Faitrouni v Scott's Refrigerated Freightways Pty Ltd
[2022] NSWPIC 4
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Faitrouni v Scott’s Refrigerated Freightways Pty Ltd [2022] NSWPIC 4 |
| APPLICANT: | Rayan Faitrouni |
| RESPONDENT: | Scott’s Refrigerated Freightways Pty Ltd |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; liability accepted for injury secondary to physical injury; worker also alleged she suffered a primary injury as a result of events while unfit for work and after her return to work; Nguyen v Cosmopolitan Homes, State Transit Authority v Chemler, Attorney General’s Department v K; Held - that the worker suffered a primary and a secondary psychological injury; matter remitted for referral to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. The Application to Resolve a Dispute is amended to claim $64,220 under s 66 of the Workers Compensation Act 1987 in respect of 24% whole person impairment and to delete the claim for pain and suffering compensation. 2. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment as a result of a primary psychological injury deemed to have been suffered on 2 July 2018. 3. The documents to be sent to the Medical Assessor are: (a) the Application to Resolve a Dispute; (b) the Reply; (c) the applicant’s Application to Admit Late Documents dated 24 November 2021; (d) the respondent’s Application to Admit Late Documents dated 24 November 2021, and (e) a copy of this Certificate of Determination. |
STATEMENT OF REASONS
BACKGROUND
Rayan Faitrouni was employed by Scott’s Refrigerated Freightways Pty Ltd (Scott’s) as its National Fleet Shared Services Manager. On 20 February 2018 she suffered an injury to her left leg and back and liability for those injury is accepted. Her claim for permanent impairment compensation in respect of those injuries has been referred to a Medical Assessor.
Ms Faitrouni also suffered a psychological injury and Scott’s insurer has accepted liability for treatment expenses arising from injury.
Ms Faitrouni claims permanent impairment compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for her psychological injury, relying on 2 July 2018 as the date of the injury. She says that it was a primary injury suffered when she was bullied to perform her duties while she was away from work as a result of her physical injury. Scott’s maintains that she suffered a secondary psychological injury as a consequence of her physical injuries.
The only issue for determination is whether the psychological injury was primary or secondary.
PROCEDURE BEFORE THE COMMISSION
At a conciliation conference and arbitration hearing on 1 December 2021, Mr Goodridge of counsel appeared for Ms Faitrouni and Mr Stockley of counsel appeared for Scott’s.
A number of directions for production of documents were issued as a result of orders made at a telephone conference on 5 October 2021. One of those was directed to Ms Faitrouni’s treating psychologist, Mariel Gadea. Ms Gadea did not produce documents under that direction but did provide a long report to Ms Faitrouni’s solicitors on the day before the conciliation conference and arbitration hearing. Scott’s objected to Ms Faitrouni relying on that report.
Mr Goodridge said that, on the basis of that objection, it was likely that I would make a ruling against tender of Ms Gadea’s report and he did not press the tender.
Mr Goodridge sought to amend the Application to Resolve a Dispute (ARD) to claim compensation pf $64,220 for 24% whole person impairment (WPI) and to delete the claim for pain and suffering compensation.
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 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 had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply;
(c) Ms Faitrouni’s Application to Admit Late Documents dated 24 November 2021, and
(d) Scott’s Application to Admit Late Documents also dated 24 November 2021.
There was no oral evidence.
Ms Faitrouni signed a statement on 2 September 2021. She described her physical injury and said that she was asked not to lodge a claim for compensation. She said that while she was off work, she received phone calls from her manager and from other staff asking her to perform work tasks. She felt that she was harassed and that she was on call seven days a week. She felt pressured to perform those tasks and that her employment would be compromised if she did not. She responded to emails and took phone calls seven days a week.
Ms Faitrouni said that her manager’s attitude to her changed and she felt that he turned on her because she lodged a compensation claim. She said there was a “boys’ mob mentality” and that she felt excluded and targeted because she was female and on workers compensation. She suffered increasing anxiety and saw her general practitioner in April 2018 who referred her to Ms Gadea. Ms Faitrouni was certified as having capacity to work 20 hours per week and formally returned to work on selected duties.
