Cini v Kidz Klub Pty Limited
[2022] NSWPIC 176
•21 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Cini v Kidz Klub Pty Limited [2022] NSWPIC 176 |
| APPLICANT: | Samantha Cini |
| RESPONDENT: | Kidz Klub Pty Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 21 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted psychological injury; dispute regarding relevant date of injury for section 66 of the Workers Compensation Act NSW 1987 (1987 Act) purposes; chain of causation; applicant exposed to a frank traumatic event then incidents of bullying and harassment in the workplace; Held- applicant’s psychological injury results from several incidents in the course of her employment and appropriate date of injury is her last date of employment namely 13 March 2020; Secretary, NSW Department of Education v Johnson; State Government Insurance Commission v Oakley [1990] Aust torts reports considered. |
| determinations made: | 1. The applicant in the course of her employment with the respondent between 8 August 2015 and 13 March 2020 suffered psychological injury by reason of the nature and conditions of her employment and several events to which she was exposed. 2. The medical assessment by Dr Andrews arranged for 18 May 2022 is to proceed to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 13 March 2020. 3. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of these Reasons for Decision. |
STATEMENT OF REASONS
BACKGROUND
Samantha Cini (the applicant) is a 46-year-old lady who was employed by Kidz Klub Pty Limited (the respondent) as an after school child carer. She pleads injury in the nature of psychological injury with injury date 13 March 2020 but expressed as follows:[1]
“Place of injury: employer’s premises
Injury description: at the time of injury the applicant was employed by the respondent as an after school care worker
In 2015, the applicant witnessed a traumatic event involving the death of a child, whilst in the course of her ordinary employment duties. Since this incident, the applicant was exposed to interpersonal conflicts between her manager and colleagues, in the form of a lack of support for her mental health, micro-management and demotion without explanation.
As a result of the nature and conditions of her employment, the applicant sustained a psychological injury diagnosed as post traumatic stress disorder”.
[1] Application (portal) at page 7.
This claim is pursuant to section 66 of the Workers Compensation Act NSW 1987 (1987 Act) and concerns the relevant date of injury. The applicant pleads date of injury as 13 March 2020 which would appear to be the applicant’s last day at work, whereas the respondent asserts that the only relevant injury is that of 8 August 2015 when the applicant suffered post traumatic stress disorder as result of the traumatic incident described in the pleadings.
ISSUES
The principal issue is the extent of the applicant’s psychological injury and in particular whether it results from the incident of 8 August 2015 and/ or subsequent events in the course of the applicant’s employment.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
The matter came for conciliation and arbitration hearing by teleconference on 15 March 2022. On that occasion Mr Carney of counsel instructed by Mr Hopper, solicitor, appeared for and with the applicant. Mr Stockley of counsel instructed by Ms Lawrence, solicitor, appeared for the respondent.
The matter proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that I used my best endeavours to attempt to bring the parties to an agreement to no avail and accordingly the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
Oral submissions were made by both counsel and this decision was reserved.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission.
(a) Application to Resolve a Dispute (the Application) and attachments lodged 13 December 2021, and
(b) Reply and attachments lodged 30 December 2021.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Counsel for both parties made oral submissions which have been sound recorded and are available to the parties on request.
DISCUSSION AND REASONS
Johnson[2] supports a number of propositions relevant to causation in workers compensation matters. These include:
(a) Principles of causation in tort do not differ from those in workers compensation, other than that foreseeability is unnecessary in statutory workers compensation matters. Causation is established by showing that (for present purposes) the applicant’s impairment results from a chain of causation unbroken by any novus actus interveniens.[3]
(b) The categories of compensable causation are established by Oakley[4] to be of three types:
(i)Where the later injury results from a subsequent injury that would not have occurred had the victim not been in the (medical) condition caused by the earlier injury, the later injury is causally connected with the earlier injury.
(ii)Where an earlier injury is exacerbated by a subsequent injury, there is a causal connection between the two unless some part of the subsequent damage would have occurred even if the original injury had not occurred.
(iii)Where the subsequent injury would have occurred regardless of the earlier injury and damage caused by it involves no aggravation of the earlier injury, there is no causal connection.
