has referred to during the course of 2018.
Rochelle Stewart has provided a statement dated 5 December 2019. Ms Stewart states that she has been employed as an Accommodation Manager with the respondent since February 2019 and Ms Brandt reported to her.
Ms Stewart states that she was aware about how much Ms Brandt disliked Ms Lewis and was able to organise rosters so that Ms Lewis and Ms Brandt did not work together or attend the same team meetings.
Ms Stewart states that Ms Brandt did not complain to her about being bullied between February and September 2019. She states that in September 2019 she found
Ms Brandt to be disengaged. She states that she sent a text to Ms Brandt and
Ms Brandt replied with a lengthy text stating that she had lost her licence “due to DUI”. Ms Stewart states that she then informed Mr Chand and Ms Kral of this.
Sonya Kral has provided a statement dated 5 December 2019. She states that she commenced employment as HR Business Partner with the respondent in June 2019.
Ms Kral states that Ms Brandt sounded nervous and anxious at the start of the telephone meeting on 25 October 2019. She states that as the meeting progressed
Ms Brandt became emotional and was crying, and that by the end of the meeting
Ms Brandt sounded as though she was almost begging not to be fired from her job.
Ms Kral states that after the meeting she reviewed Ms Brandt’s roster and discovered that Ms Brandt was probably under the influence of marijuana while on duty. She states that she sent recommendations to the CEO, and a decision was made by the CEO for Ms Brandt’s employment to be terminated.
A transcript of the meeting conducted on 25 October 2019 is in the Reply.

The medical evidence

There is a record made by Dr Chaudhri at Primary Medical Centre Narellan on 27 September 2018 regarding Ms Brandt of “stressed at work” and “not coping well”, and a medical certificate being issued.
There is a record made by Dr Godfrey of that same practice on 3 October 2018 regarding Ms Brandt of: “was suspended from job” and “not ready to go work as not mentally fit”.
The next consultation with a general practitioner regarding Ms Brandt’s psychological problems appears to be on 28 October 2019 with Dr Zaman at Ultra Care Medical Centre. The notes for that consultation include:
“works a disability worker
Pt reported that she has been victim of bullying, harassment since 15/04/18
Lack of action by management
Has been feeling low and depressed.”
Ms Brandt was referred to Andrew Symkowiak, psychologist, and his clinical notes are in evidence.
Notes taken by Mr Symkowiak at the first consultation with Ms Brandt on 18 November 2019 record that Ms Brandt’s manager cut her shifts and frequently yelled at her when others were not in earshot. There is a record of Ms Brandt writing complaints to the Area Manager, but then the bullying got worse, so Ms Brandt stopped making complaints. The notes also record that Ms Brandt was suspended from work on the day before she was due to return to work after four weeks leave.
The notes from the next consultation on 12 December 2019 record that Ms Brandt lost her licence for three months while driving under the influence of marijuana. The notes record that Ms Brandt then had her employment terminated for misconduct. The notes record that Ms Brandt feels that this is linked to a pattern of bullying behaviour towards her since January 2018. The notes also record:
“The word ‘Bronwyn’ is a trigger, stated ‘stops me in my tracks’. The name was heard anecdotally in a sentence by a friend and she had a panic attack.”
Dr Rastogi, psychiatrist, has provided a report dated 23 October 2020 at the request of Ms Brandt’s solicitors.
Dr Rastogi records that Ms Lewis became Ms Brandt’s floor manager at the beginning of 2018. She then refers to an investigation in July 2017 regarding Ms Brandt allegedly supplying a client with cocaine, which was found to be unsubstantiated. Dr Rastogi then writes:
“Following this there was ongoing victimisation and being targeted by Bronwyn and any mediation measures were dismissed.”
Dr Rastogi records Ms Brandt having her hours of work significantly cut at the end of January 2018 and Ms Brandt being constantly denigrated and humiliated by Ms Lewis. Dr Rastogi records that investigations were undertaken by Ms Brandt’s employer in May 2018 and September 2018 regarding alleged assaults by Ms Brandt upon clients, but subsequent investigations failed to substantiate these allegations.
Dr Rastogi records that Ms Brandt struggled through 2018 while continuing to work in a hostile environment. She records Ms Brandt having “10 grievances” which were not on file and that HR was not aware of these grievances.
Dr Rastogi records that Ms Lewis stepped down from a management role in 2019. She records that the new manager’s body language was very dismissive and cold towards Ms Brandt, but their relationship did improve. However, Ms Brandt was not given any more shifts.
Dr Rastogi records that Ms Brandt did not immediately notify her new manager of her three month loss of licence due to being tested positive for cannabis because she was fearful of losing her employment. She records that Ms Brandt was put on suspension as her employer alleged that she was working under the influence of cannabis.
Dr Rastogi records that Ms Brandt faced disciplinary action in regard to this, and then had her employment terminated in November 2019.
Dr Rastogi diagnoses Ms Brandt as having Major depressive disorder with anxiety.
Dr Rastogi opines:
“The persistent bullying behaviours with lack of support and constant victimisation and false accusations did take an emotional toll and she did present with anxiety symptoms prior to her incapacity in 2019. The employer has been dismissive and unsupportive with her grievances and she persisted working in hostile environment and in hindsight should have accessed psychological counselling earlier.
The last straw was loss of licence from positive drug test and late notification that Ms Brandt admits not informing her employer.
Her depression with anxiety manifested earlier in 2018 and continued working in hostile environment with aggravated by the disciplinary action where she lost hope and was unable to trust her employer. The termination with unresolved grievances aggravated her condition.”
Dr Rastogi writes:
“…the client had psychological symptoms prior to the disciplinary meeting that deteriorated after the meeting and hence I am of the opinion that the disciplinary meeting is the cause of her deterioration and not cause of her psychological condition.
I do not agree that the disciplinary action is wholly contributing to her psychological condition as her psychological condition predates the disciplinary action due to alleged bullying and lack of support by her employer and this has been not addressed by her employer and taken into account.”
Dr Paisley, consultant psychiatrist, provided a report at the request of the respondent dated 8 January 2020.
Dr Paisley records that Ms Brandt began to have problems in 2018 when her new manager, Ms Lewis, started to bully her. Dr Paisley records that Ms Lewis reduced
Ms Brandt’s hours of work which led to a reduction in Ms Brandt’s income. He records that allegations were made against Ms Brandt which she believed were false. He records that Ms Brandt felt she was being “squeezed out” and that she raised her concerns with the respondent, but the issues were not addressed. Dr Paisley records that Ms Lewis did step down from her managerial role in February 2019.
Dr Paisley records that Ms Brandt faced an allegation of supplying a client with an illicit substance, but there was no evidence to support this. He records that Ms Brandt was suspended for allegedly assaulting a client, but an investigation found her not guilty. He records that Ms Brandt believed that Ms Lewis manipulated the client into making this allegation.