After her return to work, Ms Faitrouni felt excluded by some of her colleagues. In about June 2018 she was “wrongly accused” by Scott’s of making a decision to agree to pay overtime for some staff. Her employment was terminated as a result but she believes that was an excuse because Scott’s no longer wished to employ her.
At the time she prepared her statement, Ms Faitrouni was hospitalised as a result of her psychological injury.
Treating practitioners
Dr H Hanna was Ms Faitrouni’s general practitioner. His notes are very brief and do not contain a detailed description of the physical or psychological injuries. They confirm that Ms Faitrouni saw him on 22 February 2018 after the physical injury and that he referred her to Ms Gadea on 30 April 2018. There is no detailed description of any of the history provided at those consultations.
Dr Hanna’s notes for 6 July 2018 show that a case conference was cancelled because Ms Faitrouni “took 4 tablets of Valium which was not prescripted by me.” Later that day, Ms Faitrouni attended a consultation when Zoloft was prescribed. The reason for contact was “accident injury”. On 6 August 2018 Dr C Song noted that Ms Faitrouni attended “for arrangement of work cover.” She also suffered major depression and was seeing a psychologist and suffered chronic pain. On 5 September 2018, Dr Hanna recorded “depressed mood.”
Ms E Tabone, a rehabilitation consultant, prepared an activities of daily living assessment on 30 May 2018. She noted that Ms Faitrouni was certified fit to work five hours per day on three days (presumably in the office) and five hours on two days working from home. Ms Faitrouni told Ms Tabone that “due to the demanding nature of her work she was often working more than 5 hours per day and has worked while having no capacity.” When considering Ms Faitrouni’s emotional functioning, Ms Tabone said that she “indicated high levels of emotional stress related to her injury and recent marriage breakdown which she attributed to her injury.” She was “in the process of” being referred to a psychologist.
Ms Gadea completed an Allied Health Recovery Request form on 24 June 2019. She said that the diagnosis was:
“PTSD (with anxiety and depression) as a result of falling out of a ute at work.
Adjustment disorder with Severe Depression and Anxiety due to the accident and bullying and termination from her employer.”She set out a detailed history of the physical injury then said:
“Ms. Faitrouni provided her employer AHG with the issued Workcover Medical Certificate stating no capacity. Ms Faitrouni reported that her employer AHG expected Ms. Faitrouni to answer her work phone call's, respond to emails, monitor capacity at depot's, monitor Invoicing, registrations, insurance claims, food authority, Defects, monitor purchase orders, Etags insuring all new equipment was registered across the business. Ms. Faitrouni reported that she felt bullied into continuing,to complete her work duties by her employer and she was fearful of loosing her job if she remained unfit for work under Workcover. Ms. Faitrouni stated that she worked on average 20 hours per week from home and she was being paid by the insurance company Allianz and her employer. Ms. Faitrouni reported this to Allianz to confirm that this was acceptable, she stated that she was advised by her then case manager that as long as she was comfortable doing the work hours. she could continue to work.
…
Ms. Faitrouni reported that she was wrongly accused by her employer in relation to a decision made by the payroll office to agree overtime pay for staff as a means to terminate her employment as she was now on Workcover.”After setting out Ms Faitrouni’s symptoms, Ms Gadea said:
“I assessed utilising the IE:S-R for the Accident and workplace bullying, she scored 61 indicating that she is experiencing intense and severe symptoms of Post Traumatic Stress enough to surpress [sic] her immune system. I also assessed her utilising the PhQ-9 and she scored 20 indicating that she has severe depression and anxiety symptoms. Ms. Faitrouni did not report any suicidal Ideation or thoughts of planning to hurt herself or others. Considering the high scores of depression and anxiety Ms. Faitrouni will require regular counselling and antidepressant treatment and a referral to a treating psychiatrist to aid in reducing her PTSD and stabilising her depression. I have commenced with CBT and have complete some sessions with EMDR in relation to the accident which she has reported relief. Ms. Faitrouni initially attended several sessions al the Guildford Road Medical Centre however the distance in driving there was exacerbating her pain and she has decided to attend counselling and physical treatment at the My Family Health Medical Centre in Gregory Hills which is closer to her home.”
