Derikuca v ISS Property Services Pty Ltd
[2025] NSWPIC 85
•12 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Derikuca v ISS Property Services Pty Ltd [2025] NSWPIC 85 |
| APPLICANT: | Stevo Derikuca |
| RESPONDENT: | ISS Property Services Pty Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 12 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and dispute as to whole person impairment arising out of psychological injury; applicant actively sought reinstatement of employment in Fair Work proceedings and in associated proceedings in the Supreme Court during periods in which he claimed to be totally incapacitated; delayed reporting of psychological injury; backdated certification by general practitioner for periods in which there was no psychological complaint despite regular consultations; definition of psychological injury discussed; emotional impulse, anxiety state, frustration, and emotional upset do not constitute psychological injury; Stewart v New South Wales Police Service applied; Held – unable to accept the applicant’s evidence as to the effect of the workplace events had on his psyche; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Mr Derikuca (the applicant) was a cleaner employed by ISS Property Services Pty Ltd (the respondent). There is no dispute his pre-injury earnings were $547 per week.
The dispute before the Personal Injury Commission (Commission) concerns a claim for weekly benefits (limited to 52 weeks on account of the applicant’s age) and lump sum compensation relating to psychological injury said to arise from workplace events on
30 March 2020.Injury was pleaded in the Application to Resolve a Dispute (ARD) as follows (unedited);
“The applicant's employment was suspended on 5 February 2020, following a complaint and subsequently terminated on 30 March 2020. The applicant suffered a psychological injury as a result of the nature of the complaint itself and the unreasonable action taken by his employer in response to the subject complaint made. In particular, the employer failed to contact their own investigation into the allegations made before terminating his employment.”
The claim for compensation is not straightforward and has somewhat of an unusual and protracted history. In an attempt to make the complex simple, the following chronology has been extracted from both the applicant’s statement and documents filed in the ARD and the Reply filed by the respondent.
On 3 February 2020, a school teacher at the Strathfield Girls High School alleged the applicant had asked her for a kiss and raised a sexual harassment complaint. This caused the applicant to be suspended pending enquiry and meeting. The suspension advice nominated the reasons for suspension as:
(a) multiple allegations of sexual misconduct against staff members;
(b) inappropriate comments to staff, and
(c) inappropriate physical advances and/or suggestive body language.[1]
[1] Folio 9 of the ARD.
During the course of the investigation, the applicant admitted to asking the teacher for a kiss[2] maintaining it was “innocent and misunderstood” denying any intentional wrongdoing or sexual harassment. On 9 March 2020, the respondent considered the appropriate course of action was to transfer the applicant to perform identical duties at the Marie Bashir School.
[2] Folio 10 of the ARD.
The applicant transferred successfully but was again suspended after six days. On
16 March 2020 he was informed by the respondent that the Employee Performance and Conduct Division of the NSW Department of Education requested he be removed from any Department of Education site due to the events that he admitted occurred on3 February 2020. [3][3] Folio 12 of the ARD.
On 30 March 2020, after being notified the Department of Education had revoked the applicant’s access to any of their sites, the respondent terminated the applicant’s employment. As the respondent’s only contract was with the Department of Education, no alternate duties or redeployment was available and so the termination was immediate.[4] This resulted in the payout of accrued entitlements along with five weeks of the ordinary rate of pay in lieu of notice of termination. An unfair dismissal claim was then lodged by the applicant.
[4] Folio 13 of the ARD.
Then on 31 August 2020, the applicant was notified he was placed on the Not To Be Employed (NTBE) list by the Department of Education. (This decision was independent of his work with the respondent and occurred six months following his termination). Being dissatisfied with this decision, the applicant lodged an application in the Supreme Court of NSW where he sought information under the Government Information (Public Access) Act 2009 (GIPA) Act. Those proceedings ultimately finalised in 2023.
On 14 December 2022, the applicant consulted Dr Ducic who certified him indefinitely unfit for work from 30 April 2020 due to “reactive depression and generalised anxiety disorder as a consequence of dismissal from work and consequent significant financial loss”. Dr Ducic referred the applicant to a psychiatrist with the first appointment taking place on
20 July 2023.For reasons that are unclear, the applicant lodged a workers compensation claim on
2 April 2023, despite the above Certificate being issued.On receipt of the claim, it was assessed by the respondent’s insurer. The claim was denied with the s 78 notice maintaining the following grounds as the basis for its dispute (unedited);
“▪ You did not suffer any psychological or psychiatric injury arising out of or in the course of your employment, within the meaning of Section 4 of the Workers Compensation Act 1987.
