Forsstrom v Southern Cross University

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Forsstrom v Southern Cross University [2024] NSWPIC 137
APPLICANT:	Aimee Forsstrom
RESPONDENT:	Southern Cross University
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in relation to performance appraisal and dismissal; Held – findings made that section 11A defence not established as the performance appraisal and dismissal were not the whole or predominant cause of the injury, and even if they were, the respondent employer’s actions were not reasonable.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 2. The applicant has no current work capacity from 7 July 2022 to date and continuing. 3. The respondent is to pay the applicant weekly benefits compensation as follows: a. pursuant to s 36(1) of the Workers Compensation Act 1987 from 7 July 2022 to 6 October 2022 at the rate of 95% of the agreed pre-injury average weekly earnings (PIAWE) figure of $1,841.52, as indexed from time to time, and b. pursuant to s 37(1) of the Workers Compensation Act 1987 from 7 October 2022 to date and continuing at the rate the rate of 80% of the agreed PIAWE figure of $1,841.52, as indexed from time to time. 4. The respondent is to have credit for any compensation payments made under the Workers Compensation Act 1987. 5. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Aimee Forsstrom, the applicant, was employed as a Senior Project Business Analyst with the respondent, Southern Cross University. She alleges that she developed a psychological injury with a date of injury 27 May 2022. In her Application to Resolve a Dispute (ARD) she describes the injury as a psychological injury and/or disease and /or aggravation, exacerbation, acceleration or deterioration of disease. The cause of injury is stated as follows:
“Applicant was called a 'moron' by a colleague, Mr. Siva Thaivarayan, and then spoken to in an intimidating manner. Despite raising a grievance with the Respondent, the Applicant was directed to continue working with Mr. Siva Thaivarayan. The Applicant was then informed by Management that her communications with Mr. Siva Thaivarayan on 27 May 2023 were 'robust interactions' and should be expected. The Applicant felt unsupported, ignored and dismissed by the Respondent when they invalidated her concerns. Please refer to the Applicant's statement for further particulars.”
Ms Forsstrom makes a claim for weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) commencing on 7 July 2022 to date and continuing. The pre-injury average weekly earnings (PIAWE) figure is agreed at $1,841.52, with indexation to be applied. A claim is made for future treatment expenses pursuant to s 60 of the 1987 Act, however the parties agree if Ms Forsstrom is successful a “general order” can be made for s 60 expenses.
The respondent’s counsel confirmed that “injury” is not in dispute, that the issue relates to the application of s 11A of the 1987 Act in relation to performance appraisal and dismissal, and if the respondent is unsuccessful in establishing a defence under s11A, then an issue arises in relation to the entitlement to weekly compensation and Ms Forsstrom’s capacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The parties attended a conciliation/arbitration hearing on 5 February 2024 conducted on the MS Teams platform. Mr Malouf of counsel appeared for Ms Forsstrom instructed by Ms Azer, solicitor. Mr Hart of counsel appeared for the respondent instructed by Ms Blake, solicitor, and Ms Hadfield from the insurer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents with the exception of pages 40 to 48;[1]
(c)    Application to Admit Late Documents (AALD-A) dated 29 January 2024 filed by the applicant, and
(d)    Application to Admit Late Documents (AALD-1) dated 29 January 2024 filed by the respondent.
[1] T6.17.

Oral evidence

There was no oral evidence. The parties made oral submissions which have been recorded and a written transcript (T) has been made from the sound recording.

FINDINGS AND REASONS

It is useful to summarise the main evidence before considering counsels’ submissions.

