Browne v Secretary (Department of Communities and Justice)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Browne v Secretary (Department of Communities and Justice) [2023] NSWPIC 62
APPLICANT:	Roxanne Browne
RESPONDENT:	Secretary (Department of Communities and Justice)
Member:	Gaius Whiffin
DATE OF DECISION:	16 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for entitlements pursuant to sections 37, 60 and 66; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b) in relation to which her employment with the respondent was the main contributing factor; Attorney General’s Department v K, State Transit Authority of New South Wales v Chemler and AV v AW considered; Held – the applicant sustained a ‘disease’ injury, pursuant to section 4(b)(i) in relation to which her employment with the respondent was the main contributing factor to the contracture of that ‘disease’ injury; the injury will be deemed to have occurred on 14 August 2019 (that being the date when the applicant last worked with the respondent prior to her incapacity); awards for the applicant pursuant to sections 37 and 60; dispute in relation to the applicant’s claim pursuant to section 66 remitted to the President for Medical Assessment referral in relation to the degree of her whole person impairment.
DETERMINATIONS MADE:	1. The applicant sustained a psychological ‘disease injury’ in the course of her employment with the respondent (being a chronic adjustment disorder) pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), in relation to which her employment with the respondent was the main contributing factor to the contraction of that disease. The injury will be deemed to have occurred on 14 August 2019 (that being the date when the applicant last worked with the respondent prior to her incapacity).
oRDERS made:	1. There will be an award in favour of the applicant pursuant to s 37 of the 1987 Act that the respondent pay weekly compensation at the rate of $152 per week, for the period from 15 December 2021 to date and on a continuing basis. 2. There will be an award in favour of the applicant pursuant to s 60 of the 1987 Act that the respondent pay her reasonably necessary medical and treatment expenses. 3. I remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) date of injury: 19 August 2021 (deemed for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act), and (b) body systems/parts: psychiatric and psychological disorders. 4. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents (save for pages 81-89 and 139-147, being copies of Dr Abeya’s report); (b) the respondent’s Reply and attached documents (save for pages 30-37, being a copy of Dr Abeya’s report), and (c) the applicant’s application to admit late documents dated 28 November 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Roxanne Browne (the applicant) is 48-years-old and commenced employment with the New South Wales Department of Communities and Justice (the respondent) as a sheriff officer in 1999. She worked for it at the Wollongong Court House from around 2003 until
14 August 2019 (when she last worked). Her employment with the respondent has since been terminated pursuant to a medical retirement, on 12 August 2021.
The applicant alleges that she sustained a psychological injury due to events which occurred during the course of her employment with the respondent. She also alleges that due to this injury, she has been incapacitated for employment since 14 August 2019. She did not however make a formal compensation claim upon the respondent in this regard until
2 October 2020.
The respondent initially accepted liability for the applicant’s compensation claim and began paying her weekly compensation and her expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The applicant then made a formal claim by way of a letter from her solicitors dated 19 August 2021, for lump sum compensation pursuant to s 66 of the 1987 Act, alleging that her psychological injury had resulted in her suffering 22% whole person impairment.
On 27 October 2021, the respondent issued a notice denying total liability for the applicant’s workers compensation claim under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The applicant requested by a letter from her solicitors dated 26 May 2022, that the respondent review its decision in this regard, but it maintained its decision by way of a further liability notice dated 9 June 2022.
As a result, the applicant has not received weekly compensation since 15 December 2021, and her expenses pursuant to s 60 of the 1987 Act have not been paid since around that date. She has not received any lump sum compensation pursuant to s 66 of the 1987 Act.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 15 December 2021, her reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act, and lump sum compensation pursuant to s 66 of the 1987 Act.

ISSUE FOR DETERMINATION

The parties agree that the issue in dispute is as follows:
(a) did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with s 4 of the 1987 Act, to which her employment with the respondent was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was listed for conciliation/arbitration before the Commission on
28 November 2022. On that occasion, Mr Stuart Moffet of counsel appeared for the applicant, instructed by Mr Nikolovski and Ms Hunter. The applicant was present. Mr Bill Loukas of counsel appeared for the respondent, instructed by Mr Russell, and Ms Sandana was also present representing the interests of the respondent’s insurer.
As the dispute was unable to be resolved after an extensive conciliation process, it proceeded to an arbitration hearing. The issue to be determined (see paragraph 7 above) was agreed upon, and both parties also agreed that if I determined that issue in favour of the applicant, she would be entitled to the following orders:
(a) her weekly compensation would be re-instated from 15 December 2021, and she would be entitled to an ongoing award in this regard pursuant to s 37 of the 1987 Act – the award would be calculated at the rate of 80% of her agreed pre-injury average weekly earnings, that is, $152 per week;
(b) a ‘general’ order pursuant to s 60 of the 1987 Act, and
(c) a remittance of her claim pursuant to s 66 of the 1987 Act to the President of the Commission for referral to Medical Assessment - the deemed date of injury for the purpose of that claim being agreed at 19 August 2021 (when the letter making the relevant formal claim was sent by the applicant’s solicitors).
It was also agreed by both parties that if I determined the issue referred to paragraph 7 above in favour of the respondent, it would be entitled to an award in its favour in relation to all the applicant’s claimed compensation entitlements.
Two preliminary issues then needed to be determined.
First, the applicant sought to rely upon a statement of Nicholas David Clark (Clark) dated
1 December 2020 and a statement of Tracey Marie Hall (Hall) dated 11 December 2020. Neither of the statements had been lodged with the Commission previously. The respondent eventually consented to the statements being admitted into evidence. I was provided with copies of the statements, and I ordered that they be admitted into evidence and that further copies of them be lodged with the Commission by way of an application to admit late documents within seven days (an order with which the applicant complied).
Second, the applicant sought to rely upon a report from Dr Abeya dated 20 September 2020. That report had been initially included as an attachment (pages 30-37) to the respondent’s Reply (Reply), but I had already ruled at the preliminary conference in the dispute on
25 October 2022 that the respondent was not able to rely upon both it and the reports that the respondent had obtained from Dr Kumar on the basis that there would be an infringement of cl 44 of the Workers Compensation Regulation 2016 (the Regulation). The respondent as a result chose to rely upon Dr Kumar’s reports, and I withdrew Dr Abeya’s report from the Reply.
However, it transpired that Dr Abeya’s report had also been included as an attachment to the ARD, as it formed part of the clinical notes of both Dr Smith (pages 81-89) and Shellharbour Family Health Care (pages 139-147).
I advised the applicant that my view was that she was unable to rely upon both Dr Abeya’s report and the report from Dr Chow, also attached to the ARD, pursuant to cl 44 of the Regulation. She would need to choose which one she relied upon in this regard.
Clause 44 of the Regulation reads as follows:
“(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker's injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause--
‘forensic medical report’, in relation to a claim or dispute--
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
The applicant made oral submissions. Essentially, she submitted that Dr Abeya’s report should be admitted in relation to the history contained in it only, and not in relation to the opinions contained in it. She relied upon the authority of McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96 (McCarthy). She requested that the report be admitted as a witness statement from her, rather than a forensic medical report as defined in cl 44 of the Regulation.
I rejected the admittance of Dr Abeya’s report on the basis that the history recorded by the doctor in the report did not clarify, or deal with any inconsistency in, the histories otherwise provided by the applicant. As a witness statement, the information in the report was in my opinion entirely consistent with not only the statements provided by the applicant (attached to the ARD) but also the histories which she had provided to Drs Kumar and Chow (who had provided the other forensic medical reports in the dispute).
In Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35, Snell DP was dealing with an argument based upon McCarthy that a report from Dr Bodel should be admitted into evidence, not as a forensic medical report, but in relation to the history outlined in the report. The Deputy President stated:
“In short, there is nothing recorded in Dr Bodel’s reports, by way of history, which would assist the appellant on the issue of whether she suffered injury to the cervical spine in the incident on 3 June 2005, and which was not in evidence from other sources” at [75];
“In McCarthy Roche DP, at [33], referred to two questions governing the admission of reports on the restricted basis. The second was whether there was unfairness to the other party. It is not suggested there would be unfairness to the respondent, if the reports of Dr Bodel were admitted on the restricted basis. The first question was whether the material was relevant to an issue in dispute. Most of the history recorded by Dr Bodel went to the (uncontentious) injury to the right shoulder” at [78], and
“The earliest references to neck symptoms, recorded in the histories in Dr Bodel’s reports, were those reported to Dr Stabler on 11 March 2008 and subsequently.
Dr Bodel’s references to these were clearly taken from Dr Stabler’s reports, which were in evidence in any event. Dr Bodel’s restatement of their existence neither added to, nor detracted from, their significance.
Dr Bodel’s history included complaints relevant to the neck at the time of his examinations, on 1 March 2013 and 10 June 2015. This did not assist on the question of whether the appellant’s neck was injured in the incident on 3 June 2005, which was the only issue. There had been recorded complaints of neck pain before 1 March 2013, to a number of doctors, including Dr Lai and Dr Stabler (who were treating), and
Dr McKee.
The respondent’s submission, referred to at [62] above, is correct; Dr Bodel’s history could not have relevantly advanced the appellant’s case. The first of the questions going to admissibility, raised in McCarthy at [33], is answered in the negative. This justifies a refusal to admit Dr Bodel’s reports, on a restricted basis, consistent with McCarthy” at [83]-[85].
Following the resolution of these two preliminary issues, it was agreed by both parties that the respondent would make its submissions first and Mr Loukas commenced. Unfortunately, he experienced connection issues (the conciliation/arbitration being by MS teams link), and as the time allotted for the conciliation/arbitration was about to expire, I ordered that the parties provide written submissions, and I requested that the respondent commence its submissions again when it drafted those written submissions. I advised that I would determine the dispute ‘on the papers’ after receiving the submissions.
I have since received written submissions from the respondent dated 8 December 2022, and from the applicant dated 20 December 2022. The respondent did not provide any written submissions in reply to the applicant’s submissions, although it was given the opportunity to do so prior to 23 December 2022.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents (save for pages 81-89 and 139-147, being copies of Dr Abeya’s report);
(b)    the Reply and attached documents (save for pages 30-37, being a copy of
Dr Abeya’s report), and
(c)    the applicant’s application to admit late documents dated 28 November 2022 (applicant’s AALD) and attached documents (admitted in accordance with the order referred to in paragraph 12 above).