▪ Your employment was not the main contributing factor to any such injury, as required by Section 4(b) of the Workers Compensation Act 1987.
▪ Any psychological injury sustained by you was wholly or predominantly caused by the reasonable action taken or proposed to be taken by your employer with respect to performance appraisal and/or discipline and/or dismissal and/or transfer and/or provision of employment benefits, and no compensation is payable pursuant to Section 11A of the Workers Compensation Act 1987.
▪ You have failed to make your claim for compensation in respect of your injury within the time prescribed by Section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
▪ You do not suffer any incapacity for work as a result of any injury sustained in the course of your employment.
▪ You have no entitlement to the payment of weekly compensation pursuant to Section 33 of the Workers Compensation Act 1987.
▪ You have no entitlement to payment of medical and related treatment expenses in respect of your claimed injury, pursuant to Section 60 of the Workers Compensation Act 1987”
Internal reviews were unsuccessful resulting in the filing of the ARD. The matter underwent the usual pathway ultimately proceeding to conciliation/arbitration at which time
Mr McManamey of counsel instructed by Ms Giuttari represented the applicant. Mr Saul of counsel instructed by Mr Murray appeared on behalf of the respondent. The insurer was represented by Mr Villaver and Mr Wood. Attempts to conciliate were unsuccessful resulting in the parties requesting a determination on liability.The documents before me were limited to the ARD and the Reply. There was no oral evidence called. The applicant was not cross examined. No witnesses were called. Submissions were exhaustive and robust and dealt with all matters raised in paragraph 12 above.
Parties confirmed the following issues required determination;
(a) did the applicant suffer a psychological injury on 30 March 2020 as defined by the 1987 Act;
(b) whether the applicant made a claim within the prescribed timeframes – s 261 of the 1998 Act;
(c) if so, whether such psychological injury was wholly or predominantly caused by the reasonable action taken by the employer with respect to performance appraisal and/or discipline and/or dismissal and/or transfer and/or provision of employment benefits, and
(d) extent and quantification of the applicant’s capacity – ss 36 and 37 of the 1987 Act; and entitlement to lump sum compensation – s 66 of the 1987 Act (a matter to be referred to a Medical Assessor).
Whilst trite, each issue must be assessed independently but clearly if the above issues are not satisfied in sequence, discussion of issues that follow is redundant.
RELEVANT LEGISLATION
The law relevant to this application is found in the Workers Compensation Act 1987 (the 1987 Act).
Injury is defined in s 4 of the 1987 Act (relevantly):
“ ‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
Psychological injury is defined in s 11A (3A) of the 1987 Act as;
“psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
In addition, given the delay in lodging a claim, s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) must be considered. This relevantly states;
“261 Time within which claim for compensation must be made:
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death….
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker…
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
CONSIDERATION
Issue one
Did the applicant suffer psychological injury on 30 March 2020?
The circumstances of the injury and the applicant’s admission of his actions which led to his suspension and subsequent termination are discussed above and in the interests of brevity will not be repeated here.
As regards injury, a number of representations have been made by the applicant; relevantly.
In his statement dated 6 March 2023,[5] he nominated:
“(a) ‘I was shocked to be stood down then terminated’ and first saw his doctor on 14 December 2022;
(b) as for the delay, he offered, ‘I don’t know why I did not see the doctor before this. I was finding it hard to leave the house. My family convinced me to see the doctor’… ‘when I saw my doctor on 14 December 2022, she suggested that I make a workers compensation claim, which I subsequently did’[6]
(c) as regards symptom onset;
‘I experienced stress and anxiety from when Shak informed me that the complaint about sexual harassment had been made against me. Progressively over time, it became much worse to the point of depression and that I generally do not leave the house. I have not been eating properly since the complaint to the point that I regularly throw up my food. I have not improved mentally.”[7]
[5] Folio 50 of the ARD.
[6] Folio 51 of the ARD.
[7] Folio 51 ARD.
In his claim form dated 2 April 2023,[8] he stated:
“after questionable termination, my mental health was deteriorating progressively due to stress involving court processes until I just got badly depressed and anxious to the point that I do not leave the house for days to eat irregularly (sic) vomiting my food most of the tines [sic]”
[8] Folio 58 ARD.