Ms Forsstrom’s statement

Ms Forsstrom has provided a statement dated 11 October 2023 which has annexures marked 1-76.[2] The statement is 41 pages long and with the annexures it is 182 pages. I am required to give brief reasons for my decision and it is not possible to summarise this evidence in detail. However, all of it has been read and considered by me.
[2] ARD pp 22-204.
Ms Forsstrom is aged 44. She sets out her education at [4] including that she has attained various Bachelor and Post Graduate qualifications in the computing and information technology areas. She was employed by Southern Cross University in January 2022.
In 2004 she was diagnosed with generalised anxiety disorder (GAD) and attention deficit hyperactivity disorder (ADHD) and prescribed Ritalin.
At [8] she states that her ADHD was managed with medication however her GAD was dormant.
Ms Forsstrom also says she was born with convergence vision impairment and needs to wear prism glasses when using a computer or reading and she needs documents to be at a 14 point minimum. She was also diagnosed with auditory disorder when she was young and had a speech impediment. She says these two disabilities identify her with Severe Specific Learning Disabilities (SSLD).
Ms Forsstrom states prior to the incident on 27 May 2022 her only prescription from Dr Abeya, her treating psychiatrist, was for Ritalin to treat her ADHD. At [13] she describes her general practitioner, Dr Cheung, prescribing Valium for her on 25 May 2022 because she was feeling overwhelmed about a lung nodule but she says she did not feel she had to take it however, she says on 29 May 2022 after the incident with Mr Thaivarayan she had not been able to sleep and was feeling very anxious so she start taking the Valium. At [14] she describes how the dosage she took of Valium increased.
She says Dr Abeya has been treating her since 2016 and Dr Cheung since 2008.
At [16], [17] and [18] she sets out her medications before and after the incident on 27 May 2022.
Ms Forsstrom sets out in detail her previous employment, obtaining her job with the respondent, the nature of her role with the respondent, how the role was conducted changed due to Covid -19, the impacts on her working remotely, and her working hours. At [60] she advises that there was an unrealistic approach to time management and staff workload which led to “an all over stress of timelines estimations and scope creep”.
She also sets out her requests for disability assistance.
From [86] she sets out details about her work on the Research Integrity Project, starting on 25 March 2022. She says the project was already behind schedule when she started on it. Her role was as a Senior Project Business Analyst.
At [91] she states she started to feel stressed about the project and the pressure placed on herself and consultants. She says Mr Thaivarayan was difficult to manage and work with and she was becoming worried about timelines which she raised with her managers in May 2022. From [92] to [102] she gives examples of discussions about her concerns. At [103] she says at no time did her supervisor or manager express concerns about her work performance. Her supervisor was Ms Tara Hawkins.[3] Her manager was Elaine Booth.[4]
[3] See [57] Ms Forsstrom’s statement.
[4] See [44] Ms Forsstrom’s statement.
She says Mr Thaivarayan was employed in a business management consultant position for a third party contractor, Lilyfield Partners. She was told she would be working with him in March 2022. At [106] she says her supervisor told her that he was a difficult individual to work with and could be bullying in his demeanour and she gives examples of being told this at [107] and [108].
After setting out the background to the incident, Ms Forsstrom details what happened from [118]. She was in a call vis MS Teams with Mr Thaivarayan, she says he became quite loud, condescending in his tone and aggressively demanded she provide information to him which she had explained she did not have access to. At [124] she says she told Mr Thaivarayan not to yell at her because she could not hear due to her auditory disability but he proceeded to yell further and called her a “moron” for not understanding him due to her disability. She says she was shocked and shaken and started to cry. Ms Forsstrom says she had to turn on her assisted technology and recorded the rest of the call, a transcript of which is in annexure 38.
She says after the call, which she terminated because he was yelling again, she tried to deescalate the situation.
At [182] Ms Forsstrom says she found this call with Mr Thaivarayan to be toxic and extremely upsetting and future dealings with him were untenable. She says she was extremely distressed and anxious about any further dealings with him. At [183] she says she became aware on 27 May 2022 that the incident had aggravated her GAD condition. She says she was placed on anti-psychotic medication and that she had never had to take this before the incident.
She then relates discussing the situation with her manger, Ms Booth and she was told she could not be moved from the project due to the staffing situation but it was agreed that her supervisor, Ms Hawkins, would take future communication calls with Mr Thaivarayan. Ms Booth also told her that other staff had issues with Mr Thaivarayan.
Ms Forsstrom sets out details of the reporting of the matter. She also details her attendances on Dr Abeya and Dr Cheng, including that she played for Dr Cheng the recording of the interaction with Mr Thaivarayan.
At [290] of her statement Ms Forsstrom addresses the alleged performance issues raised by the respondent. She refers to Annexure 54 which is a memorandum from Justin Richardson, Chief Information Officer, addressed to Vice Chancellor Professor Tyrone Carlin dated 5 July 2022. It is stated that it is recommended that Ms Forsstrom’s employment be terminated in the probationary period. Her probation was to end on 12 July 2022. The reasons given for the recommendation was that her quality of work, communication and interpersonal skills are not of a standard required to meet the key accountabilities of the role.[5]
[5] ARD pp170-171.
Ms Forsstrom says at no other time, than the incident with Mr Thaivarayan, did she have a bad experience with another staff member or an external consultant. She refers to the Workplace Relations Advisor, Rebecca Moore’s email to the insurer on 14 July 2022 which said the exchange occurred in the context of the consultant being unhappy with the quality and timeliness of Ms Forsstrom’s work and providing her with this feedback. It was also stated that Lilyfield Partners continued to be unhappy with the quality and timeliness of Ms Forsstrom’s work. However, at [294] Ms Forsstrom states this was not reflected in emails or messages she had received from Ms Booth or Ms Hawkins. At [296] she says they both complimented her work.
At [315] she says she requested examples of ways she had not met performance criteria from Ms Farquhar and sent via her supervisor and manager and the details were not provided. She also denies at [318] that she was informed about concerns with her time management skills.
At [331] she states that the memorandum at 2(a) says she needs extensive support from her supervisor but she responds that the support was only needed to deal with Mr Thaivarayan from the incident on 27 May 2022. She says she ran all the other meetings with audio, tech teams and other external consultants. At [337] she says she has not been informed of any issues about the quality of her work and her ability to deliver outcomes. She also denies the accusation that she does not work in a collegial way and says there were no reports about her work in the vaccination project and forms project.
At [353] she says she emailed Ms Booth on 4 July 2022 requesting four days of personal leave due to the impact of the Research Integrity Project. She says she had kept Ms Booth updated about her meetings with her psychiatrist after the incident. She says her use of Valium had increased but her anxiety in the workplace had not decreased. She says on 5 July 2022 Ms Booth emailed her agreement for her to take the leave, as set out in annexure 75. She says she intended to taken leave from 12-15 July 2022. This email was sent to her at 8.35am but she did not put the leave request in the computer because at 1.46pm she was asked to attend a probation meeting scheduled for 4.00pm that day.
She says she was given insufficient time to arrange her disability advocate or a support person to attend the meeting.
She says the meeting on 5 July 2022 was the first time she heard there was a problem with her performance. She says the meeting was held with Ms Farquhar and Mr Richardson and her manager and supervisor were not included. She says following this meeting she sought more information and specific examples but this was not forthcoming.
She supplied a Certificate of Capacity dated 7 July 2023 from Dr Cheng. She says she did not respond to the letter of 5 July 2022 because she had not been given details and also she had been certified unfit to work in this Certificate of Capacity.
On 11 July 2022 she received an email from the respondent’s Human Resources (HR) advising her she was terminated immediately as she had not responded to the letter of 5 July 2022.
She sent the email to the respondent’s HR as set out in annexure 72 advising of her medical situation and that she was unable to attend to the matter in the next four weeks.[6]
[6] ARD p 176.
Ms Forsstrom also sets out her emails with Ms Farquhar, the HR director from [388] to [405]. The email from Ms Farquhar on 6 July 2022 is annexure 58 it says the report about the incident was not considered as part of her probationary assessment and it refers to “stress is to be expected during robust interactions relating to performance which are considered in the context of deadlines in a project and team work environment”. Ms Forsstrom replied to this email immediately responding that being called a moron and being yelled at is not right and should not be regarded as “expected”. She refers to numerous discussions with Ms Hawkins and Ms Booth. She said Ms Farquhar did not respond to this email.
At [412] Ms Forsstrom says she has never had an aggravation of her GAD condition in the workplace previously. She says her mother came to stay with her from mid-June 2022 to end of August 2022 as she was unable to care for herself as she had stopped showering and eating due her constant anxiety about her work and exposure to Mr Thaivarayan.
Ms Forsstrom has also provided a statement dated 27 January 2024 in which she updates her symptoms and her involvement in charity work and giving talks.[7]
[7] AALD-A.

