Dent v Associated Food Group Pty Ltd (in liquidation)
[2021] NSWPIC 379
•28 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dent v Associated Food Group Pty Ltd (in liquidation) [2021] NSWPIC 379 |
| APPLICANT: | Nancy Recobo Dent |
| RESPONDENT: | Associated Food Group Pty Ltd (in liquidation) |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 28 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment resulting from primary psychological injury sustained in the course of employment with the respondent; Held - the applicant sustained primary psychological injury in the course of her employment with the respondent, with employment being the main contributing factor to injury; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor for assessment. |
| DETERMINATIONS MADE: | 1. The applicant’s claim for future medical treatment expenses is discontinued, and I dispense with the requirement to lodge a notice of discontinuance relevant to this component of the applicant’s claim. 2. The applicant sustained primary psychological injury in the course of her employment with the respondent, with her employment being the main contributing factor to injury, with deemed date of injury of 11 November 2019. 3. The applicant’s claim for permanent impairment compensation resulting from the primary psychological injury she sustained, as determined, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. The deemed date of injury is 9 October 2020. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Nancy Recobo Dent (Ms Dent) was employed by the respondent, Associated Food Group Pty Ltd (in liquidation) (Associated Food Group). She worked as a food preparer and catering assistant.
It is accepted Ms Dent sustained injury to her right shoulder in the course of her employment with the respondent and it is also accepted Ms Dent suffers secondary psychological injury resulting from that injury.
In these proceedings, Ms Dent alleged that as a result of bullying, harassment and intimidation, she sustained primary psychological injury during the course of her employment. A deemed date of injury of 11 November 2019 is alleged, with 11 November 2019 being the first date of incapacity resulting from her alleged primary psychological injury.
In these proceedings, Ms Dent claimed permanent impairment compensation for 15% whole person impairment (WPI) resulting from alleged primary psychological injury, with a deemed date of injury of 9 October 2020, being the date Ms Dent made her claim for permanent impairment compensation[1]. While in these proceedings Ms Dent also claimed future medical treatment expenses, this claim was discontinued when her proceedings came before the Commission for conciliation/arbitration hearing.
[1] Application to Resolve a Dispute (ARD) at page 33.
Although Ms Dent’s claim for workers compensation resulting from primary psychological injury was initially accepted[2], it was subsequently declined with notices dated 7 July 2020[3] and 2 December 2020[4] issued in accordance with s 78 of the Workplace Injury and Workers Compensation Act 1998 (1998 Act). Primary psychological injury was placed in issue.
[2] ARD at page 13.
[3] ARD at page 29.
[4] ARD at page 34.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Ms Dent suffered primary psychological injury in the course of her employment with Associated Food Group, and
(b) if Ms Dent suffered primary psychological injury in the course of her employment with Associated Food Group, the level of permanent impairment resulting from that injury.
PROCEDURE BEFORE THE COMMISSION
Ms Dent’s claim for compensation came before the Commission for teleconference on 7 July 2021 Member Burge presiding. Mr Walker, solicitor, appeared for Ms Dent, and Ms Blake, solicitor, appeared for Associated Food Group. Ms Venardos from EML was present, as was Ms Dent. Ms Dent’s claim did not resolve on this occasion and it was listed for conciliation/arbitration hearing before me on 1 September 2021.
At the conciliation/arbitration hearing on 1 September 2021, Mr Moffet of counsel appeared for Ms Dent, instructed by Mr Walker. Mr Gaitanis of counsel appeared for Associated Food Group, instructed by Ms Blake. Ms Venardos and Ms Hollins from EML were present, as was Ms Dent. Ms Dent’s claim for future medical expenses was discontinued.
Following discussion with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents,
(b) Reply and attached documents, and
(c) Application to Admit Late Documents lodged by the Applicant and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief review of evidence follows. Although from time to time the entity Associated Food Group is referred to as “Munch”, “Munch Express” or “Munch Group”, for the sake of consistency I have referred to the entity as Associated Food Group.
Statement of Ms Dent
Associated Food Group relied on Ms Dent’s statement, which is dated 17 January 2020[5]. This statement was provided by Ms Dent for the purposes of the factual investigation. In her statement Ms Dent confirmed she commenced working with Associated Food Group in 2011, working as a food preparer and catering assistant. She was employed as a casual employee. She worked from Sunday to Friday, between 8.30 am and 5.30 – 6.30pm. She reported to her team leader “Rose”, and if she was not available, she reported to Lynn Soutter. (From other documents made available to me in these proceedings I understand “Rose” to be Roslinde Kirk). “Rose” did not work on Fridays.
[5] Reply at page 35.