When qualifying Dr Rastogi, psychiatrist, on 20 March 2024,[9] the applicant stated he was exposed to discrimination, bullying and harassment whilst working as a cleaning supervisor since 2017 (these issues do not form part of the claim). Dr Rastogi recorded feelings of persecution and targeting by higher management “who were out to push him out of the workforce” and the applicant was subjected to four years of litigation with the Department of Education regarding the revocation of his attendance at any of its sites. Dr Rastogi diagnosed major depressive disorder with mixed anxiety and depressed mood on account of false accusations and tarnishment of reputation.
[9] Folio 84 ARD.
In regards to capacity, Dr Rastogi opined that incapacity stemmed from unresolved grievances, unfair dismissal and long standing bullying and harassment since 2017 and that employment was the main contributing factor to the psychological injury.
Dr Montana Ducic, general practitioner in her undated report[10] confirmed the first visit regarding mental health was on 14 December 2024 [sic] when he reported, significant/generalised anxiety disorder, insomnia and increased anger due to the stress caused by his dismissal from work. The second consultation was reportedly on 30 August 2023 and the third consultation on 25 September 2024. She confirms she issued a mental health plan which incorporated a referral to Dr Kuljic, psychiatrist and Ms Savic (psychologist). She reported “I have known the client for a long time and he doesn’t have any history or depression and anxiety prior to the work related injury”.
[10] Folio 98 ARD.
Dr Kuljic, psychiatrist reported on 23 July 2023[11] and recorded;
“Mr Derikuca reported changes in his mental state roughly about three years ago when he was dismissed from the job. With time, he reported his mood getting depressed. He started suffering bad dreams about work and mainly about false accusations. These unpleasant dreams awaken him with anxiety….
His son in law, Sasha provided collateral information. He informed me about significant changes over the last three years. That is related mainly to social isolation, irritability, depression, passivity and anhedonia with visibly depressed mood…
Mr Derikuca presented symptoms of major depressive disorder and alcohol abuse. These issues started after the loss of employment and feeling being humiliated with alleged false accusations. There is no previous psychiatric history.”
[11] Folio 102 ARD.
In a report dated 27 October 2024,[12] he confirmed he had assessed the applicant on two occasions, relevantly on 20 July 2023 and 7 May 2024 and the diagnosis remained unchanged.
[12] Folio 107 ARD.
Clinical notes of the Blacktown Medical Centre[13] reveal the applicant was a patient of the practice since 2008. Only notes from February 2020 are relevant to this claim. The records confirm the applicant presented to the practice as follows:
[13] Folio 120 to 488 ARD.
Year
Month
Date of attendance
2020
February
5, 6 11, 12,
April
29
May
5
June
24
August
20
September
12
December
2
2021
January
26, 27
March
9
June
5
August
24
November
23, 30
December
15
2022
January
20
February
3, 17
March
23
April
2, 22, 28, 29
May
30
July
30
October
8
November
2
December
14
Medical history between 2021 to 2022 was noted as bladder cancer, hyperglycaemia, hypertension, non-insulin dependent diabetes, rental impairment, thyroid nodule, weight gain, anger, anxiety and depression. Relevantly dietary advice was sought from November 2021 due to “weight gain – was inactive and unable to work during lockdown”,[14] with approximately 10kg of weight loss[15] due to compliance with a low carb and modified meal plan.
[14] Folio 479 ARD.
[15] Folio 482 ARD.
The first consultation and report of any mental health symptoms was 14 December 2022 with the records showing “stress, anxiety/depression, insomnia, anger”.[16] A certificate of capacity was issued at that consultation where Dr Ducic recorded:
“sleeping problem, significant anxiety and depression since he was dismissed from work. Unstable blood pressure due to stress. Communication skills were also affected by dismissal from work, feels very angry and argues with his family members. Referred to psychiatrist….”
[16] Folio 484 ARD.
The certificate certifies the applicant as being unfit for any employment from 30 April 2020 to “unknown at this stage”.[17]
[17] Folio 489 ARD.
At consultation on 19 August 2023 it was recorded (unedited):
“discussed with wife. She is worried about him as he seems to be depressed and is not leaving home. He is isolating himself from other people.
Seen by psychiatrist dr Kuljic recently and was commenced on Sertraline.
He is also in denial about his illnesses and has not seen dr Bariol for a long time to repeat cystoscopy in regards to the management of bladder cancer.
Wife adviced me to speak to their daughter as she is the only person that he listens to”
Dr Verma was qualified by the respondent and reported on three separate occasions. In his report dated 23 March 2023 it was recorded the applicant informed him;
“he stated that in the first two years after he was terminated, his mood slowly worsened though he was hopeful of being reinstated…he stated that he delayed making a workers compensation claim as long as possible because he was hoping to be reinstated”[18]
[18] Folio 4 Reply.