Doris Vella

Ms Vella is Ms Forsstrom’s mother, she has provided a statement dated 6 October 2023.[8] She is also a qualified disability support worker and an enrolled nurse. She is 73 and lives in Sydney. She says her daughter contacted her in early June after an incident when she had been called a moron and spoken to in an insulting and cruel manner. She says she came to stay with her daughter as she had deteriorated and was not coping with day-to-day tasks. She arrived at Lismore on 12 June 2022 and she says her daughter was not functioning normally, she was in a frantic anxious state. She was not showering or eating. She was continually ruminating on being called a moron. She said she stayed until 28 August 2022 and tried to get her used to a new routine. She said after she left a family friend who is also a nurse stayed with her daughter until Janaury 2023. From 16 April 2023 to 17 July 2023 and from 25 September 2023 to December 2023 Ms Vella again was to stay with her daughter.
[8] ARD p 205.

Naomi Downs’ statement

Ms Downs has provided a statement signed on 2 November 2022.[9] When the incident occurred Ms Downs was the Acting Director of Technology Services at the respondent. She says Ms Booth-Barker was acting as Ms Forsstrom’s supervisor at the time of the incident as the normal supervisor was away. She says the incident was the call between Ms Forsstrom and Mr Thaivarayan on 27 May 2022. However, the account she relates about this call does not refer to Ms Forsstrom’s distress at Mr Thaivarayan calling her a moron. Ms Downs informed Ms Booth-Baker that she would reach out to Ms Forsstrom and advise she was not in trouble in any way but Ms Forsstrom was unavailable and did not respond to her call and so she wrote a simple MS Teams message to her that Ms Booth-Barker had briefed her and the situation would be addressed.
[9] Reply p 35.
She said she spoke to Mr Thaivarayan’s manager who gave a slightly different account of the event. However, it was agreed that Ms Forsstrom and Mr Thaivarayan would no longer participate in one-on-one discussions. Ms Downs says Ms Booth-Baker raised the incident in the reporting software on Ms Forsstrom’s behalf. I assume this is the incident report dated 23 June 2022 logged at 12:51 PM.[10] This incident report has a significant error in that it does not record that Mr Thaivarayan called Ms Forsstrom a moron. Instead it says Mr Thaivarayan said he said he was not a moron. I am satisfied as a matter of fact that it was he who called Ms Forsstrom this name. Her recording of the balance of the call is consistent with that conclusion as she remonstrated with him for using an offensive term. The transcript of that recording clearly shows Ms Forsstrom was emotionally affected by the interaction with Mr Thaivarayan.
[10] Reply p 133.
Ms Downs says Mr Thaivarayan finished his contract at the end of June 2022 and there was no further follow-up from her.
At [22] she says Ms Forsstrom was given certain milestones and deliverables when she was hired. She says it was apparent to her that her manager had to spend an amount of time to support, mentor and manager her. She says Ms Forsstrom displayed poor communication, collaboration and responsiveness and she was not able to work independently. However, no examples are given of such alleged shortcomings. Nor has Ms Forsstrom’s assertions that the project she was assigned to was behind in its timeliness when she was assigned to it and to the conversations she had with her colleagues and manager about these matters, which she details in her statement.
Ms Downs at [25] says said she had a conversation with the CIO and a decision was made that they should not progress Ms Forsstrom beyond her six month probation period. She does not say that anyone had raised their concerns with Ms Forsstrom.