Oral evidence

There was no oral evidence given in the dispute.

Applicant’s evidence

The applicant relies on two signed statements of hers. She provided the first statement (at page 6 of the ARD) to an investigator and she signed it on 11 November 2020.
The applicant confirms that she commenced working for the respondent in 1999, and had been working for it at the Wollongong Court House from around 2003. She worked one day per week there on a Wednesday from 9am to 2pm. Her husband also worked for the respondent, although he was receiving workers compensation benefits at the time when the statement was signed.
Her work duties included administrative tasks, as well as scanning and setting up private rooms for evidence giving. Her supervisor was Michael Denniss (Denniss).
She last worked on 14 August 2019, and made a claim for workers compensation benefits on 2 October 2020.
She explains that Clark was appointed as one of the respondent’s regional commanders in 2018 or 2019. He was based in the same building as her on an upstairs level, and she says – “He didn’t come down very often, but when he did it was never pleasant”. She says that she “found him to be a bully”. He was not friendly or approachable, and he made her feel uncomfortable by using a book to write things down in during his interactions with her.
She explains further:
“I'm glad I didn't work full-time as it was a disfunctional working environment. I started to feel anxious when going to work, people were getting into trouble from management. We mainly dealt with chief inspector Micheal Denniss but it also came from down the line Regional Commander Nick Clark. It got to the stage we couldn't talk to management or even feel comfortable communicating with management, preferring to lay low hoping to keep out of the firing line. They never kept us up to date with decisions or changes that were made amounst themselves.
If there was a situation in the court house, they would come out of the room and not tell us anything. There was a communication block between the workers and management. I didn't feel like I could approach management, chief inspector micheal Denniss and Regional Commander Nick clark were the problem.”
The applicant says that she witnessed “bullying and harassment towards staff”, and she specifically mentions:
(a)    an incident involving Cassandra Plum (a fellow employee), where the applicant had to support Cassandra, who was crying in a bathroom after being spoken to “in a rude manner” by Denniss;
(b)    an incident involving Brian Brown (another fellow employee), who was “escorted away” from his scanning duties in front of people in order to speak to Clark - Brown did not return to work following that incident, and the applicant says:
“The staff at Wollongong sheriffs office were upset the way Brian was dealt with including myself. I felt very concerned and made me upset how brian was treated”, and
(c)    an incident involving George Tackas (another fellow employee), where the applicant witnessed Denniss refusing to talk to him about an office relocation - the applicant found this to be “upsetting and humiliating for George infront of the Court Staff”, and she advises that she felt upset and anxious following the incident.
The applicant also says that she was denied the opportunity to work at satellite courts occasionally, which she wished to do in order to “keep up my skills while working part-time”.
The applicant sought treatment from her general practitioner, Dr Stewart, on 14 August 2019 because she was crying, emotional, worried, not coping, and anxious about going to work.
Dr Stewart issued her with a medical certificate, but only explained her diagnosis as “medical condition”. Dr Stewart also prescribed her medication and referred her to a psychologist, Rodney Ward.
The applicant did not initially report her psychological issues to the respondent. She assumed in this regard that the report would need to be made to either Denniss or Clark. She explained to her psychologist that she did not initially make the report as “I couldn’t handle any more stresses on top of the work related stresses as I was going through, but I had spoken to HR in relation to Workers Compensation”. She therefore initially accessed her leave entitlements in relation to time off work after 14 August 2019.