Ms Faitrouni began to consult practitioners at My Family Health Medical Centre at Gregory Hills in March 2019, commencing with a physiotherapist. She saw Dr D Dave on 28 March 2019 who recoded a history of the physical injury but also noted that the history was complex. On 13 June, Dr Dave noted that Ms Faitrouni was extremely upset and complained of chest pain. Dr Dave ordered a cardiology review and “asked her to book further appointments with Mariel.”
On 24 June 2019 Dr Dave referred Ms Faitrouni to Dr Modem at Northside Macarthur Clinic. She said that “she has been suffering from chronic severe back pain from an injury at work and has also been suffering from PTSD.”
Ms Gadea completed a further Allied Health Recovery Request form on 3 September 2019 which contains the same history as her first request.
On 30 January 2020, Dr Dave noted diagnosed major depression and said that Ms Faitrouni was struggling with her mood because she had “recently been formally divorced from her husband through the Islamic way” and was worried she would lose custody of her children so that she tried to overdose.
On 17 February 2020, Ms Faitrouni was admitted to St George Hospital after taking an overdose of medication with the intention of ending her life. The main trigger for the overdose was recorded as interactions with her ex-husband though it was noted that she was “under workers compensation” in addition to other family illnesses. An assessment by Dr B Williams noted that Ms Faitrouni described herself as very high functioning before the injury in February 2018 and that her mental health issues have occurred since then. The major stressors were her medical issues following the injury and the acrimony between Ms Faitrouni and her husband.
Ms Faitrouni saw Dr T Hasib at Dr Dave’s practice on 25 February and gave a history of her treatment at St George Hospital.
Ms Faitrouni was admitted to St John of God Hospital at Burwood from 28 February 2020 to 17 March 2020 when she was discharged against medical advice, at her own risk. The reason for admission was major depression and adjustment disorder. Scott’s insurer accepted liability to pay for her stay. The initial assessment noted the recent overdose and another overdose six weeks earlier.
Dr Dave again recommended inpatient treatment in May 2020 which did not take place.
On 11 August 2021 Ms Faitrouni had a telehealth consultation with Dr Ghufran at Dr Dave’s practice and with Ms Gadea. Dr Ghufran recorded that Ms Faitrouni had suicidal ideation and they agreed that urgent hospital admission was necessary, choosing South Coast Private because “they have good support for PTSD and depressions.”
Dr Heiner of South Coast Private Hospital reported on 14 September 2021. He recorded that Ms Faitrouni was admitted on 28 August and discharged on 14 September and set out the following history:
“The history is that until five years ago, she, her husband and children had a comfortable routine. Ms. Faitrouni secured a Job with an Australian company involved in refrigeration and because of her abilities she was promoted to a regional manager on commission. She was both proud of this achievement, but also had a considerable amount of pressure and expectations placed upon her in this role. She tells me that she was responsible for a fleet of trucks, their insurance details, their maintenance their purchase, and replacements as well as a number of other human resources matters throughout Australia. These responsibilities did not end at the end of the day, but she was frequently fielding phone calls after hours, on weekends and during a Queensland holiday with her husband. Because of the demands of work, she began to miss her children's school assemblies, important school presentations and other social matters that had previously been important to her. She tells me that this occurred partially because of the demands of work, partially because it was clear that it was expected
of her by her superior and, partially because it was important that she does the job well.This all came crashing a halt over two years ago when she returned from holidays and was physically injured. She was no longer able to maintain the grueling workload that she had before the holiday, and this was made worse by a motor vehicle accident soma weeks later. She attempted to return to work but was unsuccessful.”
Medico-legal reports
Ms Faitrouni’s claim for permanent impairment compensation was initially supported by a report from Dr T O Clark dated 15 October 2019 and he obtained a history of the onset of her psychological injury which was consistent with her statement. Dr Clark diagnosed major depressive disorder and said that she had suffered depression and anxiety since July 2018. He did not engage with the question of whether the injury was primary or secondary. He assessed 17% WPI.