Ruby Dimmick’s statement

Ms Dimmick is the manager of Workplace Health and Safety (WH&S) at the respondent since June 2022.[11] Before this she was the HR Business Partner and says this involved her providing high level support within the Technology Services area. She refers to the incident report being received. Again her account contains the error that Mr Thaivarayan said of himself that he was not a moron. She says that their records show that although Ms Forsstrom received notification of the incident report she did not click on it. Ms Forsstrom in her statement explained that the reason for this was it arrived when she was having a consultation with Dr Abeya and later the incident report was closed. This is confirmed in [17] of Ms Dimmick’s statement. At [18] Ms Dimmick says she arranged for the EAP provider to run sessions for the technology staff and she assumed Ms Forsstrom attended. She says Ms Forsstrom never contacted her directly to raise any issues or complaints in relation to workplace bullying, victimisation or harassment.
[11] Reply p 59.

Sharon Farquhar’s statement

Ms Farquhar is the Director of HR at the respondent. She has provided a statement signed on 29 September 2022.[12] She says she cannot recall when the incident of 27 May 2022 would have come to her attention but there was no link between that and the probationary process. She states, “the incident was considered a minor issue as an unfortunate verbal exchange in an online meeting and was not bullying”. It is difficult to ascertain how she came to this conclusion when she does not seem to know the details of the incident, or that Ms Forsstrom was distressed at being called a moron in that meeting. She also says at [14] “the actual truth became distorted by the claimant overtime”. I do not agree with this contention. I have accepted as a matter of fact that Mr Thaivarayan called Mr Forsstrom a moron.
[12] Reply p 49.
She states some weeks later Ms Forsstrom’s probation period became due and Mr Justin Richardson advised there were performance issues and he did not want to confirm her appointment.
There is no statement from Mr Richardson nor from Mr Forsstrom’s usual manager, Ms Booth, and supervisor, Ms Hawkins.
I find that it appears at no stage during her six months of employment that anyone spoke to Ms Forsstrom to inform her of their views about her perceived shortcomings.
Ms Farquhar says that she and Mr Richardson attended the meeting with Ms Forsstrom on 5 July 2022. She says they offered for her to have a support person but Ms Forsstrom states she only received notice of the 4.00pm meeting at 1.46pm that day and she had insufficient time to arrange a support person and she did not understand that there would be a need because earlier that day her leave request had been approved.
Ms Farquhar says the meeting was short just six to seven minutes. She says Mr Richardson said the purpose of the meeting was to make a recommendation as to whether her appointment would be confirmed or not. However, this does not appear to be entirely accurate because she also states that Mr Richardson said in the meeting that he would be recommending to the Vice Chancellor that her employment come to an end.
Ms Farquhar says at [19] “I believe the claimant was quite surprised.” She says they gave her until 8 July to respond. She says they offered her EAP. Ms Farquhar said, “I didn’t detect the claimant was upset but my observation was that she was in shock”.
She says after the meeting she sent a copy of the recommendation dated 5 July 2022 and Ms Forsstrom sent an email back at 4.30pm that day seeking a copy of the incident report from May and specific examples where she had not met her role so she could address these. Ms Farquhar sent the incident report to her on 6 July 2022 and said she would seek further advice about the other request and respond shortly.
She says Ms Forsstrom came back that day to say she was still in the state of shock and mentioned the May incident and toxic work environment. She says that was news to her and the probation assessment is separate to the incident report. She then says at [25] “I advised the claimant was while that particular exchange with the consultant may have been stressful, as a Business Analyst in TS those sorts of robust discussions can be part of that role”.
Ms Farquhar says Ms Forsstrom did not respond by 8 July 2022 to the probation recommendation and so the report went to the Vice Chancellor and on 11 July 2022 he noted the absence of a response from her and the recommendation to terminate was accepted.
At no stage does Ms Farquhar say she gave the specific examples Ms Forsstrom requested so she could respond. It does not appear the Vice Chancellor was informed she had made such a request.
I find the letter of 5 July 2022 while it sets out areas of concern provides no specific examples. I find, in a situation where there is no evidence that Ms Forsstrom was told during the six months of her employment of issues with her performance, this letter dated 5 July 2022 was not specific enough to enable her to properly respond.

