BVN v Tomago Aluminium Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BVN v Tomago Aluminium Pty Ltd [2024] NSWPIC 260
APPLICANT:	BVN
RESPONDENT:	Tomago Aluminium Company Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	21 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments in relation to an alleged psychological injury; whether applicant suffered injury as alleged, and if so whether the injury was caused by the respondent’s reasonable conduct with respect to performance appraisal, discipline and/ or the provision of employment benefits; Held – the applicant suffered injury as alleged; the injury was not wholly or predominantly caused by the respondent’s reasonable conduct as alleged; the applicant was and remains wholly incapacitated for employment as a result of his injury; the respondent is to pay the applicant weekly compensation from 22 May 2023 pursuant to section 37 to date and continuing.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 23 February 2023. 2. The applicant’s injury was not wholly or predominantly caused by the respondent’s reasonable conduct with respect to performance appraisal, discipline or the provision of employment benefits. 3. At the date of injury, the applicant’s pre-injury average weekly earnings exceeded the statutory maximum payable under the workers’ compensation legislation. 4. As a result of his injury, the applicant was and remains totally incapacitated for employment from 22 May 2023. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,938.88 per week, subject to periodic indexation. 6. The applicant is to be de-identified in these published reasons.

STATEMENT OF REASONS

BACKGROUND

These proceedings for the payment of weekly compensation are brought by the applicant, BVN against the respondent, Tomago Aluminium Company Pty Ltd in respect of an alleged psychological injury with a deemed date of 23 February 2023.
The applicant claims to have suffered an aggravation of pre-existing post-traumatic stress disorder in the course of his employment with the respondent. He has not worked since that date.
There is no issue the applicant’s pre-injury average weekly earnings (PIAWE) exceeded the statutory maximum payable pursuant to s 34 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent denies that the applicant suffered a work-related injury, and in the alternative alleges any such injury was wholly or predominantly caused by its reasonable actions with respect to performance appraisal, discipline and/ or the provision of employment benefits.
The applicant alleges that as a result of his injury he is totally incapacitated for employment. The respondent submits the applicant has capacity to work approximately 20 hours per week.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered a work-related psychological injury;
(b)    if so, whether the injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, discipline and/or the provision of employment benefits, and
(c)    if applicable, the degree of the applicant’s incapacity arising from any work-related injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 7 March 2024. At the hearing, the applicant was represented by Mr Stanton instructed by MRM Lawyers. The respondent was represented by Mr Jones instructed by BBW Lawyers.
At the conclusion of the hearing, the parties were directed to lodge written submissions on the defence pursuant to s 11A of the 1987 Act. The applicant had made submissions on this question at the hearing, however, the respondent had not. The respondent lodged its written submissions on 14 March 2024 and the applicant his written submissions in reply on
26 March 2024.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments;
(c)    applicant’s Application to Admit Late Documents (AALD) dated 29 February 2024 and attachments;
(d)    respondent’s AALD dated 1 March 2024 and attachments, and
(e)    respondent’s AALD dated 13 March 2024 and attachments, lodged in accordance with post hearing directions for the lodgement of that material.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work-related psychological injury