Dr A Khan prepared a further medico-legal report dated 10 November 2021. The parties agreed that Ms Faitrouni could rely on this report because Dr Clark had retired. Dr Khan recorded a history of the physical injury and noted:
“Ms Faitrouni described how she was subsequently bullied and harassed by senior management. She reported how despite her physical injuries and her general practitioner certifying her as unfit for work, she continued to be pressured by senior management to work. Ms Faitrouni described numerous incidents where she received calls from her managers when she was attending medical appointments and she was expected to respond to their needs urgently. She reflected on how she would often have to return home immediately after these medical appointments to complete reports and other requests. She was concerned that if she did not complete these tasks, she would lose her employment.
Ms Faitrouni said that in late April 2018, she was referred by her general practitioner to a psychologist and she was also cleared to return to work 20 hours per week. She said that the increase in her work capacity was due to the ongoing pressure from her employer demanding that she return to work. Her office space was relocated temporarily to the ground floor as she was unable to climb up stairs to her normal office. Ms Faitrouni reported how she was not provided the appropriate office space required to ensure discretion for her clients. She said that she continued to be expected to work long hours on the days she was at work. Ms Faitrouni recalled how her direct manager told her to ‘man up’ when she raised her concerns about the toxic workplace environment and lack of staffing. She mentioned how she had lost four staff members and said that these staff members performed the work of two people so she felt she had lost eight staff members. Her attempts to obtain extra staff were reportedly ignored and dismissed.”
Dr Khan also noted the issues around termination of Ms Faitrouni’s employment. He said that Ms Faitrouni’s condition developed as a result of “these aforementioned” workplace stressors. He recorded that Ms Faitrouni denied any significant past psychiatric history other than attending two counselling sessions in about 2020 as a result of marital difficulties.
Dr Khan diagnosed persistent depressive disorder with anxious distress and, in response to a direct question, “agreed” that her employment was the substantial contributing factor to her condition. He did not provide any reasoning in support of his opinion.
In a separate report, Dr Khan assessed 24% WPI.
Scott’s evidence
Robert Maguire worked for Scott’s from 2003 and was Chief Operating Officer for about two years from 2015. He is now the owner of a business called Iceman in Queensland. He knew Ms Faitrouni from about that time and she was employed as national fleet manager. Her manager was Glenn Stephan in the fleet department. Mr Maguire said that her aptitude for her job was average but her attitude was poor. Her sick leave record was average. He denied that Ms Faitrouni was told not to complete an injury report in respect of her physical injury.
Mr Maguire said that Ms Faitrouni offered that she would help from home if the company was “stuck” with the insurance side of the business. He considered that was common for the manager of a department. He said that Ms Faitrouni would not have been on call seven days a week because her department worked Monday to Friday. He said that she and Mr Stephan did not get along well and he “can’t imagine” Mr Stephan would have called her unless he was desperate to discuss an insurance issue. He speculated that staff may have called to check on her wellbeing.
Mr Maguire said that Ms Faitrouni was “aggressive” to some of her staff. He said that she “aggravated” staff and Mr Stephan “would have to try and clean the mess up.” He said that her employment was terminated because “she has just become, from memory, that infectious in the business that no one was getting along with her and the decision was made we were better off to terminate her employment.” He said “we could not control her, could not change her, so we exited her.” He said that Mr Stephan was had retired and did not have his contact details. He said that Norm MacCormack was the Road Compliance Manager who was still employed and had a lot of interactions with Ms Faitrouni.
There are no statements from any other staff of Scott’s.
Scott’s insurer qualified Dr P Young, Psychiatrist, who reported on 22 October 2021 after a telehealth consultation. He saw a report of Dr Kneebone (also qualified by the insurer) whose evidence is not relied on.
Dr Young obtained a history that Ms Faitrouni continued to work from home whilst unfit for work and was criticised by her manager and co-workers for making the claim. She said that her employment was unexpectedly terminated on 2 July 2018 with other workers who had submitted “injury claims”. Dr Young recorded that there had been a further deterioration in Ms Faitrouni’s mood since that time which she associated with an escalation in tension with her ex-husband who separated from her on the day after Dr Clark’s assessment. She also attributed the deterioration to continuing pain from her physical injuries. Her husband refused her contact with her children after her suicide attempt. Dr Young noted four suicide attempts since November 2020 and two admissions to hospital, including a recent admission to South Coast Private Hospital.