Treating medical evidence

Dr Cheng issued a Certificate of Capacity dated 7 July 2023[13] stating her injury date was 27 May 2022 and diagnosis was aggravation of pre-existing generalised anxiety disorder. In the details of the injury reference is made to bullying, victimisation and harassment and that she had reported a verbal attack occurring on 27 May 2022 and that management originally supported her however there was no response from the WH&S team, creating increased anxiety and on 5 July 2022 she received a disciplinary report and told her complaint showed she could not perform her duties. She was certified as having no current work capacity for any work.
[13] ARD p 152.
Dr Cheng has continued to issue certificates of capacity in the same terms including covering the period up to 29 February 2024.[14]
[14] AALD-A p 13.
Dr Cheng’s clinical records are from the Pendle Hill Medical Centre.[15] On 25 May 2022 he notes “anxiety and stress from move. Found lung nodule on CT, request diazepam 2mg”. It is recorded on 9 June 2022 that Ms Forsstrom rang the doctors rooms for a phone consultation but this did not occur until the next day when it was noted on 8 June 2022 she tested positive for Covid-19. It was noted she was walking and eating. Nothing is recorded about the incident on 27 May 2022. On 16 and 17 June 2022 it is recorded she rang to request a phone consultation and she left a message to obtain a medical certificate for Covid infection.
[15] ARD p 230 and AALD-1 pp 1-390.
On 7 July 2022 Dr Cheng had a telephone consultation and records “alleged experienced workplace bullying, called a moron at work, initially supported by manager then called to a meeting and told unit for current role.” It is recorded that she saw Dr Abeya last week. It is also noted she had stopped Ritalin because of anxiety and she needs diazepam 8mg.
On 14 July 2022 Dr Cheng has recorded that the insurer was concerned about Ms Forsstrom and recommended a welfare check. I have read all of the clinical notes from Dr Cheng’s practice but will not summarise them further in these reasons.
Dr Abeya has treated Ms Forsstrom since 2016. She has sent Dr Cheng reports dated 14 July 2022, 5 August 2022, 11 August 2022, 7 and 8 October 2022. The doctor states in her report dated 20 September 2023 that Ms Forsstrom had sent the doctor an email on 1 June 2022 at 10.11am asking for an urgent appointment. A copy of this email is Annexure 43 to her statement.[16] It says:
“I really need to have a phone call, can we please organise a time I am on about two to three valiums a day with my anxiety it’s never been like this before and I am scared and worried and feeling like I can’t cope at the moment”.
[16] ARD p 147.
The doctor says in her report that unfortunately she did not have immediate availability to see Ms Forsstrom, but attempted to call her out of hours. Dr Abeya says they had an appointment on 23 June 2022 when she first discussed her issues at work and the incident on 27 May 2022. The doctor says it was hoped management would support her but she was extremely anxious.[17]
[17] ARD p 221.
The doctor lists 17 more consultations to 7 September 2023. She says that Ms Forsstrom has struggled with both depressive and anxiety symptoms during this time. She has been haunted by the events at work and the incident on 27 May 2022. She said there have been times when she presented as quite distraught and hard to console.
Dr Abeya’s handwritten clinical notes refer to her consultation on 23 June 2022. They are in point form. The first dot point refers to an incident at work with a man. Other matters are listed. In the note for 14 July 2022 the doctor has written “was very anxious and upset. Can’t do basic tasks anymore. Events at work had worsened progressively affecting mood. After incident with Siva- they handled things poorly.” There is reference to her not sleeping and she was worrying constantly about situations and she cannot get it all out of her mind.[18]
[18] AALD-A p 16-17.
In Dr Abeya’s report dated 19 June 2023 in the history section of the report Dr Abeya says she had anxiety symptoms in the past but was managing well until the incident on 27 May 2022. She says she believes the symptoms commenced after this incident and progressively grew in severity. She adds that “the termination and issues brought up then may have compounded the distress but they were not the main causative factor.”
Dr Abeya diagnosed an adjustment disorder with mixed anxiety and there was a point in late 2022 when it progressed to a major depressive disorder with anxious distress but she says given the nature of the condition and how it came to be the best descriptor is an adjustment disorder. She expresses the view that the main contributory factor was the incident on 27 May 2022 and while the termination may have added to her distress this was not the main contributor.[19] The doctor expresses the view that she does not have capacity to return to work.
[19] ARD p 218.
In the report of 20 September 2023 Dr Abeya is asked to comment on Dr Nagesh’s report dated 17 November 2022. Dr Abeya says she does not agree that management action has been the sole and main contributor to her psychological injury. She says the symptoms started after the incident on 27 May 2022 and symptoms worsened with lack of support from her employers and the termination of her employment did not improve her mood but it was not the main contributory factor to her condition.