Dr Paisley records that Ms Brandt did not disclose her loss of licence for fear of losing her job. He records that Ms Brandt refuted allegations made by the respondent that she cancelled a medical appointment for a client because she did not have a licence to drive the client, and that she worked while under the influence of cannabis.
Dr Paisley makes a diagnosis of Ms Brandt having Major Depressive Disorder. He opines that the work-related events were the main contributing cause for her psychological condition, although there are several non-work-related factors that may have contributed to her condition.
Dr Paisley opines:
“There were several employment related factors that contributed to her condition including alleged bullying, reduced work hours and disciplinary action. I consider that the disciplinary action has had the most impact on Ms Brandt's mental state because her employment was threatened, and reputation tarnished. Her mental state decompensated following the disciplinary action rendering her incapable of working and leading to the Worker's Compensation Claim. She was able to work prior to this.”
In a supplementary report dated 14 May 2020, Dr Paisley is asked:
“Do you believe that the proposed grievance meeting notification sent on 25 October 2019 caused the onset of the injury? Do you believe there were any work-related factors prior to 25 October 2019 that were whole or predominant causes of the injury?”
Dr Paisley responds:
“Several factors and incidents contributed to her condition. The predominant causes of her condition were the disciplinary actions taken by the employer. The most significant, or predominant, factor which caused her decompensation was the grievance meeting notification sent on 25 October 2019. This caused her symptoms to acutely deteriorate and triggered her Workers Compensation Claim and leave from work.”

