Cannon v The Healthy Snack People Pty Ltd
[2009] NSWWCCPD 32
•27 March 2009
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 | ||||||
| APPELLANT: | Vicki Cannon | ||||||
| RESPONDENT: | The Healthy Snack People Pty Ltd | ||||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||||
| FILE NUMBER: | A1-1166/08 | ||||||
| DATE OF ARBITRATOR’S DECISION: | 29 July 2008 | ||||||
| DATE OF APPEAL HEARING | 18 March 2009 | ||||||
| DATE OF APPEAL DECISION: | 27 March 2009 | ||||||
| SUBJECT MATTER OF DECISION: | Psychological injury; section 65A of the Workers Compensation Act 1987; causation; section 74 of the Workplace Injury Management and Workers Compensation Act 1998 | ||||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||||
| HEARING: | Oral | ||||||
| REPRESENTATION: | Appellant: | Mr Carney instructed by Leitch Hasson Dent | |||||
| Respondent: | Mr Saul instructed by Bartier Perry | ||||||
| ORDERS MADE ON APPEAL: | Paragraphs one and two of the Arbitrator’s determination of 29 July 2008 are revoked and the following order made: “Award for the respondent.” Paragraph three of the Arbitrator’s determination of 29 July 2008 is confirmed. | ||||||
| Each party is to pay her or its own costs of the appeal. | |||||||
BACKGROUND TO THE APPEAL
In this matter the appellant, Vicki Cannon, suffered an injury to her thoracic spine in the course of her employment for the respondent, The Healthy Snack People Pty Ltd (‘the respondent’), on 21 August 2003 (‘the back injury’). This injury is not in dispute. As a result of her back injury she claimed, and was paid, lump sum compensation in respect of a 6% whole person impairment, as assessed by an Approved Medical Specialist (‘AMS’) on 20 October 2005.
After her back injury, Ms Cannon returned to work, initially on suitable duties, then normal duties for several months and then again on suitable duties. She alleges that while she was on suitable duties she developed a psychological injury, “chronic depression”, as a result of “harassment, bullying and verbal abuse” in the course of her employment with the respondent from “June 2004 to date”. In fact, Ms Cannon ceased work on or about 7 February 2006 and has not returned.
The respondent disputed liability in notices from its insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), dated 20 April 2006, 13 February 2007, 11 March 2008, and a letter from its solicitor dated 12 March 2008. The letter of 20 April 2006 declined liability because “As per section 4 and section 9a [sic] of the Workers Compensation Act 1987, you would not be considered to have sustained a work related diagnosable psychiatric condition.”
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 20 February 2008, Ms Cannon claimed lump sum compensation in respect of a 17% whole person impairment as a result of her psychological injury.
A Commission Arbitrator heard the claim on 3 June 2008 and recorded, without objection, that the following issues remained in dispute (T1.33):
(a)did the applicant receive a psychological injury arising out of or in the course of employment and was her employment a substantial contributing factor to that injury?
(b)if the applicant did receive a psychological injury arising out of or in the course of employment, was the injury a primary psychological injury or a secondary psychological injury?
(c)if the applicant did receive a primary psychological injury arising out of or in the course of employment, was the injury wholly or predominantly caused by the reasonable actions of the respondent?
The importance of issue (b) is that if Ms Cannon suffered a psychological injury “as a consequence of, or secondary to, a physical injury” (section 65A of the Workers Compensation Act 1987 (‘the 1987 Act’)), her psychological injury is a “secondary psychological injury” and no lump sum compensation is payable under Division 4 of the 1987 Act.
In a decision delivered on 29 July 2008, the Arbitrator determined that Ms Cannon suffered a psychological injury (severe anxiety) that arose out of and in the course of her employment, because it was directly related to her undisputed back injury. As a result of that finding, she also found that the psychological injury was a secondary psychological injury under section 65A and Ms Cannon had no entitlement to lump sum compensation for her psychological injury. She also found, in the alternative, that if Ms Cannon suffered a primary psychological injury, the “events which gave rise to the applicant’s distress and anxiety and her psychological injury were reasonable actions of the employer which related to discipline and work performance as matters set out in section 11A” (Statement of Reasons for Decision (‘Reasons’), paragraph 70).
By an appeal filed on 1 September 2008, Ms Cannon seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was filed on 1 September 2008 and was therefore filed outside the 28 days in section 352(4) of the 1998 Act.
By letter dated 5 September 2008, and forwarded by facsimile to Ms Cannon’s solicitors (Leitch Hasson Dent) on that day, the Registrar advised that the appeal had been filed out of time and directed that submissions be filed by 19 September 2008 indicating why the appeal was filed out of time and providing full arguments in favour of why time to appeal should be extended.
Leitch Hasson Dent replied by facsimile on 5 September 2008, that the appeal had been forwarded to the Commission’s document exchange by letter dated 22 August 2008. In the normal course of events it was reasonable for the solicitors to assume that the appeal would have reached the Commission before the expiration of the 28-day period in section 352(4) of the 1998 Act. That did not happen in the present matter. The Registrar again wrote to Leitch Hasson Dent on 9 September 2008 confirming that the Commission received the letter of 22 August 2008 (which attached the appeal) on 1 September 2008 and providing a copy of that letter with the “Received” stamp of “1 SEP 2008” on it. A document is not lodged with or served on the Commission until the Commission receives it. Therefore, the appeal was filed out of time.
Leitch Hasson Dent eventually filed submissions in response to the Registrar’s letter of 5 September 2008. Those submissions disputed that the appeal was filed late and reiterated that the solicitors forwarded the appeal to the Commission by letter dated 22 August 2008. They stated that they were “perplexed” as to why the Commission only received the appeal on 1 September 2008 and submitted that the appeal was not filed out of time. If the appeal was out of time, it was submitted:
(a)it was due to an administrative oversight;
(b)it has resulted in no prejudice to the respondent, and
(c)the appeal was forwarded to the respondent’s solicitor on 22 August 2008 and that solicitor acknowledged receipt of it on 26 August 2008.
The Commission allocated the appeal to me on 4 November 2008. On 7 November 2008, I issued a Direction to the parties seeking further submissions on, among other things, the application to extend time to appeal. The appellant was directed to file and serve her further submissions on or before 4.30pm on 1 December 2008.
Leitch Hasson Dent ignored that Direction.
On 15 December 2008, the Commission advised the parties that a revised timetable had been set for compliance with the Direction of 7 November 2008 and that the appeal would not proceed until the parties complied with that Direction. In compliance with the revised timetable, Leitch Hasson Dent filed submissions on 13 January 2009, but served those submissions on the respondent’s insurer rather than on its solicitors, Bartier Perry, who have at all times acted for the respondent. Eventually, the further submissions were served on Bartier Perry and a response filed by that firm on 13 February 2009.
In respect of the application for an extension of time, the further submissions from Leitch Hasson Dent merely repeated the submissions previously made, namely, that the appeal had not been lodged out of time, but if it was it was due to an administrative oversight and resulted in no prejudice to the respondent.
An extension of time in which to appeal is governed by Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), which provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The evidence establishes that the appeal was filed on 1 September 2008 and was therefore filed out of time. Leitch Hasson Dent should not have been perplexed about why a letter dated 22 August 2008 did not reach the Commission until 1 September 2008. The letter was addressed to the Commission at “DX 11594 Sydney Downtown”. The Commission’s correct address is “DX 11524 Sydney Downtown”.
At the oral hearing on 18 March 2009, counsel for Ms Cannon submitted:
(a)the appeal was out of time because of an error by Leitch Hasson Dent;
(b)Ms Cannon always gave instructions to appeal, and
(c)the delay was not great.
Counsel for the respondent did not wish to be heard on the application to extend time and conceded that his client suffered no prejudice. In these circumstances, and bearing in mind the fact that the appeal was forwarded to Bartier Perry by letter dated 22 August 2008, I am satisfied that exceptional circumstances exist that justify the extension of time to appeal.
I extend time to appeal until 1 September 2008 and grant leave to appeal.
THE EVIDENCE
Ms Cannon’s Evidence
Ms Cannon’s evidence is set out in her statement of 29 May 2007 (‘the May 2007 statement’), hand written notes covering the period January 2004 to January 2006 (‘the hand written notes’), a document headed “Stress Points – Vicki Cannon” date stamped 21 April 2006 (‘the stress points document’) and an undated hand written statement commencing “I (Vicki Cannon) of” (‘the undated statement’).
