Dhillon v Secretary, Department of Transport

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dhillon v Secretary, Department of Transport [2023] NSWPIC 32
APPLICANT:	Sukhleep Dhillon
RESPONDENT:	Secretary, Department of Transport
Member:	Jane Peacock
DATE OF DECISION:	25 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological Injury; injury undisputed; section 11A defence; the respondent bears the onus of proving its section 11A defence; evidence weighed in the balance; Held – not satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to discipline and/or provision of employment benefits; applicant not precluded from the recovery of compensation for her psychological injury by reason of the provisions of section 11A; award for the applicant.
determinations made:	1. The respondent pay the applicant weekly compensation based on an agreed pre-injury average weekly earnings of $2,061.70 per week as follows: (a) under s 36 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $1,958.62 per week from 10 August 2021 to 9 November 2021, and (b) under s 37 of the 1987 Act at the rate of $1,649.36 per week from 10 November 2021 to date and continuing in accordance with the provisions of the 1987 Act. 2. The respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, Ms Sukhleep Dhillon (Ms Dhillon/the applicant), seeks weekly compensation and compensation for medical expenses as a result of psychological injury alleged deemed to have occurred on 10 August 2021 in the course of or arising out of her employment as a Train Guard.
The respondent is the Secretary, Department of Transport (the Department). The respondent was insured at the relevant time for the purposes of workers compensation by Transport for NSW (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

There is no dispute that the Ms Dhillon suffers from a psychological injury.
The respondent relies on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because her psychological injury was wholly or predominantly caused by the reasonable action of the employer in respect of discipline, and/or the provision of employment benefits.
If the Department is successful in its s 11A defence, there will be an award in its favour.
In the event that Ms Dhillon is successful on the liability question, there is no dispute about pre-injury average weekly earnings (PIAWE) which is agreed at $2,061.70 per week and there is no dispute that the Ms Dhillon has had no current capacity for employment during all relevant period of the claim for weekly compensation and that an award for weekly compensation would be made in her favour as claimed under ss 36 (from 10 August 2021 to 9 November 2021) and 37 (from 10 November 2021 on an ongoing basis) of the 1987 Act.
In the event that Ms Dhillon is successful on the liability question it is agreed that a general order will be made in her favour for the payment of s 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For Ms Dhillon:
(a)    Application and attached documents, and
(b)    late documents filed with an Application to Admit Late Documents on 27 October 2022.
For the Department:
(c)    Reply and attached documents, and
(d)    late documents filed with an Application to Admit Late Documents on 18 October 2022.

Oral evidence

Ms Dhillon did not seek leave to adduce oral evidence and counsel for the Department did not seek leave to cross-examine Ms Dhillon. Counsel for Ms Dhillon did not make any application in respect of cross-examination of the witnesses who provided statements in the Department’s case.

FINDINGS AND REASONS

The applicant alleges that on a deemed date of injury of 10 August 2021 she suffered a psychological injury arising out of or in the course of her employment with the Department as a train guard. The description of injury “pleaded” in the Application is as follows:
“During the course of employment, the Applicant was subjected to, including but not limited to, bullying, victimisation, harassment, intimidation by management and members of the public in particular. The applicant felt unsupported, dismissed and ignored by management following the reporting of incident and grievances at work. The applicant was harassed and questioned by management in relation to taking sick leave following altercations with member of the public whereby the applicant was harassed and spat on by passengers. As a result of the workplace environment and work related stressors between May 2020 to 10 August 2021 (deemed date of injury), the applicant sustained a psychological injury.”
There is no dispute that the applicant suffered a psychological injury. The Department says that Ms Dhillon’s psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken or proposed to be taken in relation to discipline, and/or the provision of employment benefits.
The dispute concerns s 11A of the 1987 Act which provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the heads of discipline and/or the provision of employment benefits.
The respondent bears the onus of proof in relation to the s 11A defence.
This case must be decided, on the balance of probabilities, on the evidence and in accordance with the law.
The parties both referred to the case of Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad) in which Deputy President Snell said as follows:
“43. The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to ‘all of the incidents at work’ (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to ‘the claim as defined by the Application’, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
44.   The Acting President, in Shore at [42] and [52], said:
‘The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.’
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.
45. The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
46.     In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is ‘mainly or principally caused’. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as ‘the leading authority on causation in workers compensation claims’, applied – ‘causation is a question of fact to be determined on the evidence in each case’ (at [79]).
47.     The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his ‘commonsense evaluation of the sequence of events’: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were ‘within the realm of common knowledge and experience’: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
48.     There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
‘…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez(1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.’
49.   In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
‘The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.’
50.     The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
‘It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.’
51.     Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.”