Dr Young also noted that Ms Faitrouni had a motor vehicle accident in 2018 in which she suffered an injury to her cervical spine and left shoulder which resulted in complex regional pain syndrome.
Dr Young diagnosed major depressive disorder. He said that Ms Faitrouni’s symptoms of depression and anxiety are suffered
“in relation to ongoing pain and disability associated with her work injury in February 2018 and subsequent nonwork-related injury in July 2018. In addition, her current symptoms are contributed to by the secondary effects of relationship breakdown, separation, loss of income and ongoing stress in relation to family court dispute.”
He considered that she had not been prescribed a sufficient dose of anti-depressant medication to have a positive impact on her symptoms. Dr Young considered that the primary stressor in Ms Faitrouni’s condition was the pain and disability following her physical injury in February 2018. He said that injury precipitated a chain of events leading to her current situation. Though the motor vehicle accident was contributory, “there had been psychological consequences of the earlier injury already and the second injury exacerbated these.” Dr Young assessed 24% WPI which he did not apportion.
46.In his supplementary report dated 16 November 2021, having read documents produced under direction from Bankstown Lidcombe Hospital, Dr Young said that Ms Faitrouni’s symptoms were secondary to a physical injury for the reasons previously given. He did not comment on the hospital notes.
The hospital notes to which Dr Young was referred are attached to Scott’s Application to Admit Late Documents. They show that Ms Faitrouni was admitted to hospital on 26 November 1998 having not eaten for two to three weeks and having suicidal ideation, linked to a sexual assault the previous year. Ms Faitrouni was admitted to hospital for observation under Schedule 2 of the Mental Health Act1990 but discharged on the following day, being unwilling to stay in hospital. The discharge summary noted that her car had also been burned. She was discharged for follow up by the Sexual Assault Service and she “did not appear to have a major mood disorder of any psychotic illness.”
The notes contain documents related to a presentation at Bankstown Mental Health on 5 December 2003 following an overdose of medication, a few weeks after a relationship breakup, but while complaining of “URT symptoms” and pain. Ms Faitrouni was not admitted but referred for counselling. The diagnosis was adjustment disorder with labile mood and grief issues.
Ms Faitrouni also attended the hospital on other occasions for physical conditions.
Scott’s also relied on a Medical Assessment by Dr M Gibson dated 2 July 2019 in respect of the motor vehicle accident on 16 August 2018. According to the cover sheet, Dr Gibson determined that a soft tissue injury to Ms Faitrouni’s neck was a minor injury for the purpose of the Motor Accident Injuries Act 2017 and that a right shoulder injury and early “CPRS” [sic] was not a minor injury.
Scott’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 31 August 2021. The insurer noted that Ms Faitrouni had seen Dr Kneebone at its request in 2019. It set out the difficulties it had encountered in arranging another appointment. The insurer said that it therefore could not be satisfied that Ms Faitrouni suffered a compensable psychological injury and disputed liability for the “alleged primary and/or secondary psychological injury.” The latter statement is not correct because the insurer has not disputed liability in respect of the secondary psychological injury.
SUBMISSIONS
Mr Goodridge took me to the history in Ms Faitrouni’s statement. He said that there was no evidence from Scott’s to show that those events did not occur. He said that Mr Maguire’s statement did not assist and that there were no examples of the alleged aggressive behaviour on the part of Ms Faitrouni.
Mr Goodridge referred to Ms Gadea’s history in her treatment request and said there were two diagnoses, including an adjustment disorder as a result of bullying. He said that Dr Clark’s report showed that he understood the issues and that his assessment of permanent impairment was in respect of the primary injury as did Dr Khan.
Dr Young, Mr Goodridge submitted, was at a disadvantage because it does not appear that he has Ms Faitrouni’s statement. He was therefore unaware of the case Ms Faitrouni brings. Mr Goodridge said that Scott’s had not addressed the question of whether she suffered a primary psychiatric injury.