The key features of Ms Cannon’s May 2007 statement are:
(a)she injured her back in August 2003 and reported the injury to her supervisor, Temmy, who told her to “get on with the job”. She was off work for most of October 2003 and two weeks of November 2003. She returned to work on light duties and has had continuing problems with her back since then;
(b)in 2004 she was transferred to a new work site (Building 3). After returning to work from two weeks leave in June 2004, her supervisor, Stephen Crighton, called her into his office and said that she had been watched for the last two weeks, she was a slow, lazy worker, that her injuries slowed her down, she should reconsider her position with the company, she had no part on the team and she was the reason that the product often did not get out on time. This upset her greatly;
(c)over the next 18 months, she was constantly harassed, bullied, verbally abused and discriminated against by her superiors and her co-workers. This had extreme psychological repercussions on her;
(d)instances of the harassment included:
(i)constantly being told by management as well as co-workers that she was not a good worker, as she was inefficient;
(ii)constantly being told she was unproductive. She considered this unfair as the injury slowed her down, but the lack of productivity was not so much because of her back problem but rather because of machines constantly breaking down;
(iii)in June 2004, John Dueboski told her she was too slow, had been there long enough to know more about the machines, and needed to think about her position. He also yelled across the room, in front of other workers, “Faster Vicki, faster, your back problem is slowing you down”;
(iv)Stephen Pope, her co-ordinator, told her she was up herself and if he had his way he would get rid of people on “compo” as they were a burden to the company;
(v)Renae Jenkins, the Occupational Health and Safety (‘OHS’) manager, and Brett Mortensen, from Human Resources, arranged for her to move every 20 minutes so she would not be repeatedly putting her body through the same strains and positions. When she mentioned this to Stephen Pope he said it was too bad as OHS and Human Resources were not on the floor. Stephen Pope would not let her work and she had to stand at the back of the factory and do nothing;
(vi)as a result of anxiety, she took time off work. When she returned to work, she was informed that her work colleagues had all been called into the office and told about her personal business. This made her feel stressed and humiliated, as she had asked OHS and Human Resources not to let anyone know about her affairs;
(e)in May 2004, she let her supervisor know she intended to leave work early once or twice a week to go to physiotherapy or gym appointments. Her supervisor spoke to her and asked why she left the factory and did not let anyone know;
(f)in October 2005, she had a doctor’s appointment in Hornsby and informed her supervisor, but was again called into the office and asked where she had been;
(g)she was told that when she was on the production line she had to let Jeanette Morrison, a co-worker, or Stephen Pope know if she had to go to the toilet or take a pain relief tablet. Her co-workers made fun of her;
(h)Jeanette Morrison would continually bully and harass her and would frequently swear and sometimes kick across the floor machinery that Ms Cannon was working with;
(i)a female colleague said that a manager said “We have to attend classes on how to deal with stress as we have a crazy woman up in Building 3”. Believing this was a reference to her, Ms Cannon responded, “I am not crazy. I am suffering from anxiety”. She had been told by her supervisor earlier that day that the bosses were attending classes so that they could deal with people like her and anxiety;
(j)she was frequently told that she was a hopeless worker. She was never asked to participate in group things and was ostracised;
(k)she was not to show anybody what to do;
(l)she was made to feel unworthy of her position. Her supervisors and co-ordinators would belittle her and undermine her capacity to do anything;
(m)the anxiety was not brought about by her back problem but by the constant belittling, harassment and bullying she received at work, and
(n)in January 2005, she told her supervisor that her back was healing and begged him to give her a go at working with other workers. He said he wanted fast efficient workers, not someone who would slow down production.
The hand written notes and the ‘stress points’ document are, to a large extent, consistent with the content of the May 2007 statement.
The undated statement records the following additional matters:
(a)by March 2004 her pain had increased to around the chest and down both arms;
(b)her pain levels varied with high and low levels. She took panadol a couple of times a week;
(c)her duties at work suffered as a result of her injury. It was difficult for her to reach across conveyors, change parts on the machines, or open doors to above head height;
(d)there had been some “discrimination” from supervisors, team leaders and some of the workers;
(e)she lost her position as team leader;
(f)two girls were sent into her area and were told to keep pushing her until they could fully take over;
(g)a supervisor called her into his office and told her that her work was not up to standard, he didn’t want people on the team who were slow or could not do their job 100%, other people had to do some of her work, and the two girls sent to take over told her that Kellogg should get rid of her as she was useless to the group;
(h)Ms Cannon started to lose her self worth;
(i)she was stressed with her work situation, the people she worked with, her “pain levels of high and low”, doctors and their different opinions, not knowing if her job was secure, and
(j)Dr Ciardi referred her to a psychologist, Nikki Grant, where she was learning to cope with pain and to go about her tasks both at work and at home.
Medical and Other Evidence
Ms Cannon’s medical case consists of several medical certificates from her treating doctors, Dr Green and Dr Ciardi, a report from a qualified forensic psychiatrist, Dr Clark, and reports from clinical psychologists, Silvana Giorgi (‘Ms Giorgi’) and Nikki Grant (‘Ms Grant’), both from the Central Coast Therapy Centre (‘CCTC’). Also in evidence are reports from Vanessa Parletta (‘Ms Parletta’), manager of “The ORS Group”, a company specialising in injury management and human resources solutions.
Dr Green, general practitioner at Wyong Medical Centre, issued several WorkCover medical certificates between 2 September 2003 and 21 October 2003 in which he diagnosed Ms Cannon’s condition as a “back injury” and declared her to be fit for suitable duties (lifting up to three kilograms, no back or neck flexion, work above waist height, avoid repetitive back rotation, and rotate jobs hourly) until 19 October 2003 and fit for pre-injury duties from 20 October 2003. He declared her fit for suitable duties (lifting up to five kilograms, avoid repetitive back flexion and trunk rotation) from 24 March 2004 until 29 March 2004.
Dr Ciardi, Fellow of the Australian College of Physical Medicine practising at the Toukley Family Practice, took over Ms Cannon’s treatment in April 2004 and diagnosed her condition as “segmental hypomobility due to thoracic vertebral dysfunction”. He declared her fit for suitable duties (lifting up to five kilograms) from 19 April 2004 until 7 May 2004. The lifting restriction fluctuated between five and seven kilograms until 25 October 2004 when Dr Ciardi certified a restriction of “5-7kg close to body” and “no reaching out or up”. On 2 December 2004, Dr Ciardi reduced Ms Cannon’s lifting capacity to three kilograms close to the body “due to exacerbation of back pain”, still with no reaching out or up.
On 14 December 2004, Dr Ciardi issued a certificate diagnosing “thoracic vertebral dysfunction. Severe Stress” and declared Ms Cannon unfit on 13 and 14 December 2004. Under “Management plan” he recorded “seeing psychologist”. His next two certificates (covering 1 February up to 30 April 2005) made no mention of stress (or any similar symptoms) and declared Ms Cannon fit for suitable duties because of her back injury lifting up to “3-7kg as tolerated” with “no reaching up or out”. The “Management plan” in these certificates was “Manual Therapy. Pain Management”. His next certificates certified Ms Cannon unfit to work because of her back condition and “stress” from 19 April 2005 to 2 June 2005. The certificate of 29 April 2005, described the “Management plan” as “Rest. Counselling (psychologist). Manual therapy”.
Dr Ciardi referred Ms Cannon to the CCTC in December 2004. Ms Giorgi first assessed her on 14 December 2004 and reported on 6 January 2005. Under “Referral Details” it was noted that Ms Cannon was involved in a work related injury in August 2003 and that she had been experiencing persistent physical pain in her back since that time as well as “psychological stress in relation to her readjustment to work”. Under “Background Information”, Ms Giorgi recorded that Ms Cannon lived alone and had an active social life until her injury, at which time her contact with others became more limited due to her difficulty coping with her back pain and her inability, for example, to drive long distances without significant pain. Ms Cannon said she had a four-year history of employment as a process worker and team leader with the respondent. The work involved extensive packing and lifting as well as supervision of other staff. She reported that she enjoyed her job and, prior to her injury, was seeking to advance her career through promotion. The injury in August 2003 occurred when Ms Cannon was asked to switch from her team leader position to working on a conveyor. She commenced packing boxes and lifting boxes into big buckets and felt pain in her back after one hour. She told her supervisor but was asked to continue working. After three to four days she reported that her back had “seized up” and she was unable to lie down, sleep, turn her head or move or lift her arms without feeling significant pain.
At the time of Ms Giorgi’s assessment, Ms Cannon reported significant workplace stress, feeling isolated and withdrawn at work due to her back pain and due to feeling that her supervisors avoided her and didn’t communicate significant information to her. She felt her job was under threat and that she had little chance of being promoted. Her pain levels fluctuated but there were times in the week prior to the appointment when the pain was so intense that she was “almost immobilised”. Chiropractic treatment and physiotherapy had been of only minimal benefit, but treatment from Dr Ciardi (manipulation, electro-acupuncture, heat packs, light massage and light exercises) had reduced her pain “from 100% to 20%”. She reported having eliminated many activities from her life due to her pain, including routine household chores. She no longer swam or walked very far. She had difficulty sleeping.
Under “Current Psychological Symptoms”, Ms Giorgi recorded that Ms Cannon felt frustrated with her situation, feeling as though she had little control over her life and was missing out on many activities she used to enjoy. Ms Cannon reported crying a lot and feeling fragile. She felt isolated, unsupported and stressed due to her work situation. She was more sensitive to criticism and less assertive than she used to be. She was less able to deal with others’ aggressive or threatening behaviour at work. She did not feel depressed or have suicidal ideation.
Ms Cannon reported symptoms of anxiety and avoidance including worrying excessively at night while trying to sleep. She also complained of experiencing anxiety when out in public due to fear of increasing her pain in some way and she therefore avoided going out if possible. She withdrew from her friends and family in order to avoid engaging in activities. In the Depression Anxiety Stress Scale (“DASS”) test Ms Cannon scored in the “normal” range for depression, the “moderate” range for stress and in the “extremely severe” range for anxiety. She felt agitated, scared, panicky, had difficulty relaxing, and worried excessively.
Under “Summary and Opinion”, Ms Giorgi said:
“Ms Cannon appears to have been significantly effected [sic] by the presence of her persistent physical pain resulting from the work place injury. She is experiencing symptoms of anxiety and stress and is finding it difficult to continue coping with her current life situation, in particular with the demands placed on her at work and her perceived lack of support by her workplace management. She is utilising some pain management techniques and coping strategies which are likely to be exacerbating the severity of her pain and the frequency of her flare-ups. It is felt that she will benefit from Cognitive Behavioural Therapy in relation to developing more effective pain management strategies, managing her increasing anxiety symptoms and coping with the loss issues associated with her physical injury. She reported being willing to attempt counselling, particularly as she currently has very little opportunity to deal with her emotional reactions to daily events. It is felt that, given her fairly high level of motivation, she will be able to achieve some good results with respect to the aforementioned goals.”
Ms Giorgi recommended psychological counselling.
On or about 3 June 2005, Dr Ciardi declared Ms Cannon fit for suitable duties (lifting up to seven kilograms as tolerated) from 3 June 2005 until 30 June 2005 because of her back condition and “anxiety – work related”. The “Management plan” is described as “Counselling. Refer to Pain Management Specialist (Dr Russo) next visit”.