Deputy President Snell dealt with the causation issue at stake in that case making it clear that the onus is on the respondent in respect of the s 11 A defence:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In that case, Deputy President Snell found that:
“The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its ‘reasonable action taken or proposed to be taken’ with respect to discipline.”
The respondent has conceded that Ms Dhillon suffered a psychological injury although they dispute the allegation of injury in the sense that they say the psychological injury was wholly or predominantly caused by the action of the respondent taken in relation to discipline or the provision of employment benefits to Ms Dhillon.
The Department bears the onus of proof on the issue of causation in the context of an s 11A defence.
Counsel for the Department submitted that I would find that Ms Dhillon’s psychological injury was predominantly caused by the reasonable action taken by the Department in relation to the discipline of and/or provision of employment benefits to Ms Dhillon.
The case must be decided on the evidence and in accordance with the law.
The applicant gave evidence in two statements dated 30 September 2021 and 6 July 2022 respectively.
In her first statement, which was taken by the investigator from Arrow Intelligence Group as part of the factual investigation commissioned by the Department, on 30 September 2021 and signed on 9 November 2021, Ms Dhillon gave evidence that she started work for the Department in July 2019. She works as a train guard.
Ms Dhillon gave evidence about two incidents that occurred where she was assaulted by a member of the public.
In the first instance on 2 May 2020 when she was working at Central Station she was spat on by a member of the public whilst performing her duties as a train guard. She felt intimidated and reported the incident straight away. The police were involved. She says she “relinquished” her duties. She saw her general practitioner (GP), Dr Malik, who certified her unfit until 8 May 2020. She says she felt unsupported by management. She said her shift manager was Mr Rabbie Nazal. She felt unsupported by him. She says he actively tried to dissuade her from lodging a workers compensation claim. She gave evidence that her shift manager did not forward her worker’s compensation certificate.
In the second instance on 18 July 2020, Ms Dhillon was again spat on by a member of the public while performing her guard duties. She reported the incident immediately. She had to take a COVID test as a consequence. She took 10 days off because of this incident. She saw her GP, Dr Malik, the next day on 19 July 2020 who certified her unfit as a result of stress with counselling and time off nominated as the treatment plan.
She returned to work on 3 August 2020. Her shift manager at this time was Mr Steven Lansdowne. She gave evidence that she felt unsupported by her manager Mr Steven Lansdowne whom she say “harassed” her. She gave evidence as follows:
“As a result of this. I was harassed by my shift manager Steve Lansdowne. He was constantly calling me asking when I was coming back to work. He asked why I was making a WC claim and didn’t provide me any support.
He told me there was no buddy-support available for me on return to work, although the policy clearly says that management is to provide buddy support on return to work after workers compensation leave. The manager also belittled and embarrassed me by asking me ‘why you get repeatedly assaulted at work? It never happens to me’. I feel distressed whenever I recall this statement of the manager, even now. I feel that if I got attacked again a criminal on the public transport and if I reported the assault then I will blamed again for getting assaulted again. Because of what the manager say after the incident, I feel that Sydney Trains management expects me to tolerate all the abuse and assault and not report it as workplace injuries.”
Ms Dhillon went onto give evidence that for six months she made complaints about the conduct of TSS claim managers and that she was underpaid her entitlements and that this was later rectified.
When she returned to work on 3 August 2020 her shift was swapped without her permission to a harder shift. She was not provided with a buddy which she says was a violation of the Department’s own policy when returning to work following a critical incident.

She made a complaint about the shift manager to a senior manager but was then told by the shift manager that he would be investigating the complaint about himself. She says “this was distressful for me” and she considered it unfair and a conflict of interest.
She gave evidence that:
“The shift manager even took sides with the booker on and other staff. I felt they were not providing me with any support coming back from a critical incident. The manager started to investigate me and trying to find faults in me so that he could close the complaint. I felt he closed the complaint without investigating any part of it.”
She says that she made numerous complaints over the next few months:
“Over the next few months, I made numerous complaints to senior management in relation to the complaints and the unpaid workers compensation leave that I was waiting for despite approval.”
Ms Dhillon gave evidence about another incident that occurred on 12 June 2021 around 10.00pm when working as a train guard on a train that had left Lakemba station. She had helped a wheelchair passenger board the train and she called ahead for assistance at the station where the passenger would alight. When the train arrived at the station a CSA started yelling at her as to why she couldn’t do the job herself. She pointed her fingers at Ms Dhillon and yelled at her. Ms Dhillon was offended and startled. She noticed the CSA was rude to the wheelchair bound passenger and this caused Ms Dhillon to feel “intimated” and to feel “anxious” about her “unreasonable behaviours”.