She says that in October 2019, Hall (the Sheriff of New South Wales) instituted an independent investigation into staffing issues at Wollongong Court House. She participated in the investigation (even though she was not working at the time) and met with an investigator. She attributes the review down to multiple resignations and workers compensation claims that had emanated from Wollongong Court House.
The applicant says that she continued to consult with Dr Stewart and Rodney Ward. She had no other “major health issues” other than her psychological issues. She still felt “anxious about things”, a level of anxiety that fluctuated between days. Her social life was affected, and:
“Initially, I was upset all the time, crying. I could be at the table eating dinner and start crying. I couldn’t help it. Some days I think I should be on the higher dose of medication but want to stay in control.”
The applicant confirms that she never received any warning letters or had any performance management issues raised, during her extensive period of employment with the respondent.
She identifies the following other stressful episodes:
(a)    she made a workers compensation claim against the respondent around 17 years ago following interactions with Inspector Delpaz and Regional Manager Forbes - following the claim, she worked at Port Kembla Court House for six months before returning to Wollongong Court House;
(b)    her son had heart surgery on 18 May 2018 - following the surgery, it was found that he had “a hole in his heart”, and
(c)    from June 2019, her husband claimed workers compensation benefits from the respondent - it had made allegations of misconduct against him and terminated his employment – he however contested the termination before the Industrial Relations Commission and was successful in having his employment re-instated – the applicant concedes this termination “added to my work stress”.
The applicant provides an updated statement at page 1 of the ARD (dated
22 December 2021).
The applicant confirms that she is still not working, and is still under the care of Dr Stewart and Rodney Ward. She has also consulted with a psychiatrist, Dr Smith, and is taking Lexapro to manage her psychological symptoms.
She says that her “injury has had a dramatic effect on my life”. She rarely wears make-up, she does not style her hair, she occasionally misses showering, and does not care about dressing. She has lost interest in reading, cooking, going out for dinners, and generally socialising. Her marriage has been affected and she rarely sees her mother (who lives some distance from her). She gets frustrated easily, has concentration issues, and gets impatient. She says that she needs assistance when she leaves her house, even for shopping.
In relation to her work with the respondent, she complains that Clarke would not approve any training for her, and she confirms that “the culture and morale at Wollongong was extremely poor”. Her workplace was not supportive, but she did not have anyone that she could talk to about support. She alleges that it was “common knowledge that there were significant issues at Wollongong so much so that an investigation was instigated by” Hall. She also says:
“Even though I was only at work one day a week the events had a significant impact on me and I was dreading having to have the discussion about returning to work on a more permanent basis.”
In relation to the applicant’s other stressors;
(a) she reveals that she suffered depression following the birth of her youngest child in around 2015 - she was prescribed anti-depressant medication for around two years and her “issues had resolved well prior to the issues at work”, and
(b) she confirms that her husband remained off work, which had led to financial pressures - however, her issues at work commenced prior to her husband’s termination, and she was “already cautious about raising the issues that were occurring at work as I was worried about losing my job because there was talk of other people losing their job”.
Clark has provided a signed statement dated 1 December 2020 (page 1 of the applicant’s AALD).
He was the respondent’s Regional Commander (based at Wollongong Court House) from September 2018 to January 2020, and Denniss reported directly to him.
He says that the applicant would not have been able to “get a full and accurate appreciation of the work place culture” due to her limited hours at work, although he was aware that she had formed personal relationships with other staff who were more regularly present.
In relation to the applicant’s allegations against Denniss, he says:
“Because Mrs BROWNE was rarely present in the workplace and without reference to any specific event, I cannot conceive any circumstance of her being bullied by
Mr DENNIS.”
He cannot comment on whether the applicant perceived him as unpleasant, without specific examples. He has no recollection of being unfriendly or unapproachable to her. He denies bullying her. He says that she did not contact him to arrange a meeting with him to discuss any concerns. He describes various pathways instituted by the respondent for staff to ventilate their concerns, but says that the applicant did not use these pathways.
He believes that he only “encountered” the applicant on three occasions, all in a group environment. He says that she was silent on these occasions.
He alleges that the applicant had issues with her peers due to her indiscretion about sensitive information that she had learned from her husband when he was previously in charge at Wollongong Court House, and due to her part-time working arrangement. He suggests that she had difficulty adapting to a work environment where her husband was not the officer in charge. He also alleges that the applicant was not a direct witness to some of the incidents mentioned in her 11 November 2020 statement. Her peers informed her of these incidents.
He confirms that the applicant was given an opportunity (which she took) to be involved in the factual investigation instigated by Hall “to get to the nub of industrial issues” at Wollongong Court House.
Hall has provided a signed statement dated 11 December 2020 (page 10 of the applicant’s AALD).
She confirms that she has been the New South Wales Sheriff since November 2011. She however had little to no contact with the applicant.
She advises that from approximately 2006 to October 2017, “bad practices” flourished and were not addressed at the Wollongong Court House, and she blames the applicant’s husband’s management style in this regard. He had been the Acting Commander at the Court House on and off during that period. She explains that she therefore recruited Clark, and she expands:
“Commander Clark's remit was to put a stop to all of the localised practices that had been operating at Wollongong and to ensure compliance with department policy and procedures. I became aware that Commander Clark had a unique management style and his experience had been working with high performance teams where instructions were followed and not challenged constantly. The staff at Wollongong presented a significant challenge to Commander Clark and the level of disruptive behaviour, work to rule, grievance trading and totally unacceptable behaviour would challenge any experienced manager.”
She explains that Clark’s actions “led to grievances and claims of bullying”, and that the Wollongong Court House “has more grievances than any other location, against each other, against Management and against the OIC”. She also explains that Denniss was recruited to assist Clark and that there were a number of grievances lodged against him “in response to his attempt to manage staffing issues and to deal with performance issues and adherence to policies and procedures”.
She says that it got to a stage where the work environment had become “quite toxic”, and as a result of this toxicity, she met with Clark and the Public Service Association in
September 2019, and then commissioned an external consultant to undertake a workplace review.
She confirms that during the review, she made a number of visits to the Wollongong Court House to discuss the review with the staff there. She also confirms that the applicant provided information to the external consultant.
She says that the external consultant provided a report, identifying a number of themes, and making a number of recommendations. She does not expand on the recommendations, but advises that they resulted in the development of the Wollongong Cohesive Workplace Strategy, which was then implemented by a new manager (Matthew Watts), Clark having left the employ of the respondent to undertake “a more senior role in the Federal Government”. She does however advise that the report identified “that the staff did not like Commander Nick Clark’s style of management, however there were actually no issues in terms of his management”.
She then says that Matthew Watts only lasted approximately seven weeks in his employment, advising her that “the cultural and behavioural issues at Wollongong were so significant and the workplace so toxic that it would be a very difficult job to turn around”. A new manager had since been appointed, and there had been some progress made in “turning the culture around”.
She summarises:
“The work environment at Wollongong has been dysfunctional for some time. There has been· a disproportionate number of misconduct matters and grievances lodged compared to other locations. There has been a high turn-over of very experienced managers citing entrenched negative workplace practices and disengaged staff with a loss of moral compass in the workplace. The common theme from the past managers is that there needs to be clean out to make any significant changes to the culture as the behaviour it too entrenched. There was a sustained and orchestrated course of action taken by a number of staff with the dismissal of the then OIC Denniss as the outcome.”
She confirms she was not aware of any bullying or harassment directed towards the applicant, as “she is not a direct report to me”. She does however offer the opinion that as a result of the applicant’s part-time position, she would have expected the applicant’s exposure to any workplace issues to be minimal.
At page 39 of the ARD, there is a letter from Hall to “all Wollongong employees of the Office of the Sheriff of NSW” dated 3 October 2019.
In the letter, Hall advises that an external consultant had been engaged, and that he would interview those employees willing to be interviewed “as the first step in creating a better workplace at Wollongong”. The letter finishes – “We are all committed to working with you to create a respectful cohesive and inclusive workplace”.
In relation to the medical evidence relied upon by the applicant, there is a medico-legal report from Dr Chow dated 23 April 2022 (at page 41 of the ARD). The doctor consulted with the applicant on 6 April 2022, and had access to inter alia, her 22 December 2021 statement and her medical records from Dr Smith, Rodney Ward, and Dr Stewart’s practice.
The doctor obtained a history relevantly including:
(a)    the applicant’s psychological issues started in 2017/2018;
(b)    she had not been allowed to upskill;
(c)    Denniss and Clark “never communicated well with the workers” - their lack of communication put staff in “dangerous situations”;
(d)    the “top boss”, her union, and the respondent’s human resources manager visited Wollongong to address issues at her office;
(e)    she witnessed a number of her colleagues being “maltreated”;
(f)    Denniss often said “don’t asked questions. Just do what I say”;
(g)    there were a few staff who had made workers compensation claims;
(h)    she worked in a dysfunctional workplace with poor management – the difficulties between the workers and the management were escalating;
(i)    in June 2019, her husband was “demoted” in his employment;
(j)    she ceased working in August 2019 after consulting with her general practitioner – she had been seeing a psychologist fortnightly since 2019 and a psychiatrist monthly since 2020 – she remained on Lexapro medication;
(k)    her husband’s employment was terminated but was later re-instated - he was on workers compensation payments and there was an ongoing dispute about his return to work, and
(l)    between 2015 and 2017, she was diagnosed with post-natal depression and prescribed medication.