Ms Parletta interviewed Ms Cannon at her workplace on 29 June 2005 and 13 July 2005, and reported to the respondent on 15 July 2005. Ms Cannon reported that in the months before her injury she had been given some supervisory tasks, but those had been taken from her without any reasons immediately prior to her injury. She felt humiliated having to explain why she was no longer performing supervisory duties and she found it difficult to cope with this. Since her injury, Ms Cannon reported experiencing a number of interpersonal issues with some of her work colleagues, in particular three female team leaders and a male supervisor. Her inability to communicate effectively with these staff members dramatically affected her work and she felt tense and anxious when these people were working. Comments made by these people made her feel her job was under threat, which added to her feelings of stress and anxiety. Ms Cannon also felt she had been treated differently by all other staff members following her return to work after being assessed unfit due to work stress. Most of the staff did not talk to her because they were scared that she would become more stressed and have to leave work. Ms Cannon found this hard to deal with and had become increasingly isolated and withdrawn while at work. She preferred the matter to be handled without direct reference to her situation by the respondent generally educating supervisors and team leaders about appropriate workplace behaviour for managing workers compensation issues.
Despite these problems, Ms Cannon reported that she really enjoyed the nature of her work and generally liked working for the respondent. She wanted to stay at work as long as possible and was keen to do what it took to increase her physical work capacity so she could perform all her duties.
Ms Parletta also contacted Ms Renae Jenkins, the respondent’s OHS advisor, who reported that Ms Cannon was a very good worker who was trying hard to upgrade her work capacity. Ms Jenkins was aware of Ms Cannon’s interpersonal issues and her high stress levels and was keen to address the issues underlying those difficulties.
Ms Parletta concluded that it appeared the main impediment to Ms Cannon’s successful return to work was her “current experience of work stress”, which had mostly been caused by her “interpersonal difficulties with a variety of work colleagues”. The other barrier was her reduced physical capacity, which was being addressed through physiotherapy and exercise.
On 27 July 2005, Ms Jones, occupational therapist, conducted a worksite assessment with Ms Cannon and Ms Jenkins. In her report of 1 August 2005, Ms Jones concluded that Ms Cannon’s current suitable duties were within her current medical restrictions (no lifting above seven kilograms, as tolerated). The respondent advised that those duties could be accommodated in the medium term. Ms Cannon was aware of the need to take regular work-pause breaks.
Ms Grant counselled Ms Cannon on eight occasions between 17 March and 19 July 2005. In her report of 3 August 2005, Ms Grant recorded that Ms Cannon’s emotional state had been reactive to events that surrounded her rehabilitation. Her initial progress with regard to stress and anxiety levels was impacted by recent difficulties with regard to interpersonal work conflict, but she had been able to persist through those difficulties with only minimal time off work. Ms Cannon appeared a very motivated lady, who genuinely wanted to continue working in her current workplace. She was managing her anxiety more effectively and had been able to identify and participate in decision-making regarding workplace difficulties. Four further sessions were recommended. They were to “focus on anxiety management techniques and, to a smaller degree, pain management strategies”.
Dr Ciardi continued to declare Ms Cannon fit for suitable duties (lifting up to six kilograms) from July 2005 until 10 February 2006 because of her back and “anxiety – work related”. Some of the certificates also placed a restriction of stretching up or out.
Ms Parletta reported again on 22 August 2005. She recorded that Ms Cannon had reported the following factors to be stressful: her back pain and resulting restriction in her movement, the inability of the doctors to form a consensus regarding her injury diagnosis and prognosis, her interpersonal difficulties with her co-workers and supervisors, the fact that she feels that she is being treated differently due to her time off due to stress, and, last, her concern relating to her not being believed about her injury (she reported that she had been recently placed under surveillance). This stress had a negative impact on her ability to manage her pain effectively and cope with her return to work.
In an effort to address the increasing difficulties Ms Cannon was experiencing at work, Ms Parletta met with Ms Cannon, Mr Mortensen, the respondent’s Human Resources manager, and an unidentified co-worker to discuss the problems. Whilst some gains were made in identifying the causes of the conflict, Ms Cannon was not amenable to mending the relationship and preferred the co-worker to remain away from her as much as possible. Ms Cannon reported that during the preceding month she had become increasingly isolated both at home and at work. She did this deliberately, as she felt she needed time out from other people and their demands on her. According to Ms Parletta, the isolation was having a negative impact on Ms Cannon’s return to work as it reduced her support system and increased her alienation from other co-workers. Ms Cannon had reportedly become increasingly paranoid since finding out that she had been placed under surveillance by CGU.
Ms Parletta reported on 6 October 2005 that Ms Cannon had completed a work-conditioning program and that her compliance had been excellent. Throughout the previous month Ms Cannon made significant improvement in relation to her feelings of work related stress and anxiety. She reported feeling much better at work and, though she mostly kept to herself, she felt that her interactions with other staff members and supervisors had improved. There were still issues with one staff member and the respondent addressed them in a manner that all parties agreed was appropriate. Ms Grant reported that Ms Cannon’s psychological status had improved significantly in recent times and she was coping more appropriately with work related stress.
On 13 October 2005 a formal meeting was organised between Ms Cannon, Stephen Crighton, one of her supervisors, and Mr Mortensen to discuss an incident on 29 September 2005 when Ms Cannon left work early without notifying her supervisor or co-ordinator, as she had on previous occasions. As the meeting was a “formal performance discussion”, Ms Cannon was advised that she was permitted to have an ERC representative or employee witness present, though she declined that offer. According to a typed file note of the meeting, Ms Cannon said that she was too stressed to stay at work any longer (on 29 September 2005) and hadn’t given it any thought but just left. She realised she shouldn’t have done so and called Mr Crighton when she got home and realised what she had done. Mr Mortensen stated that it was unacceptable that she would leave the site without notifying her supervisors and that other employees had been spoken to for the same reason. As this had happened before, Mr Mortensen issued a verbal warning for unacceptable departure from her shift without appropriate notification. Ms Cannon acknowledged the warning and said she understood why it was occurring. She said it happened quite quickly without a lot of thought. Mr Mortensen and Mr Crighton informed her that she should ask to leave the line for a short period, to get her thoughts together and calm down. She was to advise a co-worker to locate one of the supervisors if she felt she was not coping.
Mr Mortensen also mentioned that Ms Cannon had failed to attend a number of important company meetings in the past few weeks. She said she felt too claustrophobic in the meetings and could not attend as it caused her to get too stressed out. She added that it was not just at work where she felt claustrophobic, but she was also struggling to attend large family occasions that involved a large number of people. When asked about the recent ERC meetings, Ms Cannon said she did not want to get involved in all those arguments, but was happy to go along with the proposal and wanted to do the right thing by the company. If Ms Cannon left work again without notifying her supervisor, she would receive a written warning.
Ms Cannon’s relationship with Jeanette Morrison was also discussed at this meeting. Mr Mortensen advised that the respondent had proposed a “Safe Work Plan” that required Ms Cannon and Ms Morrison to keep more than five metres apart. Ms Cannon was happy to comply with this and was given a copy of the Safe Work Plan.
Ms Parletta reported again on 23 November 2005. She recorded that Ms Cannon had made significant physical gains as a result of her fit for work program and could regularly lift 6.5 kilograms without difficulty. However, Ms Cannon continued to report experiencing difficulties in terms of her return to work and a meeting was being arranged with all relevant staff to try and address some of the issues. Ms Cannon advised she was feeling a lot better within herself and believed that once the “work-related issues” were resolved, her return to work would be a lot more sustainable. Contact was made with Ms Grant, who indicated that Ms Cannon’s psychological status had improved significantly as a result of counselling, occupational rehabilitation and an exercise program, though she was still experiencing some problems in the workplace which needed to be addressed.
Ms Grant counselled Ms Cannon on four occasions between September and November 2005 and reported on 28 November 2005 that Ms Cannon’s emotional state had been reactive to events that surrounded her rehabilitation. There had been many difficult workplace occurrences, described as “interpersonal work conflict”, which served to interfere with expected gains. Ms Grant again noted that Ms Cannon appeared to be a motivated person who genuinely wished to continue working. The counselling sessions focused on:
(a)support regarding managing the difficulties occurring within the workplace;
(b)supporting her to manage her reactions to decisions made in a constructive rather than destructive manner;
(c)liaison with her rehabilitation provider to assist with difficulties identified within the workplace;
(d)provide a sounding ground for her frustrations and concerns, and
(e)assisting her to utilise an outside support network and her strong Christian beliefs.
Ms Cannon responded well to the counselling and managed her anxiety more effectively. She identified and participated in decision-making regarding workplace difficulties. She had been experiencing difficulty with one staff member who had been harassing her. Whilst significant gains had been made, Ms Grant recommended further psychological counselling. In respect of the workplace conflict, Ms Grant recommended that clear goals and objectives be set and that outcomes needed to be measurable.
On 6 December 2005, Mr Mortensen wrote to Ms Cannon acknowledging grievances she raised at a meeting on 29 November 2005. The exact nature of those grievances is not identified in the letter, save that it involved an allegation of swearing and improper treatment by supervisors. Mr Mortensen acknowledged that the complaints were serious and that the respondent was arranging further investigations into the issues. He said that an independent investigator would be taking factual statements from all relevant personnel.
Ms Parletta reported on 16 January 2006 that Ms Cannon had completed her Fit For Work program and, though she was able to reach out without pain, was unable to increase her lifting limit past 6.5 kilograms. Though Ms Cannon continued to have back pain, she continued to attend work as normal. Ms Cannon was noted to be extremely motivated to improve her physical status. In terms of Ms Cannon’s psychological status, Ms Cannon was feeling less stressed and “the best she has since her original injury”. She was waiting to receive feedback about an investigation into a number of matters, which should further act to alleviate her feeling of stress at work. Ms Cannon did not feel she needed psychological assistance.
On 24 January 2006, the respondent held a meeting with Mr Mortensen, Neville Rawding (the plant manager), Mr Crighton and Ms Cannon to provide feedback to Ms Cannon about the recent investigation of her grievances. A document headed “Vicki Cannon Grievance Follow-up File Note” is in evidence and notes:
(a)Ms Cannon stated that “Don” (the independent investigator) advised her that she would receive a copy of the statement he took from her once the investigation details had been gathered;
(b)Ms Cannon stated that she did not like people swearing at her and was pleased increased focus would be placed on that area;
(c)Ms Cannon was more comfortable now that Jeanette Morrison had been moved. The past two weeks had been much more relaxed and happy at work, and
(d)Mr Mortensen said the respondent would continue to seek Ms Cannon’s effort in moving forward with these issues. It was important for Ms Cannon to understand and work with the respondent and allow sufficient time for the remaining actions to be implemented and take effect. The respondent took her grievance seriously and had done everything it could to resolve the issue.