Ms Dent relevantly said she had “issues” with a work colleague, Berlyn Zammit, who was Ms Dent’s team leader when her usual team leader did not work on Fridays. Ms Dent said this had been “ongoing since mid-2016”. Ms Dent described Ms Zammit as bossy and said she did not allow anyone to help her when she needed assistance with her duties. Ms Dent said this caused her stress. Ms Dent felt she was being picked on by Ms Zammit and was made to do a lot of extra work, which also caused her stress. Ms Dent said that at the end of the working day Ms Zammit “would be very selective who she says bye to”.
Ms Dent said that she worked under Ms Zammit each Friday for two years, which caused her stress and anxiety, and when she ultimately decided not to come to work on Fridays, Ms Zammit reportedly accused Ms Dent “of picking and choosing” her shifts and treated her differently when she worked on Sundays. This caused Ms Dent to feel upset, stressed and anxious.
Ms Dent explained that consequent on the pain she was suffering in her right shoulder she consulted with her general practitioner, Dr Balasingham, on 11 November 2019, who, following assessment, told her she was not fit to return to work and that the matter was a workers compensation matter. Ms Dent became quite emotional about the particular situation she found herself in as she “did not want to cause any issues at work” and on closer questioning by Dr Balasingham, she admitted to her long term problems with Ms Zammit, which she was told was also a workers compensation matter.
After submitting her claim for workers compensation resulting from psychological injury, arrangement was made for Ms Dent to receive psychological counselling from Ms Stern. As at the time of providing this statement, despite consulting with Ms Stern on four occasions, Ms Dent reported “it has not improved my stress and anxiety”. Ms Dent believed the treatment she received from Ms Zammit caused her to be stressed and anxious and said there was “nothing outside of work that has contributed to how I am feeling”. She said she had not reported her difficulties with Ms Zammit because of Ms Soutter’s comments about the “job security” of casual employees.
Ms Dent explained she had previously worked at a factory in Chipping Norton and the Sheridan Hotel in the city, but had left both employments because she did not like them. Specific to the factory, she said “I did not enjoy work here as the boss was always screaming at everyone”.
Ms Dent relied on her later statement, which is dated 4 March 2021[6] and in which she again canvassed the difficulties she experienced with Ms Zammit. She said Ms Zammit did not allow anyone to help her when she required assistance, would pick on her, would make her do extra work and would be selective as to who she said “bye to” at days’ end. She said when she chose not to work on Fridays, Ms Zammit said she was “picking and choosing” her shifts and as a consequence Ms Zammit would not speak to her when they worked together on Sundays. Ms Dent said Ms Zammit would often “scream and yell” at her if things didn’t go her way, and said:
“My boss would always tell me that I was a good worker and a fast worker. Whenever I would work with Berlyn though, she would always tell me to do extra work and she would tell me to hurry up and work harder. This made me feel embarrassed and targeted”.
[6] ARD at page 1.
Ms Dent confirmed she consulted with Dr Balasingham on 11 November 2019 “about what happened at work” and was issued with medical certification relevant to “stress and anxiety” as a result of the bullying and harassment she had been subjected to. She talked of her referral to Ms Stern, and confirmed she remained significantly affected by her psychological injury, which she said resulted from the workplace bullying and harassment.
Ms Dent disagreed with the decision made that her psychological injury resulted from work-related physical injury rather than workplace bullying and harassment to which she said she had been subjected “for a long time”.
Statement of Ms Shuwen (Bonnie) Li
Associated Food Group relied on a statement of Ms Li, which is dated 24 February 2020[7]. In her statement Ms Li confirmed she has been employed by Associated Food Group as a casual employee since 2014. She said she worked in the factory. She reported to Ms Soutter and Ms Kirk was the team leader.
[7] Reply at page 76.
Ms Li said Ms Dent was working with Associated Food Group when she commenced work with Associated Food Group and she and Ms Dent were “just work colleagues”. She said Ms Dent worked two to three Fridays each month and that as Ms Kirk did not work on Fridays, Ms Zammit was the team leader on Fridays.
Ms Li conceded Ms Zammit “does have a loud voice”. In response to specific questioning Ms Li said she had not seen or heard Ms Zammit picking on Ms Dent, had not seen or heard Ms Zammit refusing Ms Dent assistance when she asked for it and had not seen Ms Zammit mistreat Ms Dent. She said too in response to specific questioning that Ms Zammit “always says bye to everyone and treats everyone the same”.
Statement of Ms Kathleen Henning
Associated Food Group relied on a statement of Ms Henning, which is dated 26 February 2020[8]. In her statement Ms Henning confirmed she had been employed by Associated Food Group as a casual employee for 25 years. She worked Sunday to Friday, with varying start and finishing times. Like Ms Li, she reported to Ms Soutter and Ms Kirk was the team leader. She confirmed that as Ms Kirk did not work on Fridays, Ms Zammit was the team leader on Fridays.
[8] Reply at page 84.
Ms Henning said she met Ms Dent when Ms Dent starting working with Associated Food Group and they were work colleagues. She said Ms Dent worked Sundays to Thursdays, and that while she used to work on Fridays, it was on average two Fridays each month. Ms Henning described Friday as not having as much work as other days, with consequential shorter hours of work. She said “I find Friday a much easier day and quite relaxed”.