Ms Dhillon reported the conduct to the train crew liaison officer and the next day also reported it to her manager. She was told later that the “matter was closed”. She gave evidence about the effect this had on her as follows:
“I was feeling upset and anxious at work after this recent incident as the manager were not doing enough to prevent Sydney train staff intimidating another employee right in front of CCTV cameras. On this occasion I did not report it to the doctor or took any time off despite feeling very stressed because I did not want managers to belittle, embarrass and humiliate me for taking any time off due to workplace incident, like on previous occasions.”
Ms Dhillon went onto give evidence about what occurred on 22 July 2021 when she came to work with what she describes as “a bit of a sneeze and cold symptoms.” It is noted that this presentation was at a time when a pandemic had been declared and there were lockdowns in various local government areas across NSW.
Ms Dhillon gave evidence as follows:
“On 22 July 2021, came to wok and signed on at the CSO booker on office. I had a bit of sneeze and cold symptoms. Tim the shift manager was there also, and he took me into the meeting room next door and explained to me as part of the new policy that no one is allowed to work if they are showing symptoms, he then asked me to go home and not come back to the workplace until I am not showing any symptoms, I already have my COVID vaccinations and I told the manager that I had already given him proof of this earlier. I complained that it was just a sneeze and I am able to work, but he told me to go home.
I told him the doctor doesn’t consider me unfit for work just for these symptoms, and I also told manager that I can do another COVID test and show him the negative results if he would accept that, but the manager insisted that whatever may the case , whatever the doctor say and whatever the covid results may be, but that he just won’t allow me to come to workplace until manager says that I am absolutely 100% symptoms free because of the new management policy. The manager even pointed to a piece of paper pasted on a wall while saying that’s the new manager’s policy. So I was asked to stay away from workplace because of manager’ s order as per this new policy and not because I was unfit for work and I clearly wasn’t taking any sick leave, I had gone to work and I wanted to work.
I wrote everything to the manager asked him if he would still order me to stay away from workplace or he would allow me to go to work, and then I questioned the manager in writing if they are going to pay me because of his decision to instruct me to stay home even when doctor doesn’t consider me unfit. After this the manager finally decided to let me return to work even though I stated in writing that I had exactly the same symptoms as before and no change in medical conditions. This was an evidently false statement of the manager because the copies of the emails are exchanged are available and provided. I wonder if the policy was to disallow worker at workplace until they are 100% symptoms free as stated by the manager, then how come he now suddenly changed his mind and allowed me to come to work when I asked for payment of loss of earnings which was due to a manager’s direction and not due to doctor’s opinion. I think it was about 5 days absence from work due to manager’s order for me to not go to work, I went to work immediately after manager changed his mind.
My manager stated to get upset with me because I didn’t provide any medical certificate for my time off. This was inappropriate and unreasonable of the manager because I was not allowed to go to work due to shift manager’s order and him citing a new policy to disallow me to go to work at manager’s direction , even if doctor doesn’t think I am unfit, the absence was not result of me taking any sick leave, so there is no way I can provide certificate as demand of shift manager when it was his own direction to disallow me at workplace, I also noted that the price of paper that the manager had cited to me on 22 July 2021 as a new policy had been removed from the wall and a check on company’s intranet revealed no such new policy unlike as claimed by the manager previously on 22 July 2021.”
Ms Dhillon gave evidence that on her return to work on 29 July 2021 she was “harassed” by her manager Mr Tim Bayliss who told her that she had taken more than two days sick leave without a medical certificate and that unless she provided a certificate formal action would be taken against her. She argued she had not taken sick leave but was directed by her manager not to attend work and therefore she should be paid. She then complained to a senior manager Mr Ryan Elliot who told her she was required to provide a certificate. She gave evidence:
“He was as bullying me to obtain a medical certificate for the leave he made me take. And threatening to take formal action for not following the correct procedure. I was feeling stressed from the harassment.”
She went onto give evidence as follows:
“I worked 2 more days being 1 and 2 August 2021, then I took sick leave due to stress and anxiety from the harassment. I saw Dr Ambreena Fatima at the Ingleburn Village Medical Centre who provided a medical certificate for 2 days between rostered days off. I also made a written complaint to the director of Sydney Trains Mr Hayden Donohue highlighting the ill treatment at work, I clearly complained that the latest issue was the manager bullying me to somehow get a doctors to write a fake sick note to cover the absence that was actually the result of a manager ordering me not to return to the workplace at the manager’s direction and not based on doctors opinion.”
In evidence is Ms Dhillon’s email to Mr Donohue detailing her complaint.
Ms Dhillon’s last day of work was 10 August 2021 about which she gives the following evidence:
“On Friday 10 August 2021, I returned to work and signed on at te booker on office and was attested okay to start my shift. I filled out an application for leave and attached my medical certificate foe the last 2 days taken off. I started my guard shift, it was a Friday afternoon shift and I was feeling stressed an anxious at the time thinking that I was going to be further harassed by my manager about the pervious time off due to manager’s order. Manager spoke to me on this day and though he spoke to in a clam voice during the times he spoke to me, however, he maintained that they will take disciplinary action against me if I don’t provide medical certificate for the absence, even if I have already made complaint to the senior management.”