Mr Mortensen wrote to Ms Cannon on 24 January 2006. Essentially, this letter was to provide feedback about the “independent investigation” conducted in December 2005 in response to Ms Cannon’s complaints. Mr Mortensen made the following points:
(a)the respondent did not tolerate swearing or improper language in the workplace and it conducted an EEO training session in December 2005 and would be conducting further EEO and workplace behaviour training sessions throughout 2006 to educate employees and reduce the likelihood of any such instances occurring moving forward;
(b)in regard to issues about inappropriate conduct and workplace interactions with employees and contractors, the respondent would be embarking on an EEO prevention workshop for all contractors, as well as focussing on workplace interactions across the site, with particular emphasis on the way individuals speak and interact with each other;
(c)as part of a plant review, some workers would be transferred across different rosters to allow for more appropriate training and skill development for all operators. As a result, Jeanette Morrison was transferred to a new roster;
(d)all operators on site would undergo a review of their current competency level;
(e)the respondent would focus on Leadership Development throughout 2006, and all co-ordinators and supervisors would continue their Frontline Management and internal development programs that started in 2005. The focus would be on employee interactions, development of a safe and motivated work environment, and
(f)the respondent took Ms Cannon’s concerns seriously and was confident that the outcomes identified and actions recommended would address her concerns.
On 7 February 2006, Ms Cannon was informed that she would not be receiving a copy of the statement she gave to the investigator and, as best can be determined from the evidence, she stopped work on that day or shortly after. On 10 February 2006, Dr Ciardi declared Ms Cannon unfit to work from that day until 17 February 2006 as a result of both her back condition and “anxiety (work related – ACUTE EXACERBATION)”.
Ms Cannon has not returned to paid employment though she was declared fit for suitable duties on 3 June 2006 and has undertaken some voluntary work. Dr Ciardi changed the “Management plan” in his certificate of 17 March 2006, to be “Rest. Counselling. Avoid work setting”. This is the only certificate in which he declared Ms Cannon unfit solely because of her anxiety. All prior and subsequent certificates declared her unfit because of both her back condition and her anxiety. Most of the certificates from 13 April 2006 until the last certificate of 27 July 2007 diagnosed “thoracic vertebral dysfunction + subsequent severe anxiety”.
Ms Cannon completed a claim form on 20 February 2006, in which she stated:
“On 21st August 2003 I sustained a back injury claim No 980 101 781 22 6% whole person, which has been paid out. during this time I have been treated for anxiety due to discrimination from back injury. My claim being – Anxiety Due to discrimination from Back Injury.”
Ms Parletta reported on 2 May 2006 that she had contacted Dr Ciardi who believed that Ms Cannon’s psychological condition was directly related to her original work injury. As a result of conflicting information received by Ms Cannon, her stress levels increased dramatically and she did not believe she was capable of returning to work in the short term. She had returned to the workplace to recover something from her locker and she broke down in tears and suffered anxiety.
Ms Cannon’s solicitor referred her to Dr Clark who examined her on 1 May 2006 and reported on 11 May 2006. Dr Clark took a history that Ms Cannon had been subjected to intimidation, bullying and harassment at work where she was unfairly criticised and called into the office “all the time”. There were false allegations made about her and she was systematically undermined and eventually demoted. It was stated she was “not good enough”. This series of events caused an “insidious chronically developing anxiety depression with marked phobias”, better known as Dysthymia. She had lost all self-esteem, had no confidence, and had felt suicidal. Dr Clark took no history of Ms Cannon’s back injury.
In a second report of the same date, Dr Clark confirmed that Ms Cannon suffers from a diagnosed psychiatric disorder (Dysthymia), that the disorder is a primary psychiatric injury and there was no evidence of a pre-existing condition. He assessed Ms Cannon to have a 17% whole person impairment as a result of her psychiatric disorder.
Mary Glynn, rehabilitation consultant with The ORS Group, saw Ms Cannon on three occasions in June 2006 to discuss job seeking. Ms Cannon appeared very anxious, but was keen to secure alternative employment. She advised that Ms Cannon continued to see a counsellor once per week at her own cost.
Ms Glynn reported on 30 August 2006 that Ms Cannon had changed to a different psychologist and noticed a marked improvement in her anxiety symptoms. At a ‘case conference’ with Dr Ciardi, Ms Cannon and The ORS Group on 30 August 2006, Dr Ciardi refused to provide separate certificates for Ms Cannon’s back injury and her anxiety. He associated Ms Cannon’s anxiety with her work related back injury.
Erin Hart, rehabilitation consultant with The ORS Group, reported on 10 October 2006 that Ms Cannon’s anxiety condition had improved, but at the meeting on 9 October 2006 Ms Cannon had deteriorated and she appeared anxious and unable to focus on her interview.
CGU issued a section 74 notice on 13 February 2007 declining to make an offer in respect of Ms Cannon’s claim for lump sum compensation in respect of her psychiatric injury and referring to section 65A of the 1987 Act and to a report from Dr Vickery, a consultant psychiatrist.
By letter dated 30 March 2007, CGU advised that weekly compensation would continue to be paid in respect of Ms Cannon’s back injury, notwithstanding the denial of liability in respect of the psychological injury.
A further report from The ORS Group dated 3 April 2007 recorded that Ms Cannon’s anxiety condition had improved and she was able to access shopping centres more regularly and attend The ORS Group office on a regular basis
A report from The ORS Group dated 22 May 2007 confirmed that Ms Cannon’s anxiety levels continued to improve.
Lay Witness Statements
At some stage, either CGU or the respondent conducted a factual investigation into Ms Cannon’s claim. As a result of that investigation, several statements have been tendered.
Jeanette Morrison
Jeanette Morrison provided a statement on 12 December 2007, which may be summarised as follows:
(a)she is a process worker (team leader) at the respondent’s Charmhaven plant and has held that position since 2004. Before that date she worked at the plant as a process worker, but was employed by Advantage Personnel;
(b)as a team leader she had to supervise staff including, at times, Ms Cannon;
(c)initially, Ms Morrison and Ms Cannon were good friends;
(d)while she was still employed by Advantage, the respondent offered Ms Morrison a full time position. As a result, she resigned a second job she had. The next day, the manager told her she would not get the job because Ms Cannon had told her that the other girls had complained about her getting the job. When confronted by Ms Morrison, Ms Cannon denied ever saying anything to the manager;
(e)in 2004, Ms Cannon was transferred to Building 3 and, a short time later, Ms Morrison was also transferred. It was at that time that Ms Cannon’s attitude changed, possibly because she resented Ms Morrison telling her what to do. Ms Cannon seemed to resent taking orders, even from the supervisors;
(f)Ms Cannon would make regular and petty complaints about Ms Morrison to the supervisor, Mr Crighton. One such complaint was that Ms Morrison had not been wearing gloves. Ms Morrison tried to avoid Ms Cannon;
(g)Ms Morrison denied acting improperly or unfairly towards Ms Cannon, but alleged that Ms Cannon had thrown her (Ms Morrison’s) paperwork on the floor;
(h)Ms Morrison denied ever swearing at, belittling, harassing, humiliating or victimising Ms Cannon, or saying anything detrimental to her. She felt sorry for Ms Cannon. As a team leader, it was Ms Morrison’s responsibility to prevent any harassment or bullying;
(i)Ms Morrison alleges that Ms Cannon followed her up and down the aisles in the supermarket on occasions;
(j)Ms Morrison denies ever saying that Ms Cannon was pretending to have anxiety;
(k)she never saw any of the workers on the floor in Building 3 mocking or making fun of Ms Cannon, though there were concerns about Ms Cannon’s attitude to everything, and
(l)she tried to avoid Ms Cannon as much as possible.
Tracey Higgins
Tracey Higgins, a level-three machine operator with the respondent, also provided a statement on 12 December 2007. Ms Higgins had a falling out with Ms Cannon in about 2002 and, in any event, did not work with her in Building 3. She observed that Ms Cannon never mingled socially and never went to Christmas parties or farewells. She stated that she saw no evidence of Ms Cannon being bullied or harassed and though she worked in Building 1 and Ms Cannon worked in Building 3, she moved from building to building to work and everybody knew her. She was chairperson of the Employee Representative Committee for three years and Chairperson to “Occupational Health and Safety” for two and a half years, but was never made aware that Ms Cannon had been harassed or bullied.
Stephen Pope
The evidence includes a document headed “Record of Notes Taken at Interview with Stephen Pope on the 14 February 2008 at Charmhaven”. Though Mr Pope has not signed this document, Ms Cannon’s counsel did not object to it being tendered at the arbitration. The following points are made in the notes:
(a)Mr Pope did not know of Ms Cannon’s back injury until the end of 2004 or early 2005. In any event, in her position in Building 3 she did not have to lift anything heavy;
(b)Ms Cannon was good at her job and her attendance was good but it did fall away;
(c)Ms Cannon would regularly say “give me my personal space” and was not popular with the staff. On three or four occasions, Mr Pope asked staff to work with Ms Cannon and not around her;
(d)everyone was trying to help Ms Cannon;
(e)Jeanette Morrison was a very good, reliable employee who got along well with everyone. Mr Pope believed that Ms Cannon became jealous because Ms Morrison became a level three and Ms Cannon was a level two;
(f)Mr Pope did speak with Ms Cannon about why she was not progressing. He said that due to her restrictions she could not do other jobs and that held her back. A level three has to do a lot of machinery set up, which requires bending;
(g)he never saw Ms Morrison harass or bully Ms Cannon, but Ms Cannon was definitely harassing Ms Morrison. Ms Cannon would go off at anyone;
(h)Ms Cannon and Ms Morrison agreed to stay five metres apart. Ms Morrison abided by the agreement, but Ms Cannon went out of her way to be within the five metres, taking the attitude that Ms Morrison had to get out of her way;
(i)Personnel did not handle the matter properly. Ms Cannon should never have come into Building 3 while on light duties;
(j)he was aware that Ms Cannon complained that Mr Crighton harassed her, but he never saw that occur;
(k)he never harassed or bullied Ms Cannon. He treated all workers equally. He denied saying that Ms Cannon was a burden and useless or that she should be sacked or that she was up herself, and
(l)if anyone took pain relief medication at work, he had to know about it as it is a safety issue.