There is no doubt the applicant had a pre-existing psychological condition in the nature of post-traumatic stress disorder as a result of his service in the military. There is likewise no issue the applicant was having periodic treatment for that condition before the alleged injury at issue.
The nature of the applicant’s prior condition is dealt with in detail in the report of his independent medical examiner (IME) Dr Anand dated 29 August 2023. I do not propose to repeat the factual background to the onset of the applicant’s original condition, however, suffice to say both Dr Anand and the respondent’s IME, Dr Pothala are aware of the applicant’s pre-existing issues and took them into consideration in reaching their conclusions.
There is no question the applicant carries the onus of establishing he suffered a work-related injury. In Attorney General’s Department v K [2010] NSWWCCPD 76, Deputy President Roche, in considering the issue of establishing psychological injury in circumstances of the worker’s perception of real events in the workplace, provided the following useful summary of the relevant authorities:
“a.     Employers take their employees as they find them. There is an ‘eggshell psyche’ principle which is the equivalent of the ‘eggshell skull’ principle;
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;
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;
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;
e.      There is no requirement at law that the worker’s perception of events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’; 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 respondent submits the applicant has failed to establish the presence of an injury, albeit one by way of aggravation, as neither IME had benefit of the complete clinical records from the applicant’s treating practitioners in making their assessments. The respondent also relied on a number of general practitioner (GP) entries which, it submitted, do not reference employment-related difficulties or issues.
However, a number of the GP entries do reference issues in the workplace and, although I do not propose to repeat them at length in these reasons, they are in my view significant as the applicant claims his injury is one of an aggravation to a pre-existing condition as a result of his treatment at work over a period of time.
As the authorities make clear, an aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (see Kelly v Western Sydney Institute NSW TAFE Commission [2010] NSWWCCPD 71, where Roche DP cited the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (Semlitch)).
In psychological injury claims, the applicant must demonstrate employment was the main contributing factor to the injury. In such claims, it is important to remember the injury is the aggravation, not the underlying condition itself. That is, an injury said to have been suffered under s 4(b)(ii) does not require the applicant to establish employment is the main contributing factor to the overall disease process or pathology, but simply that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the underlying condition.
The line of authority on this issue is lengthy and clear. It stems from the High Court’s decision in Semlitch and runs through to decisions such as Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha) in which the Court of Appeal noted an injury in the nature of an aggravation of a disease should be construed as not referring to something which is an injury independent of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation.
In cases surrounding injury by aggravation, it is only necessary for an injured worker’s condition to worsen to the point where it affected them more significantly than was otherwise the case. It is not necessary for the pathology underlying the condition or disease to be made worse: see Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132.
As noted, it is necessary for the applicant to establish his employment was the main contributing factor to the aggravation of his pre-existing condition. As Deputy President Snell noted in open AV v AW [2020] NSWWCCPD 9, there can only be one main contributing factor to an injury. That is, the requirement to establish a main contributing factor is more stringent than the test applicable pursuant to s 4(a) of the 1987 Act which requires a finding that work was a substantial contributing factor to an injury.
As the Deputy President noted, there may be more than one substantial contributing factor, however, the requirement in s 4(b) inserted by the 2012 amendments to the 1987 Act, that employment be the “main contributing factor” permits the existence of only one such factor and involves a more stringent connection with the employment than the requirement of a substantial contributing factor.
For the respondent, Mr Jones submitted the applicant had failed to provide a reason as to why the incidents complained of in the workplace had caused the aggravation to his underlying condition. He noted a number of GP clinical entries did not relate to work-related aggravation.
However, in my view it is not necessary for the IMEs of each party to have the exhaustive clinical records of the applicant’s GP in their possession before providing an opinion as to causation, which is ultimately what the question of main contributing factor of an aggravation involves. Both Dr Anand and Dr Pothala are qualified experts who take a consistent history from the applicant as to the existence of pre-existing psychological problems. This is not a matter where the applicant has attempted to conceal or downplay the effect of his pre-existing psychological condition. He has been open and honest with each of the IMEs in this matter and indeed with all practitioners whom he has consulted over the years since the onset of his psychological conditions.
In my view, the evidence on the question of work-related psychological injury in this matter is overwhelming. Each of the applicant and respondent’s IMEs find the presence of a work-related aggravation to an underlying condition of post-traumatic stress disorder. The respondent’s IME, Dr Pothala, was specifically asked about the applicant’s history and in answer to specific questions, replied as follows:
“a.     Does the worker suffer from a recognisable psychiatric disorder? if yes, what is the diagnosis.
BVN suffers from a recognised psychiatric disorder.
·     post-traumatic stress disorder (PTSD) and
·     alcohol abuse
b.      Are there any pre-existing factors for any of the worker’s injuries? Has there been an aggravation of a pre-existing condition?
BVN worked with the Australian Defence Force (ADF) and he was deployed in Afghanistan in the past. He has developed PTSD in the context of his service with ADF as outlined in the past psychiatric history.
It appears there was an exacerbation of his pre-existing conditions.
c.     When did the worker first report work-related psychiatric symptoms to his GP?
Upon reviewing his medical records, BVN first reported work-related psychiatric symptoms to his GP on 27 February 2023.
d.     Is employment the main contributing factor to a recognisable psychiatric condition or any aggravation/exacerbation of such condition? Please explain your reasoning
It does appear his employment was the main contributing factor to exacerbation of his pre-existing post-traumatic stress disorder and alcohol use disorder.”
The applicant’s IME, Dr Anand was asked whether it was more probable than not that the applicant’s employment was a significant contributing factor towards an aggravation of his post-traumatic stress disorder, and replied as follows:
“Yes, in my opinion, he had a pre-existing condition of PTSD, major depression and alcohol use disorder and these were aggravated due to workplace difficulties at his place of employment – Tomago Aluminium. BVN alleged being bullied, harassed and discriminated against during his and being unsupported by the management.”
There is no medical evidence to contradict the views of the respective IMEs. On the issue of whether there was a work-related aggravation to the applicant’s underlying condition, those experts were both equipped with appropriate histories and are ad idem as to the causative effects of the applicant’s employment on his pre-existing condition. It follows, in my view, that the evidence plainly establishes on the balance probabilities that the applicant suffered a work-related aggravation of his pre-existing post-traumatic stress disorder.