She gave evidence that she experienced panic attacks:
“I can’t recall much of the day, but whilst I was working I was starting to get panic attacks and anxiety and it was about Liverpool station that I couldn’t continue to work anymore . I got off the train and spoke to TCO manager there and relinquished duties. I think another guard took over my duty,
I changed platforms and took another train back to Leppington station and then bus to Leppington stabling yard. My brother drove me from Leppington stabling yard to home, because I had called him to pick me up because I felt I couldn’t drive safely because of stress. I stated to get numerous calls from my manager and I told him I don’t want to talk about it. I spoke to my family about this, I was very anxious and threatened with disciplinary action, without a formal letter or any support.
I got home and tried to calm down and tried to rest for the remainder of that afternoon.”
Ms Dhillon called the GP, Dr Lim, the next day and secured a telehealth appointment for 12 August 2021 and Dr Lim certified her unfit.
Dr Lim referred her for treatment from a psychologist and psychiatrist. She gave evidence she has received regular treatment from a psychological. She had an initial consultation with a psychiatrist on 22 October 2021 Dr whose report is in evidence in these proceedings.
Ms Dhillon gave evidence that she gets flashbacks and has anxiety as follows:
“I still get flashbacks of the assault incidents that happened at work in last one year or so and then the managers harassing me for reporting the incidents and the workers compensation claims manager hassling me for months for payment despite approval, etc. Although I try to forget these workplace incidents, I feel sad when I recall manager’s statements to me like ‘how come you get repeated assaults at work/’, ‘why you report it, top managers don’t like workers taking time off’ etc. I also feeling upset that the senior managers are taking side with my current shift manager who threatened me of action against me after him wrongly accusing me of breaching sick leave policy for the period I never took any sick leave when I was actually ordered by the manager to go home and not work.”
Dr Lim is the GP who treated Ms Dhillon on 12 August 2021. Dr Lim has provided two reports dated 31 August 2021 and 14 September 2021.
In Dr Lim’s report dated 31 August 2021 he confirms that Ms Dhillon presented on 12 August 2021 and he records a “history of injury” broadly consistent with the applicant’s statement evidence as follows:
”Psychological injury from the workplace. She reported being harassed by management at work.
She was abused by members of the public on the train station in May and July 2020. She reported that she was spat on by members of the public. She reported the incidents to the police. She lodged a WC claim for this incident but her claim lasted for 5 days.
She took 10 days leave and during that time was harassed by her manager, asking when she would return, She felt unsupported by management.
On 22/07/2021, she was sent home by her manager as she was sneezing and coughing. She went to see her GP and had a covid test. She waited 5 days for her results before she returned back to work. Upon her return she was harassed by her manager that she had taken too much sick leave and reported that he would take action as she did not follow procedure for sick leave.
On 10/08/2021 she was worried that she would be harassed by her manager about sick leave. She was unable to continue working that day due to anxiety. She has not returned to work since. She was threatened with disciplinary action, without a formal meeting or support.
She had disturbed sleep due to anxiety, She does not like socializing when she feels anxious. She reports that she is unable to spend quality time with her son.”
Dr Lim recorded the symptomatology as follows:
“panic attacks, anxious, stressed, trouble sleeping, emotional, fatigued, forgetful, poor memory.”
Dr Lim diagnosed Ms Dhillon as suffering from an Adjustment Disorder, and stated his opinion on causation as follows:
“The predominant cause of the psychological condition started last year. It was contributed to by the repeated bullying and harassment from the manager. In particular, the threats of disciplinary action in the absence of a formal supportive environment. Work was the main contributing factor for their injury.”
Dr Lim’s management plan was to stabilise the applicant’s psychological condition and her referred her to a psychologist and a psychiatrist. He certified her unfit for work.
Dr Lim’s, the treating GP, opinion on causation does not support a finding that the whole or predominant cause of the applicant’s psychological injury was the reasonable action taken by the employer in relation to discipline and/or provision of employment benefits in respect of the COVID/sick leave incident in July 2021. In fact Dr Lim’s opinion is that the predominant cause of Ms Dhillon’s psychological injury started in 2020 with the first assault and management’s response.
Dr Lim referred Ms Dhillon to psychologist Mr Carl Neissen who first saw Ms Dhillon by telehealth on 12 September 2021 and reported back to the GP Dr Lim on the same date.
Mr Neissen recorded a history broadly consistent with Ms Dhillon’s statement of evidence.