The doctor conducted a mental state examination, and diagnosed that the applicant was suffering a chronic adjustment disorder. She needed ongoing treatment and remained unfit for work. In relation to causation, the doctor considered the stress caused by the applicant’s husband’s situation and opined:
“She reported that her husband’s issues started in June 2019. But she persisted at work until August 2019. Her husband was unfairly demoted and his employment was terminated later in 2019 after she ceased work. She reported that since then, her husband’s job has been reinstated and he is now on worker’s compensation claim. He now also has an ongoing dispute with the workplace about his returning to work.
After considering and weighing up Ms Browne’s husband situation and her reported workplace issues especially the prolonged dynamic difficulties and reported maltreatment directed at her, it is my opinion that her reported workplace dynamic difficulties and the maltreatment to be the main contributing factors to her psychiatric injury.”
The applicant also relies upon a medico-legal report from her (at the time) treating psychiatrist, Dr Smith, dated 27 July 2021 (at page 48 of the ARD). As at that date, the doctor had consulted with the applicant on three occasions, and had also spoken to the applicant’s husband. He had had the opportunity to review information from Rodney Ward as well as a detailed statement prepared by the applicant.
The history obtained by the doctor of the applicant’s issues at work was as follows:
“Ms Browne reported to me that during her work as a senior sheriff’s officer she was exposed to significant demeaning, bullying and harassment at her place of work over a period of time. She dated the onset of her difficulties to the time a new manager was appointed. Following the appointment of the manager not only was she exposed to bullying and harassing behaviour but also described being unsupported. She felt increasingly vulnerable in regard to the viability of her job. She developed heightened levels of anxiety with depression. She had difficulty focussing and concentrating. Her self-esteem and self-confidence was markedly lowered.”
The doctor noted that the applicant saw her general practitioner (Dr Stewart), was prescribed Lexapro, and was referred to Rodney Ward (psychologist). She ceased working on
23 September 2019 and had not worked since.
The doctor was advised by the applicant that “she had not experienced psychological symptoms of concern” previously, that she had not previously consulted with a psychiatrist or psychologist, and that she had not been previously prescribed psychotropic medication.
The doctor conducted a mental state examination, and diagnosed that the applicant was suffering an adjustment disorder with mixed anxiety and depressed mood. The disorder arose “in response to the untoward events that occurred at her place of work and in particular demeaning, bullying and harassment she experienced”.
The applicant also relies upon a medico-legal report from her treating psychologist, Rodney Ward (at page 53 of the ARD). The report seems to be undated, but was prepared after a consultation with the applicant on 23 March 2022 (that being the applicant’s 33^rd consultation with the psychologist since 14 May 2020).
The psychologist outlined the history provided to him by the applicant as:
“issue started at work, investigation by the management. Regional Commander, things started changing, workplace was becoming secretive, people were getting in trouble, you couldn’t ask any questions, also my husband situation. I had a horrendous last year, I had no support from the Department, I’m worried about my house, kids, will we survive. Its left me getting emotional (crying throughout session), I’m always worried, stressed. If I wasn’t on medication I wouldn’t cope.”
The psychologist also diagnosed the applicant as suffering an adjustment disorder with mixed anxiety and depression. He opined that the applicant’s workplace was the primary cause of her psychological condition, and when specifically asked to consider the effect upon the applicant of her post-natal depression and her husband’s industrial issues, he opined:
“Mrs Browne has primarily throughout our sessions reported her workplace and the work culture as the main cause of her psychological symptoms and mental state.
Mrs Browne did naturally identify her husband’s situation as a stressor and concern given they have a family together, she has however primarily focused on her own concerns and work role as the causal factor for her condition.”
The psychologist considered the applicant to have a guarded prognosis, and opined that it would be highly unlikely for her to be fit to work with the respondent again.
The ARD also contains the applicant’s clinical notes from:
(a)    Rodney Ward - pages 56-76;
(b)    Dr Smith – pages 77-96, and
(c)    Shellharbour Family Health Care (Dr Stewart’s practice) - as at 22 July 2021 (pages 97-264 of the ARD), as at 9 July 2022 (pages 265-312 of the ARD), and as at 14 November 2020 (pages 38-96 of the Reply).
I have considered all the clinical notes and will refer to them in more detail if specifically directed to aspects of them during the parties’ submissions. I do however note the following from the clinical notes of the applicant’s general practitioner’s practice:
(a)    there are entries on 16 September 2015 and 14 October 2015, for treatment of “postpartum blues” - by 22 December 2015 however, there is an entry recording the applicant as being tired but “mood ok”;
(b)    there then do not seem to be any entries recording psychological complaints until 14 August 2019;
(c)    the entry on 14 August 2019 details:
“Low mood, flat and tearful since husband’s work problems. Not sleeping as well, works in same place. Very tearful and crying a lot, mood low. Previous history of depression postpartum, multifactorial. Currently bought house, stressful due to financial pressures”;
(d)    there is an entry on 11 September 2019 which details:
“Upset, depressed, tearful still….Finding it difficult to attend work due to situation….Medication has helped moderately….Worried about financial stress and job”;
(e)    there is an entry on 25 September 2019 which details:
“Attended for review. Medication helping, still gets anxiety when thinking about work and situation. No s/e from medication….Looking for new work…. Not fit for role currently due to stress and anxiety related to treatment at work”;
(f)    there is an entry on 8 October 2019 which details:
“Continuing anxiety related to work situation and partners treatment….Medication has helped to some degree….Ongoing stress related to mediation of partners situation still impacing on her and family”;
(g)    the next entry is on 16 November 2019, which details:
“No change in work circumstances or anxiety….Medication is helping somewhat….Independent review occurring in workplace given amount of issues that have arisen….Husband still awaiting outcome from his hearings at same workplace”;
(h)    there are entries on 9 December 2019, 31 December 2019 (“Review of mood, no chances since last review, in limbo as husband’s situation unclear….Unsure how she should handle going back to work, fears she wouldn’t be able to cope”),
3 February 2020 (“Still no capacity for work given court case and upcoming stress”), 4 March 2020 (“Work have not engaged with situation for Roxanne….Roxanne does not feel fit for work in current environment currently”), 31 March 2020 (“Anxiety increased with current events….David’s hearing has been delayed due to viral pandemic….No liaison from work, does not feel she can cope mentally with returning to work”), 22 April 2020 (“Still very anxious, stressed and upset re work situation and husband’s tribunal”), 9 May 2020,
19 May 2020 (“Has attended Rodney Ward, finding sessions helpful but emotionally draining, still tearful and upset at time over husband’s trial and issues discussed previously”), and 17 June 2020 (when lodging a workers compensation claim is discussed);
(i)    there is then an entry on 19 July 2020, which details:
“Mood reviewed, discussed recent stress with tax and work, awaiting hearing result. Symptoms similar, medication still helps a bit but not completely. Seeing Rodney Ward still for ongoing therapy. Informs me that Rodney feels case is workcover related. Roxanne considering applying as a workcover case. Symptoms have been related to work from beginning and allegations against her husband who works in same department. Plan is to continue therapy for now”;
(j)    there are then entries in relation to the applicant’s psychological treatment up to
8 June 2022, but they do not seem to detail any history of the applicant’s husband’s employment and legal issues except on 9 August 2020 (“Awaiting decision re husbands case and her own workcover case”), 9 September 2020 (“Small improvement with news of case resolution”), 4 October 2020 (“Very stress and frustrated recently, reports issues with her husband’s attempts to return to work. Roxanne reports increased stress for her and family due to interactions with employer. Roxanne reports she feels employer is not being fair and punishing her husband and her family further”), and 3 November 2020 (“also disheartened with how employer has treated her husband, affecting mental health, feels like they are going until ‘they break you’”);
(k)    there is a referral letter from Dr Stewart to Rodney Ward dated 22 April 2020, in which the doctor advises:
“Roxanne was initially diagnosed with adjustment disorder with anxious/low mood as a result of recent stresses in her personal life related to issues of work. Roxanne works as local sheriff in the same department as her husband David was is currently under investigation and awaiting a hearing into alleged misconduct by his department. His hearing is scheduled to take place shortly…She is reluctant to return to work given the stress it causes and the issues concerning her husband’s investigation”, and
(l)    there is a report from Dr Stewart to the respondent’s insurer dated
17 October 2020 – the doctor confirmed that he had been treating the applicant since 17 December 2017 (and that his practice had been treating her since
7 August 2015) - he also confirmed a diagnosis of adjustment disorder - he reported the following history:
“Roxanne Initially presented on 14/08/2019 reporting low mood, tearfulness and tearfulness. She also reported difficult sleeping, anxiousness and irritability. The reasons for her presentation were multlfactorial but centred around her workplace. She reported primarily that there had been Issues at her workplace with management, she reported she had experienced bullying and that her husband had been the subject of a recent investigation into workplace misconduct.. She reported that this had led to increased financial stress. On examination Roxanne was very tearful, had a flat affect, exhibited low mood, maintained good eye contact and had normal speech. There was no evidence of thought disorder.”
“Roxanne reports significant distress at the treatment of her husband by their employer. His deteriorating mental health as a result of this issue has negatively impacted on her own well being. The financial stress and implications of this issue have also negatively impacted on her well being. Finally both Roxanne and a number of family members have suffered ill health in the last year which has negatively impacted her situation.”
“Finally, I agree with the independent consultant psychiatrist's opinion in identiflying the stress of her husband's situation with the same employer have impeded her recovery”
-     then on the basis of this history, the doctor replied to a question posed to him by the respondent’s insurer as to whether the applicant’s employment was a substantial contributing factor to her injury, by stating:
“Her employment is the substantial contributing factor to the Injury. Roxanne reports a bullying culture within her workplace environment. She reports little support during training for certain roles, witnessing work colleagues being bullied and reports obtaining little support from her employer when she herself felt bullied. She reported on several occasions that investigations into these matters were to be undertaken/ongoing by her employer during our treatment.”

