Esteves v Employers Mutual Management Pty Ltd
[2021] NSWPIC 278
•6 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Esteves v Employers Mutual Management Pty Ltd [2021] NSWPIC 278 |
| APPLICANT: | John Esteves |
| RESPONDENT: | Employers Mutual Management Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 6 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; claim for weekly compensation; causation; whether applicant suffered a workplace psychological injury, or whether his condition was caused by a pre-existing condition; capacity; the extent of the applicant’s incapacity for employment; Held- the applicant suffered a workplace injury, and had recovered from his previous psychological condition before commencing employment with the respondent; Kooragang Cement Pty Ltd v Bates, Attorney General’s Department v K and State Transit Authority of NSW v Chemler referred to; section 11A; whether the applicant’s injury was caused by the respondent’s reasonable actions with respect to performance appraisal and// or discipline; held that the applicant’s injury was not so caused, and predated the actions taken by the respondent upon which it relies to base its defence; Smith v Roads and Traffic Authority of NSW discussed; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 24 April 2020. 2. The injury referred to (1) above was not caused by the reasonable actions of the respondent with regards to performance appraisal and/or discipline. 3. At the date of injury, the applicant’s preinjury average weekly earnings were $1,347 per week. 4. As a result of the injury referred to in (1) above, the applicant has and continues to be totally incapacitated for employment. 5. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $1,077.65 per week, from 19 August 2020 to date and continuing. |
STATEMENT OF REASONS
BACKGROUND
John Esteves (the applicant) was employed as a case manager specialist for Employers Mutual Management Pty Ltd (the respondent) on 4 March 2019. Prior to that employment, the applicant had been out of the workforce for a number of years after leaving different employment as a result of suffering major depression.
The applicant alleges that as and from mid-2019, he began exhibiting symptoms consistent with a work-related psychological injury caused by both his workload and interpersonal relationship difficulties in the office. He alleges he was harassed and subjected to bullying.
The applicant last worked on 24 April 2020, and at the hearing was granted leave without objection to amend the Application to Resolve a Dispute (the Application) to claim this as the deemed date of injury. He was paid voluntary weekly compensation until 18 August 2020, at which time further liability was declined by the respondent.
In its dispute notices dated 6 July 2020 and 27 August 2020, the respondent alleged the applicant’s employment was not the main contributing factor to his psychological condition, and that if it was, the injury was in any event wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, discipline and/or dismissal.
The applicant brings these proceedings seeking payment of weekly compensation from 19 August 2020 to date pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act).
ISSUES FOR DETERMINATION
Matters previously notified as in issue
The parties agree that the following issues remain for determination:
(a) whether the applicant’s employment with the respondent was the main contributing factor to his injury;
(b) if the answer to (a) above is in the affirmative, whether the injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal, discipline and/or dismissal, and
(c) in the event the injury was not caused by the respondent’s reasonable actions relied on, the extent of any incapacity suffered by the applicant as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 12 March 2021. The matter was then part heard to 20 April 2021, however, on that occasion the applicant was hospitalised with an unrelated medical condition. The matter was then further listed for hearing on 23 June 2021, at which time the parties concluded their submissions.
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.
At the hearing, the applicant was represented by Mr S Hickey of counsel instructed by Ms B Chieffe, solicitor. The respondent was represented by Mr P Perry of counsel instructed by Ms S Bentley.
EVIDENCE
Documentary evidence
The following documents were in evidence and taken into consideration by the Commission in reaching its determination:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) applicant’s Application to Admit Late Documents (AALD) dated 17 February 2021.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The cause of the applicant’s psychological condition
The applicant alleges he has suffered a psychological injury by way of a disease process pursuant to section 4(b) of the 1987 Act. He carries the onus of proving on the balance of probabilities that his employment was the main contributing factor to that condition.
There is no question the applicant has previously suffered from psychological issues. The general practitioner’s clinical records from as far back as February 2015 reveal the applicant requested referral to a psychiatrist for work-related stress whilst employed with a previous employer. At that time, the applicant was diagnosed with major depression.
For the applicant, Mr Hickey submitted the clinical records demonstrate the applicant had recovered from the previous condition, by reference to the fact he had ceased being prescribed the antidepressant Zoloft in May 2018, some 10 months before he commenced employment with the respondent.