Ms Henning said she talked to Ms Dent throughout the work day and described her as a “good worker”. She said from time to time she would drive Ms Dent home and said other work colleagues would also do this. Despite this contact with Ms Dent, Ms Henning said she was unaware Ms Dent had any issues with anyone at work. However, Ms Henning said she did visit Ms Dent after she ceased work, and at that time Ms Dent “did mention to me that she was having problems with someone at work. Nancy did not disclose the person’s name”. Ms Henning said she was aware Ms Dent had issues with her husband who was depressed and not working due to work-related injury and also her mother in law who was staying with them. In response to specific questioning, Ms Li said she had not seen Ms Zammit pick on Ms Dent, said she had seen work colleagues assisting Ms Dent (and in fact had assisted her in the past with the collecting of ingredients), said she had seen Ms Zammit say “bye” to Ms Dent at the end of a day, and said she had never seen “any issues going on” between Ms Dent and Ms Zammit.
Ms Henning conceded Ms Zammit was “loud” but said she had to be “due to the running fans and radio”. She said Ms Zammit spoke in the same loud manner to everyone.
Statement of Ms Lynette (Lyn) Soutter
Associated Food Group relied on a statement of Ms Soutter, which is dated 2 March 2020[9]. In her statement Ms Soutter confirmed she had been employed by Associated Food Group for about 30 years. She was a permanent employee, with her role being that of Production Manager. She confirmed Ms Kirk was the team leader. Ms Soutter said she first met Ms Dent when Ms Dent commenced working with Associated Food Group. She recalled Ms Dent worked Sundays to Thursdays, and she also worked two Fridays each month. She described Ms Dent as “a reliable worker” and “a good worker”.
[9] Reply at page 53.
Ms Soutter said she would interact with Ms Dent throughout the working day and said from time to time she would drive her home. She said she was not aware Ms Dent had issues with anyone at work and said Ms Dent “got along with all of the other staff members and during their tea and lunch break can all be seen laughing together”.
Ms Soutter disclosed Ms Dent told her that she had issues with her husband and also her mother in law who lived with the family. She described Ms Dent’s claim for compensation resulting from alleged primary psychological injury as “a shock surprise” to her as she did not see Ms Dent had any issues with anyone at work and she also denied any knowledge of Ms Dent’s right shoulder injury.
Statement of Ms Berlyn Zammit
Associated Food Group relied on a statement of Ms Zammit, which is also dated 2 March 2020[10]. In her statement Ms Zammit confirmed she had been employed by Associated Food Group as a casual employee for about 15 years. She confirmed that when Ms Kirk was not at work, she was required to take over the role as team leader. Ms Zammit said she first met Ms Dent when she commenced her employment with Associated Food Group. She described them as work colleagues and while she said “I have not had any issues with Nancy”, she said she had noticed Ms Dent had issues with other work colleagues. She made particular reference Ms Dent’s daily complaints to her that Gemma Garcia “does not clean the table and does not help out on the line”. Ms Zammit described her relationship with Ms Dent “to be normal” and made reference to them talking during work and sitting down together for lunch. She said Ms Dent offered her food, which she brought from home.
[10] Reply at page 53.
Ms Zammit disclosed she was aware of Ms Dent’s issues with her husband and her mother in law who was living with them. Ms Zammit felt it was these familial issues that had contributed to her claim for workers compensation as she said “[T]here are no issues at work for Nancy”.
In response to specific questioning Ms Zammit denied she picked on or bullied Ms Dent, denied she did not provide anyone to assist Ms Dent when she asked for assistance, denied treating Ms Dent differently after she did not work on a Friday, denied she did not say “bye” to Ms Dent at the end of a working day, and pointed out that if Ms Dent had any issues with her “she should have told me about it and we would have talked about it”. Relevant to Ms Dent’s requests for assistance, Ms Zammit offered:
“When I do send colleagues to help Nancy, they do not want to go because they tell me that Nancy just tells them what to do and she does not do anything”.
Statement of Ms Wilkinson
Ms Dent relied on a statement of Ms Wilkinson, which is dated 9 April 2021[11]. In her statement Ms Wilkinson confirmed she was former work colleague of Ms Dent. With reference to when Ms Dent and Ms Wilkinson worked together, Ms Wilkinson said there was “a very terrible culture of bullying at that workplace”. She described Ms Dent as a quiet person who “would not stand up for herself to the way Berlyn treated her”.
[11] ARD at page 6.
Ms Wilkinson said of Ms Dent:
“Nancy always did as she was told. She worked as hard as she could, did what she was asked to do and then went home.
….