Dr Verma diagnosed adjustment disorder with mixed anxiety and depressed mood and opined employment was the main contributing factor, particularly the termination.
In his supplementary report dated 4 May 2023, after reviewing clinical notes which showed a lack of complaint of psychological symptoms until December 2022 and acknowledging the stress associated with his Supreme Court action, Dr Verma considered it was unlikely for the applicant to have experienced an adjustment disorder and not made any complaints to the general practitioner for a period of almost three years. The original diagnosis was replaced with one of “emotional distress”.[19]
[19] Folio 14 Reply.
The report following reassessment on 9 July 2024[20] recorded the applicant was openly critical of Dr Verma who had changed his opinion from the time of the original assessment. It was recorded the applicant had stated “don’t be an advocate, be an expert”. Dr Verma records that he informed the applicant that his aggression was unacceptable and invited him to discontinue the assessment, although the applicant wished to proceed.
[20] Folio 17 Reply.
At assessment the applicant informed the doctor that he had finished his case with the Department of Education four months earlier (February or March 2024) and had only received $12,000 expressing “Australia has no legal system”.[21] He told the doctor that he only eats one meal a day and has dropped from 109kg to 95kg presumably due to mental health symptoms.
[21] Folio 18 Reply.
Dr Verma concluded:
“the predominant flavour of this assessment was that Mr Derikuca was angry, irritable and focused on the degree of whole person impairment I would provide. He was angry at me for having revised my opinion and told me not to be an advocate but to be an expert….overall his presentation was incongruent and inconsistent. There appears to be a misattribution of symptoms…..Therefore, I continue to believe that he has had emotional distress. I do not believe he has a psychiatric disorder. Rather there appears to be issues of secondary gain.”[22]
Submissions regarding the issue of injury
[22] Folio 22 Reply.
The applicant submitted;
(a) there is no factual dispute about the circumstances leading to the termination;
(b) delays in seeking treatment were due to cultural stigma as European culture views mental health conditions as a sign of weakness;
(c) the injury arose out of the workplace events and specifically the events leading up to the termination and the failure by the Department of Education to be transparent in its dealings with the applicant and the lack of investigation of the background events generally;
(d) it is accepted the applicant did not report symptoms until December 2022 but when he did, his version of events has been consistent to the multiple assessors;
(e) even if it could not be found that there had been a period of incapacity (within the 12 month period) allowed by the Act (given retirement age),[23] this does not negate a finding of “injury”, and
(f) the applicant was not aware that he had an “injury” until his general practitioner diagnosed his symptoms in December 2022.
[23] Section 52 of the 1987 Act.
As regards injury, the respondent submitted;
(a) the applicant was terminated in April 2020 and then pursued an unfair dismissal claim and then a separate action against the Department of Education which finalised in early 2024. He did not make a claim until mid-2023;
(b) despite being a regular attendee at the practice of Dr Ducic, he failed to raise any mental health symptoms until December 2022. It is unclear why or how Dr Ducic could legitimately certify incapacity from April 2020 given that the applicant had regularly attended the practice and had not nominated any psychological symptoms;
(c) the applicant has not satisfied the onus and has not shown on the balance of probabilities that he suffered injury as pleaded on 30 March 2020;
(d) Dr Rastogi suggests that there are multiple causes for psychological injury but these have not been pleaded. Further, she has failed to explain how the diagnosis of major depressive disorder with mixed anxiety and depressed mood was made at the time of assessment, in the absence of any complaint of symptoms for almost three years post termination;
(e) it is accepted that initially Dr Verma diagnosed adjustment disorder with mixed anxiety and depressed mood but reconsidered the diagnosis on learning there had been an absence of any complaint of symptoms or treatment for almost a period of three years since termination;
(f) the applicant is not an impressive witness, is not credible and the motivation of the belated claim is far from genuine, likely cushioned in secondary gain;
(g) the applicant is inconsistent. He claims incapacity, obtained backdated medical support, yet his conduct in the interim and for a prolonged period (almost four years) was undertaken and motivated to secure a return to work. Simply put, a claim of total incapacity is entirely inconsistent with his protracted attempts to get his job back, and
(h) the submission of “lack of investigation” is just smoke and mirrors. The applicant admitted to his conduct and ultimately accepted that it was inappropriate.