Dr Nagesh

Dr Nagesh, psychiatrist, provided a medico-legal report for the respondent dated 17 November 2022.[20] Dr Nagesh expresses the opinion that Ms Forsstrom meets the criteria for an adjustment disorder with depressed and anxious mood. The doctor says in point 2 that the injury arose out of a singular event and was not a disease of gradual process. He says her prior GAD made her vulnerable to develop an episode of an adjustment disorder with depressed and anxious mood but it is not an aggravation of the prior condition.
[20] Reply p 146.
In terms of the whole or predominant cause of the injury, Dr Nagesh answered question 6 that it was the employer’s management action, namely performance appraisal as per the final probation review conducted on 5 July 2022 and the termination on 11 July 2022 that were the whole or predominant cause of the condition. The doctor sets out his rationale:
(a)    she did not lodge an incident report form at the time of the incident on 27 May 2022;
(b)    she did not report development of any psychological symptoms at this point in time;
(c)    the incident report was lodged by her supervisor on 23 June 2022;
(d)    she was notified of the cessation of her employment on 5 July 2022;
(e)    concerns were raised about her completing her inherent duties on 5 July 2022;
(f)    she was informed about the recommendation to cease her employment and given three days to respond, and
(g)    on 7 July 2022 she lodged a workcover certificate of capacity.
However, Dr Nagesh does not appear to know that Ms Forsstrom emailed Dr Abeya on 1 June 2022 seeking an urgent appointment saying she was worried about her anxiety and she was taking three Valiums a day and she was scared. Dr Nagesh does also not deal with what Dr Abeya says was discussed in her consultation on 23 June 2022. Both these events were before any issues had been raised with Ms Forsstrom about her performance. Furthermore, Ms Forsstrom has explained in her statement why it was that she did not lodge an incident report about the 27 May 2022 incident and the errors contained in the report which was lodged by her supervisor. Mr Malouf submitted that Dr Nagesh also does not take into account that Ms Forsstrom reported the incident to her supervisor verbally the moment it happened.
Dr Nagesh says Ms Forsstrom did not develop any symptoms at the time of the 27 May 2022 incident, but as submitted by Mr Malouf, I find that does not reflect Ms Forsstrom’s evidence and that of Dr Abeya.
I find for these reasons Dr Nagesh has not based his opinion upon a full understanding of the correct factual matrix and therefore, I do not know what his opinion would have been had he been appraised of this information.
The insurer issued a review notice on 19 May 2023 which states that Ms Forsstrom applied for a review on 5 May 2023 and sent them her undated statement with annexures (186 pages).[21] This notice states that Ms Forsstrom submitted that the initial causation of injury started on 27 May 2022 and medical attention was sought and provided in June 2022. She also explains why she did not complete an initial WH&S report as she was attending a psychiatrist and the report was open and closed by her manager on the same day.
[21] Reply p 6.
Contained in Ms Forsstrom’s statement and annexures are proof she did contact Dr Abeya by email on 1 June 2022 and expressed her concerns about her anxiety. This is in annexure 43. Also Ms Forsstrom refers to consulting Dr Abeya on 23 June 2022 as [253] to [263] of her statement details. It appears the insurer has not placed weight on this evidence, stating they do not have a report from Dr Abeya about that attendance. It is surprising that the insurer did not seek such a report from the doctor.
Instead the insurer states it prefers the opinion of Dr Nagesh “who highlighted the timeline of events… Dr Nagesh’s opinion is preferred as he had the benefit of reviewing the factual and medical evidence on file and made a conclusive determination in relation to liability”.[22] So the insurer dismissed the opinion of the longstanding treating specialist doctor in circumstances where Ms Forsstrom informed them she had treatment from Dr Abeya before the performance issues were raised with her. Also, the insurer placed weight on the factual report and stated in this notice “all witnesses confirm that they did not observe you being bullied, victimised or harassed in the workplace.”[23] This is hardly surprising as the only two people in the call on 27 May 2022 was Ms Forsstrom and Mr Thaivarayan.
[22] Reply p 10.
[23] Reply p 8.
It is surprising that once Dr Abeya’s reports were served on the insurer that they did not obtain an updated opinion from Dr Nagesh, especially since Ms Forsstrom’s solicitors served on 27 June 2023 the report of Dr Abeya dated 19 June 2023 and Dr Khan dated 15 June 2023 and sought a review of the insurer’s decision in their s 78 notice dated 18 November 2022. The insurer issued a review notice on 11 July 2023 in which they maintain their declinature and state “there is no evidence to support you had symptoms after the incident”. However, I find that there was evidence, it was in Ms Forsstrom’s statement as noted earlier. Furthermore, once the ARD was served with the supplementary report of Dr Abeya dated 20 September 2023 the insurer had another opportunity to consider his evidence about the treatment in June 2022 and to refer this to Dr Nagesh, noting the hearing did not take place until 5 February 2024.

Dr Khan

Dr Khan, psychiatrist, provided a medico-legal report from Ms Forsstrom’s solicitors dated 15 June 2023.[24] He diagnosed major depressive disorder and aggravation of the pre-existing GAD. He says she still suffers from pervasive symptoms of depression and anxiety which have a profoundly negative impact on her social, occupational and other areas of functioning. He found she has a total incapacity for work.
[24] ARD p 207.
Dr Khan comments on Dr Nagesh’s report and says he does not agree with Dr Nagesh’s conclusion about the whole or predominant cause of her injury. He says even though her manager did not lodge an incident report until 23 June 2022, there had been notification of the incident on the same day. Dr Khan says the employer’s actions in brining up issues with her at the end of her probation period and terminating her employment served to further aggravate her already fragile mental state but it was not the whole or predominant cause of her psychological injury.