Stephen Crighton
A statement from Mr Crighton, one of Ms Cannon’s supervisors in Building 3, dated 19 February 2008 is also in evidence. His evidence may be summarised as follows:
(a)he felt Ms Cannon was a good worker and a perfectionist in her work who seemed to get along with staff until the last six months of her employment when she appeared to be stressed and did not mix with staff;
(b)he did not really know the reason for the change in Ms Cannon. There was one situation that seemed to trigger it off: Ms Cannon was given a birthday gift from another staff member and she took offence and told the woman to “back off”;
(c)when Ms Cannon started on Building 3, she performed her normal duties and he was not aware that she was on light duties or that she’s had a back injury;
(d)it was not until about April 2004, when Ms Cannon held out one of her arms and asked the other workers to “Get the SMB” (a machine), that he became aware that she had an injury;
(e)Ms Cannon’s symptoms seemed to coincide with when Ms Morrison became a team leader. Ms Cannon could not be trained to the level of team leader because of her light duties;
(f)he never saw Ms Morrison harass or bully Ms Cannon, or pull faces or make a rude gesture towards her;
(g)Ms Cannon never complained to him about harassment, bullying or victimisation by Ms Morrison. The crew went out of their way to make Ms Cannon feel as comfortable as possible;
(h)towards the end of her employment, staff were walking on “egg shells” with Ms Cannon because, on several occasions, she would cry and say she did not want anybody near her;
(i)management decided to keep Ms Cannon and Ms Morrison five metres apart. He did not see either woman breach the five metre rule;
(j)on an occasion in November 2005, all the staff, including Ms Cannon and Ms Morrison, were in the lunch room celebrating having achieved the budget. Ms Cannon and Ms Morrison sat about three metres apart and neither made any complaint. He later heard that Ms Cannon had complained to management that Ms Morrison was within the five metre distance;
(k)an investigation was conducted into allegations Ms Cannon made about Ms Morrison’s conduct. The investigator spoke to Mr Crighton and took notes in shorthand, but he never sought any transcribed statement;
(l)after the investigation, workers on his shift received training about harassment and bullying in the workplace. He did not think the training was warranted, as he did not think the workers (“the crew”) had done anything wrong. The workers were quite upset about having to do the training because they felt they had taken care in making Ms Cannon fit into the crew as well as possible;
(m)Ms Morrison was removed from his shift. It seemed to him that that was done to please Ms Cannon and not to resolve any issues between the women. Ms Morrison was an asset to his crew and he had not seen any evidence of her causing trouble with Ms Cannon;
(n)before Ms Morrison was transferred, he requested that Ms Cannon be transferred to an eight-hour shift because, as she was showing signs of stress, he was concerned that she could not handle working 12 hour shifts. Renae Jenkins did not agree with his assessment;
(o)he denied ever saying to Ms Cannon that she was a lazy worker or that her injuries slowed her down. He thought she was a good worker, and
(p)Ms Cannon was never watched at work. The other workers were more than accommodating to Ms Cannon and she was never harassed, bullied or victimised.
The Respondent’s Medical Evidence
On 14 March 2006, CGU arranged for Ms Cannon to see Dr Vickery. He reported on 21 March 2006 that Ms Cannon complained of difficulty with concentration and reading, an impaired sleeping pattern due to back pain, bouts of agitation with restless pacing and bouts of crying, as well as difficulty tolerating crowds, particularly in shopping centres.
After setting out a history of harassment and anxiety because of an inability to work on all machines, Dr Vickery recorded that Ms Cannon became tearful on 7 February 2006 and she ceased work after being told she would not be receiving a copy of her statement. She felt she was being “taken for a ride” and had lost confidence. She felt safe and under no pressure at home. She did not tolerate crowds or shopping centres.
Whilst Dr Vickery said that Ms Cannon was anxious and stressed, he found no evidence of Major Depression, paranoia, thought disorder, delusional ideation, hallucinations or gross cognitive impairment. Dr Vickery’s conclusions may be summarised as follows:
(a)Ms Cannon presented with raised tension levels of frustration with her work situation;
(b)she felt harassed and bullied and had adopted an avoidant behaviour pattern. There was no objective evidence to substantiate her claim;
(c)Ms Parletta’s report of 16 January 2006 (see [57] above) stated that Ms Cannon was “a lot less stressed at work” and “the best she has been since her original injury” and “Ms Cannon does not believe that she requires any psychological assistance”;
(d)Ms Cannon did not suffer from a work related diagnosable psychiatric condition or injury;
(e)Ms Cannon would benefit from counselling, but CGU is not considered liable for such treatment;
(f)she was not on any prescribed medication;
(g)Ms Cannon was fit to participate in a return to work program if she wished to do so;
(h)Ms Cannon was frustrated with her work situation and her motivation to return to work was minimal, and
(i)there was no evidence of permanent impairment.
Relying on this report, CGU declined liability by letter dated 20 April 2006 on the ground that Ms Cannon “would not be considered to have sustained a work related diagnosable psychiatric condition”.
In response to CGU sending him a report from Dr Ciardi dated 19 April 2006 (not in evidence), Dr Vickery reported again on 13 May 2006. Dr Vickery thought it was significant that a rehabilitation consultant, Dr Smith, diagnosed Ms Cannon to have “fibromyalgia”, which was “not generally considered to be a work-related condition”. He added that Dr Ciardi was “adamant that Ms Cannon’s condition was work related however this was directly related to Ms Cannon’s perception of her workplace”, but Dr Ciardi did not provide any objective evidence in relation to Ms Cannon’s allegations. Dr Vickery again referred to Ms Parletta’s report of 16 January 2006, which was in direct contrast to Ms Cannon’s self report and Dr Ciardi’s report. In view of the absence of evidence in Dr Ciardi’s report and the discrepancy with Ms Parletta’s report and the continuing deterioration in Ms Cannon’s condition, Dr Vickery did not alter his opinion.
Dr Vickery again assessed Ms Cannon on 30 October 2007. In his report of 31 October 2007, he identified the same symptoms as set out in his 2006 report, but noted that the difficulties with concentration and reading were resolving. Ms Cannon continued to be socially isolated and avoided crowds or social functions. She declined a trial of antidepressant medication, as she did not want to be “drugged”. Dr Vickery noted significantly raised anxiety, but no major depression. He diagnosed agoraphobia as well as social phobia and a phobia of germs, which had arisen in a constitutionally vulnerable person. He felt her condition had markedly deteriorated even though she was absent from work, which would indicate her condition was a “separate primary psychological condition and was not related in any way to her back injury or to her former employment”. He concluded that her condition was constitutional in nature and not related to her employment with the respondent.
THE ARBITRATOR’S REASONS
In a detailed decision, the Arbitrator made the following findings:
(a)that on 14 December 2004 Ms Cannon suffered from severe anxiety, a psychological condition, as diagnosed by Ms Giorgi, clinical psychologist, and that that condition produced physical symptoms and a physiological effect on her. She had therefore suffered a psychological injury (Reasons, paragraph 21);
(b)she gave less weight to Dr Clark’s opinion, as it was based on an incomplete history because he did not take into account the fact that Ms Cannon had been diagnosed by Nikki Grant in December 2004 “as suffering from severe anxiety primarily related to the pain she was experiencing from her back injury” (Reasons, paragraph 48 and 50);
(c)Ms Cannon’s claim form described her claim as anxiety due to discrimination from back pain. The difficulties she faced at work arose primarily as a result of her pain and her inability to carry out certain work related duties. The medical evidence (Dr Ciardi) stated that Ms Cannon’s back pain led to her severe anxiety (Reasons, paragraph 52);
(d)Ms Cannon’s psychological injury (severe anxiety) was a secondary psychological injury because it arose “primarily as a consequence of the back injury” (Reasons, paragraph 52);
(e)if Ms Cannon suffered a primary psychological injury, the Arbitrator considered the respondent’s submission that the injury had been wholly or predominantly caused by reasonable action taken by it with respect to discipline (Reasons, paragraph 64; T6.16);
(f)the respondent took many steps to deal with the workplace conflict experienced by Ms Cannon and there was “nothing in the evidence to suggest the respondent’s actions were not reasonable in all the circumstances” (Reasons, paragraph 67). The respondent investigated all complaints, spoke to all the parties, conducted meetings with Ms Cannon and sought the assistance of an investigator to gather further evidence and deal with the conflict and stress experienced by Ms Cannon. The respondent took Ms Cannon’s complaints seriously. There was no evidence that the investigation was done in an unreasonable manner (Reasons, paragraph 67);
(g)the respondent’s actions in restricting Ms Cannon’s duties at work due to her back injury were also reasonable (Reasons, paragraph 68);
(h)the other matters of which Ms Cannon complained (the revealing of personal information at work, being told she was not working quickly enough, the failure to provide her with a copy of her statement, being questioned about the gym and absences from work while attending medical appointments) were “reasonable actions of the employer in its dealing with the workplace situation involving the applicant” (Reasons, paragraph 69);
(i)“the events which gave rise to the applicant’s distress and anxiety and her psychological injury were reasonable actions of the employer which related to discipline and work performance as matters set out in section 11A” (Reasons, paragraph 70), and
(j)Ms Cannon had no entitlement to lump sum compensation in respect of her psychological injury.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in finding no primary psychological injury pursuant to section 65A of the 1987 Act (‘the section 65A issue’);
(b)in finding that the employer’s actions were reasonable under section 11A (‘the section 11A issue’), and
(c)in failing to take into account the evidence available on injury and in misdirecting herself as to its effect.