Whether the defense under s 11A is made out

Section 11A of the 1987 Act provides a complete defence to a claim for psychological injury if the injury (in this case, the applicant’s aggravation of his pre-existing condition) was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent, relevantly with respect to performance appraisal, discipline or provision of employment benefits.
In consideration of wholly or predominantly caused is a similar concept to that of main contributing factor, in that there can only be one whole or predominant cause. However, “wholly” and “predominant” are separate concepts and must be considered individually. Thus, a finding that an injury was “wholly and predominantly caused” by reasonable actions of an employer is erroneous, as they are different concepts and if findings are to be made, it needs to be one or the other: see Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith).
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). That is, there must be a common-sense evaluation of the causal chain to determine whether the actions relied upon by the employer can be said to be wholly or predominantly causative of the injury at issue.
An employer which seeks to make out a defence pursuant to s 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167; and Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).
The test for establishing a defence pursuant to s 11A is twofold and conjunctive. Not only must the actions of the employer relied upon be the whole or predominant cause, they must be reasonable.
The test of reasonableness is an objective one of fact, weighing all the relevant factors. As Geraghty J noted in Irwin v Director General of Education NSWCC 14068/97, 18 June 1998:
“that test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
His Honour’s reasoning was effectively followed by Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), where her Honour said:
“in my view, when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected.”
Those decisions were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSWCA 239, where his Honour said:
“I prefer the construction which has been accorded in the decisions in the Compensation Court referred to in this judgment and in His Honour’s judgment. The words ‘reasonable action’ in a statute dealing with workers’ compensation rights of employees, it should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon a breach of duty of care.” (at [42])
As Armitage J noted in Ritchie v Department of Community Services [1998] 16 NSWCCR 727:
“It is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent’s conduct against the reasons given for it. It follows, of course, from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its perspective, will not be determinative of this issue.”
Reasonableness is therefore judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action. Armitage J noted in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45 that “only if the employer’s actions in all the circumstances was fair could it be said to be reasonable”, keeping in mind that the reasonableness of a person’s actions is assessed by reference to the circumstances known to them at the time the action was taken: see Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
In his written submissions for the respondent, Mr Jones helpfully set out a number of authorities relating to the definitions of discipline and performance appraisal. Additionally, the respondent submitted the s 11A defence relating to the provision of employment benefits concerned the applicant wishing to take various forms of leave and also related to his efforts at securing onsite parking.
The respondent set out in its written submissions the broad categories which it relies on in support of the s 11A defence. It is appropriate to deal with them in turn.