Consideration of submissions and determination.

The respondent submitted that what is at the heart of the dispute in this matter is causation, whether or not the incident that Ms Forsstrom pleads was the cause of her injury or whether it was the subsequent act of the employer at the end of her probation period to not offer her ongoing employment. Mr Hart submitted that it is not the respondent’s case that the incident in May was not part of the causative factors but its case is it was minor factor in the development of injury. And even if the s 11A factors were not the whole cause they were the predominant cause of the injury. Counsel referred to the meaning of predominant as discussed at [46] in Hamad v Q Catering Limited[25] mainly or principally caused.
[25] [2017] NSWWCCPD 6, Hamad.
In relation to the incident on 27 May 2022 the respondent says it does not accept Ms Forsstrom’s version, but counsel is not going to deal with the respondent’s evidence about that because he says it does not matter who said what in that meeting, it was a real event. However, I find this approach glosses over the fact that the respondent does not have a contrary or any statement from Mr Thaivarayan as to his version of events. There was only him and Ms Forsstrom in the online meeting on 27 May 2022 and I have explained earlier why I accept Ms Forsstrom’s version of that call. I consider it is of some importance as to who said what because the medical evidence from Dr Abeya makes it clear that being called a moron has played on Ms Forsstrom’s mind and she found that term particularly offensive, because the term is, but also because of her disabilities it she found it more offensive.
A problem, as I see it, with the respondent’s argument by classing the incident on 27 May 2022 as “minor” it has not properly considered the effect on Ms Forsstrom. It is evident that Ms Farquhar did not appreciate the significance of that incident by the way she responded to Ms Forsstrom that it was a “robust discussion” and she should “expect” that. Also, I have found the insurer when reviewing the material did not place any weight on Ms Forsstrom’s evidence in her statement as to the effect it had on her. The transcript of the balance of that online meeting shows she was distressed at the time. Furthermore, she consulted Dr Abeya in June 2022 well before any performance issues were raised with her.
Mr Hart acknowledged the attendance on Dr Abeya in June but submitted the overwhelming majority of the contemporaneous evidence does not support the incident in May being causative in a real sense, despite what she says in her statement and what is set out in the doctors’ reports.
In his submissions about Ms Forsstrom’s email to Dr Abeya on 1 June 2022 trying to obtain an appointment, counsel submits that she does not mention the cause of her increasing anxiety. That is the fact, however in addition to her evidence in her statement, Dr Abeya in his report dated 20 September 2023 does set out the history given to her in the consultation on 23 June 2022.