FINDINGS AND REASONS

The section 11A defence

Both Dr Rastogi and Dr Paisley opine that Ms Brandt has a psychological injury which has been caused by her employment with the respondent. The respondent contends, however, that Ms Brandt’s psychological injury has been predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal, discipline and/or dismissal, and that, pursuant to section 11A (1) of the 1987 Act, no compensation is payable to the applicant.
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 Stockley for the respondent submits that having been taken to task over a disciplinary matter by the respondent and suffering subsequent psychological deterioration, Ms Brandt has undertaken an ex post facto construction of stressful events in the workplace in an effort to support her claim.
Mr Stockley submits the past grievances set out in Ms Brandt’s statement do not indicate the onset of a psychological condition prior to the disciplinary action taken by the respondent in October 2019.
Mr Stockley acknowledges that Dr Paisley does consider that past events in the workplace have had some contribution to Ms Brandt’s psychological condition, but
Dr Paisley provides a straightforward opinion which supports a finding that the predominant cause of Ms Brandt’s psychological injury is the disciplinary action taken by the respondent.
Mr Stockley submits that the opinion of Dr Paisley should be preferred over that of
Dr Rastogi because Dr Paisley provides an easily digestible medical thesis based upon the timeline of events, whereas Dr Rastogi simply accepts the ex post facto account given to her by Ms Brandt without any critical analysis of those events.
Mr Stockley submits that the disciplinary action taken by the respondent was reasonable because it was necessary for the respondent to enquire as to the reason why Ms Brandt could not fulfil one of the inherent requirements of her job, being the holding a driver licence.
Mr Petrie for the applicant submits that the evidence from Ms Brandt clearly reveals that she was subjected to considerable stress in the workplace prior to October 2019, which caused her to break down and become anxious and depressed on many occasions, and which caused her to seek medical advice in September 2018.
Mr Petrie submits that the long period of stressful events at work which was experienced by Ms Brandt means that the disciplinary action taken by the respondent could not be regarded as the predominant cause of her psychological injury.
Mr Petrie also submits that even if the disciplinary action taken by the respondent was found to be the predominant cause of her psychological injury, that disciplinary action and subsequent dismissal were not reasonable. He submits that an allegation was made by Ms Kral at the meeting on 25 October 2019 of Ms Brandt cancelling a medical appointment for a client when there was no basis for making that allegation. Mr Petrie also submits that one of the reasons for termination of Ms Brandt’s employment was that it was likely that she was working whilst under the influence of marijuana when Ms Brandt was never asked to respond to this during that meeting.
I do not agree with the submission made by Mr Stockley that the past grievances set out in Ms Brandt’s evidence do not indicate the onset of a psychological condition prior to the disciplinary action taken by the respondent in October 2019. Ms Brandt sets out multiple events during 2018 when she was subjected to hostile behaviour on the part of Ms Lewis and the negative effect it had upon her. The respondent has not provided any evidence to dispute this evidence. In particular, there is no evidence from
Ms Lewis or Ms Nowlan.
I also do not agree with a submission made by Mr Stockley that the letters of complaint made by Ms Brandt in May and October 2018 were mainly to do with industrial matters pertaining to the workplace. The issues raised in those letters do include matters involving clients and work duties. However, the letter of 3 May 2018 refers to bullying by Ms Lewis, and there appears to be an implied criticism in that letter of how
Ms Lewis’ management is having a negative effect in the houses which Ms Brandt works in. One of the letters dated 14 May 2018 also notifies the respondent of
Ms Brandt’s concerns regarding the behaviour of Ms Lewis towards her.
Those letters also provide details of how the work being undertaken by Ms Brandt, including the behaviour of Ms Lewis, is affecting Ms Brandt. In her letter dated 3 May 2018, Ms Brandt refers to “all the stress I’m feeling lately”. In one of her letters dated 14 May 2018, Ms Brandt states that “I find myself constantly in tears in regards to all of this” and “my work life is being turned into misery of late”.
The respondent has also not provided any evidence in response to Ms Brandt’s evidence of being suspended in September 2018, and then having that suspension withdrawn 48 hours later, with no explanation being given by the respondent for their conduct. I accept that this incident was significantly stressful for Ms Brandt from not only her own evidence of suffering extreme anxiety, but also because she needed to seek medical advice. The notes from Primary Medical Centre Narellan on 27 September and 3 October 2018 corroborate Ms Brandt’s evidence of experiencing stress from her work at this time.
Ms Brandt provides credible evidence of her being subjected to significant stress during 2018. There is no evidence relied upon by the respondent to dispute this evidence. Ms Brandt’s evidence of being subjected to significant stress in the workplace is supported by her letters of complaint sent to the respondent and the need to obtain some medical advice in 2018. It is therefore reasonable to conclude that
Ms Brandt’s employment during 2018 significantly contributed to her psychological condition.
There is no evidence of Ms Brandt being subjected to unfair treatment at work during the first 10 months of 2019. Ms Brandt states that her relationship with Ms Stewart, who took over as her manager in February 2019, was fine. However, neither
Dr Rastogi or Dr Paisley opines that there was a complete resolution of Ms Brandt’s psychological symptoms during 2019 and before the disciplinary action taken by the respondent.