Issues with the applicant’s beard and the wearing of industrial masks in the work place

One of the matters which concerned the applicant was a requirement on the part of the respondent for him to wear a certain type of mask in the workplace which was not compatible with the beard which he had grown.

For the respondent, Mr Jones submitted the “beard issue” fell within the ambit of conduct relating to discipline because the discussions concerned policies and the applicant’s noncompliance with them.
For the applicant, Mr Stanton submitted the issue with the applicant’s beard cannot be said to be related to discipline, and in any event, the respondent’s argument that other forms of masks could not be used as they were by other people in the respondent’s workplace who had beards was not persuasive. Mr Stanton submitted it was simply a disagreement as to whether it was reasonable for the applicant to wear a certain type of mask in the workplace, and could not be said to relate to either performance appraisal, the provision of benefits or discipline.
The applicant suffered from dermatitis, and it was for this reason he had grown a beard. According to the applicant, he raised the fact that other supervisors in the business also had facial hair in a conversation with Mr Gorton and Mr Treyvaud on 20 May 2018. According to the applicant, during the course of that conversation, the respondent’s representatives told him there was an expectation that the leaders on site would be cleanshaven. When the applicant pointed out another workmate also had facial hair, he alleges he was told by
Mr Gorton that the co-worker was not the subject of the discussion, but the applicant was.
In my view, the course of conduct surrounding the applicant’s beard cannot be classified as disciplinary in nature. I accept on balance Mr Stanton’s submission that there was a dispute between the applicant and his supervisors as to the appropriate mask to wear and whether he ought to have a beard. The evidence of the respondent’s witnesses does not point to a process being put in place to formally counsel the applicant on this issue or any suggestion of him being advised that action against him may be taken unless he shaved, or indeed what that action would be.
It also follows, in my view, if the actions in relation to the applicant’s beard can be said to be disciplinary in nature, then the lack of advice given to the applicant as to the ramifications of non-compliance with any directive would render such conduct unreasonable.