Under the heading “Psychological Injury Dates, Timelines of Stressors” Dr Neissen reports as follows:
“Ms Dhillon explained that she commenced working with Sydney Trains in October 2019 as Train Guard. She reflected that approximately April 20220 and after having completed her training and when COVID-19 began, she was spat upon by a passenger around Central Station. Ms Dhillon explained that she reported the incident to management and took 5 days off. Ms Dhillon noted that her manager complained to her that she took too much time off work and that she shouldn’t be taking that much time off. Ms Dhillon explained that she was then transferred to Leppington under a new manager and closer to home. Within 6 weeks from the first spitting incident, Ms Dhillon explained that she was spat on again, Subsequent to the 2^nd incident, Ms Dhillon explained that management began to ask her questions about why she was being past on implying that it was her fault for being spat on. Ms Dhillon took 10 day off as Workers Compensation and her manager called her everyday telling her ‘she should be back at work’. Ms Dhillon reported fearing for her safety after the second incident. she reflected that she took 5 days of critical incident leave and her manager delayed the approval of it and she was required to use ger sick leave. Her manager did not approve critical incident leave and also rejected the workers compensation claim despite witnesses and CCTV footage of the incidents. Ms Dhillon required 7 months to be under critical incident leave and workers compensation leave leaving Ms Dhillon feeling unsupported and insecure and unsafe at her place of work.
Ms Dhillon noted that approximately late May 2020 she retubed to work and was supposed to be provided with a ‘buddy’ as support as she had been involved in a critical incident however she was not provided with one, She reflected that when she returned to work she was also rostered as standby and won her second ay was also on standby told by the rostering team that she was required to work on the second day and it was swapped without her permission and was subsequently harassed by her manager for making the complaint. Ms Dhillon also noted making a written complaint and rather than investigating Ms Dhillon’s complaint, the company began investigating Ms Dhillon leaving Ms Dhillon experiencing feeling unsupported and targeted.
Ms Dhillon reported that on 22 July 2021 she was sent home by her manager for coughing and sneezing. Results of the tests were not received for 5 days and was harassed by her manager for taking too much time off work, On 10 August 2021 Ms Dhillon reported that she began to experience anticipatory anxiety and panic attacks about being harassed by her manager. She did not return to work since then.”
Under the heading “Dates, Onset of Psych issues” Mr Neissen reports as follows:
“Ms Dhillon noted a deterioration in her mental state characterised by panic attacks when coming into contact with her manager, anxious and depressive cognitions as well as trembling and anxious distress regarding performing work duties and being abused or harassed by patrons or her manager. She noted avoidance of her manager, sleep disturbance, and rumination about returning to work and fearing for her safety. Ms Dhillon noted hypervigilance in relation to repeated memories of the incident pertaining to workplace incidents, she noted experiencing anergia and anhedonia and that the only way for her to relax was by falling asleep.”
Mr Neissen diagnosed a “Major Depressive Disorder with anxious distress” and considered her unfit for work. He noted the issues affecting return to work (RTW) as follows:
“Ms Dhillon has lost trust in her working environment, she feels unsafe, harassed and unsupported by management, Ms Dhillon has cognitive defects characterised by impaired memory and concentration. Ms Dhillon experience amotivation and anergia due to sleep disturbance from anxious distress”.
MS Dhillon saw Mr Neissen on referral from her GP. She saw him on 12 September 2021 about one month after stopping work on 10 August 2021. His diagnosis of a work related psychological injury does not assist the respondent in its case that the whole or predominant cause of the applicant’s psychological injury was a result of the reasonable action in relation to employment benefits or discipline. Mr Neissen takes a history of workplace issues affecting Ms Dhillon’s psychological state that go beyond the action taken by the employer in respect of her presentation with coughing and sneezing symptoms. Mr Neissen’s opinion gives no more weight to that issue than any of the other issues that Ms Dhillon reported to him as affecting her psychological state and cannot assist the respondent in establishing a case that the whole or predominant cause of her injury was action taken with respect to discipline or the provision of employment benefits in respect of the Covid/sick leave incident.
Dr Lim referred Ms Dhillon to psychiatrist Dr Kumagaya. Dr Kumagaya saw Ms Dhillon and provided a report dated 22 October 2021. He recorded a history broadly consistent with the evidence given in Ms Dhillon’s statement. He conducted a mental state examination. He diagnosed an adjustment disorder with mixed anxiety and depressed mood. He considered her unfit for work.
In a report dated 4 January 2022 to Ms Dhillon’s lawyers he answered a series of questions.
He reports a history taken that is broadly consistent with Ms Dhillon’s statement of evidence.