SUBMISSIONS
Ms Cannon’s solicitor filed written submissions with the appeal on 1 September 2008. I issued a Direction on 7 November 2008 stating that I found the parties’ submissions inadequate and unsatisfactory. Among other deficiencies, they “did not deal with the causation issue: if, contrary to the Arbitrator’s finding, the Appellant’s psychological injury did not arise as a consequence of her back injury, from what did it arise?” Ms Cannon was directed to file and serve written submissions “properly identifying the issues in dispute on appeal, her arguments in support on those issues, her arguments on the causation issue, and arguments in support of her application to extend time to appeal.”
After initially ignoring this Direction, and after a further letter from the Commission dated 15 December 2008 setting a new timetable for the filing of further submissions, Ms Cannon’s solicitor eventually filed further submissions on 13 January 2009. The respondent filed submissions in response on 13 February 2009.
In the submissions filed on 1 September 2008, the following points were made on behalf of Ms Cannon:
(a)the Arbitrator wrongly accepted evidence of Dr Ciardi, a general practitioner, over the evidence of two psychiatrists, Dr Clark and Dr Vickery;
(b)Dr Ciardi was told of workplace stress by Ms Grant, and of “interpersonal work issues” by Ms Parletta but he ignored this when he prepared his certificates and advice to the insurer. The Arbitrator erred in accepting Dr Ciardi’s opinion because he disregarded the evidence of Ms Grant and The ORS Group and, as a result, did not have a complete history to diagnose a secondary psychological injury. Dr Ciardi is not a psychiatrist or a psychologist;
(c)there is no evidence that if Dr Clark had received a full history or had Ms Grant’s report that his diagnosis would have been different because Ms Grant saw Ms Cannon at an earlier time when the diagnosis may have been different;
(d)the finding as to the application of section 11A would be correct if the only stressor was the investigation, but the stressors included the release of private information and telling Ms Cannon that she was not working fast enough, among other complaints, and these could not be reasonable given her injuries, and
(e)the finding that the employer’s acts were reasonable is not sustainable.
In the further submissions filed on 13 January 2009, the following points were made on behalf of Ms Cannon in response to the Direction of 7 November 2008:
(a)Dr Clark and Ms Cannon’s statement clearly outlined a history of workplace stress, interpersonal work difficulties, the release of private information, and work harassment whereby Ms Cannon’s employer was telling her she was not working fast enough. The psychological injury was caused by these factors;
(b)the psychological condition forms a separate claim, as it is due to a pattern of workplace harassment and bullying;
(c)the Arbitrator said (at paragraph 55 of her Reasons) that “There is no dispute that conflict arose for the applicant at work, and that a number of incidents occurred at the applicant’s workplace and that these incidents related to her work performance.” At paragraphs 56 to 59 of her Reasons, the Arbitrator outlined the work conflicts. It is accepted that the events outlined at paragraphs 56 to 59 probably would not have happened had Ms Cannon not sustained her back injury, however, that does not lead to a finding that Ms Cannon’s psychological injury is secondary to her back injury. The events outlined at paragraphs 56 to 59 clearly break the causal nexus between Ms Cannon’s back injury and her psychological condition. They constitute work conflict, harassment and bullying and the Arbitrator has erred in this regard;
(d)a secondary psychological injury is for circumstances where an applicant has a psychological condition flaring from the pain of his or her injury. That is clearly distinct from a situation where the psychological injury arises from conflict at work, and
(e)section 11A requires conduct with respect to “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal” of the applicant. The respondent’s conduct is not the kind of conduct outlined within the ambit of section 11A and cannot be caught.
As the further submissions filed did not adequately address the issues identified in the Direction, I listed the matter for oral hearing on 18 March 2009.
Counsel for Ms Cannon made the following submissions at the oral hearing:
(a)Ms Grant and Ms Giorgi both referred to difficulties at work and it was a question of credit and whether Ms Cannon’s allegations were accepted;
(b)having accepted that the harassment happened, the Arbitrator should have found that Ms Cannon’s psychological condition was a separate injury;
(c)the Arbitrator failed to deal at all with the release of Ms Cannon’s personal information, and
(d)Mr Pope and Mr Crighton both said that they did not know that Ms Cannon was on light duties when she returned to work.
The respondent submitted on 21 October 2008:
(a)it was open to the Arbitrator to find that Ms Cannon suffers from a secondary psychological injury;
(b)it was appropriate for the respondent to have investigated the conflict between the applicant and a co-worker. The respondent had legitimate reasons for its allocation of work to Ms Cannon, and
(c)the Arbitrator’s reasoning was sound and was supported by the evidence.
The respondent’s further submissions, filed on 13 February 2009 in response to Ms Cannon’s submissions of 13 January 2009, made the following points:
(a)there is no doubt that Ms Cannon suffered a psychological injury, but there are differing views as to the cause of that injury. The Arbitrator was required to weigh the evidence and determine the cause of the injury;
(b)it was open to the Arbitrator to give more weight to the opinion of Ms Grant than Dr Clark;
(c)it was open to the Arbitrator to link the psychological injury to the back injury and find that Ms Cannon suffered a secondary psychological injury, and
(d)if Ms Cannon establishes that she sustained a primary, as opposed to a secondary, psychological injury the Arbitrator’s finding should not be disturbed having regard to the evidence and the manner it was considered by the Arbitrator.
At the oral hearing, counsel for the respondent submitted:
(a)the Arbitrator’s decision discloses no error and a Presidential member is unable to intervene in the absence of an error;
(b)the words “as a consequence of a physical injury” in section 65A(5) are very broad and mean “as a result of” and Ms Cannon’s psychological injury arose as a result of her back injury. The contemporaneous evidence does not support anything else as the cause. There was no novus actus, but for the back injury there would have been no psychological injury (T39.31 of the appeal);
(c)the Arbitrator correctly rejected Dr Clark’s evidence on the basis of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’)), though she did not make any express reference to that authority, because he had no history of Ms Cannon’s back injury. Dr Clark’s evidence should be disregarded entirely;
(d)the Arbitrator also correctly accepted the medical evidence that the psychological injury resulted from the back injury. The psychological injury related to activity flowing from the back injury;
(e)there is not enough evidence of a separate injury under section 4 of the 1987 Act, discrete from the back injury;
(f)Ms Cannon had not discharged the onus of proof under section 4 of the 1987 Act (T17.52 and T31.53 of the appeal);
(g)the Arbitrator’s reference to Ms Grant at paragraph 48 was a mistake and she clearly intended to refer to Ms Giorgi, a psychologist at the same practice (CCTC). Ms Giorgi provided the evidence for the Arbitrator’s statement at paragraph 48 of her Reasons that Ms Cannon was “suffering from severe anxiety primarily related to the pain she was experiencing from her back injury”;
(h)if the appeal is upheld, the matter should be remitted so that the section 11A issue can be fully ventilated, and
(i)notwithstanding that the section 11A issue had been identified as relating to “discipline” at the arbitration, he sought to rely on all of the circumstances referred to in that section.
DISCUSSION AND FINDINGS
The Section 65A Issue
I accept that the Arbitrator erred on this issue. It was not open to her to find that Ms Cannon’s psychological condition was a secondary psychological injury.
First, the Arbitrator wrongly found at paragraph 48 of her Reasons that Ms Grant diagnosed Ms Cannon as suffering from “severe anxiety primarily related to the pain she was experiencing from her back injury”. Assuming that the Arbitrator intended to refer to Ms Giorgi, not Ms Grant, Ms Giorgi’s evidence does not support the Arbitrator’s finding. The relevant passage from Ms Giorgi’s report is set out in full at [37] above. It refers to Ms Cannon being affected by persistent pain, experiencing symptoms of anxiety and stress, finding it difficult to cope with her life situation, in particular the demands placed on her at work, and her perceived lack of support from management. However, Ms Giorgi expressed no diagnosis but merely concluded that Ms Cannon would benefit from cognitive behaviour therapy in relation to developing more effective pain management strategies, managing her increasing anxiety symptoms and coping with loss issues associated with her physical injury. Neither Ms Giorgi nor Ms Grant made the diagnosis the Arbitrator attributed to Ms Grant.
Second, the Arbitrator also relied on Dr Ciardi’s evidence to support her conclusion. In the absence of a detailed report from that doctor, it was not open to draw any conclusions from his certificates. His certificates did not set out any relevant history or explain the basis for his conclusions. The Arbitrator relied on those certificates and on references to Dr Ciardi’s opinions in other reports. For example, at paragraph 43 she referred to Ms Parletta’s report of 2 May 2006, which referred to an independent psychiatric assessment to assist in identifying whether Ms Cannon was suffering from a psychological disorder, whether her psychological issues were related to her current work related injury or whether they were a new work related injury or whether they were unrelated to her work situation. The resulting psychiatric report (presumably the report from Dr Vickery) indicated that Ms Cannon was not suffering from a work related psychological/psychiatric condition. Someone from The ORS Group contacted Dr Ciardi to discuss that report and he apparently expressed his strong disagreement with its recommendations and wrote a certificate indicating that Ms Cannon was unfit due to her thoracic injury with subsequent severe anxiety. Ms Parletta’s report added that Dr Ciardi believed Ms Cannon’s psychological condition was directly related to her original work injury. In these circumstances, Dr Ciardi’s certificates were of no probative value as they were no more than a bare ipse dixit (Makita). His opinions set out in other reports are similarly flawed in that no proper history is recorded and no findings on examination are noted. It is not even known if Dr Ciardi conducted a psychological examination, or if he is qualified to do so. His opinion is therefore of no probative value.
Third, assuming for present purposes (contrary to my ultimate finding) that Ms Cannon is able to establish that she suffered an injury within the meaning of section 4 of the 1987 Act and that the alleged harassment occurred in the manner and circumstances she alleged, I do not believe section 65A prevents the recovery of lump sum compensation in such a situation. The respondent’s argument is essentially that “but for” the physical injury the worker would not have been on suitable duties and the events said to have caused the psychological injury would not have occurred (T39.31 of the appeal). The “but for” test is not the correct test of causation. The mere fact that an injury would not have occurred “but for” the original injury is not enough to establish a causal connection for legal purposes (per McHugh J in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [26]).