I also note that within the clinical notes from Rodney Ward there is a report from him to
Dr Stewart dated 2 July 2020 in which he advised:
“Throughout the assessment stage and getting to know Mrs Browne it appears more increasingly that this is a work-related matter as most of our discussions appear to come back to the workplace. I am happy to support Mrs Brown in this direction and believe she should implement this as a worker’s compensation matter as she is using her own long service leave after already using all her sick leave.”
I also note that within the clinical notes from Dr Smith there is a referral from Dr Stewart dated 3 March 2021, which advised:
“I have reviewed Roxanne since 14/08/2019 for a work related injury. Roxanne initially presented on 14/08/2019 reporting low mood, tearfulness and tearfulness. She also reported it difficult sleeping, anxiousness and irritability. The reasons for her presentation were multifactorial but centred around her workplace. She reported primarily that there had been issues at her workplace with management, she reported she had experienced bullying and that her husband had been the subject of a recent investigation into workplace misconduct….Aside from her current presentation/injury, I have never seen Roxanne for any previous injuries or conditions related to adjustment disorder with mixed anxiety or any other work-related injury….Her initial diagnosis was adjustment disorder with anxiety/depressed secondary to workplace bullying. Her diagnosis was revised to mixed anxiety and depression following 6 months duration.”
Finally, the applicant relies upon an undated letter from Hall to her (at page 38 of the ARD) which advised that she was to be medically retired from the respondent’s employment from 12 August 2021, “based on the opinions of your treating health professionals”.