He is asked ”your opinion on whether any incapacity is the result of the injuries at work and your assessment as to whether or not our clients employment was a substantial contributing factor to the injuries” and he answered as follows:
“Ms Dhillon’s incapacity is the result of injuries sustained at work. Ms Dhillon’s employment was the sole contributing factor to the injuries”.
He was asked:
“Taking into consideration the section 78 notice dated 1 November 2021 and the factual investigation report conducted by Arrow Intelligence group (attached) are you of the medical opinion our client has sustained a psychological injury during the course of employment with respondent? If so or not, please provide your reasoning.”
He answered:
“Taking into consideration the section 78 notice and the factual investigation report conducted by arrow intelligence group, I am of the medical opinion that Ms Dhillon sustained a psychological injury during the course of her employment with Sydney trains, Ms Dhillon described how she was subjected to two instances of assault during the course of her employment in addition to repeated instances of unsupportive and unfair treatment by her employer. It was in the context of such workplace incidents and circumstances, that she developed emergent depressive and anxious symptoms.”

He was asked:
“The insurer has alleged that our client’s injury arose wholly or predominantly as a result of the actions taken or proposed to have been taken by the employer in respect of discipline and the provision of employment benefits after ‘you were directed to leave the workplace when you presented to work with cold symptoms in the context of the present COVID19 pandemic’.
Taking into consideration your examination of our client and our client’s statement (attached) are you of the medical opinion our client’s psychological injury arose wholly or predominantly as a result of reasonable or unreasonable action taken or proposed to be taken by the employer against our client. Please provide your reasoning.”
Dr Kumagaya answered:
“No, I am not of the medical opinion that Ms Dhillon’s psychological injury arose wholly or predominantly as a result of actions taken or proposed to be taken by the employer in respect of disciple and or provision of employment benefits to Ms Dhillon.
Ms Dhillon clearly described being subject to two distinct episodes of assault from the public during the course of her employment with Sydney trains. In addition to this, she described how she was unsupported by her employer subsequent to such incidents, including being criticised that she was taking too much time off work, not being provided a ‘buddy’ upon return to work and being pressured to return to work whilst on leave. In relation to the covid testing, Ms Dhillon described how she was directed to return home owing to symptoms of coughing and sneezing although she later described being criticized for taking too much time off work. It was the context of suck workplace incidents and circumstances that Ms Dhillon sustained her psychological injury”.
Dr Kumagaya is the treating psychiatrist who saw Ms Dhillon proximate to her leaving work. His opinion does not support the Department’s s 11A defence that the injury was wholly or predominantly the result of actions taken or proposed with respect to discipline or employment benefits as a result of the covid sick leave incident. Rather, the treating psychiatrist attributes causation to all of the workplace incidents and not just the events following 22 July 2021 when she was directed to return home because of coughing and sneezing.
Dr Khan, consultant psychiatrist is the independent medical expert (IME) qualified on behalf of Ms Dhillon.
Dr Khan assessed Ms Dhillon by way of video conferencing on 11 March 2022 and provided a report dated to Ms Dhillon’s lawyers dated 13 March 2022.
Dr Khan records a history broadly consistent with the evidence given by Ms Dhillon in her statements of evidence.
Dr Khan conducted a mental state examination.
Dr Khan diagnosed a “Major Depressive Disorder with anxious distress which is in accordance with DSM-5 diagnostic criteria”.
Dr Khan is asked to respond to a series of specific questions.
Dr Khan considers Ms Dhillon totally incapacitated and that she requires ongoing treatment as a result of her work related psychological injury:
“The aforementioned incapacity to work is the result of Ms Dhillon’s work related psychological injury which she sustained during her employment as a train guard with Sydney Trains, Ms Dhillon’s employment was a substantial contributing factor to her psychological injury.”
Dr Khan is asked:
“Taking into consideration the section 78 notice dated 1 November 2021 and the factual investigation report conducted by Arrow Intelligence Group (attached)n are you of the medical opinion our client sustained a psychological injury during the course of her employment with the respondent? If so or if not, please provide your reasoning.”
Dr Khan then quotes from the s 78 notice and says:
“I do not agree with the section 78 notice which relies on the Arrow Intelligence Group Factual Investigation report dated 13 October 2021 when coming to this conclusion. Interestingly the section 78 notice also indicated that there was ‘presently no medical evidence from a psychiatrist confirm diagnosis of a psychiatric or psychological disorder’ which is not true. Ms Dhillon attended an initial psychiatric consultation on 22 October 2021 which predated the section 78 notice which was dated 1 November 2021.”
Dr Khan then quotes from the history taken by Dr Kumagaya at his initial consultation on 22 October 2021 and then goes onto quote from the history documented by Dr Lim, treating GP, in a reported dated 31 August 2021. The histories taken by the treating doctors in 2021 accord with the history taken by Dr Khan.