There were times where Nancy had to work alone, usually between 8am and 11am. There were heavy items (over 25kg in weight) that needed to be carried. This was usually done with two people this heavy lifting. Nancy was often working on her own though. This was a lot for Nancy to carry on her own and so she asked for assistance. Berlyn would get upset at Nancy over things like this, because Berlyn wanted Nancy to do this on her own and Nancy couldn’t.…
Nancy would often go the toilet at work and cry because of the way she was being treated. Nancy would also many time come to my place after she finished work and tell me about the terrible way in which she was being treated at work by Berlyn”.
Ms Wilkinson said of Ms Zammit:
“Berlyn is a Filipino lady. She was very rude and constantly bullying and yelling at people. She always has to get what she wants. Berlyn was in charge. If you didn’t do as she did, she would then get angry and start bullying you constantly.
…
Berlyn would constantly yell in the Filipino language. She had been in trouble before for bullying. She is a very rude person.
Berlyn would often yell and abuse others, especially Nancy, in the Filipino language”.
Ms Wilkinson said of Ms Li and Ms Henning:
“Bonnie is of I believe Chinese descent and she does not understand Filipino. Kathleen is I believe of Australian descent and also does not understand Filipino. Berlyn would often abuse Nancy and other Filipino staff there including myself in the Filipino language. For some reason, Berlyn seemed to bully the Filipino staff there especially. Bonnie and Kathleen of course do not understand Filipino. Also, Bonnie worked in a different section to Nancy and they did not have much interaction at work together at all”.
Within her statement are photographs of entries in a personal diary in which Ms Wilkinson said she “kept records of incidents at work” that are relevant to Ms Zammit’s bullying behaviour. While the writing in the diary is quite difficult to read, the photographs appear to demonstrate the following entries:
17 July 2016 “… Berlyn start bullying Nancy …”.
18 July 2016 “* Enough is Enough*
… but Berlyn I start (sic) for 1 minute she start bullying again so I ask her what is her problem with me … I told Berlyn she didn’t not stop bullying I will go to … in the office to report her.
… day she bullied me & Nancy”.
26 July 2016 “ …Berlyn is very nasty is not a team work just thing herself”.
15 August 2016 “… Berlyn … bullying tactic is getting worse …”
22 August 2016 “bulling (sic) again – Hot Kitchen people vs Berlyn – But Lyn is Berlyn side again – Berlyn tactic for bulling (sic) won again. Berlyn knows that Lyn in her side”.
Factual investigation reports
MJM Corporate Risk Services have provided two factual reports that are before the Commission, the first is dated 21 May 2021[12] and the second is dated 28 June 2021[13].
[12] Reply at page 190.
[13] Reply at page 193.
Relevant to these factual reports, it is evident the investigator experienced difficulty in obtaining statements from Ms Li, Ms Heming, Ms Zammit, Ms Soutter and Ms Wilkinson. It is also evident the insured’s contact for the purposes of the investigation, Mr Tedesco, was of no assistance with this particular investigation.
Treating medical evidence
Dr Balasingham
Ms Dent’s treating general practitioner is Dr Balasingham and a number of the certificates of capacity issued by Dr Balasingham relevant to Ms Dent’s psychological injury are before the Commission. The first in time is dated 25 November 2019[14], being just a fortnight after Ms Dent consulted with him on 11 November 2019. In this certificate Dr Balasingham provided diagnosis of psychological injury in terms of “Bullying and harassment, Anxiety/Depression” as well as diagnosis of physical injury, predominantly to her right upper extremity. Dr Balasingham explained Ms Dent’s injuries related to her employment in the following terms:
“Bullying by her Teamleader and ongoing repetitive injury”.
Sue Stern and Raymond Lander
[14] ARD at page 76.
It appears Ms Stern and Mr Lander practice out of the same clinic and their clinical records relevant to Ms Dent are before the Commission[15]. It is evident from these clinical records that during consultation on 11 December 2019 Ms Dent made significant complaint of Ms Zammit’s bullying behaviour towards her as well as complaint about the pain she suffered in her shoulder. During a later consultation on 11 May 2020 Ms Dent complained again about this bullying behaviour as well as her ongoing difficulties with her shoulder. It is also evident from these clinical records that Ms Dent discussed her familial difficulties.
[15] ARD at page 269.
Ms Dent came under the psychological care of Ms Stern, with Ms Stern providing a report dated 13 February 2020[16]. In her report, Ms Stern noted that while Ms Dent “is progressively steady during treatment” she remained very depressed and concerned as to the lack of improvement in her physical injury. Ms Stern wrote “[T]he pain in her arm and shoulder worries her sharp shooting pains and tingling shocks and feels heavy and tired”. Ms Stern described Ms Dent at that time as being “bored, lost and very lonely”. She described her as being “moody and irritable, withdrawn and scared to the answer the phone”. She described her as going to commence anti-depressant medication on a regular basis and said “once she feels better we can discuss some activity or voluntary work to help her get out of the house. She is terrified of returning to her original job and cannot even discuss this as it upsets her too much”.