Leave for the applicant to attend a funeral

The applicant sought leave to attend the funeral of a former colleague with whom he had served in Afghanistan. In his statement, he says when he applied for leave, Mr Gorton his superintendent said “you are not entitled to bereavement leave, and I will not be approving your long service leave request for it either. You will also need to provide evidence for this funeral.”
The applicant claims he had previously been granted approval for long service leave to be taken for single days or shifts. He states he felt he was being treated differently and discriminated against by Mr Gorton. He sent an email to Mr Cook, HR superintendent asking the issue be investigated. In reply, the applicant states he received an email from Mr Cook stating the applicant’s claims were fictitious.
The respondent produced a statement from Mr Gorton together with a diary note written by him on 30 January 2023 which reads as follows:
“30/01/2023 Request for BVN to review leave balances as what he has booked he does not have the leave to cover and we have other leaders with hundreds of hours wanting to take leave - email: Leave Requests .msg
BVN informed me he intends to take leave without pay, I spoke to him and let him know that there is a process to apply for that, also sent email outlining that him potentially trying to take leave without pay would be stopping his peers with leave taking a break: RE Leave Requests .msg…
31/01/2023 BVN came to see me about leave without pay - I explained to BVN what the procedure was to apply for this style of leave and advised him that if he was interested in putting something like this forward, a business case outlining his intentions would be the best way to approach it to give context as you cannot just take leave without pay it needs to be applied for and approved. He said I'm not doing a fucking business case, l said that's up to you but that's what I would do. At the end he said he was taking leave without pay and not from his current leave balances, Note - at the end he stopped in the doorway with a giant smirk and said it doesn't matter as I has a back up plan anyway. I mentioned this to Magali when discussing his leave proposal to expect an unfavourable result for BVN to go into dispute as BVN has Mentioned he has a back up plan.”
I am unclear as to the nature of any “business case” which might reasonably apply to taking leave for one day to attend a funeral.
As Mr Jones submitted, Mr Gorton provides a statement dealing with the applicant’s leave entitlements, in particular paragraphs [77] to [90] and following. However,
Mr Gorton’s statement does not traverse the applicant’s evidence specifically concerning the application for leave to attend the funeral. Mr Gorton does, however, deny singling out or otherwise harassing, intimidating or excessively scrutinising the applicant.
I have little doubt the issue of the applicant taking leave for his colleague’s funeral relates to the provision of employment benefits. I am also mindful of the respondent’s evidence surrounding the applicant incorrectly entering leave requests in the past, However, the circumstances of the leave sought on this occasion were vastly different to the matters which Mr Gorton traverses in his statement. The leave sought was for a short period and arose in different and tragic circumstances, in that a former military colleague of the applicant had committed suicide. Whilst the requirement to maintain and correctly identify leave balances is a thoroughly appropriate and indeed necessary part of the respondent’s business, in my view the manner in which the issue was dealt with in the particular context of this application cannot be said to be reasonable.
In making that finding, I do not state the respondent or Mr Gorton were actuated by malice towards the applicant. Rather, given the nature of the leave sought and the reasons for it, I believe the respondent could reasonably have advised the applicant his leave had been approved subject to the mechanics of that leave and the designation of it being worked through afterwards.

Submitting of reports, reviews and investigation

The parties differ as to the nature of this conduct relied on by the respondent, which submits there was one episode causative of the applicant’s aggravation injury. For his part, the applicant submits he felt discriminated against by the manner in which his work was assessed over an extended period. The applicant states his report rating were frequently changed by his supervisor, requiring a large volume of report writing by the applicant thereafter.
In his statement, Mr Gorton said:
“98. I have also been advised that BVN is now alleging that when he submitted the Incident Batches which had been identified by him as being of a minor nature, that I sent a large number of them then back to him for investigation purposes. It is true that BVN had forwarded Incident Batches through to me which had been identified by him as being of a minor nature. As part of my duties, I was required to inspect and to adjudicate as to the worthiness of those incidents, and if they should be investigated.
99. It was my judgement call that, as his supervisor, I was required to inspect the incident forms and accordingly, when I saw an incident form which I believe needed further attention or investigation, I would send it back to BVN for that purpose.
100. As I have said previously, I have a duty of care to all employees and it is one of my responsibilities to bring to the attention of a supervisor, an issue which needs further investigation. Certainly safety issues and fire control is a major consideration within the company.
101. I deny any discrimination, targeting, singling out, or the harassment of BVN regarding the return of any Incident Batch reports to him. I do not express any regret for any incident form returned to him for further investigation as this is part of my duties and that of my responsibilities to the company.”
The applicant placed into evidence a statement from Jason Elliott, a supervisor at the respondent’s workplace. Mr Elliott stated:
“4.     I worked in the Carbon Plant with the Applicant for several years, during this time I had noticed that the Applicant had been treated differently.
5.     The reason why I had noticed this was because the Applicant had been singled out to other supervisors.
6.     It was quite clear and evident that the expectations placed on BVN were
completely different from other leaders. I have already provided a couple of
statements regarding this to what I've witnessed firsthand.
7.     I've also been asked about BVN by Troy Gorton who was the current
superintendent as to what I thought of BVN and how he I felt he performed as a
leader during block reviews. These block reviews were supposed to be performed weekly and were to speak about our performances and the teams.
8.     I would always respond with and remind Troy that ‘I'm not here to discuss BVN,
the block review is about me and my team performances and discuss the direction the company was heading in’. I always found this unusual and not the norm as I've worked with several superintendents prior to Troy.
9.     These persistent questions about BVN were unusual and making it feel like BVN
was being targeted.
10.   In saying that, the relationship at work with BVN was always professional and hand overs with each other were met and discussions with issues at the time within the plant production were always met.
11.   There was always healthy challenges and discussions on what was best to move
forward.”
The respondent has asserted the applicant colluded with colleagues to manufacture allegations of singling out against him. The respondent carries the onus of establishing its defence under s 11A.
In this matter, where there is such a disparity in evidence between Mr Gorton and the witnesses on whom the respondent relies and the independent witnesses who have supplied statements for the applicant, the absence of cross examination to test the accounts of the lay witnesses who have supported the allegations of singling out is telling. I cannot be satisfied on the balance of probabilities, in light of the evidence from independent witnesses whose accounts were not challenged in oral evidence, that the respondent acted reasonably in relation to this aspect of the case.