Mr Stockley said that it was important to consider the evidence available in the period between the physical injury and the termination of Ms Faitrouni’s employment. Dr Hanna’s notes showed the usual consultations following a physical injury. He referred Ms Faitrouni to Ms Gadea at the end of April 2018 and his notes did not explain why and there was no reference to the prescription of psychotherapeutic drugs. The referral to Ms Gadea dated 30 April 2018 did not explain the reason for the referral and the history referred only to the musculo-skeletal injuries.
Mr Stockley said that Ms Gadea’s treatment request which contained the history of bullying and harassment was not prepared until 12 months or more after Ms Faitrouni’s employment was terminated. He said that I would not accept that Dr Young did not have that history. Even if he did not have the statement, he had Dr Clark’s report which contained the relevant history and was entitled to obtain a history from Ms Faitrouni.
With respect to the statement, Mr Stockley said that there was no detail of the conduct which caused Ms Faitrouni to feel harassed or of the change in her boss’s attitude. He said the reference to a “boys’ mob” was a feeling or conclusion but no detailed description was provided. He referred to the statements by Spiegelman CJ in State Transit Authority of New South Wales v Chemler[1] (Chemler) and said that there was no evidence of any external event which could be perceived as creating a hostile environment. Though Ms Faitrouni said in 2021 that she was subjected to bullying and harassment, Mr Stockley said that the evidentiary deficiencies and lack of corroborative complaint to treating practitioners would lead me to doubt that the events had the effect she now says they did.
[1] [2007] NSWCA 249.
Noting that Dr Clark’s report was said to be supportive, Mr Stockley said that it did little more than restate Ms Faitrouni’s history and when referring to the “subject accident” cited the date of the physical injury in February. Dr Khan similarly accepted the limited history at face value. Neither of those doctors, Mr Stockley said, had a history of Ms Faitrouni’s presentations at Bankstown Hospital so that they were deprived of the past history which mirrored her post employment psychiatric presentations. Another example of information they may not have considered was Dr Hanna’s reference to Ms Faitrouni taking Valium which he had not prescribed so that she must have seen another practitioner or sourced it elsewhere.
Mr Stockley said that the assessment of 24% WPI indicates that Ms Faitrouni’s condition is serious. The history on which she relied in these proceedings was not borne out by the contemporaneous documents which did not record any reference to mistreatment by her employer. Mr Stockley said there was no reason to hold back on that history after her employment was terminated when the documents showed that Ms Faitrouni was not holding back about other things.
While treatment for adjustment disorder was approved in September 2019, Mr Stockley said that it was not inconsistent with the acceptance that there was a secondary injury. He accepted that Mr Maguire’s statement was general and provided observations without examples but said it responded to Ms Faitrouni’s general allegations.
Mr Stockley noted that the only case pressed by Ms Faitrouni was that her major depressive disorder was caused by the events after her physical injury and there was no claim that it was an aggravation.
In reply, Mr Goodridge said that Mr Maguire’s statement was evidence that Ms Faitrouni has been dismissed on a false basis and there was no evidence that the allegation about overpayment was genuine.
FINDINGS AND REASONS
Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Ms Faitrouni’s case is that she suffered a primary psychological injury as a result of the way she was treated after her physical injury. Scott’s accepts that she suffered a secondary psychological injury and has accepted liability for extensive treatment. It denies that she is entitled to claim permanent impairment compensation.
Mr Stockley was correct to submit that there is no direct evidence of a contemporaneous complaint. There are, however, a number of factors that persuade me, on the balance of probabilities that she did.
Before setting those factors out, it is relevant to note that Ms Faitrouni’s condition is complicated by previous psychological conditions, the psychological sequelae from the physical injury and the subsequent motor vehicle accident and references to a family law dispute. None of those other elements necessarily mean that she did not suffer a primary psychological injury and that the extent to which her primary psychological injury results in any permanent impairment is a matter for a Medical Assessor, as is the extent of any pre-existing impairment.
The standard of proof on the balance of probabilities which applies in the Commission was described by the Court of Appeal in Nguyen v Cosmopolitan Homes[2] McDougall J, with whom the other members of the Court agreed, said[3]:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[2] [2008] NSWCA 246 (Nguyen).
[3] At [55].
Ms Faitrouni described the period after the injury. She said that she was asked to perform tasks while off work on leave, in the period between February and April 2018. At the end of April she returned to work, working some days in the office and some from home.