[16] Reply at page 171.
Ms Dent also came under the psychological care of Mr Lander, with Mr Lander providing a report dated 10 February 2021[17]. In his report, Mr Lander noted Ms Dent had worked with Associated Food Group for “some nine years” and reported Ms Dent had explained to him that her psychological injury:
“… went back to 2016 when her ill treatment began and gradually worsened over the next three years. The harassment was perpetrated by the manager who worked on Fridays.
…She expressed the view that the harassment seemed to escalated [sic] after she reported her shoulder symptoms in 2019”.[17] ARD at page 70.
Mr Lander recorded the reported difficulties Ms Dent had with Ms Zammit and described Ms Dent as having said she “felt humiliated and she was often tearful and upset”. He said too:
“Ms Dent reported that she had difficulties standing up for herself with her manager whom she experienced as aggressive and nasty. She was afraid of losing her job and continued at work despite the treatment she received. By November she was to the stage where she intended to leave but her general practitioner placed her on worker’s compensation”.
Mr Lander noted that during counselling sessions Ms Dent presented with ongoing anxiety and nervousness. He described her as constantly ruminating about what had happened at work, and following testing he provided diagnosis in terms of Adjustment Disorder with significant depression and anxiety. He also provided opinion Ms Dent’s psychological injury was directly related to the workplace harassment she had suffered, and explained:
“It is my opinion that as a result of the three years of continual harassment and victimization by Berlin (sic), one of her managers when she was employed by Munch Express. She was unsupported in her role and she was made fun of by other workers as Berlin constantly belittled her. She found the workplace very distressing and hostile and her self-esteem and confidence deteriorated. She became more and more depressed”.
In response to specific questioning by Ms Dent’s solicitors, Mr Lander provided opinion Ms Dent’s psychological injury is a primary psychological injury and does not result from her physical injury. He noted that Ms Dent’s difficulties with Ms Zammit’s behaviour towards her commenced in 2016 whereas her physical injury only became apparent in 2019.
Dr Way
Ms Dent came under the psychiatric care of Dr Way, and his clinical records are admitted as evidence in these proceedings[18]. In his report dated 13 August 2020[19] Dr Way noted Ms Dent initially consulted with him on 2 July 2020. At that time Ms Dent said she had developed pain in her low back and right shoulder and that while she had reported her problem to her manager, her manager continued to request she continue with her same duties. Dr Way noted too Ms Dent said that “in November 2019 she was ‘bullied’ by another Filipino worker who was an acting manager. Ms Dent was asked to lift items weighing 19kg by herself without being helped by other workers”. Dr Way at that time diagnosed Ms Dent with major depression and noted Ms Dent reported difficulty coping with chronic pain. Dr Way went on to report that when he reviewed Ms Dent on 13 August 2020, he adjusted her medication, and relevantly provided opinion “I believe that the onset of her major depression had occurred in the context of her work-related emotional conflicts”.
Independent medical evidence
Dr Whetton
[18] ARD at page 259.
[19] ARD at page 261.
Ms Dent was initially psychiatrically assessed by Dr Whetton in his capacity as Independent Medical Examiner on 11 May 2020 with Dr Whetton providing a report the following day, 12 May 2020[20]. To assist with the preparation of his report, Dr Whetton was provided with a factual investigation report prepared by MJM Corporate Risk Services dated 4 March 2020, which is not before the Commission. He was also provided with the statements of Ms Zammit, Ms Heming, Ms Li and Ms Dent, which were provided to the investigator.
[20] Reply at page 172.
Dr Whetton noted a history of Ms Dent having worked with Associated Food Group for nine years, with her last working in November 2019. Dr Whetton noted Ms Dent said that at the time she ceased working with Associated Food Group “she had significant problems with her shoulder and back with pain and limitations in the movement of her right shoulder”. He reported too that at that point in time Ms Dent felt stressed, was not sleeping well because of pain, and believed that she had been bullied at work by Ms Zammit. Ms Dent described Ms Zammit as giving her “a hard time at work not taking her shoulder problems into account and continuing to insist that Ms Dent did work”. Dr Whetton reported:
“In this setting she said that she became upset. She said that she was unable to lift and needed assistance, which was not provided. She complained more about the alleged treatment of Berlyn and at this point in the examination became tearful. She said her work colleagues would help her however Berlyn ‘gave me a hard time’. … She said that she continued to work and that she did not want to lose her job however further complaints about Berlyn being ‘bossy all the time’”.
However, Dr Whetton noted Ms Dent’s comments regarding Ms Zammit’s behaviour were refuted in the statements provided to him and reported that when questioned specifically about her stress, Ms Dent said “there were difficulties in her sleeping, that her shoulder was aching and this was interrupting her sleep”.
Relevant to her work with Associated Food Group, Dr Whetton reported Ms Dent had not returned to work “and this was because of the ongoing problems with her shoulder” and “she indicated that it was not her psychological state, which prevented her from working”. Relevant to her relationship with her husband, Dr Whetton reported Ms Dent said “the relationship was OK and there were no problems”.