Other liability considerations

There can be no question the applicant had developed a less than ideal relationship with his supervisors. In examining the evidence in this matter, I note the applicant has provided statements from two eyewitnesses who support his assertion that he was being singled out by his managers. As noted, the respondent denies this allegation, and in correspondence which it forwarded to the applicant at the time complaints were raised, it asserted through its witnesses the applicant had conspired with other workers to make false allegations against the respondent’s management.
It is axiomatic to say this is a serious allegation to make of not only the applicant but also those witnesses who have provided statements in support of him.
No application was made to cross-examine the applicant or his lay witnesses in this matter. In a letter to the applicant dated 25 February 2023, Mr Cook, the human resources superintendent of the respondent, set out its responses to the allegations made by the applicant and in conclusion stated:
“It is apparent to the company that each of the records of conversation are a contrived attempt by you to build a case against Troy and, to a lesser extent, Magali – that simply does not exist. The records of conversation refer to four different people having had conversations with you over two days which all self-servingly make reference to you being targeted. The likelihood of that occurring is implausible.
It is clear to the company that you have conspired with the others referred to in the records of conversation in order to make an unjustified attack on Troy and Magali in retribution for the business declining your application for LSL and in retribution for the company’s justified decision to refuse your request for LWP.
it is unacceptable for you to make false accusations against management. While the company is prepared to forgive your conduct on this occasion, on the basis that we understand you are upset by the company’s decisions regarding your application for LSL and LWP at a time of the loss of a close friend, we will not be as tolerant on the next occasion you make false allegations against management.”
That attitude towards the applicant is also found in the statement of Mr Gorton, the superintendent of operations for the respondent, in his statement dated 12 April 2023. In that document, Mr Gorton stated:
“57. In relation to BVN’s communication style, I am aware that he can articulate things, lead a meeting really well, and entertain and engage a crowd. BVN knows how to be very engaging, however on occasions he can be very short and disengaging.
58.    I feel that what BVN discusses, his words are that he deals with a lot of bullshit and intimidation, like a badge of honor [sic] at times. BVN can sit on both sides of the fence, doing things in an nonvariation way at times…
84.    In relation to BVN’s interactions with senior personnel within the company, I do not believe that he had a very good relationship with Ben Cook who is the Human Resources Superintendent on site.
85.    BVN has said some pretty vulgar things in the past regarding stuff which has gone on within the pot lines. I can elaborate further if you wish; however, what he said was very discourteous and offensive towards Ben who was a very senior executive.
86.    I believe that I have encouraged BVN in all facets of his employment. Again, he did not like criticism and I believe that this may have been a factor in what is now taking place with his workers’ compensation claim.
87.    BVN is not at work now due to mental health issues. In this regard, I am aware that BVN has made comments regarding a payout for this claim, which he is now alleging. I believe he has an ulterior motive for indicating that he now has mental health issues other than the alleged issues which he is now suggesting.
88.    It is my belief that what BVN is doing was planned by him, as he now does not want to work at Tomago and he is looking at a 10-year payout of wages. As I have said previously, I also believe that there has been a number of ‘triggers’ which may be giving his ideas that he wants to leave the company.”
The allegation raised by Mr Gorton is, once again, a serious one. It suggests the applicant is taking steps to at best exaggerate and at worst fabricate the nature of his claim. That allegation has not been put to the applicant, nor does the respondent suggest that the applicant is not suffering from a psychological condition of some kind.