Respondent’s evidence

The respondent relies upon (and attaches to the Reply) medical evidence within the clinical notes from Shellharbour Family Health Care (already discussed) and medico-legal reports from Dr Kumar.
The first report from Dr Kumar is dated 27 August 2021 and found at page 13 of the Reply.
The doctor obtained a history relevantly including:
(a)    the applicant claimed that she was subjected to bullying and harassment from Clark and Denniss after 2018;
(b)    the applicant’s requests to keep “her skills up” were declined;
(c)    the applicant witnessed other people getting bullied at work;
(d)    Hall came to the Wollongong Court House as there were “a lot of issues” – she then instigated an internal investigation;
(e)    the applicant highlighted that she was not the only employee of the respondent’s claiming workers compensation;
(f)    she left work in 2019 as she had “had enough” - even driving to work was making her upset and emotional;
(g)    she was medically discharged from the employ of the respondent on
12 August 2021;
(h)    her husband “was charged in June 2019” but he “got his position back” after taking a case to the Industrial Relations Commission - the case “did a lot of damage to her husband and he has now left work” – no mention is made as to how the case affected her, and
(i)    she denied any past history of mental illness.
The doctor documented the applicant’s symptoms, conducted a mental state examination, and diagnosed her with a chronic adjustment disorder. He believed that she had ongoing severe impairment with regard to employability, in that she was not able to work more than 20 hours per fortnight.
The doctor reviewed a report from Dr Abeya (not in evidence before the Commission) as well as some clinical notes from the applicant’s general practitioner’s practice which had been provided to him. He came to the conclusion:
“Ms Brown’s symptoms commenced in context of stress of her husband’s situation at work as well as financial problems of the time. This is documented in the case notes of her GP. She developed emotional symptoms due to this and these have since continued.”
The doctor also opined that there was no evidence that her employment was a substantial contributing factor to her diagnosed condition, and he questioned whether she was subjected to bullying and harassment:
“Ms Brown also says she was subjected to bullying and harassment. Though she speaks about some incidents involving others, she does not have all the details of these incidents and interprets them as bullying behaviour. She is also not able to provide any history suggestive of her experiencing bullying or harassment, other than to say that her request of upgrading her skills was declined.”
The doctor was asked by the respondent’s solicitors to prepare a further report, responding to specific questions. That report dated 23 September 2021 is found at page 25 of the Reply.
The doctor confirmed that he did not accept that the applicant’s condition was work-related based upon his opinion that she could not prove that she had been bullied and harassed, and also based upon his review of her general practitioner’s clinical notes. He was specifically asked to review an investigator’s report (not in evidence before the Commission) which included statements from the applicant, Clark and Hall (presumably the statements included in the ARD and discussed above). He agreed that the statements did “not shed light on the impacts of her husband’s industrial actions on her mental health”, and that he relied upon her general practitioner’s clinical notes instead.

Respondent’s submissions

The respondent’s submissions, being reduced to writing, are part of the Commission’s record. I therefore do not intend to summarise them in detail.
The respondent initially submits that the applicant has failed to provide evidence of a proper factual background, in that she has not provided any degree of specificity as to what words, conduct or interactions within the workplace amounted to bullying, harassment, maltreatment or lack of support. The respondent analyses the applicant’s statement evidence, and submits that while she accuses Clark and Denniss of being bullies, she does not provide any factual information for those accusations. She does not adequately describe the events of bullying, and therefore has a misguided definition of bullying and harassment. In this context, the respondent also criticises the applicant for failing to provide statements from those whom she witnessed being bullied (Cassandra Plum, Brian Brown, and George Tackas - see paragraph 30 above).
The respondent submits that I “cannot be satisfied as to the necessary facts and circumstances such as to cause the applicant to have a psychological reaction”.
The respondent refers to Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s) and State Transit Authority (NSW) v Chemler [2007] NSWCA 249 (Chemler), but submits that the applicant’s case is distinguishable, as she has not provided evidence as to the precipitating real events which occurred in the workplace and which led to her psychological reaction. She has only made “vague and nebulous pseudo—allegations”.
The respondent is as a result prejudiced in not knowing what it needs to respond to, and indeed, in not knowing whether it has a potential defence to the applicant’s allegations pursuant to s 11A of the 1987 Act.
The respondent then reviews the clinical notes of the applicant’s general practitioner’s practice (see paragraph 76 above), and submits the following:
(a)    the entry on 14 August 2019 (the date when the applicant ceased work) does not refer to any bullying, harassment, maltreatment or lack of support;
(b)    the first entry that refers to “treatment at work” is on 25 September 2019 and is “impenetrably vague in terms of an allegation capable of forming a diagnosis or of meaningfully being responded to” - indeed, none of the entries explain with sufficient clarity the issues that have arisen at work;
(c)    it is clear from the entries that the main contributing factor to the applicant’s condition has been the anxiety that she has experienced in relation to her husband’s legal and employment issues, and
(d)    it is clear that Dr Stewart did not consider the applicant’s symptoms to be work-related until that suggestion had been “implanted in her mind by her psychologist” - this is apparent from the entry on 19 July 2020.
The respondent submits that reviewing the medical evidence in the dispute as a whole, the applicant has not obtained sufficient medical support to prove on the balance of probabilities not only that she was subjected to bullying, harassment, maltreatment and lack of support, but also that her work was the main contributing factor to the contraction of her psychological condition.
In relation to Dr Stewart’s report dated 17 October 2020 (see paragraph 76(l) above), the respondent submits that the report “does not accord squarely with his clinical notes, and appear to shift the emphasis”. A review of the clinical notes does not support his opinion in the report that her symptoms were primarily a result of “issues at her workplace with management”. Instead, a review of the notes supports the proposition that her symptoms were due to her husband’s legal and employment issues.

The respondent submits that instead, the opinions expressed by Dr Kumar should be accepted as he has provided a comprehensive report summarising the clinical notes of the applicant’s general practitioner’s practice.
In addressing the medical evidence relied upon by the applicant, the respondent submits:
(a)    the initial history taken by Rodney Ward (see paragraph 72 above) supports the significance of her husband’s legal and employment issues in the development of her symptoms – the respondent believes that when the psychologist refers to “investigation by the management”, he is referring to the husband’s issues;
(b)    Dr Chow does not refer to the applicant’s general practitioner’s practice’s clinical notes and relies exclusively on the history given to him by the applicant – he provides a poorly reasoned report “without factual or rational underpinning”, and
(c)    the history that the applicant provided to Dr Smith (see paragraph 67 above) is not specific enough.
The respondent also submits that aside from the applicant’s husband’s legal and employment issues, another factor to be weighed up in considering whether work factors were the main contributing factor to the applicant’s condition, was the difficulty that the applicant had in adapting to a workplace where her husband was not the officer in charge, as alluded to by Clark (see paragraph 49 above).

Applicant’s submissions

The applicant’s submissions, being reduced to writing, are part of the Commission’s record. I therefore do not intend to summarise them in detail.
The applicant submits that her statement evidence contains sufficient detail regarding the cause of her psychological injury, and she specifically refers to:
(a)    Clark and Denniss being uncommunicative and unapproachable – creating an environment that was not sufficiently respectful, professional or safe;
(b)    witnessing the distress and hardship of some of her colleagues as a result of the behaviour of Clark and Denniss, and
(c)    being distressed because her requests for training and skill improvement were denied.
The applicant notes that Hall’s statement (although having a different perspective to the applicant’s as to the cause of the “toxic” work environment at the Wollongong Court House) supports that there was workplace disruption under Clark’s management, as he had been recruited to put a stop to certain work practices, and as he had a “unique” management style.
The applicant also notes that neither Hall nor Clark suggested in their statement evidence that the events that she complains about in her statement evidence “were not real in the sense referred to in Attorney General’s”.
The applicant submits that Dr Chow took a history from the applicant consistent with her statement evidence, and considered that her workplace issues were the main contributing factor to her psychiatric injury. The doctor’s opinion in this regard is supported by Dr Smith and Dr Stewart.
The applicant submits that her husband’s legal and employment issues were less causative of her psychological injury than the work events which she described in her statement evidence – she points to the following:
(a)    over six weeks elapsed between when her husband ceased employment and when she first became incapacitated on 14 August 2019;
(b)    although Dr Stewart’s entry in his clinical notes on 14 August 2019 did not directly refer to her employment issues, the doctor’s subsequent entries in his clinical notes contain references to the applicant’s work situation;
(c)    Dr Chow was provided with a complete copy of the applicant’s general practitioner’s clinical notes and was given a history of the applicant’s husband’s legal and employment issues – he then provided a “considered opinion in relation to what was the main contributing factor to the applicant’s condition and found it was the events at her work”, and
(d)    Dr Stewart himself provided a report confirming that the applicant’s employment was “the” substantial contributing factor to her condition, “which, given the manner in which it was expressed, would equate to the main contributing factor”.
In relation to Dr Kumar’s reports, the applicant complains that it is not clear as to the documentation with which he was provided in order to compile those reports. The applicant submits (from the history referred to by the doctor) that he does not seem to have had access to the applicant’s statement evidence at least when compiling his first report. Then, although he may have had access to that statement evidence when compiling his second report, “it was only in the context of being asked to comment on what was thought to be evidence favourable to the respondent’s case”. The applicant submits that the doctor still did not refer to statement evidence “that she is relying on in this case”. As a result:
“A tribunal such as this cannot have confidence in the opinion of an expert where it cannot be demonstrated that the expert has been made aware of all the relevant facts and has properly addressed them.”
Dr Kumar also did not refer to the entries in the applicant’s general practitioner’s clinical notes which specifically mentioned her work issues, thus weakening his reasoning. The applicant concludes:
“On balance, it cannot be said that Dr Kumar, at the time of expressing his opinion, had a fair climate on which to do so.”