Dr Khan then goes onto opine in answer to the question asked of him above:
“I am of the medical opinion that Ms Dhillon has sustained a psychological injury during the course of her employment with the respondent. Ms Dhillon was subjected to critical incidents during her employment. Her manager repeatedly failed to provide her support following these incidents and repeatedly ignored and dismissed her concerns, Ms Dhillon continued to be targeted, isolated and ostracised, which culminated in an allegation that she had breached the company’s sick leave policy. Her metal state hated to deteriorate from May 2022 due to the critical incidents at work and the unreasonable actions of her employer further perpetuated her mental health difficulties. Ms Dhillon required brief periods of time off work between July 2020 and August 2021 due to her deteriorating mental state. She has been totally incapacitated for work since August 2021 following the unreasonable actions of her employer who confronted her about breaching her company’s sick leave policy when she maintained that she was off work at the request of her manager. This incident was merely the final issue that triggered her incapacity to work but Ms Dhillon’s mental state had already been declining for some time prior to this incident.”
I note Dr Khan notes that the covid sick leave incident is “merely” the final issue that triggered incapacity but the decline in mental state had begun some time prior to this incident. Incapacity results from injury but is not the same as injury.
Dr Khan is asked:
“The insurer has alleged that our clients injury arose wholly or predominantly as a result of actions taken or proposed to ne taken by the employer in respect of discipline and the provision of employment benefits after ‘you were directed to leave the workplace when you presented to work with cold symptoms in the context of the present COVID 19 pandemic’.
Taking into consideration your examination of our client and our client’s statement (attached) are you of the medical opinion our client’s psychological injury arose wholly or predominantly as a result of the reasonable or unreasonable actions take or proposed to be taken by the employer against our client. Please provide your reasoning.”
Dr Khan answered as follows:
“Taking into consideration my examination of Ms Dhillon on 11 Match 2022 and her statement dated 9 November 2021, I am of the medical opinion that Ms Dhillon’s psychological injury arose wholly or predominantly as a result of the unreasonable actions taken or proposed to be taken by the employer against Ms Dhillon.
As described earlier, Ms Dhillon was subjected to critical incidents during her employment. Her manager repeatedly failed to provide her support following these incidents and repeatedly ignored and dismissed her concerns. Ms Dhillon continued to be targeted, isolated and ostracised ,which culminated in an allegation that she had breached the company’s sick leave policy. He mental state had started to deteriorate from May 2020 due to the critical incidents at work and the unreasonable actions of her employer further perpetuated her mental health difficulties. Ms Dhillon required brief periods of time off work between July 2020 and August 2021 due to her deteriorating mental state. She has been totally incapacitated to work since August 2021 following the unreasonable actions of the employer who confronted her about breaching the company sick leave policy when she maintained that she was off work at the request of her manager. This issue was merely the final; issue that triggered her incapacity to work but Ms Dhillon’s mental state had already been declining for some time prior to this incident.”
Dr Khan is asked “Are you of the medical opinion our client’s incapacity arises as a consequence of her alleged psychological injury with the respondent? If so or if not please provide your reasoning.”
Dr Khan answered as follows:
“Yes – I am of the medical opinion that Ms Dillons incapacity to work has arisen as a consequence of her alleged psychological injury with the respondent.
As described earlier, Ms Dhillon was subjected to crical incidents during her employment. Her manager repeatedly failed to provide her support following these incidents and repeatedly ignored and dismissed her concerns. Ms Dhillon continued to be targeted, isolated and ostracised which culminated in an allegation that she had breached her company’s sick leave policy. Her mental state had started to deteriorate from May 2020 due to the critical incidents at work and the actions of her employer further perpetuated her mental health difficulties. Ms Dhillon required brief periods of time off work between July 2020 and August 2021 and has been totally incapacitated to work since August 2021 due to the subject work related psychological injury.”
It is clear that Dr Khan having taken a comprehensive history that accords with the evidence given by Ms Dhillon, having had regard to the opinions of treating GP Dr Lim and treating psychiatrist Dr Kumagaya whom he notes have taken similar histories from Ms Dhillon and conducted his own mental state examination and having taken into account the investigation report and the issues raised in the dispute notice, is of the view that the covid/sick leave is the “final” incident that “merely” “triggers” the incapacity but the psychological injury results form the various incidents that have occurred in the employment and about which Dr Khan has taken a detailed history.
The respondent relies on Dr Khan’s report as the medical opinion to assert that the predominant cause of the psychological injury is the covid/sick leave incident but when read as a whole, it is clear that Dr Khan is not of that view. He is specifically asked to give an opinion in response to matters contained in the s 78 notice including the crux of the dispute under s 11A and he states and restated his opinion that the psychological injury results from a culmination of the various incidents that took place since May 2020 and that the decline in Ms Dhillon’s mental state had begun some time prior to the covid sick leave incident.