[2] Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 (Johnson).
[3] Johnson (per Emmett AJA) at [54], (Macfarlan JA) at [1].
[4] State Government Insurance Commission v Oakley [1990] Aust Torts Reports [81]-[113].
In order to place the applicant’s position on causation into the correct category, it is necessary to examine the applicant’s statement evidence as well as the relevant medical evidence contained in the medical reports.
The applicant in her statement says, inter alia, the following:[5]
[5] Application at page 1.
(a) On 8 August 2015 she experienced a traumatic incident when she found a child hanging from a structure at work.[6]
(b) The applicant subsequently suffered flashbacks and nightmares, was struggling with guilt, lost her confidence and became overly cautious and nervous and suffered panic attacks.[7]
(c) The applicant saw a psychologist[8] then a new manager was appointed[9] who was unsupportive of the applicant’s concern about her need for counselling and generally questioned the applicant’s work performance.[10]
(d) Additionally, a new male colleague stated work alongside the applicant and he was disrespectful to her and undermined the applicant’s authority.[11] This person ignored the applicant’s instructions which triggered her to be concerned about another dangerous accident occurring and the applicant “began experiencing vivid flashbacks to the day of the incident”.[12]
(e) The new male colleague also intimidated and harassed the applicant and he and the new manager were both very critical of her.[13]
(f) On 18 October 2018 the applicant consulted her general practitioner Dr Kumar, was referred to a psychologist and placed on a mental health plan.[14]
(g) The new manager dismissed the applicant’s concerns regarding promotion of the boss’s daughter. After that time the applicant’s allocated hours of work were gradually decreased.[15]
(h) The applicant requested time off work, took three months sick leave and was not called in to work again.[16]
(i) The applicant subsequently found herself breaking down in tears, she felt that her heart was racing and she consulted a cardiologist and was informed that stress and anxiety were contributing to her symptoms.
[6] Applicant’s statement at [14].
[7] Applicant’s statement at [16].
[8] Applicant’s statement at [17].
[9] Applicant’s statement at [18].
[10] Applicant’s statement at [18].
[11] Applicant’s statement at [19].
[12] Applicant’s statement at [19].
[13] Applicant’s statement at [20]-[21].
[14] Applicant’s statement at [22].
[15] Applicant’s statement at [23]-[24].
[16] Applicant’s statement at [25].
The factual account provided by the applicant must be readily accepted. The respondent does not take issue with any of the incidents described by the applicant and in particular there is no countervailing evidence. This is so despite that the respondent had the matter investigated by AB Investigations who provided a report dated 18 June 2020 which has not been put into evidence. That the investigation report exists is confirmed by Dr George’s report of 12 October 2020[17] where Dr George says that he reviewed documentation including the AB Investigations report but makes no comment concerning its contents. The point to be made is in the absence of any challenge, the factual material the subject of the applicant’s statement must be accepted. A further observation is that a reader of Dr George’s report and conclusions does not have the benefit of knowing what matters in the undisclosed investigation report where relevant to Dr George’s opinion. For that reason, Dr George’s conclusion as to causation and diagnosis much be considered with some caution.
[17] Reply at page 9.
The applicant consulted Dr Suman, psychiatrist, on 4 June 2020. Dr Suman’s report of that date is in evidence.[18] Dr Suman records:
“History indicated towards Mrs Cini experiencing adjustment issues at workplace in addition to post traumatic stress disorder symptoms which adversely affected her mental health…I am of the opinion that Mrs Cini has experienced adjustment disorder with mixed anxiety and depressive symptoms…her presentation does have element of post traumatic stress disorder symptoms following her experiences in 2015”.
[18] ARD at page 30.
It will be observed that Dr Suman relates the post traumatic stress disorder symptoms to the event of 2015 and does not suggest that the post traumatic stress disorder was causative of the applicant’s adjustment disorder. Although not entirely clear, the diagnosis appears to be arrived at after consideration by Dr Suman of a combination of psychopathology resulting from a combination of separate events.