Mr Hart submitted that the notes of Dr Cheng are relevant because they do not contain a mention to the incident on 27 May 2022 until 7 July 2022, which is after the probation meeting on 5 July 2022. This is accurate and had it not been for Dr Abeya’s account of the consultation on 23 June 2022 one might have been concerned about the lack of corroboration of Ms Forsstrom’s account. However, there is also the evidence from her mother relating her observations of Ms Forsstrom in June 2022.
The respondent’s counsel submitted that one can tell from the clinical records of Dr Cheng that Ms Forsstrom is a frequent attender for a range of conditions and he argues that she would not be reticent to tell Dr Cheng the issues she was having at work but she does not until 7 July 2022. He argues an inference should be drawn that had Ms Forsstrom told Dr Cheng about the May incident earlier than 7 July 2022 the doctor would have recorded it, given he made a long record in the entry on 7 July 2022.
Mr Hart submits that Dr Abeya does not state in her report that in the consultation on 23 June 2022 they spoke about other things, as recorded in his handwritten clinical notes, he submits that you cannot, from this clinical record, make an inference that the predominant reason for the consultation was the incident on 27 May 2022. He argues that the doctor does not write about the nature of the incident. However, I consider more weight needs to be afforded to Dr Abeya’s report dealing with this consultation because the handwritten notes are obviously not a verbatim account of their conversation and appear to be brief notes in dot point. Mr Hart says that the handwritten note for the consultation on 14 July 2022 can be compared to the earlier note. I assume he means it has more detail about how Ms Forsstrom was upset.
Mr Hart submits, like with the general practitioner’s records, there is an “after the event rationalisation” that it must have been the event on 27 May 2022 that was causing her symptoms. Given Dr Abeya has been Ms Forsstrom’s treating psychiatrist since 2016, I consider it is surprising that her reports could be dismissed as an “after event rationalisation” just because her contemporaneous handwritten notes are brief in detail.
Mr Hart made submissions about Dr Khan’s report arguing weight should not be afforded to it because he did not have the respondent’s factual evidence and he did not deal with the timeline as set out by Dr Nagesh. I have explained earlier why I have not accepted Dr Nagesh’s opinion because his timeline leaves out crucial information such as Ms Forsstrom seeing Dr Abeya on 23 June 2023 or giving any credence to the matters recounted in Ms Forsstrom’s statement. Mr Malouf has also made submissions about some inconsistencies in Dr Nagesh’s report because the doctor diagnosed an adjustment disorder in the context of Ms Forsstrom being in the call on 27 May 2022 with Mr Thaivarayan and the doctor’s answer to question 2.
Mr Hart submits that Dr Khan’s report is wanting because he does not have the clinical records from Dr Cheng or Dr Abeya. He submits the Commission should be slow to put any real weight on Dr Khan’s opinion.
In this case both Dr Khan and Dr Nagesh only have seen Ms Forsstrom the once, whereas Dr Abeya has on many occasions seen Ms Forsstrom. Accordingly, I consider Dr Abeya is in the best position to provide an opinion about whole or predominant cause of the psychological injury.
Mr Hart made another argument that the reason Ms Forsstrom has no capacity for employment is because she was told she no longer has a job with the employer and this is consistent with the true cause of her injury, the ending of her probation. However, Dr Abeya deals with this and says it increased her distress but was not the whole or predominant cause of the psychological injury.
Mr Hart related the contents of Ms Down’s, and Ms Farquhar’s statements which I have summarised above. He submitted what is clear is that the consideration of Ms Forsstrom’s probation was separate to the handling of the incident on 27 May 2022. He also referred to the incident report and the reference therein to the incident being minor. He submits this was consistent with Ms Forsstrom’s position before her probation period was enacted and consistent with how she presented to her doctors. For the reasons given earlier I have found it was not a minor incident and I accept that it had a significant effect on Ms Forsstrom.
He submits she was given the opportunity to respond to the 5 July 2022 letter of recommendation and to contact EAP and attention was drawn to the decision of the Vice Chancellor to accept the recommendation, noting Ms Forsstrom had not responded. I have made findings earlier in relation to this process, noting in particular that Ms Forsstrom had sought from Ms Farquhar specific details of the complaints about her performance. I consider it was unreasonable that she was not given specific details and also that she was not informed during her six months work for the respondent that there were issues with her performance and communication skills. I find the letter of 5 July 2022 was so broad in the allegations to give her no real understanding of the details of the allegations.
Mr Malouf also submitted it was unreasonable that Ms Forsstrom was told of the meeting for 4.00pm on 5 July 2022 only at 1.46pm that day. I accept this submission. Ms Farquhar said Ms Forsstrom appeared surprised and shocked in the meeting. Ms Forsstrom says she had no reason to think it was a performance meeting where she would need a support person noting that only that morning her leave had been approved. I consider it was not long enough notice for her to arrange a support person particularly, as Mr Malouf submits, she was left in the dark about what was going to be discussed in the meeting.
Even if the predominant cause was the failure to extend her employment beyond the probation period, I find the conduct of the employer was not reasonable. There is no statement from Mr Richardson or from her direct supervisor or manager to whom Ms Forsstrom relates in her statement that she discussed from the outset of the project that the project was behind the expected timelines before she was seconded to it. I find it is not reasonable to cite as one of the grounds to terminate her that she did not meet the timelines when there were issues as to the achievability of this from the outset. It was also not reasonable to provide Ms Forsstrom with specific details of her perceived failures in meeting the respondent’s requirement. For instance, Ms Forsstrom says in relation to the allegation that she had poor communication it was only after 27 May 2022 that she did not attend the meetings with Mr Thaivarayan but she attended all other meetings, and this arrangement was approved by her manager and supervisor who had warned her in advance of his bullying nature. In addition, it was not reasonable to give her about two hours’ notice of the meeting on 5 July 2022 particularly as she had not been given notice what was to be discussed and I find it was not reasonable to present her with the recommendation on 5 July 2022 when during her employment she had not been told her performance was wanting. The respondent has the onus of proof to establish a s11A defence and I find it has not discharged the same.
In summary, I have accepted Dr Abeya’s evidence that the whole or predominant cause of the psychological injury was not performance appraisal or dismissal. However, even if the predominant cause was as the respondent argued the performance appraisal on 5 July 2022 and subsequent dismissal, I find the conduct of the respondent was not reasonable.

Weekly compensation

In relation to the issue of Ms Forsstrom’s capacity for employment, Mr Hart submitted that all of the medical evidence supports her case. He notes that in her last statement that she is high functioning and is back at TAFE and there is reference in Dr Abeya’s records to her performance and volunteering work, but he acknowledges there is no medical evidence to assert she has capacity for employment.
I find she has no current work capacity as defined in Schedule 3 cl 9 of the 1987 Act because she has had an inability since 7 July 2022 to date and continuing based upon the consensus in the medical evidence.
The respondent is to pay the applicant weekly benefits compensation as follows:
(a) pursuant to s 36(1) of the 1987 Act for the first 13 weeks from 7 July 2022 to 6 October 2022 at the rate of 95% of the agreed PIAWE figure of $1,841.52, as indexed from time to time, and
(b) pursuant to s 37(1) of the 1987 Act in the second entitlement period from 7 October 2022 to date and continuing at the rate the rate of 80% of the agreed PIAWE figure of $1,841.52, as indexed from time to time.
The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 137

21 March 2024