While on examination Dr Whetton felt Ms Dent did not present with a psychiatric diagnosis, he accepted from the history provided, she may have warranted a diagnosis of Adjustment Disorder with Anxiety in November 2019. He provided opinion that with the history of bullying being refuted in the Factual Report, “causation appears to be secondary to the shoulder injury”.
Ms Dent was re-assessed by Dr Whetton on 10 November 2020, with Dr Whetton providing a report dated 13 November 2020[21]. Dr Whetton noted Ms Dent believed her mental health had deteriorated since he last had the opportunity to assess her, and she had now come under the psychiatric care of Dr Way.
[21] Reply at page 180.
On this occasion Dr Whetton was of the view Ms Dent presented with significant depression, with Ms Dent telling him that over the last three months there had been a marked deterioration in her mood, motivation and general ability to manage herself. On this occasion Dr Whetton provided diagnosis in terms of a Major Depressive Disorder, which he said “is related to her ongoing shoulder problems and the loss of her previous work and life subsequent to the shoulder injury”.
Dr Rastogi
Ms Dent was psychiatrically assessed by Dr Rastogi in her capacity as Independent Medical Examiner, with Dr Rastogi providing a report dated 1 October 2020[22]. It is evident from her report that Dr Rastogi was aware the factual investigation into the circumstances of Ms Dent’s psychological injury did not support Ms Dent’s allegations of workplace bullying and harassment and was aware of Dr Whetton’s opinion provided in his initial report dated 11 May 2020. It is also evident from her report that Dr Rastogi had access to Ms Dent’s general practitioner’s notes which reportedly indicate workplace bullying and harassment independent of her right shoulder problems. These notes are not before the Commission.
[22] ARD at page 60.
Dr Rastogi noted a history of Ms Dent working with Associated Food Group since 2011 as a casual worker, reporting to Ms Kirk and Ms Soutter. Ms Dent told Dr Rastogi she was “acknowledged being [sic] a good and fast worker by her boss”. She told Dr Rastogi when Ms Kirk and Ms Soutter were on holidays “Berlyn was temporarily in charge since 2016” and said of Ms Zammit she “very domineering and would scream and yell if things did not go her way”. Ms Dent explained she worked with Ms Zammit on Fridays predominantly. She said she felt distressed and anxious by Ms Zammit’s behaviour and did not want to work on Fridays. She said Ms Zammit was aware of Ms Dent’s shoulder and back pain but “dismissed and brushed off” her request for assistance. She said Ms Zammit gave her extra work. She said Ms Zammit picked on her. She said she felt humiliated and constantly victimised.
Ms Dent confirmed that when she consulted with Dr Balasingham on 11 November 2019 about her physical injury, she also told him about the bullying behaviour to which she had been subjected. She confirmed she subsequently came under the psychological care of Ms Stern.
Following mental state examination Dr Rastogi provided diagnosis of Adjustment Disorder with depressed mood. Dr Rastogi noted Ms Dent had been “constantly victimised, ostracised and unsupported” by Ms Zammit since 2016 which resulted in “chronic build-up of anxious distress, helplessness, feeling trapped by anxiety and mild avoidance”. She provided opinion in the following terms:
“I am of opinion that the substantiating factor to her psychological condition, adjustment disorder with anxious distress that manifested over time since 2017 was associated with chronic alleged bullying by particular supervisor only over three years that came to ahead [sic] when Mrs Dent experienced worsening of her right shoulder pain and inability to continue working causing further exacerbation of her psychological condition”.
Dr Rastogi provides assessment of 15% WPI resulting from primary psychological injury sustained by Ms Dent during the course of her employment with Associated Food Group.
Dr Rastogi also provided a supplementary report dated 26 June 2021[23] in which she confirmed following review of significant further material, including Dr Whetton’s supplementary report, Ms Dent’s psychological injury was primary in nature in that it resulted from workplace bullying and harassment.
Submissions
[23] AALD at page 1.
Both counsel made oral submissions which I have considered. A copy of the recording of counsels’ submissions is available to the parties. I am grateful to counsel for the assistance provided in navigating the evidence of relevance before the Commission.
Determination
Injury
It is disputed Ms Dent sustained primary psychological injury in the course of her employment with Associated Food Group, with a deemed date of injury of 11 November 2019. Of import in the circumstances of this matter is that definitions of “primary psychological injury” and “secondary psychological injury” are specifically provided in s 65A of the Workers Compensation Act 1987 (1987 Act).
Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury, which means a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[24] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[24] [2020] NSWWCCPD 9.
Relevant to the issue of causation, in Kooragang v Cement Pty Ltd v Bates[25] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, 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. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[25] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Relevant too, particularly when considering the issue of establishing primary psychological injury in circumstances of a worker’s perception of real events occurring at work, is that in Attorney General’s Department v K[26] Deputy President Roche usefully summarised the principles to be applied at [52]:
[26] [2010] NSWWCCPD 76.