When assessing injury, authorities establish the following;
(a) in order to prove that a psychological injury has occurred, the applicant must prove that the nervous system was so affected, that a physiological effect was induced. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[24] do not constitute psychological injury.[25] (Stewart). Furthermore, once the applicant has established ‘injury’ he must demonstrate incapacity for work resulted therefrom;
(b) the law does not recognise emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by ‘professional medical opinion’;[26]
(c) the issue of causation must be determined based on the facts in each case and the application of the common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates,[27] (Kooragang), and
(d) the applicant bears the onus of establishing injury on the balance of probabilities, and in order to discharge that onus, I must be satisfied that the case has been proved on the balance of probabilities where I must feel an actual persuasion or comfortable satisfaction of the existence of a fact - Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen).
[24] New South Wales v Rattenbury [2015] NSW WCCPD46.
[25] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
[26] Commonwealth of Australia v Smith [2005] NSWCA 478,
[27] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), at [463].
In assessing the evidence overall, I formed the view the applicant’s evidence was largely implausible and overall not credible. The evidence and submissions failed to satisfy me on the balance of probabilities that he has sustained the injury as claimed. Even in the absence of cross examination the following inconsistencies, both in word and in deed, were identified and formed the basis of my findings relating to injury, relevantly;
(a) the applicant at all times has sought to impress he was totally incapacitated from work from the time of his termination and has garnered medical evidence (albeit backdated) to support such contention. However, concurrently he had engaged in serious litigation, initially unfair dismissal and then Supreme Court proceedings all with the sole aim of returning to his pre termination employment. The prosecution of proceedings in other jurisdictions with the aim of returning to the workforce is inconsistent with the claims of total incapacity. Such actions delegitimises the medical certificate as it relates to incapacity and injury amongst other factors;
(b) the applicant did not suffer ‘injury’ or incapacity at the time of initial suspension. He successfully transferred to an alternate school and continued working until termination;
(c) on the issue of incapacity, the applicant informed Dr Verma that he had not wished to claim workers compensation as he sought to be reinstated, again conduct which is at odds with a claim of injury and incapacity. This is further inconsistent with his statement “I didn’t understand I was suffering a mental health condition until I started seeing my general practitioner and was receiving treatment”;
(d) the claim that he was unaware that he was suffering a mental health condition until diagnosed by his general practitioner is inconsistent with his previous statements particularly those where he stated that he experienced “stress and anxiety from when Shak informed me about the sexual harassment claim”. The applicant also submits he had not been eating properly and would throw up food and had not improved mentally. The claim that he was not aware of such symptoms being psychological in nature is implausible and beggars belief, particularly as the statement and medical evidence suggests that the family were concerned about psychological symptoms and encouraged him to seek treatment;
(e) as regards the medical opinion, the actions of Dr Ducic in issuing a backdated medical certificate are disquieting. I have slavishly summarised the attendances to her practice from the date of termination of employment until the date of initial report of symptoms (paragraph 30 of this Certificate). Between February 2020 and December 2022 there were 30 consultations recorded and at no time were complaints recorded relating to mental health symptoms. Further, I am aware that the notes of treating practitioners are not to be taken as being a full record of complaints made, as their role is to care and treat patients and not take extensive histories particularly in the context of busy practices[28] and caution must be exercised when assessing such evidence. However, the notes overall are detailed. Whilst I could be prepared to accept a sporadic omission in the recording of psychological symptoms, it beggars belief that the symptoms would not have been mentioned or recorded in some of the 30 consultations spanning over 34 months;
(f) further, I cannot rationalise or reconcile how Dr Ducic has legitimately certified the applicant incapacitated for work solely as a result of any psychological symptoms in her backdated medical certificate, in the absence of any contemporaneous complaint in the preceding 34 months. I refuse to dangle in speculation in reasons for doing so, such ultimately being an academic exercise and procedurally unfair given that she was not called to give evidence and nor was she asked by the applicant to explain her rationale or reasons. I have therefore discounted her assessments entirely finding they have no probative value;
(g) whilst on the issue of medical evidence, I have noted that none of the assessors have taken into account the applicant’s co-morbidities when coming to the conclusion that the employment was the main contributing factor. The medical records show the applicant has been diagnosed with bowel cancer and renal failure and was subject to screening, yet he has failed to disclose this significant diagnosis to any of the qualified medical practitioners. It may be that this condition did not impact on the assessment of any psychological condition, however the failure to record this accurately to those that assessed him have resulted in their views not being obtained in a fair climate. This is especially so as the applicant did not tell the qualified specialists that he did not seek treatment for his psychological symptoms until about 34 months after ceasing employment. I accept that the applicant may not have wished to have lodged a claim in the hope of returning to the workforce, but this would not have prevented the nomination of symptoms to his treating doctors, again reinforcing the applicant has not sustained ‘injury’ as defined by the Act;