Nevertheless, Mr Gorton’s statement is indicative of an attitude is plainly indicative of an attitude of hostility towards the applicant on the part of Mr Gorton, who occupied a senior role with the respondent. It also includes what can only be described as a degree of irrelevant and gratuitous gossip surrounding the applicant’s marriage and the circumstances of its ending.
In my view, the causes of the applicant’s injury by way of aggravation are multifactorial. They include the issue in relation to his beard, which I do not believe was one relating to discipline.
Although the respondent’s IME Dr Pothala was of the view actions in relation to performance appraisal and/ or discipline were the whole or predominant cause of the applicant’s injury, included in that consideration was the issue regarding the applicant’s beard, which I have found does not fall within either category.
I also believe that the applicant was, as indicated by independent witnesses who are not cross-examined, singled out in terms of the manner in which his work was assessed compared with other people in commensurate positions. The attitude of Mr Gorton and the human resources superintendent of the respondent is both indicative of a mindset towards the applicant which has prejudged his motives and his claim. In my view, that attitude towards the applicant is supportive of the suggestion made by him that he was singled out in the workplace compared with others.
It follows from this finding that the conduct of the respondent towards the applicant cannot be said to be reasonable, even if it was the whole or predominant cause of his aggravation injury.
As noted, the respondent must satisfy both limbs of the defence under s 11A and its failure to establish that its conduct was reasonable means the defence must fail.
Given this finding, it is not necessary to determine whether the conduct relied upon concerning discipline, performance appraisal and provision of benefits was the whole or predominant cause of the applicant’s injury. Nevertheless, were I required to make such a finding, I would not be satisfied that conduct which falls within those categories was the whole or predominant cause. As noted, I do not consider the dispute relating to the applicant’s beard was something which can properly be said to fall within discipline or performance appraisal and does certainly not relate to the provision of any benefits to him. In my view, the causes of the applicant’s injury were multi-factorial.
As the applicant noted in his submissions in reply, the applicant’s complaint which formed part of the factual background to the opinions of both IMEs, was that he felt discriminated against in the way his work was assessed over an extended period of time. I accept that submission and note the applicant was of the view that his incident report ratings were frequently changed by his supervisor, requiring a large volume of report writing on the part of the applicant in a manner which was suggestive of him being singled out. Mr Elliot, independent witness, corroborates the applicant being treated differently to others and that he appeared to be being targeted. As Mr Stanton noted, a reasonable system of supervision would be one which treats employees in a broadly similar manner.
I do not believe that this has been the case here, and accordingly I find that the defence pursuant to s 11A must fail.

Capacity for employment

The respondent submitted the applicant had capacity for employment at a rate of approximately 20 hours per week. That assessment was made by the respondent’s IME. However, there can be no issue the applicant suffered severe symptoms and has a relatively high need for ongoing treatment, including inpatient treatment. The applicant continues to be certified as totally unfit for employment, and on balance I am satisfied that this is in fact the case and has been for the period of the claim at issue. An examination of the medical evidence reveals that the applicant has suffered a severe aggravation of his underlying condition which has rendered him incapable of earning income on the open labour market.
Having made this finding, it follows that, given the applicant’s PIAWE is agreed to exceed the level of the maximum statutory rate, that the respondent will be ordered to pay weekly compensation at 80% of the maximum statutory rate as indexed from time to time, for the period claimed.

SUMMARY

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

[2024] NSWPIC 260

21 May 2024