Both Dr Rastogi and Dr Paisley accept that events which occurred in the workplace in 2018 contributed to Ms Brandt’s psychological condition, although there is a different emphasis placed on each doctor as to what contributed to Ms Brandt’s psychological condition. Dr Rastogi identifies lack of support, constant victimisation and false accusations as taking an emotional toll upon Ms Brandt. Dr Paisley identifies alleged bullying and reduced work hours (which on Ms Brandt’s evidence did continue during 2019) contributing to Ms Brandt’s condition.
The critical question is whether, notwithstanding the stressful events experienced by Ms Barndt during 2018, it is the disciplinary action taken by the respondent in September and October 2019 which is the predominant cause of Ms Brandt’s psychological injury.
In Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan), ADP Handley said at [24]:
“In my view, the ordinary meaning of the words “predominantly caused” in this context is that of mainly or principally caused.”
In ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 (Milovanovic), ADP Candy said at [89]:
“What section 11A(1) requires is a comparison between all of the employment related contributions to injury and those contributions as a result of reasonable actions by the employer in the specified areas (Spigelman CJ in Sinclair at [58]).”
In his initial report, Dr Paisley opines that “the disciplinary action has had the most impact on Ms Brandt's mental state because her employment was threatened, and reputation tarnished”. Dr Paisley then opines in a supplementary report that “the predominant causes of her condition were the disciplinary actions taken by the employer”.
However, Dr Paisley does not explain why the disciplinary action taken by the respondent was the predominant cause, or the main or principal cause (Ponnan) of
Ms Brandt’s psychological injury. He merely provides that opinion in answer to a question put to him.
Mr Stockley submits that the opinion provided by Dr Rastogi is deficient because she does not apply the proper statutory test when she opines: “I do not agree that the disciplinary action is wholly contributing to her psychological condition”, because it is only necessary to identify a predominant cause of psychological injury. However, DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71(El-Achi) said at [72]:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
There are some discrepancies in the report from Dr Rastogi when the narrative that is recited in that report is placed against the evidence of Ms Brandt. Although Dr Rastogi records that Ms Lewis became the manager at the beginning of 2018, Dr Rastogi seems to include targeting behaviour by Ms Lewis around the time of a complaint which Ms Brandt had to face in July 2017. That suggests that Dr Rastogi understood that Ms Brandt was exposed to a longer period of unfair treatment by Ms Lewis than what is alleged by Ms Brandt.
Dr Rastogi also records that Ms Lewis stepped down from a management role in 2019, but she does not identify when that occurred in 2019. That again causes me to query what length of time that Dr Rastogi understood Ms Brandt was exposed to unfair treatment by Ms Lewis.
Dr Rastogi records Ms Brandt having “10 grievances” that were on her file with the respondent, but I could not locate a specific reference to that in Ms Brandt’s own evidence.
Dr Rastogi only records brief details of the disciplinary action taken by the respondent. She also records that Ms Brandt was suspended from work because it was alleged that she was working under the influence of cannabis, whereas Ms Brandt does not state this in her own evidence. This seems to be a conclusion drawn by Ms Brandt after the meeting on 25 October 2019 and her termination of employment.
Nonetheless, I do not agree with the submission made by Mr Stockley that Dr Rastogi has formed her opinion based on an ex post facto account given to her by Ms Brandt without any critical analysis of those events. The details recorded by Dr Rastogi in her report, despite some discrepancies which I have referred to, are generally consistent with the available evidence which I have reviewed.
Dr Rastogi is made aware of significant stressful events at work which caused
Ms Brandt to have psychological symptoms well before September 2019. She has undertaken a comparison of those events with the disciplinary action in September and October 2019, which is the approach recommended by ADP Candy in Milovanovic.
In my view the conclusion made by Dr Rastogi that “the disciplinary meeting is the cause of her deterioration and not cause of her psychological condition” is a considered opinion based upon a comparison of all of the employment related contributions to Ms Brandt’s psychological injury and those contributions as a result of action taken by the respondent in respect to discipline.
While the action taken by the respondent in September and October 2019 was clearly significant because it led to an increase in Ms Brandt’s psychological symptoms, her need to seek medical treatment, and being incapacitated for work, it was not the main or principal cause of her injury when compared to stressful events which Ms Brandt had experienced in the past in her workplace. That action taken by the respondent was instead “the last straw” (as identified by Dr Rastogi) in a series of events in the workplace which was the cause of Ms Brandt’s psychological injury.
Based upon my preference for the opinion from Dr Rastogi, I cannot be satisfied that the action taken by the respondent with respect to discipline is the predominant cause of Ms Brandt’s psychological injury.
That finding is supported by the limited material available in regard to the treatment of Ms Brandt’s psychological injury. The notes from Mr Symkowiak’s first two consultations with Ms Brandt refer to both incidents of bullying in the workplace and action taken by the respondent in regard to Ms Brandt’s loss of her licence due to cannabis use.
I acknowledge that caution needs to be exercised when considering consultation notes without a report which might place those notes in perspective. However, those notes do indicate that events at work other than the disciplinary action were having a significant effect upon Ms Brandt’s psychological condition around the time she ceased work because of her injury.
I therefore conclude that the respondent has not been able to establish a defence pursuant to section 11A (1) of the 1987 Act because the disciplinary action taken by the respondent is not the main or predominant cause of Ms Brandt’s psychological injury.