In workers compensation cases the test of causation is that set in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as his Honour then was) (Sheller and Powell JJA agreeing) said at 463-4:
“…the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain.”
His Honour also observed (at 462):
“... it has been well recognized in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
To say that a psychological injury that results from harassment while on suitable duties would not have happened “but for” the physical injury is to ignore the fact that the harassment (if it occurred) is an event that is “extraneous or extrinsic” (per McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428) to the original back injury. It is not part of the “series of events” that have followed from the back injury and it is not part of the causal chain.
To use the analogy referred to by Burke CCJ in Lawton v Star City Pty Ltd (No 36677 of 2001, unreported, 16 October 2002), the respondent’s argument is similar to saying, ‘if the worker had not gone to work on the day of his accident he would not have suffered an injury’. That is undoubtedly true, but the injury is not a consequence of the mere fact of going to work, it is a consequence of the injurious event or events that occur in the course of or arising out of the employment.
Therefore, if a worker on suitable duties, because of a work related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or the discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed on suitable duties and, as a result of an “extraneous or extrinsic” event, such as harassment or bullying while on those duties, develops a psychological injury.
In the present matter, Ms Cannon’s case is that from June 2004 she was constantly harassed, bullied, verbally abused and discriminated against by her superiors and her co-workers. The instances of harassment relate, among other things, to her allegedly being told that she was not a good worker, because she was inefficient and her injury had slowed her down. Assuming that those things were said and that they caused a psychological injury, that injury will have resulted from the harassment. It is correct to say that “but for” the back injury Ms Cannon would not have been on suitable duties and her work performance would not have been impaired and she may not have been subjected to the events about which she complains. That does not mean, however, that the alleged psychological injury has arisen as a consequence of, or secondary to, the physical injury. It has arisen as a consequence of the harassment. The back injury was merely a predisposing factor that resulted in Ms Cannon being placed on suitable duties. The events that occurred when Ms Cannon returned to work after her injury should be seen as separate and distinct from the back injury.
My finding on the section 65A issue requires that the matter be re-determined. The critical question in the present case is whether Ms Cannon has in fact suffered a psychological injury within the terms of section 4 of the 1987 Act. This requires, among other things, a consideration of the question posed in the 7 November 2008 Direction, namely, if, contrary to the Arbitrator’s finding, the Appellant’s psychological injury did not arise as a consequence of her back injury, from what did it arise? Mr Carney submitted that if the appeal were successful on the section 65A issue, the matter should be remitted for re-determination before a different Arbitrator. He advanced no persuasive argument in support of that submission. In particular, he did not suggest that he wished to call additional evidence to supplement the documentary evidence already before the Commission, or that his client would be prejudiced if the matter were not remitted to another arbitrator. In circumstances where no oral evidence was called at the arbitration, I am in as good a position as an arbitrator to re-determine the matter and, consistent with the decision of Chubb Security Aust Pty Ltd v Trevarrow [2004] NSWCA 344, that is the course I propose to adopt.
THE RE-DETERMINATION
It is conceded that Ms Cannon suffers from a psychological condition, either anxiety depression with marked phobias (Dr Clark) or a panic disorder with phobias (Dr Vickery). As submitted by Mr Carney, the resolution of this case depends on whether Ms Cannon’s evidence is accepted (T6.6 of the appeal). For the following reasons, I do not accept her evidence or Dr Clark’s conclusions, which are based on her evidence. Further, or in the alternative, I prefer and accept Dr Vickery’s evidence as to diagnosis and causation.
Apart from the unsatisfactory and unacceptable evidence from Dr Ciardi (see [97] above), Ms Cannon’s medical case rests on Dr Clark, whose history is inaccurate in so many respects that it does not provide a “fair climate” for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76).
Dr Clark took no history of the back injury and its sequelae. Given the finding I have made about section 65A, that omission is not of critical significance. More importantly, he took a history from Ms Cannon that in the course of her employment she had been:
(a)intimidated;
(b)bullied and harassed;
(c)subjected to unfair criticism;
(d)been called into the office all the time;
(e)had false allegations made about her;
(f)systematically undermined;
(g)demoted;
(h)treated with contempt and derision;
(i)victimised, and
(j)told she was not good enough.
A review of the evidence does not support this history as being accurate. No instances of intimidation have been given in the evidence and I do not accept Ms Cannon was subjected to intimidation in the course of her employment.
Instances of conduct said to amount to harassment are set out at [26(d)] above. Mr Pope denies having ever harassed or bullied Ms Cannon and denies ever saying that she was a burden and useless or that she should be sacked. As best I can determine, given that no oral evidence was called, Mr Pope’s evidence seems reasonable and plausible. He fairly acknowledged that Ms Cannon was good at her job and considered that people were trying to help her. He also observed that Ms Cannon’s restrictions due to her physical injury held her back. That was an appropriate and reasonable observation, but it does not provide any support for Ms Cannon’s allegations. The general thrust of his evidence is balanced and fair and I accept it in preference to Ms Cannon’s.
Mr Crighton also addressed many of Ms Cannon’s allegations. He acknowledged that she was a good worker and he clearly holds no grudge or animosity towards her. He also thought that she got along well with staff until the last six months when she appeared to be stressed and did not mix, though he did not know the reason for her change. He corroborates Mr Pope’s evidence that the injury held Ms Cannon back in that she could not be trained to the level of team leader because she was on light duties. Given these matters, I accept his evidence where it conflicts with Ms Cannon’s. In particular, I accept his evidence that he did not say that Ms Cannon was a lazy worker or that her injuries slowed her down. He held the opposite view, namely, he thought she was a good worker. I also accept his evidence that Ms Cannon was never watched at work, harassed, bullied or victimised. Based on his evidence, which I accept, the co-workers were accommodating to Ms Cannon.
The evidence of Mr Pope and Mr Crighton is partly corroborated by Tracey Higgins who confirms that Ms Cannon did not mingle socially. Whilst I do not place a lot of weight on Ms Higgins’ evidence, she saw no evidence of Ms Cannon being bullied or harassed and was never made aware of such conduct. Having been the chairperson of the Employee Representative Committee and the chairperson to Occupational Health and Safety, it seems odd that she would not have been aware of such conduct, if it happened in the circumstances alleged by Ms Cannon.
The respondent has called no evidence from John Dueboski, the person Ms Cannon alleges said she was too slow and also yelled across the room, in front of other workers, “Faster Vicki, faster, you’re back problem is slowing you down”. In the absence of an explanation as to why the respondent tendered no statement from Mr Dueboski, I infer that he would not have advanced its case (Jones v Dunkel (1959) 101 CLR 298). However, I do not accept that the comment attributed to him amounts to harassment or bullying.
In the light of the evidence from Mr Pope and Mr Crighton, which I accept, I do not accept that Ms Cannon was bullied or harassed, unfairly criticised, had false allegations made about her, was systematically undermined, or was told she was not good enough.
In respect to the allegation that Ms Cannon was “called into the office all the time”, I note that extensive efforts were made to accommodate Ms Cannon’s return to work and that she was spoken to on occasions about leaving work early without notifying her supervisor. On other occasions Ms Cannon was spoken to about her interaction with Ms Morrison. This may be the basis on which she alleges that she was “called into the office all the time”. If she was called into the office on occasions, I do not accept that that amounted to harassment or bullying. Indeed, the evidence about the meeting on 13 October 2005, which dealt with Ms Cannon having left work early on 29 September 2005 without notifying her supervisor, is that Ms Cannon acknowledged the warning she was given and said she understood why it was given (see [50] above). I accept that evidence and do not accept that that warning, or the direction that she was to ask permission if she wished to leave the line for a short period to get her thoughts together and calm down, caused or contributed to her condition.
I do not accept that Ms Cannon was demoted. The evidence from Mr Pope and Mr Crighton is that her injuries prevented her from progressing to a level three.
In respect of the allegation that Ms Cannon was treated with contempt and derision, I note and accept Mr Pope’s evidence that everyone was trying to help her. Mr Crighton states, and I accept, that “the crew” went out of their way to make Ms Cannon feel as comfortable as possible. It follows that I do not accept Dr Clark’s history that Ms Cannon was treated with contempt and derision as being correct.
Though Mr Pope and Mr Crighton do not specifically deal with Ms Cannon’s allegation that she was constantly being told that she was unproductive, the clear inference from their evidence (that she was a good worker) is that such comments were not made and that is the finding I make.
Mr Carney submitted that both Mr Pope and Mr Crighton admitted to not being aware that Ms Cannon was on suitable duties when she initially returned to work (T41.1 of the appeal). That is hardly surprising, Dr Green declared Ms Cannon fit for pre-injury duties from 20 October 2003. The next medical certificate in evidence is not until 24 March 2004 when he declared her fit for suitable duties. The first Mr Crighton knew of Ms Cannon’s injury was in April 2004, just a few weeks later (see Mr Crighton’s statement 19 February 2008, paragraph 11). I do not believe anything of significance flows from when Mr Pope or Mr Crighton became aware of Ms Cannon’s injury. Mr Carney submitted (at T51.4 of the appeal) that this is “corroborative evidence of the fact that she had problems with them, both in relation to taking time off for medical appointments and in relation to the duties she was doing and being told she was too slow.” I do not accept that submission. The problems in respect of taking time off for medical appointments did not arise until much later. The fact that they did not become aware of Ms Cannon’s injury until April 2004 does not strengthen Ms Cannon’s case, nor weaken the respondent’s. Regardless of when they became aware of her injury, they both deny Ms Cannon’s allegations.