Ms Tabone, who performed an activities of daily living assessment on 30 May 2018 noted that the demanding nature of Ms Faitrouni’s work meant that she often worked more than the five hours per day for which she was certified fit to work and had worked while having no capacity. Ms Tabone’s assessment is close to contemporaneous with the injury. Although Ms Tabone recorded that Ms Faitrouni suffered high levels of emotional stress as a result of her physical injury and marital problems, her report confirms that Ms Faitrouni perceived her work as demanding, that she had worked while certified unfit and that she was suffering high levels of emotional stress.
Mr Maguire’s statement was made in September 2021 more than three years after the injury. It consists of a series of reasonably abrupt statements without examples. He was not Ms Faitrouni’s manager. Some of his statement is speculative – such as why staff may have called Ms Faitrouni - and much of it is general. Most of it is negative about Ms Faitrouni. Mr Maguire said that a decision was made to “exit” Ms Faitrouni and he did not refer to the truth or otherwise about the allegation about payment of overtime. His evidence supports her contention that an excuse was found to terminate her employment.
Some parts of the statement do support Ms Faitrouni’s case. Mr Maguire did say that Ms Faitrouni and her manager did not get along. He also said that Ms Faitrouni offered to help from home. In those circumstances it is consistent that she may have perceived pressure to work.
There is no evidence of any efforts to locate Mr Stephan or Norm McCormack who was said to have had a lot of interactions with Ms Faitrouni.
In Kuhl v Zurich Finance Australia Ltd[4] Heydon, Crennan and Bell JJ said:
“The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.” (at [62])
[4] [2011] HCA 11 at [62].
The rule does not require a party to give evidence which is no more than cumulative.[5] Any evidence from Mr McCormack would be unlikely to be cumulative because Mr Maguire said that he had a lot of interactions with Ms Faitrouni whereas Mr Maguire’s evidence is presented as an overview from someone who was not her direct manager. The failure to provide other statements or documentary evidence about the period between Ms Faitrouni’s physical injury and the termination of her employment where the causation of her injury in that period is directly in issue allows me to draw the inference that evidence would not have assisted Scott’s.
[5] Manly Council v Byrne [2004] NSWCA 123.
In the absence of evidence which refutes that in Ms Faitrouni’s statement, I am persuaded that she was asked to work while she was certified unfit for work and that she subsequently felt pressure to work more hours than her certified capacity.
Dr Hanna’s notes are very brief. He did not set out the reason why he referred Ms Faitrouni to Ms Gadea but he did not set out any of her complaints in detail. His history of the physical incident at the consultation on 22 February was one sentence and did not describe the injuries suffered, leaving the reader to glean that she injured her lumbar spine and left knee and ankle from the investigations for which he referred her. His referral to Ms Gadea was similarly devoid of a reason as were his notes on the day the referral was made. His notes do not assist in determining the question of whether Ms Faitrouni suffered a primary psychological injury.
The fact that Dr Hanna did not prescribe medication for the condition also does not assist. He did refer Ms Faitrouni for treatment. In any event, Dr Young said that the medication which had been prescribed was at too low a dose to be therapeutic.
Ms Gadea’s failure to comply with the Commission’s Direction for Production has made the determination of the case more difficult. She was asked to provide her actual notes in a reasonable time frame, not a lengthy report so late that there was no chance it could be properly considered, let alone responded to. The two Allied Heath Recovery Requests are dated in 2019 and there is no evidence as to when the first consultation took place, though Ms Gadea said that several took place at Guildford Road Medical Centre before changing general practitioners to see Dr Dave who was closer to home. That confirms that some treatment was undertaken before March 2019.
The history in Ms Gadea’s treatment requests is important, however, because it was taken well before the preparation of Ms Faitrouni’s statement. Ms Gadea provided a detailed description of the events following Ms Faitrouni’s physical injury and of significant demands being placed on her. Ms Gadea diagnosed an adjustment disorder as a result of “workplace bullying”.
The brief history provided to Dr Clark in October 2019 was consistent with the evidence in the statement prepared two years later.