That submission is supported by the opinion of Dr Lim, treating psychiatrist, in his report dated 25 May 2020 [Application (A) 103] Dr Lim was aware of the applicant’s prior psychological condition. Keeping in mind the pre-existing problems, Dr Lim noted the applicant had recovered from them and said:
“The work load, the lack of support, and the harassing and bullying behaviours of his managers and team leaders have caused distress in Mr Esteves and overloaded his coping capabilities thus causing his psychiatric condition…
Mr Esteves had been healthy and free of psychiatric illness when he started his employment with EML. The history as obtained from Mr Esteves confirm that he became ill in the course of his employment with EML and that it was the work-related conditions of that employment which were the cause of his psychiatric illness. Therefore his employment has been the main contributing factor to the development of his psychological condition.”
Dr Lim’s opinion is in turn supported by Dr Bartos, the applicant’s general practitioner who noted at [A95] the applicant had recovered from his 2015 depression before he commenced work with the respondent.
The applicant’s case is the work-related psychological injury was sustained as early as June 2019, when he exhibited symptoms of work-related stress owing to increasing workload and other work-related factors.
Mr Hickey also relied upon the statement of Matthew Higgs, a co-worker of the applicant who set out evidence in relation to the culture within the respondent’s workplace. He submitted that evidence is broadly consistent with the complaints made by the applicant regarding the environment at work.
The applicant also relied upon the history given to the respondent’s Independent Medical Examiner (IME) Dr Scott Clark, whose report recorded the applicant stating he was abused by workers compensation clients from the time he started in March 2019, and that his workload effectively doubled from September 2019, at which time Dr Bartos prescribed him with antidepressants. Dr Scott Clark’s view was the applicant’s condition was caused by his pre-existing problems.
Mr Hickey submitted that opinion should not be preferred to the views of the treating psychiatrist and general practitioner, each of whom were of the view the applicant had overcome the 2015 condition before starting employment with the respondent. He submitted the evidence discloses the applicant seeking general practitioner treatment for depression from June 2019 and that condition worsening by September 2019. Mr Hickey submitted the condition was plainly work-related and, on the respondent’s own case, cannot be said to have been caused by the matters relied upon by it in support of any defence pursuant to section 11A of the 1987 Act.
The applicant submitted his evidence regarding the problems which he encountered with his temporary manager is corroborated by both Mr Higgs [A31] and in the form of contemporaneous records including an email from the applicant to a manager Ms Thompson on 6 January 2020 [Reply (R) 307] in which he complained of harassment by the temporary manager for which he had requested assistance from a co-worker. That issue with the temporary manager was serious enough for a meeting to take place between the applicant, Ms Thompson and the applicant’s manager Tahenie, to discuss what formal procedure the applicant wished to take regarding his grievance [R301-302]. Although the applicant ultimately decided not to proceed with a formal complaint against the temporary manager, it is apparent the matter had affected him, as Ms Thompson noted in her email to the applicant on 7 January 2020 in which she stated she was “sorry to hear you have not been coping well.”
Mr Hickey noted the applicant’s issues with his temporary manager coincided with the GP visit on 9 January 2020 at which the applicant was again prescribed Zoloft. He noted that entry was approximately one week before the applicant’s midyear review on 17 January 2020, at which time he was placed on a Performance Improvement Plan (PIP).
A contemporaneous report from treating psychiatrist Dr Lim reveals that on 30 January 2020, the applicant attended and said he had felt anxious and depressed since September 2019 and had been under “severe workload pressure.” Whilst that entry postdates the PIP, the clinical history in my opinion supports the applicant’s contention that his symptoms had arisen before issues of performance appraisal and discipline were raised by the respondent. The presentation to Dr Bartos in early January 2020 also coincided with the applicant dealing with his grievance surrounding the conduct of his acting manager, and had nothing to do with anything relating to either performance appraisal or discipline.
I also note that by 18 February 2020, the applicant’s manager, Tahenie, had written to him advising the PIP would not be continued, owing to the applicant’s consistently improved performance.
Mr Hickey submitted that if the Commission accepted the applicant had work-related psychological issues as early as 2019, the fact the 2020 matters concerning performance appraisal or discipline contributed to the condition means only they were material events on top of the original insult to the applicant’s mind which took place in 2019. In those circumstances, Mr Hickey submitted the causes of the injury are multifactorial and the defence pursuant to section 11A would fail.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General v K) Roche DP, in considering the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work, provided the following useful summary of the relevant authorities on this issue:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.” (at [52])
In relation to a worker’s perception of events, Basten JA noted in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (18 September 2007) (Chemler):
“67 The Appellant’s contention that a misperception, or indeed a perception, cannot give rise to an injury ‘arising out of or in the course of employment’, must be a contention that the accepted psychological state of the Respondent did not arise out of or in the course of that employment. For there to be the relevant connection with the employment, it was argued that the events perceived must be ‘real’ and not ‘imagined’.