Mr Pope did not deal with Ms Cannon’s allegation that he said it was too bad that OHS and Human Resources were not on the floor after they arranged for Ms Cannon to be moved every 20 minutes. I do not place any weight on this allegation. It did not form any part of Dr Clark’s history and, in any event, did not amount to harassment or bullying or verbal abuse. The overwhelming evidence, which I accept, is that the respondent took steps to ensure that Ms Cannon did not exceed the restrictions placed on her by her doctor. Indeed, one of Ms Cannon’s recurring complaints in the hand written notes (see [25] above) is that she wanted to do her normal work but was not permitted to do so. This is persuasive evidence that Mr Pope complied with the OHS work restrictions.
It is correct that the Arbitrator did not deal with the release of personal information. On balance, it appears that the respondent’s workers were told something about Ms Cannon’s situation, though precisely when that was done is unclear. Mr Crighton states that workers were walking on “egg shells” with Ms Cannon because of her sensitivity and that they received training about harassment in the workplace. He did not think such training was warranted because, in his opinion, the workers had done nothing wrong. Whilst Ms Cannon may have been upset by the fact that her circumstances became known, that fact did not feature in Dr Clark’s history and did not form the basis of his conclusion. Therefore, there is no persuasive evidence, and I do not accept, that it caused or contributed to Ms Cannon’s psychological condition.
To the extent that Ms Cannon alleges that she was harassed and bullied by Ms Morrison, I note that Ms Morrison denies ever swearing at, belittling, harassing, or victimising Ms Cannon or saying anything detrimental to her. The two women had been good friends but had a significant falling out at some stage about the circumstances surrounding Ms Morrison getting a full-time position with the respondent and whether Ms Cannon supported that appointment or tried to undermine it. However, since that falling out, there have been significant issues between the women. Each accuses the other of being difficult, to use a neutral term.
To resolve this conflict in the evidence, I have had regard to the evidence of Mr Pope and Mr Crighton. Mr Pope states that Ms Morrison was a good, reliable employee who got along with everyone. His belief, that Ms Cannon became jealous because Ms Cannon became a “level three” and Ms Cannon was a “level two”, is partly corroborated by Mr Crighton who observed that Ms Cannon’s symptoms seemed to coincide with when Ms Morrison became a team leader. Neither man ever saw Ms Morrison harass or bully or victimise Ms Cannon, though Mr Pope states that Ms Cannon definitely harassed Ms Morrison. The respondent directed that the two women stay five metres apart. According to Mr Pope, Ms Morrison complied with the rule but Ms Cannon went out of her way to be within the five metres. After the investigation in December 2005 (see [124] below), Ms Morrison was moved to another area. Having regard to the evidence from Mr Pope and Mr Crighton, I prefer and accept Ms Morrison’s evidence and I do not accept that she harassed or bullied or intimidated Ms Cannon.
A further difficulty with Ms Cannon’s claim is that there are no specific details of the “grievances” she raised at the meeting on 29 November 2005 (see [56] above). I infer that her grievances related to another employee and/or supervisor using bad language, but the evidence does not disclose in what circumstances, what was said, or by whom. Whether the grievances form part of the general allegation of harassment is also unclear because details of the grievances have not been identified. The investigation into the grievances resulted in the respondent holding EEO training sessions in December 2005. There is no persuasive evidence that either the grievances, or the action taken in respect of them, caused Ms Cannon’s psychological condition. According to Ms Parletta’s reports of 23 November 2005 and 16 January 2006, Ms Cannon was feeling a lot better within herself and her psychological status had improved significantly as a result of counselling, occupational rehabilitation and an exercise program (23 November 2005), and was less stressed and “the best she has been since her original injury”, though she was waiting for further feedback about the investigation (16 January 2006). The respondent provided that feedback in the letter dated 24 January 2006 (see [59] above). The letter confirmed that the respondent did not tolerate swearing or improper language in the workplace and that it would embark on an EEO prevention workshop for all contractors as well as focusing on workplace interactions. Some workers would be transferred. Ms Cannon became upset when she was told on 7 February 2006 that there was no statement from her about the grievance complaint. What role this episode played in the development of Ms Cannon’s condition is not properly explained in the evidence because Dr Clark took no history of it. Whilst Dr Ciardi issued a certificate on 10 February 2006 referring to “anxiety (work related – ACUTE EXACERBATION)” (see [60] above), even allowing for the extracts from Dr Ciardi’s report of 19 April 2006 (produced in Dr Vickery’s report of 13 May 2006) he provided no proper history or explanation for this note and it is of no probative value.
Ms Cannon’s evidence that she was harassed at work is largely uncorroborated, with no lay witness statements tendered in support of her allegations. Whilst Mr Carney referred to the fact that Ms Grant and Ms Giorgi both took histories of workplace stress and interpersonal issues, neither took a history of any of the detailed complaints that Ms Cannon now makes in her claim before the Commission. They provide very limited corroboration for Ms Cannon’s complaints of harassment and bullying. If anything, the absence of any detailed history of Ms Cannon’s complaints in the reports from Ms Giorgi and Ms Grant tends to undermine her claim rather than support it. In any event, neither Ms Giorgi nor Ms Grant has provided any reasoned opinion on diagnosis or causation.
In circumstances where the basis for Dr Clark’s opinion has not been established, I do not accept his conclusions as to causation or diagnosis and, there being no other probative medical support for the case, Ms Cannon has not made out her case and her claim must fail.
Turning to the respondent’s medical case, Dr Vickery’s evidence is set out at [78] to [83] above. His observation that Dr Ciardi has provided no documentation of symptomatology or clinical psychopathology is correct and significant. In the absence of such evidence is a further obstacle that prevents the acceptance of Ms Cannon’s claim. Dr Vickery’s observation that The ORS report of 16 January 2006 noted that Ms Cannon was “a lot less stressed at work” and did not believe she required any psychological assistance is also significant. It suggests that after the investigation, but while still at work, Ms Cannon’s condition had improved. After she ceased work, however, her condition appears to have deteriorated. Dr Vickery concluded that Ms Cannon has a panic disorder with a number of phobias, and that her condition is constitutional in nature and not related in any way to her back injury or her employment with the respondent. That conclusion is consistent with my factual findings that the alleged harassment at work did not occur, and it provides a plausible and reasonable medical explanation for Ms Cannon’s symptoms. It is also consistent with the evidence in Ms Parletta’s report of 22 August 2005 that Ms Cannon deliberately became increasingly isolated both at home and at work (see [48] above), Mr Pope’s evidence that Ms Cannon regularly said she needed her personal space (see [76(c)] above), Ms Higgins’ evidence that Ms Cannon never mingled socially (see [75] above) and Mr Mortensen’s evidence that she did not attend several important company meetings (see [51] above). I accept Dr Vickery’s evidence both as to diagnosis and causation.
Whilst Ms Cannon may well have experienced interpersonal issues and frustrations at work and may well have felt stressed as a result of those issues and as a result of her continuing back symptoms, those issues did not cause her psychological condition which, in my view, based on the evidence of Dr Vickery, is constitutional in nature and is not related in any way to her employment with the respondent.
The Section 11A Issue
It is not necessary for me to determine this issue, however, as the parties made submissions on it at the appeal hearing, I make the following observations. The Arbitrator’s comments about section 11A were not consistent with the terms of the section. Section 11A provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The section is most specific. It only applies where the whole or predominant cause of the psychological injury is the employer’s action with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers was reasonable. The Arbitrator approached the section 11A issue as if any reasonable action by the employer came within the section. At paragraph 69 of her Reasons she referred to several of Ms Cannon’s complaints and, without considering if those complaints were actions that came within the terms of section 11A (transfer, etc), or if those complaints were the “whole or predominant cause of the psychological injury”, she found that those “events were reasonable actions of the employer in its dealing with the workplace situation involving the applicant”. That was not the correct approach.
In considering a defence under section 11A it is first necessary to determine whether the injury was wholly or predominantly caused by one or other of the specific actions listed in the section, namely, transfer and/or demotion and/or promotion and/or performance appraisal and/or discipline, and/or retrenchment and/or dismissal of the worker and/or the provision of employment benefits to the worker. Once that issue is determined, the next question is whether the employer’s conduct with respect to the action or actions that were the whole or predominant cause of the psychological injury were reasonable. The onus of proof to establish the defence rests with the employer (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206). The respondent’s evidence did not address these issues.
Some confusion arose in the present case because of the unsatisfactory nature of the insurer’s section 74 notice. It is not sufficient compliance with section 74 to say, as the insurer said in its notice dated 11 March 2008 (as an alternative defence), that there was a dispute as to “whether any psychological injury that you suffer from is due to reasonable action taken or proposed to be taken by The Healthy Snack People Pty Ltd pursuant to section 11A”. What is necessary is clear and precise statement of the reason the insurer disputes liability and the issues relevant to the decision to dispute liability. If an insurer relies on a defence under section 11A it must identify the factual basis on which it intends to rely as grounding that defence. That is, it must indicate, in clear and plain language, exactly which action or actions it alleges were the whole or predominant cause of the psychological injury and the issues relevant to the decision. That was never done in this matter, though the respondent’s representative indicated at the arbitration that he relied upon reasonable action with respect to “discipline” (T6.16). That was unsatisfactory. Insurers are again reminded that they have a statutory duty to fully and properly comply with the terms of section 74 (see Department of Corrective Services v Bryce [2008] NSWWCCPD 116 at [3] and Brown v Maranatha Lodge Incorporated [2008] NSWWCCPD 113 at [4]). It is not sufficient to merely refer to particular sections of the legislation.
At the appeal hearing, Mr Saul sought to rely on all of the actions listed in section 11A, not just discipline. Had it been necessary for me to determine the section 11A issue, that application would have been refused as it would have introduced new issues not previously notified under section 74 and would clearly have prejudiced Ms Cannon in the preparation and presentation of her case.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in finding that Ms Cannon’s psychological condition was a secondary psychological injury and, having re-determined the matter, I find that the true and correct position is that Ms Cannon has failed to establish her case and, in the alternative, that her psychological condition is unrelated to her employment with the respondent. There will therefore be an award for the respondent.
DECISION
Paragraphs one and two of the Arbitrator’s determination of 29 July 2008 are revoked and the following order made:
“Award for the respondent.”
Paragraph three of the Arbitrator’s determination of 29 July 2008 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
27 March 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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