FINDINGS AND REASONS

Did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with
s 4 of the 1987 Act, to which her employment with the respondent was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant claims that she was bullied and harassed at work by Clark and Denniss. Clark denies bullying her, having only interacted with her on three occasions. Denniss does not provide statement evidence. Hall (see paragraph 60 above) says that she was not aware of any bullying.
The respondent argues that the applicant has not been specific enough with her allegations of bullying.
While some of the applicant’s allegations against Clark and Denniss are rather vague, in relation to them lacking communication, not being approachable, and not being friendly, it is clear to me that the working environment that the applicant found herself in was particularly difficult. She describes it as dysfunctional (see paragraph 29 above) and Hall describes it as toxic (see paragraph 55 above). I accept the applicant’s submission (see paragraph 101 above) that there was workplace disruption under Clark’s management.
Hall also confirms (see paragraph 59 above) that the Wollongong Court House had a high number of misconduct matters and grievances, a high turn-over of managers, and disengaged staff with a lack of moral compass. Into this workplace, Hall sends Clark and Denniss to turn “the culture around”. She concedes that as a result there were grievances lodged against both Clark and Denniss. She also concedes that Clark faced “a significant challenge” and that he “had a unique management style”.
The workplace culture did not however improve, and as a result, Hall instigated an external investigation.
It is apparent that Hall blamed the staff and previous managers (such as the applicant’s husband) for the state of the workplace, when she appointed Clark and Denniss.
In the context of this work environment, and the aims of Hall, Clark, and Denniss to try to change that environment, it is easy to imagine conflicts with staff occurring (which Hall agrees occurred). It is also easy to accept that the applicant would view Clark and Denniss as unapproachable, unfriendly, and lacking communication. I accept her evidence in this regard that this is how she perceived them, although I make no finding as to whether they were in fact unapproachable, unfriendly, and lacking communication.
Whether Clark and Denniss were bullies is not really the issue - the issue is whether they were responsible for events occurring in the workplace which led to the applicant developing psychological symptoms, which in her case she perceived as bullying.
In Attorney General’s, Roche DP discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
The Deputy President also said (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’, as Ms Smuts has submitted.”