68 No doubt a psychological state can be based upon a delusion, but the question remains one of causation. The point was succinctly identified and addressed by Windeyer J in Federal Broom Company Pty Ltd v Semlitch(1964) 110 CLR 626 at 642:
‘Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it.’
69 There must be an aspect of the employment which constitutes ‘a substantial contributing factor to the injury’ for compensation to be payable: see s 9A(1) of the 1987 Act. To focus on the concept of ‘perception’ may obscure the real issue. Although the arbitrator said that he accepted the statements from witnesses who denied that they had heard anybody refer to the Respondent in a derogatory fashion because of his race or religion, he nevertheless accepted that ‘in this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that’: Reasons, Tcpt, 09/08/04, p 57. In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of law. Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v New State Wales (Department of Education and Training)(2003) 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.”
For the respondent, Mr Perry submitted the applicant’s history was one of serious psychological conditions from as far back as 2002 to 2019 and it is in light of that history that the applicant must persuade the Commission as to what effect, if any, any workplace injury at issue in these proceedings has had.
Mr Perry submitted the evidence would not persuade the Commission that the applicant’s prior condition had resolved prior to his commencement of employment with the respondent. He noted it was plainly a serious condition, given the applicant spent nearly 4 years away from the workforce owing to depression suffered whilst working with commissure.
The respondent also noted the applicant had a psychological condition as far back as 2002, which had not been referred to in his statement evidence. Moreover, the respondent noted the similarity in complaints between the 2015 psychological injury and the injury at issue, including the history given to Dr Gojah in his report dated 26 February 2015 [R407] concerning 18 months of increasing workload stress starting with the applicant’s commencement with his then employer.
The difficulty with that submission is, in my view, twofold. Firstly, it ignores treating doctor evidence – supported as it is by the clinical records – that the applicant had recovered from the 2015 injury. Secondly, it ignores the principle that employers take their employees as they find them (see Attorney General’s Department v K and Chemler. It should also be noted that a propensity in a worker to suffer an injury does not equate to the actual suffering of the injury itself.
The respondent submitted that on the applicant’s own case, he first experienced workplace stress in or about September 2019 [A13.23], a position supported by the history in the report of Dr Lim dated 30 January 2020 [A102].
Mr Perry submitted it follows that the applicant had been prescribed Zoloft in June 2019 for matters unrelated to employment. He noted the GP clinical entries made no mention of work-related stress until after the PIP was implemented on 17 January 2020.
Whilst I accept the midyear review and subsequent PIP contributed to an escalation of the applicant’s condition, I do not accept they were the whole or predominant cause of it. The absence of corroboration concerning the applicant’s evidence as to the cause and onset
of his psychological condition is not fatal to a civil case (see Chanaa v Zarour [2011] NSWCA 119 at [86]), and as Roche DP noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, the absence of complaint to a general practitioner is not the determinative factor in deciding whether a worker suffered a psychological injury as a result of events up to and including a certain date.In my opinion, that is particularly the case where, as in this matter, a worker has complained of issues affecting him in the workplace other than those relied upon by the respondent pursuant to section 11A, as reflected in emails between him and management some 10 days before his midyear review and subsequent PIP.
In my opinion, the applicant suffered an injury relating to his employment which related to his perception of real events which took place. It is apparent he considered himself under work-related pressure by mid-2019 owing primarily to increasing workload, at which time he consulted his general practitioner. The notion that the applicant’s workload increased from approximately mid-2019 is not the subject of serious challenge. That is not a criticism of the respondent, rather it is understandable a new employee’s workload would increase after a few months in the workplace. That is perfectly understandable, however, it does not mean the increase in workload is automatically excluded as a causative factor of a psychological condition. To the contrary, the applicant gives direct evidence, which I accept, that the increase in workload as a stressor to him.
Likewise, the applicant’s concerns in relation to the actions of his acting manager also contributed to his psychological condition. He raised concerns about his acting manager with his employer contemporaneously and escalated those concerns to the stage of a formal meeting. That elevation coincided with a general practitioner consultation and prescription of antidepressant medication.