The claim for a lump sum payment for permanent impairment

Dr Rastogi made an assessment of Ms Brandt having 17% whole person impairment for psychological injury following an examination undertaken on 23 October 2020.
There is no other assessment of permanent impairment in the material provided in this dispute.
The respondent disputed the claim made by Ms Brandt for a lump sum payment in dispute notices dated 31 January 2021 and 25 August 2021 because the permanent impairment had not resulted from an injury as required by section 66 of the 1987 Act.
Mr Petrie submits that there is no ‘medical dispute’ as defined by section 319 of the 1998 Act, which would otherwise require assessment under Chapter 7 Part 7 of the 1998 Act, because once Ms Brandt has proved she has sustained an injury and disposed of the section 11A defence, the dispute relied upon by the respondent no longer exists.
Mr Stockley refers to the report from Dr Paisley dated 8 January 2020, wherein
Dr Paisley opines that Ms Brandt’s condition is continuing, but that he anticipates that her symptoms will begin to improve over the next three months, and that Ms Brandt should be capable of returning to her pre-injury employment status within the next three to six months.
Mr Stockley submits that ‘medical dispute’ in section 319 of the 1998 Act includes a dispute as to whether impairment is permanent and whether the degree of permanent impairment of the worker is fully ascertainable, and the opinion from Dr Paisley means that these issues remain in dispute and should be assessed by a Medical Assessor.
The repeal of section 65 (3) of the 1987 Act on 1 January 2019 has meant that the Commission can determine claims for permanent impairment. This was confirmed by President Phillips in Etherton v ISS Property Services Pty Limited [2019] NSWWCCPD 53 (Etherton), when the President said at [105]:
“…the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.”
However, a Member of the Commission cannot undertake an assessment of permanent impairment. That remains the exclusive domain of the Medical Assessor in the absence of agreement on permanent impairment by the parties to a medical dispute.
The concern which I have in making a determination of Ms Brandt’s permanent impairment is that it is not at all apparent from the two reports of Dr Rastogi dated 23 October 2020 that Ms Brandt’s impairment is permanent. Dr Rastogi does not state that Ms Brandt’s condition has stabilised and reached maximum medical improvement. Dr Rastogi only states that Ms Brandt is suffering 17% impairment for her psychological injury, not 17% permanent impairment.
Furthermore, Dr Rastogi’s assessment is made only one year after Ms Brandt ceased work, and another 17 months have gone by since that assessment. There is also no recent evidence of medical treatment provided to Ms Brandt which has been included in the ARD which would indicate if there has been any change in Ms Brandt’s psychological condition.
Part 2 clause 1.6 of the NSW workers compensation guidelines for the evaluation of permanent impairment provides:
“a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
•whether the condition has reached Maximum Medical Improvement (MMI)
•whether the claimant’s compensable injury/condition has resulted in an impairment
•whether the resultant impairment is permanent
•the degree of permanent impairment that results from the injury
•the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlines in the Guidelines.”
Having regard to those Guidelines and that Dr Rastogi has not stated that Ms Brandt’s impairment is permanent, and that the assessment of impairment was only made a year after Ms Brandt ceased work, and that it has been some 17 months since that assessment was made, I do not consider that it is appropriate to make a determination of permanent impairment in this dispute.

This matter should and will be remitted to the President for referral to a Medical Assessor for an assessment to be made of permanent impairment of Ms Brandt’s psychological injury.

[2022] NSWPIC 114

21 March 2022