(h) on the issue of fair climate, both Dr Ducic, Dr Kuljic and Dr Rastogi have failed to engage with the chronology and specifically the 34 month absence of complaints of any psychological symptoms after termination. I find it implausible that the applicant had such symptoms and failed to report them contemporaneously when he had at least 30 opportunities to do so, whilst consulting his doctor for other health matters. These assessments were bulk billed and it cannot be argued that the applicant was prevented from discussing these matters with his doctor because of financial constraints. I highlight this observation as I have noted the applicant claimed consultations with the psychologist and psychiatrist were financially prohibitive;
(i) further, the applicant in his statement seeks to impress that psychological symptoms have resulted in an inability to eat specifically “I have not been eating properly since the complaint”. This statement is entirely inconsistent with the medical records where the applicant approached his general practitioner in 2021 for dietary management and had successfully lost 10 kg through monitoring and careful diet; Specifically, the notes of the practice record in 2021 the applicant gained weight because he was “unable to work due to lockdown”. Again, the reason for incapacity appeared to be attributed to the COVID-19 lockdown and not workplace events and specifically the termination. Weight loss is not recorded as being a psychological sequelae as claimed but rather the result of concerted effort monitored by the general practitioner, and
(j) the claim for compensation aligns with the finalisation of the Supreme Court proceedings where I understand the applicant received some form of settlement. Given the lack of psychological complaint in the interim it is not unreasonable to postulate that the applicant felt that prosecution of a worker’s claim would likely be successful given the outcome in the Supreme Court.
[28] Mastronardi v State of New South Wales [2009] NSWCA 270.
Throughout the history of this matter, the applicant has submitted his actions have been misunderstood either due to a language barrier and/or cultural miscommunications, thereby suggesting that he has not been afforded procedural fairness in the overall assessment of his matter. This is a serious contention and one which I have considered carefully and cautiously as procedural fairness is the cornerstone of any discernment. I have carefully considered the evidence and find that the above documented inconsistencies cannot fall within the ambit of such contention. For example, the applicant’s belated evidence about his inability to eat on account of his psychological issues is entirely inconsistent with his medically documented desire to lose weight. Further, the applicant informed the doctor that his weight gain was due to ‘inability to work due to lockdown’ and not as a result of any ‘injury’ in the workplace. His evidence about incapacity is again entirely inconsistent with his actions in attempting to be reinstated. I find these inconsistences are not due to “communication difficulties”. Rather the inconsistencies arise due to the applicant’s self-serving statements. I note there were many occasions where the applicant was offered an interpreter (particularly with interactions with the employer) and declined the invitation.
Overall, for the reasons above, I find the applicant has not established, on the balance of probabilities and with a degree of actual persuasion and affirmative satisfaction (Nguyen) that he suffered an injury arising out of the course of his employment. This is because the medical evidence has not shown “the nervous system was so affected, that a physiological effect was induced” on the “injury” date pleaded. Furthermore, once an applicant establishes ‘injury’ he must prove that an incapacity for work resulted therefrom, and he has failed to do so and indeed cannot do so as he has no contemporaneous evidence to support this.
I also undertook a common sense evaluation. This involved global scrutiny of the chronology and review of the applicant’s medical case (which I found to be unconvincing and implausible). It also initially incorporated a benefit of the doubt given the alleged communication difficulties, however for the reasons above, that concession was subsequently withdrawn after careful consideration. I have found no grounds that would disrupt or displace the common sense evaluation. Further, objective and logical analysis of the chronology, medical evidence and assessment of the applicant’s conduct both in word and in deed reinforce the conclusions of Dr Verma that the symptoms represent an emotional response. I have preferred this opinion. This is because I find that the conclusions of Dr Verma were based in an assessment of the complete history rather than just being confined to belated representations of the applicant. This finding and assessment is also entirely consistent with Dr Ducic reports of “anger” and the overall the lack of complaint of mental health symptoms for a period of almost three years. As discussed above, emotional impulse, anxiety state, frustration and emotional upset, do not constitute psychological injury[29] (Stewart) as defined by the 1987 Act.
[29] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
As the applicant has not established “injury” discussion of the balance of the issues identified in paragraph 15 are unnecessary.
SUMMARY
For the reasons above, there is to be an award for the respondent.
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