The department did not seek to rely on any independent medical expert qualified on their behalf despite having had Ms Dhillon examined at their request.
The respondent bears the onus of establishing a defence under s 11A.
Counsel for the applicant said there were 16 distinct stressors able to be identified on the statement evidence from the applicant and the medical evidence in support that have contributed to her injury. I don’t make a finding that there were 16 distinct stressors but it is clear on the applicant’s statement evidence and consistent with the histories provided to the treating GP Dr Lim, the treating psychologist Mr Neissen, the treating psychiatrist Dr Kumagaya and the IME qualified on behalf of the applicant Dr Khan, that the incidents affecting Ms Dhillon’s mental state extended beyond the covid sick leave incident and all those doctors are of the view that the psychological injury results from a culmination of the events described to them and that it does not wholly or predominantly result from action of the employer taken or proposed to be taken in respect of discipline and or the provision of employment benefits as a result of the covid sick leave incident.
Counsel for the applicant highlighted the following passage from Hamad:
“Where a number of potential causative factors of the work injury exist…the employer must provide medical proof that its relevant actions (under s11A) were the whole or predominant cause of the injury.”
Counsel for the applicant submitted as follows:
“The respondent has not tendered any medical evidence as to the cause of the applicant’s psychological injury. It has therefore provided no medical proof as to the whole or predominant cause of the applicant’s injury.
There are, as noted above, 16 distinct stressors which have contributed to the onset of the applicant’s psychological injury. the respondent has no medical basis to differentiate between the respective contribution made by each of those incidents to the applicant’s condition.
It follows that the respondent has failed to discharge its onus of proof in relation to the medical question regarding whether the applicant injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline/provision of benefits.”
Counsel for the respondent cited the same passage from Hamad as the applicant’s counsel.
Counsel for the respondent went into submit:
“The respondent submits that the whole or predominant cause in this case must be determined on all of the evidence and the entirety of the conduct disclosed. The initial reports of Dr Lim stated that the worker ‘began to feel stressed and anxious’ following episodes in 2021 that the worker perceived as harassment from management relating to matters including taking excessive sick leave. he opined that the main contributing factor to her condition was her perception of those particular events.
Evidence of the ‘cause of injury’ included the opinion of the independent medical examiner (IME) Dr Abdul Khan, a psychiatrist commissioned by the worker solicitors. Dr Khan’s evidence was the only other evidence purporting to deal with the question of ‘whole or predominant cause’ of the workers injury. Dr Khan answered in his report leading questions put to him by the workers solicitor”.
Counsel for the respondent submitted that Dr Khan’s opinion:
“is the only medico-legal opinion which being offered here which is that the ‘psychological injury’ was sustained during the course of her employment. He goes on to say that deterioration of the workers mental state from May 2020 was due to critical incidents at work and that the unreasonable actions of her employer further perpetuated “a mental condition which he characterised merely as her ‘difficulties’”.
The respondent’s counsel contends that Dr Khan’s report should be interpreted to support a finding that the predominant cause of the worker’s injury is the “final issues” or the covid sick leave incident referred to, which Dr Khan described as having been precipitated or to use the doctor’s language “triggered” by events that occurred in 2021. In fact what Dr Khan says is that incident triggered her incapacity. He does not say it was the whole or predominant cause of her psychological injury..
However, when I have regard to the totality of the evidence and I weigh the opinions of the treating GP Dr Lim, the treating psychologist Mr Neissen, the treating psychiatrist Dr Kumagaya and the independent medical opinion of Dr Khan in the balance with the other evidence, I am unable to be satisfied on the balance of probabilities that Ms Dhillon’s psychological injury was wholly or predominantly the result of reasonable action taken or proposed to be taken by the Department in respect of discipline and/or the provision of employment benefits in respect of the Covid/sick leave incident.
This means that the first limb of the defence under s 11A fails.
This means Ms Dhillon is not precluded from the recovery of compensation for her psychological injury.
As there is no dispute about PIAWE which is agreed at $2,061.70 per week and that Ms Dhillon has had no current capacity for employment for all periods of the claim the orders will be for weekly compensation as claimed as follows:
(a) the respondent pay the applicant weekly compensation based on an agreed PIAWE of $2,061.70 per week as follows:
(i)under s 36 of the 1987 Act at the rate of $1,958.62 per week from 10 August 2021 to 9 November 2021, and
(ii)under s 37 of the 1987 Act at the rate of $1,649.36 per week from 10 November 2021 to date and continuing in accordance with the provisions of the 1987 Act.
It was agreed that a general order for the payment of medical expenses would follow the liability finding and accordingly there will be a further order that the respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts.

[2023] NSWPIC 32

25 January 2023