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
And said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional…”.
As noted, Associated Food Group has placed primary psychological injury in issue and Ms Dent has the onus of proving she sustained primary psychological injury during the course of her employment with Associated Food Group, with a deemed date of injury of 11 November 2019, and that her employment with Associated Food Group is the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[27] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712”.
[27] [2008] NSWCA 246 (Nguyen).
In JB MetropolitanDistributors Pty Ltd v Kitanoski[28] the Commission considered the distinction between primary and secondary psychological injury and in Cannon v The Healthy Snack People Pty Ltd[29] consideration is provided as to how the Commission determines a primary and secondary psychological injury of a worker, being:
(a) the type of evidence relied on;
(b) whether the medical reports and evidence substantiate their findings;
(c)whether the authors of the medical reports have considered all of the facts and appropriate histories, and
(d)has the appropriate test of causation been applied as outlined in the decision of Kooragang.
[28] [2016] NSWWCCPD 17.
[29] [2009] NSWWCCPD 32.
In these proceedings Ms Dent argued she sustained primary psychological injury as a result of her interpersonal conflict with Ms Zammit and a feeling she was being bullied and harassed by Ms Zammit at work. Associated Food Group argued Ms Dent had not been bullied and harassed by Ms Zammit and that the psychological injury Ms Dent had sustained was secondary to her work-related physical injury. Associated Food Group also raised the credibility of Ms Dent, with specific reference to the histories she provided over time relevant to Ms Zammit’s behaviour towards her, behaviour that is denied by Ms Zammit and essentially not supported by Ms Soutter, Ms Li and Ms Henning. Ms Kirk has not provided a statement in these proceedings, and while Mr Gaitanis explained there had been some difficulty in obtaining statements in this matter, it does not appear from the factual information before the Commission that an attempt was ever made to obtain a statement from Ms Kirk, which is perhaps surprising as Ms Kirk was Ms Dent’s team leader (save for on Fridays when her team leader was Ms Zammit).
Despite concerns raised by Mr Gaitanis about the histories provided over time by Ms Dent relevant to Ms Zammit’s behaviour towards her (and I am mindful of comment by the High Court in Fox v Percy[30] and the Court of Appeal in Goodrich Aerospace Pty Ltd v Arsic[31]) I am of the view Ms Dent provided a consistent and credible history to her treating psychologists, her treating psychiatrist and the independent medical examiners, albeit inconsistency in the statements provided by Ms Zammit, Ms Soutter, Ms Li and Ms Henning.
[30] [2003] HCA 22; (2003) 214 CLR.
[31] [2006] NSWCA 187; 66 NSWLR 186.
Ms Dent has previous experience of working with a boss who “was always screaming at everyone” and has left previous employment because she did not enjoy working in such an environment. It is conceded by Ms Li and Ms Henning, both of who worked with Ms Dent on the Fridays when Ms Zammit was the team leader instead of Ms Kirk, that Ms Zammit had a loud voice. Although Ms Zammit denied any bullying behaviours towards Ms Dent, Ms Li and Ms Hemming specifically denied observing any bullying behaviours by Ms Zammit towards Ms Dent and Ms Soutter said she was unaware Ms Dent had any issues with anyone at work, Ms Dent felt she was being bullied by Ms Zammit and her perception of Ms Zammit’s behaviour towards her is clearly supported by Ms Wilkinson, who also provided copy diary entries from as early as 2016 that suggest bullying behaviour by Ms Zammit towards her work colleagues, including Ms Dent. It is evident from Ms Wilkinson’s statement that she is a Filipino lady and I think it is of significance that Ms Wilkinson described Ms Zammit as often abusing Ms Dent and other Filipino employees in the Filipino language, which she pointed out employees such as Ms Li and Ms Henning would not understand.
Ms Dent consulted Dr Basingham on 11 November 2019 with complaint of her problematic right shoulder and at that time she also shared with him the long term difficulties she had been experiencing with Ms Zammit. Exactly one month later, following referral for psychological treatment, Ms Dent complained to her treating psychologist about Ms Zammit’s behaviour towards her. While there may be ongoing complaint during psychological consultations with Ms Stern and Mr Lander about her problematic right shoulder, Ms Dent continued to complain also about the behaviour she said she had been subjected to by Ms Zammit and it is important that Mr Lander, with whom Ms Dent consulted on a number of occasions, provided opinion the psychological injury she had sustained resulted from the behaviours she had been subjected to by Ms Zammit. Dr Way, Ms Dent’s treating psychiatrist, appeared to be of like mind when he said “I believe that the onset of her major depression had occurred in the context of her work-related emotional conflicts”.