As Mr Perry noted, the decisions in Chemler and Attorney General v K go to issues of perception surrounding the issue of injury. When determining the question in section 11A, however, it is necessary to examine objectively whether the relevant actions relied on by the employer are the whole or the predominant cause of the applicant’s injury.
An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 (Pirie); and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (Sinclair). It was otherwise prior to amendment of section 11A from 12 January 1997: Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727.
“Wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be considered. In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) the arbitrator made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the respondent employer. Snell ADP said at [62] that the concepts “wholly” and “predominantly” are different concepts and if such findings were to be made “it needed to be one or the other”.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796; Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWWCCPD 96 (Temelkov).
The respondent submitted the applicant’s issues with his temporary manager were insufficient to displace the proposition the injury was wholly or predominantly caused by the respondent’s actions regarding performance appraisal and/or discipline. The respondent relied on the applicant’s email to Ms Thompson on 6 January 2020 in which he noted he had been removed from the temporary manager’s team “so that the anxiety I have been experiencing stops.”
Mr Perry submitted that email is evidence suggestive of the issues with the temporary manager being no more than a few days of anxiety which ceased upon the applicant’s removal from her team.
I do not accept that submission. The applicant’s email conveys, in my opinion, the hope his anxiety will cease rather than advising it has in fact stopped. That is particularly so given the following paragraph of the applicant’s email which refers to the acting manager continuing to antagonise him, and his efforts not to engage with her which he said “has been very, very difficult.” It is also noteworthy the applicant consulted his general practitioner around this time and was prescribed anti-depressants.
The fact the applicant indicates the respondent dealt well with his temporary manager’s problematic behaviour does not mean the behaviour was not causative of the applicant’s condition.
Mr Perry submitted the conduct relied upon by the respondent in relation to section 11A was at all times appropriate and reasonable. He stated the PIP was developed in a conciliatory manner, that the applicant’s concerns in relation to it were addressed and that the respondent worked with him to successfully implement the plan and improve his performance.
In relation to the question of discipline, Mr Perry noted the matters raised in the respondent’s letter to the applicant dated 23 April 2020 are plainly important, and it was completely appropriate to raise those matters in a formal manner. Mr Perry noted the applicant was given notice of the issues being raised and the prospective meeting, provided with the option of a support person and employee support generally. He noted the letter to the applicant coincided with a visit by him to Dr Bartos on the same day claiming he was being harassed at work.
I note, however, the applicant attended Dr Bartos on 18 April 2020, before the letter in relation to disciplinary matters was sent to him. At that consultation, he complained of bullying and harassment at work and increasing stress levels.
On balance, I accept the respondent’s actions relied on in relation to section 11A concerning performance appraisal and discipline were reasonable. However, I do not accept the respondent has discharged its onus in establishing those matters were the whole or predominant cause of the applicant’s injury. Rather, I am of the view the applicant had developed his injury by at least September 2019, before the matters relied on by the respondent were ever raised with him. Even if that was not the case, by January 2020 the applicant had plainly developed psychological symptoms owing to his dealings with his temporary manager. Those dealings are not said to be matters relied upon by the respondent pursuant to section 11A.
As such, I find that the applicant suffered an injury in the course of his employment with the respondent, and that his employment was the main contributing factor to that injury. I find the causes of that injury were multifactorial, and that the respondent has not discharged its onus of proof in establishing that its reasonable actions with respect to performance appraisal and discipline were the whole or predominant cause of the applicant’s injury.
Capacity for employment
The applicant contends he remains totally incapacitated for employment. In support of that contention, he has placed into evidence medical certificates from his nominated treating doctor that this is the case. For the respondent, Mr Perry noted the applicant’s general practitioner and treating psychiatrist were each hopeful and optimistic of his return to work in or about late 2020.
However, despite that optimism, the fact remains the applicant has been unable to return to work and those same doctors continue to certify him as totally incapacitated as a result of the workplace injury.
In my opinion, the medical evidence overwhelmingly supports a finding on the balance of probabilities that the applicant has been totally incapacitated for the period claimed from 19 August 2020 and remains so incapacitated.
I note the applicant’s preinjury average weekly earnings (PIAWE) total $1,347, and that the period claimed by the applicant is pursuant to section 37 of the 1987 Act. This being so, the relevant right of weekly compensation payable is agreed to total $1,077.65, being 80% of his PIAWE.
The respondent will therefore be ordered to pay the applicant weekly compensation from 19 August 2020 to date and continuing pursuant to section 37 at that rate.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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