The applicant’s reaction to Clark and Denniss was necessary subjective, and she perceived their actions as amounting to bullying, as they were unapproachable, unfriendly, and lacking communication. The applicant’s reaction was based upon her perception of real events, being the actions that Clark and Dennis were taking in order to change the toxic working environment at the Wollongong Court House acknowledged by Hall. The applicant’s exposure to that working environment was also of course a real event.
I therefore reject the respondent's submission that there is an insufficient factual background to the applicant's allegations that Clark and Denniss were unapproachable, unfriendly, and lacking communication. She has in my opinion provided sufficient detail as to how she interacted with them (which she alleges lacked communication) and how they conducted themselves towards her (which she alleges was in an unapproachable and unfriendly manner), even though she may not remember the specific words they used when interacting with her.
Further, the applicant does provide very specific details in relation to the following events:
(a)    her witnessing Cassandra Plum, Brian Brown, and George Tackas being bullied (see paragraph 30 above) - I accept the applicant’s evidence that these events occurred despite the respondent’s submission that statements should have been obtained from the three victims of the bullying - relevantly, Clark (see paragraph 49 above) does not deny that the incidents occurred although he alleges that the applicant was not a direct witness to some of them;
(b)    she was denied her requests for further training - see paragraphs 31 and 41 above, and
(c)    Clark used a book to take notes during his interactions with her, which she specifically advises made her uncomfortable - see paragraph 28 above.
In these circumstances, I am satisfied that there were real events that occurred at work, as a result of which the applicant perceived that she was being bullied by Clark and Denniss. She perceived an “offensive and hostile working environment”.
As an aside, I will deal with the respondent’s submission (see paragraph 92 above) that it was not given sufficient information from the applicant in order to be able to make a decision as to whether to raise a defence to the applicant’s claim under s 11A of the 1987 Act. I reject this submission not only on the basis that I have found there to be sufficient information regarding the complaints that the applicant makes about her working environment, but also on the basis that there is no evidence that any of the actions referred to in the section (transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal, or provision of benefits) were applicable to her. There is unchallenged evidence from her (see paragraph 36 above) that she had never had any performance management issues raised with her during her extensive period of employment with the respondent.
Turning to the medical evidence presented by the parties, it is unanimously accepted that the applicant suffers from a chronic adjustment disorder. It is therefore necessary to determine whether the applicant’s employment with the respondent (which led to her perception of bullying and an offensive and hostile working environment) was the main contributing factor to that chronic adjustment disorder.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a)     The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The evidence identifies (see paragraph 37 above) that the applicant had a previous workers compensation claim for psychological injuries around 17 years ago and that the applicant’s son had heart surgery in May 2018. However there is no medical evidence suggesting that either of these factors contribute to her current psychological symptoms.
The evidence also identifies (see paragraph 42(a) above) that the applicant suffered depression following the birth of her youngest child in 2015. She advises however that the depression had resolved “well prior to the issues at work”, and the clinical notes from her general practitioner’s practice support this recovery, as there are no treatment records regarding that episode of depression after 14 October 2015. I therefore do not consider that episode of depression to be a factor contributing to her current psychological symptoms.
The respondent suggests (see paragraph 98 above) that the difficulty that the applicant had in adapting to a workplace where her husband was not the officer in charge is a factor that needs evaluating as a factor contributing to her current psychological symptoms. I cannot however find any medical evidence to support this suggestion, and in any case, any difficulty that the applicant did have in this regard would seem to me to arise out of her employment.
As a result, in my opinion there are only two factors referred to in the medical evidence presented that need to be evaluated in accordance with AV, in order to determine whether the applicant’s employment with the respondent was the main contributing factor to her chronic adjustment disorder – the anxiety which arose from her husband’s legal and employment issues (together with the consequent financial stresses involved) and her psychological reaction to the employment events which I have found resulted in her perception of bullying and an offensive and hostile working environment.
One of those factors will be considered to be the main contributing factor, and the other considered to be a lesser contributing factor.
Dr Kumar considered the husband’s legal and employment issues to be the main contributing factor. I find his reports to be unsatisfactory however. In essence (see paragraph 87 above), he did not accept the applicant’s condition to be work-related based upon his opinion that she could not prove that she had been bullied, and also based upon his review of her general practitioner’s clinical notes. In this regard, in my opinion, he has not adequately considered:
(a)    the history that the applicant gave to him (see paragraph 82 above) - although the doctor had a discussion with the applicant about her husband’s legal and employment issues, there is no reference in his report to the doctor discussing with her specifically the psychological effect of those issues upon her;
(b)    her perception of being bullied – a perception which I have found related to real events that occurred in the workplace, and
(c)    Dr Stewart’s report dated 17 October 2020 - which in my opinion provides context to, and explains in more detail, the records in the clinical notes of his practice.
In relation to Dr Kumar’s reports, I largely accept the submissions of the applicant at paragraphs 105-106 above. It is not clear what documentation he had access to when preparing his reports, and as a result, it does not seem that he has fully reviewed either the applicant’s statement evidence or the clinical notes of her treating general practitioner’s practice.
The respondent spends a great deal of its submissions analysing the clinical notes from the applicant’s treating general practitioner’s practice. It is true that there is no record in those notes of work issues when she consulted with Dr Stewart on 14 August 2019. However, in my opinion, the entries in the clinical notes since then have constantly referred to her “work situation”. They have also regularly referred to her “husband’s work problems” (at least until
9 August 2020).
It is also true that the clinical notes are often vague in detail, but this is the nature of clinical notes. In order for further details and opinions to be obtained from treating doctors, medico-legal reports need to be requested. This is what the respondent’s insurer did when it requested Dr Stewart’s 17 October 2020 report.
I place significant weight upon that report as to that point, the applicant had only been treated for her psychological condition by Dr Stewart and Rodney Ward. Dr Stewart has also been the applicant’s treating general practitioner since 17 December 2017, and in my opinion therefore is in the best position to advise regarding her treatment history, and to provide the opinions sought by the respondent’s insurer. He is certainly in the best position to provide more information regarding the clinical notes, which of course he recorded in the first place.
Dr Stewart was fully apprised as to the applicant suffering “significant distress at the treatment of her husband”, but in his 17 October 2020 report (see paragraph76(l) above), he answers a specific question posed to him by the respondent’s insurer by stating that the applicant’s employment is the substantial contributing factor to her injury, as she received little support, witnessed work colleagues being bullied, and was denied training. These of course are consistent with the matters that the applicant complains about in her statement evidence as being causative of her psychological condition.
Although Dr Stewart only refers to the applicant’s employment as being “the substantial contributing factor”, in the context of his report, I accept that he is opining that it is a more significant factor than the applicant’s husband’s legal and employment issues, to the development of her psychological condition. Employment is therefore the main factor when comparing the two.
I reject the respondent’s submission in paragraph 93(d) above that it is clear that Dr Stewart did not consider the applicant’s symptoms to be work-related until that suggestion had been implanted in the applicant’s mind by her psychologist. In my opinion, the doctor’s clinical notes are consistent in referring to her work-related issues (as well as her husband’s legal and employment issues). The matter that is ‘clear’ is that Dr Stewart considered both issues to be relevant in the development of her psychological condition, however when eventually pressed to opine as to the more significant factor, he opined that it was her work-related issues.
I also for similar reasons reject the respondent’s submission in paragraph 95 above that a review of Dr Stewart’s clinical notes does not support his opinion in his 17 October 2020 report that the applicant’s symptoms were primarily a result of “issues at her workplace with management”. The doctor is in the best position to interpret his clinical notes, which of course were never required to deal with the opinion in the report, requested from him by the respondent’s insurer, as to whether the applicant’s work-related issues or her husband’s issues was the main contributing factor to the development of her psychological condition.
Significant support for Dr Stewart’s opinion can also be found in the medical evidence relied on by the applicant from her treating psychologist (Rodney Ward), her treating psychiatrist
(Dr Smith), as well as Dr Chow.
Rodney Ward prepared a report around 23 March 2022 following 33 consultations with the applicant since 14 May 2020. Like Dr Stewart, this places him in a highly advantageous position to provide opinions. He was also apprised as to the applicant’s husband’s legal and employment issues being relevant to the causation of her condition, but he opined that (see paragraph 73 above) her workplace issues were the main cause of the condition.
The brief history of the applicant’s workplace issues which he noted in his report is also consistent with the complaints made in the applicant’s statement evidence. Further, there is a more contemporaneous report from Rodney Ward dated 2 July 2020 (see paragraph 77 above) in which he advised that throughout his initial assessment stage of her, it became increasingly apparent that her condition was a “work-related matter” as their discussions mostly involved discussions about her workplace.
Dr Smith’s report dated 27 July 2021 unfortunately does not obtain a history (see paragraph 67 above) of the applicant’s husband’s legal and employment issues, and I therefore need to afford it less weight than I would otherwise. It does however provide an opinion that (see paragraph 70 above) the applicant’s condition had arisen as a result of “untoward events that occurred at her place of work”.
Despite the respondent’s submission that Dr Chow provides a poorly reasoned report “without factual or rational underpinning”, I find to the contrary. The history obtained by the doctor (see paragraph 64 above) is in fact more detailed than the histories obtained by
Drs Smith and Kumar. The history includes information regarding the applicant’s husband’s legal and employment issues, and it also includes information regarding the applicant’s depression in 2015.
The opinion subsequently provided by the doctor (see paragraph 65 above) that her workplace issues rather than her husband’s issues were the main contributing factor to the development of her psychological condition, is then entirely consistent with the opinions provided in this regard by her treating general practitioner (Dr Stewart) and her treating psychologist (Rodney Ward).
In summary, I am satisfied that real employment events (which led to the applicant's perception that she was being bullied at work) were the main contributing factor in the development of her psychological condition. In weighing up the competing causative factors referred to in AV, I cannot find any convincing evidence of any non-work factors except her husband’s legal and employment issues. In then evaluating the effect that those issues had upon her compared with the effect that her employment events had upon her, I am satisfied with the medical evidence that opines her employment events to be the relevant main contributing factor.

SUMMARY

I therefore find that the applicant sustained a ‘disease’ injury, pursuant to s 4(b)(i) of the 1987 Act, in relation to which her employment with the respondent was the main contributing factor to the contracture of that ‘disease’ injury. The injury will be deemed to have occurred on
14 August 2019 (that being the date when the applicant last worked with the respondent prior to her incapacity).
In accordance with the agreement between the parties (see paragraph 10 above), the applicant will be entitled to a continuing award of weekly compensation payments at the rate of $152 per week pursuant to s 37 of the 1987 Act from 15 December 2021, as well as a ‘general’ order pursuant to s 60 of the 1987 Act. Her claim pursuant to s 66 of the 1987 Act will be referred to a Medical Assessor.

[2023] NSWPIC 62

16 February 2023