That having been said, it is in my view important to note that the applicant’s account of her exposure to events after 2015 have some a connection with the 2015 post traumatic stress disorder event. Some of the applicant’s experiences of anxiety and upset in her work after 2015 occur in the context of matters which are materially connected to the 2015 event. For example, the applicant was “terribly upset and anxious” about being told by her manager in 2015 to describe “a different version of events”.[19] Evidently the other supervisor on duty at the time of the 2015 event was in the bathroom but should have been supervising when the incident occurred. Additionally, when her new manager was appointed the applicant informed him that “since witnessing the strangulation of the child, I was experiencing stress and anxiety at work”.[20] Further, despite her request the respondent denied counselling sessions for the applicant to deal with her medical condition as a result of the 2015 incident.[21] The applicant’s feeling of a lack of support from the respondent were also added to because of comments made by the respondent’s manager such as “if you have mental health issues, you should not work in child care”.[22]
[19] Applicant’s statement at [15].
[20] Applicant’s statement at [18].
[21] Applicant’s statement at [18].
[22] Applicant’s statement at [19].
There are then the events which occurred after the new male colleague commenced at work. One of these events[23] which triggered vivid flashbacks occurred when the colleague ignored instructions relevant to supervision of children and the applicant seriously feared another dangerous incident.[24]
[23] Applicant’s statement at [19].
[24] Applicant’s statement at [19].
Dr Rastogi saw the applicant and reported to her solicitor on 16 June 2021. Dr Rastogi diagnosed adjustment disorder with anxiety and depressed mood (applicant provided with lack of support, bullying and harassment) “in the background of underlying post traumatic stress disorder symptoms following a work-related incident in 2015”.[25] It is clear that from Dr Rastogi’s report that Dr Rastogi thought she was dealing with two separate, or be it in some ways related, pathologies which contributed to the applicant’s overall psychological condition.
[25] ARD at page 24.
Dr George examined the applicant on 2 October 2020 at the request of the insurer and his report of 12 October 2020 is in evidence.[26] The applicant relayed to Dr George a history of “two incidents, which she would talk to her psychologist about[27], namely the 2015 incident as well as the alleged bullying and harassment over the last few years”.[28] Dr George diagnosed chronic post traumatic stress disorder related to the 2015 incident but does not emphasise the subsequent bullying and harassment since 2015 except to say that it is “possible” that the manager’s impression of the applicant as a “difficult personality may be due to the applicant’s post traumatic stress disorder syndrome”.[29]
[26] Reply at page 8.
[27] Reply at page 12.
[28] Reply at page 12.
[29] Reply at page 15.
Dr George saw the applicant again on 28 September 2021.[30] He continued to diagnose chronic post traumatic stress disorder and continued to emphasise the 2015 incident.[31]
[30] Reply at page 26.
[31] Reply at page 29.
The certificate of capacity issued by the applicant’s general practitioner on 24 March 2020 certifies, as Mr Stockley submitted, post traumatic stress disorder with date of injury of 8 August 2015.[32] However, the evidence includes reference to the consultation note of the applicant’s general practitioner of the same date. That consultation note refers to the traumatic incident of 2015, but in addition adds “associated workplace bullying”.[33] Accordingly, I do not accept the respondent’s submission that all of the applicant’s psychological aliments date from 2015. Rather, to my mind it is clear that the applicant’s current presentation results from an accumulation of the 2015 incident, subsequent events of bullying, harassment and management described in the applicant’s statement some of which revive or add to the applicant’s underlying post traumatic stress disorder and some of which superimpose a level of adjustment disorder with mixed anxiety and depressive mood. This ultimate pathology, in my view, must be as Dr Suman records, due to a combination of exposures over the years starting with the 2015 episode and ending in March 2020 such that in my view, the appropriate date of injury is 13 March 2020 which was the applicant’s last day of work.
[32] Application at page 32.
[33] Application at page 66.
FINDINGS AND ORDERS
The appropriate findings I believe are as follows:
(a) the applicant in the course of her employment with the respondent between 8 August 2015 and 13 March 2020 suffered psychological injury by reason of the nature and conditions of her employment and several events to which she was exposed.
(b) the medical assessment by Dr Andrews arranged for 18 May 2022 is to proceed to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 13 March 2020.
(c) the President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of these Reasons for Decision.
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