Dr Heiner’s report was prepared as a discharge report from Ms Faitrouni’s most recent period of hospitalisation. While it describes events before her physical injury, his report describes an environment in which Ms Faitrouni may well have felt pressure to perform.
Ms Faitrouni had a significant history of psychological treatment which was not disclosed in her statement and in the histories she provided to Drs Khan and Young. It was relevant and it should have been. However, there is no evidence of any significant issues for some years before the injury in February 2018. The impact of that history on any assessment of permanent impairment is a matter for the Medical Assessor.
Spigelman CJ said in Chemler:
“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability. The element of foreseeability required by the law of negligence is not the basis of the ‘eggshell skull’ principle and it can be applied by way of analogy to claims for compensation under the 1987 Act. (See Morgan v Tame (2000) 49 NSWLR 21 esp at [23]-[29] and cases quoted therein. See also Tame v New South Wales (2002) 211 CLR 317 esp at [318] and Nominal Defendant v Gardikiotis (1995) 186 CLR 49 at 68.)”
Basten JA said:
“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.”
Roche DP considered Chemler and other authorities in Attorney General’s Department v K[6] and said that the following principles can be drawn from them:
[6] [2010] NSWWCCPD 76; (2010) 8 DDCR 120.
“(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.”
On the basis of the evidence set out above, I am satisfied, in the manner described in Nguyen, that Ms Faitrouni perceived that she was expected to work while she was certified unfit for work. I am satisfied that she did in fact undertake work during that time, and when she was certified fit for less than her usual hours. I accept that, as a result of the interactions with her manager and other staff, she suffered a primary psychiatric injury.
The evidence from Drs Clark, Khan and Young was of less assistance than the evidence described above in reaching that conclusion. Dr Clark’s report confirmed, very briefly, the history given in 2019. Dr Khan provided some additional details which were not in Ms Faitrouni’s statement. Neither considered the other stressors to which Ms Faitrouni was exposed in providing their opinion and did not grapple with the question of whether the injury was primary or secondary. Each of Drs Clark and Young nominated the date of the physical injury in February 2018 as the date of injury rather than 2 July 2018.
Dr Young also did not provide his reasoning. He said that Ms Faitrouni confirmed the history in Dr Clark’s report. He referred to Dr Kneebone’s report which does not form part of the file. While Dr Young appears to have discussed the history of the physical injury and everything that happened after it but recounted that history briefly. The only comment he made about the period of working from home was that Ms Faitrouni was criticised by her manager and co-workers for making the claim. Though Dr Clark’s history of subsequent events is brief, Dr Young did not refer to it and his report does not reveal that he asked Ms Faitrouni about the period when she was working at home.
Dr Young did not engage in detail with the question of whether the injury was primary or secondary. Though he said the primary stressor was the physical injury, he did not describe how that injury led to a secondary psychological injury other than to refer to chronic pain. He was asked a direct question and his short answer is not probative. In his second report and in response to a request for detailed reasons, Dr Young merely said that the reasons were provided in his first report. Dr Young did not explain his reasoning in either report and his reports do not fulfil the requirements for expert evidence set out in cases such as South Western Sydney Area Health Service v Edmonds[7] and Hancock v East Coast Timber Products Pty Limited[8].
[7] [2007] NSWCA 16.
[8] [2011] NSWCA 11.
It seems clear that the primary psychological injury is not the only cause of Ms Faitrouni’s impairment. As noted above, the task of untangling the role of Ms Faitrouni’s past history and intercurrent issues is a matter for the Medical Assessor.
I make the following orders:
(a)The ARD is amended to claim $64,220 under s 66 of the 1987 Act in respect of 24% WPI and to delete the claim for pain and suffering compensation.
(b)I remit the matter to the President for referral to a Medical Assessor to assess Ms Faitrouni’s permanent impairment as a result of a primary psychological injury deemed to have been suffered on 2 July 2018.
(c)The documents to be sent to the Medical Assessor are:
(i)the ARD;
(ii)the Reply;
(iii)Ms Faitrouni’s Application to Admit Late Documents dated 24 November 2021;
(iv)Scott’s Application to Admit Late Documents dated 24 November 2021, and
(v)a copy of this Certificate of Determination.
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