Relevant to the competing psychiatric evidence provided by Dr Rastogi and Dr Whetton, I am mindful that in Singh v FTW Products Pty Ltd[32] Snell ADP made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[32] [2007] NSWWCCPD 230.
Both Dr Rastogi and Dr Whetton specialise in psychiatry. Although at initial assessment on 11 May 2020, Dr Whetton did not feel Ms Dent presented with a psychiatric diagnosis, at that time she was still under psychological care and came under the psychiatric care of Dr Way less than two months later. When assessed by Dr Rastogi at the beginning of October 2020 Dr Rastogi provided diagnosis of Adjustment Disorder with Depressed Mood and when re-assessed by Dr Whetton just over one month later in November 2020, Dr Whetton provided diagnosis of a Major Depressive Disorder. While both psychiatrists were now in agreement Ms Dent suffered from diagnosable psychological injury, Dr Rastogi considered Ms Dent’s psychological injury resulted from the behaviours she had been subjected to by Ms Zammit, whereas Dr Whetton considered Ms Dent’s psychological injury resulted from “her ongoing shoulder problems and the loss of her previous work and life subsequent to her shoulder injury”.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept opinion provided by Dr Rastogi that Ms Dent’s psychological injury developed as a result of behaviours she was subjected to by Ms Zammit, which she perceived to be in the nature of bullying behaviour. While Ms Zammit denied subjecting Ms Dent to bullying behaviour and Ms Li, Ms Henning and Ms Soutter were unaware of any bullying behaviour directed by Ms Zammit to Ms Dent, it is evident Ms Dent had previously been significantly troubled by a person in charge who “was always screaming at everyone” and it is not controversial Ms Zammit spoke in a manner which could be described as “loud”. I am mindful too of Ms Wilkinson’s comment that as a Filipino lady, Ms Zammit would “abuse” other Filipino work colleagues, including Ms Dent, in Filipino, which was a language both Ms Li and Ms Henning would not understand and as a consequence, would not comprehend what was being said by Ms Zammit to Ms Dent. In all of the circumstances I feel an “actual persuasion” Ms Dent perceived that the behaviours she was subjected to at work by Ms Zammit was bullying in nature and that her psychological injury followed these behaviours.
I prefer the opinion of Dr Rastogi to that of Dr Whetton as it is evident from Dr Rastogi’s report that she not only considered the factual investigation into the circumstances of Ms Dent’s psychological injury, which did not support Ms Dent’s allegations of bullying behaviour by Ms Zammit, but she also considered Ms Dent’s general practitioner’s notes which reportedly indicated workplace bullying and harassment independent of Ms Dent’s right shoulder problems. I draw comfort too from opinion provided by Ms Dent’s treating psychologist and that of her treating psychiatrist, as both Mr Lander and Dr Way were acutely aware of Ms Dent’s ongoing problems with her right shoulder.
Although Dr Rastogi did not use the terminology “main contributing factor”, this is not fatal to Ms Dent’s claim as consideration of the evidence overall demonstrated Ms Dent’s employment with Associated Food Group was the main contributing factor to the psychological injury she has sustained. While Mr Gaitanis felt it was important to note Ms Dent had expressed some familial discontent, both Dr Rastogi and Dr Whetton were provided with the factual investigation statements that canvassed Ms Dent’s reported familial discontent and neither of the independent medical examiners considered such reported external factor contributed to Ms Dent’s psychological injury. While Dr Whetton provided opinion that Ms Dent’s psychological injury is secondary to the workplace physical injury she has sustained, for reasons discussed above I have preferred the opinions of Dr Rastogi, Dr Way and Mr Lander to that of Dr Whetton.
For the reasons discussed above I accept Ms Dent has discharged the onus required of her. I accept Ms Dent sustained primary psychological injury in the course of her employment with Associated Food Group with a deemed date of injury of 11 November 2019, and I accept her employment with Associated Food Group was the main contributing factor to injury.
Permanent impairment
As I have determined Ms Dent sustained primary psychological injury in the course of her employment with Associated Food Group with a deemed date of injury of 11 November 2019, it is appropriate Ms Dent’s claim for permanent impairment compensation resulting from such injury be remitted to the President for referral to a Medical Assessor for assessment of WPI.
For the purposes of Ms Dent’s claim for permanent impairment compensation resulting from the primary psychological injury she sustained in the course of her employment with Associated Food Group, the deemed date of injury is 9 October 2020, being the date Ms Dent made her claim for permanent impairment compensation.
The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
SUMMARY
Ms Dent sustained primary psychological injury in the course of her employment with Associated Food Group, with her employment being the main contributing factor to injury. The deemed date of injury is 11 November 2019.
Ms Dent’s claim for permanent impairment compensation resulting from the primary psychological injury she sustained, as determined, is to be remitted to the President for referral to a Medical Assessor for assessment of WPI. The deemed date of injury for the purposes of Ms Dent’s claim for permanent impairment compensation is 9 October 2020. The following documents are admitted by consent and are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
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