Gacayan v Success Ventures Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gacayan v Success Ventures Pty Ltd [2022] NSWPIC 109
APPLICANT:	Cesar Gacayan
RESPONDENT:	Success Ventures Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	17 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury claim for permanent impairment compensation and medical expenses; whether applicant suffered psychological injury in course of employment, and if so, whether it was caused by the respondent’s reasonable actions with respect to discipline, promotion and/ or performance appraisal; Held- the applicant suffered a work-related psychological injury which was caused by a multitude of work-related factors; the conduct relied on by the respondent was not the main contributing factor to the applicant’s injury; matter remitted to President for referral to a Medical Assessor to determine the applicant’s permanent impairment; respondent to pay the applicant’s reasonably necessary medical and treatment expenses.
DETERMINATIONS MADE:	1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 26 November 2018. 2. The applicant's employment with the respondent was the main contributing factor to the above injury. 3. The injury referred to in (1) above was not caused by the reasonable actions of the respondent with respect to promotion and/or performance appraisal. 4. The claim for permanent impairment compensation is remitted to the president for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 26 November 2018 (deemed) Body system referred: psychological injury Method of assessment: whole person impairment 5. The documents to be referred to the medical assessor to assist with their determination are to include the following: a. this Certificate of Determination and Statement of Reasons; b. Application to Resolve a Dispute and attachments, and c. Reply and attachments. 6. The respondent is to pay the applicant's medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

On 15 August 2018, Cesar Gacayan (the applicant) commenced employment with Success Ventures Pty Ltd (the respondent) as assistant chief engineer at the Park Royal Hotel, Darling Harbour. In that role, he reported to the chief engineer, Mr Gary Roberts.
The applicant alleges that he suffered a psychological injury in the course of his employment with a deemed date of injury of 26 November 2018. He alleges he was subjected to bullying, harassment and intimidation by a number of employees and/or agents of the respondent. There is no medical issue that the applicant suffers a major depressive condition, however, the respondent alleges through its independent medical examiner (IME) Dr Vickery that the main contributing factor to that condition are personal stressors suffered by the applicant outside of the workplace.
By way of background, in May 2018, the applicant was involved in a motor vehicle accident in Queensland for which he made a claim. Dr Vickery's view is that accident accounts for part of the personal stressors which caused the applicant's condition.
The applicant seeks payment of medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) and permanent impairment compensation for the alleged psychological injury. In the event the Personal Injury Commission (Commission) makes a finding in favour of the applicant concerning the psychological injury, the respondent also alleges that any such injury was wholly or predominantly caused by the respondent's reasonable actions with regards to performance appraisal, discipline and/or promotion.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain for determination:
(a) whether the applicant suffered a psychological injury in the course of his employment with the respondent, and
(b) if the answer to the (a) above is in the affirmative, whether that injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline and/or promotion.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 7 February 2022. 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 through a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr McManamey instructed by Mr Robalino appeared for the applicant and Mr Baran instructed by Mr van Der Hout appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a psychological injury in the course of his employment

The applicant bears the onus of proving that his employment with the respondent was the main contributing factor to the development of a psychological injury. In the context of a psychological injury, the authorities are clear in establishing that a worker’s perception of real events can give rise to an injury.
In Attorney General’s Department v K (2010) NSWWCCPD 76, Roche DP considered the issue of establishing psychological injury in such circumstances and set out a number of matters which ought to be taken into consideration. In so doing, the deputy president followed the decision of the Court of Appeal in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (18 September 2007) (Chemler). As the Court of Appeal made clear in Chemler, what is important is focusing on the consequence of conduct on a worker and not, even in a limited sense, the motivation, intention or other mental state of any co-worker or supervisor: see Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 642.
In this matter, the respondent argues that the cause of the applicant’s psychological condition is the prior motor vehicle accident and says his employment was not the main contributing factor to the onset of the condition.
In psychological injury cases, as noted the applicant must show his employment was the main contributing factor to the development of the condition or, if the alleged injury is said to be an aggravation, the main contributing factor to the aggravation of a pre-existing condition.
The applicant in this matter does not claim his injuries by way of aggravation. He alleges the condition itself arose from his employment, which was the main contributing factor to it.
This is a point of particular relevance as the respondent has raised the applicant's mental state in the aftermath of the earlier motor vehicle accident.
On 21 May 2018, the applicant was involved in a motor vehicle accident in Brisbane. In the aftermath of that accident, he underwent therapy and counselling. The clinical records of the applicant’s general practitioner (Application p270) note that in September 2018 he was still suffering from a fear of driving.
A clinical entry on 13 October 2018 record a “MVA – anxiety and panic attacks…adjustment disorder very likely…".
Its Section 78 Notice dated 30 July 2019, the respondent relied on the applicant not reporting work as a psychological stressor until after a meeting in November 2018 (upon which it relies as the basis for its defence under section 11A) as evidence which suggests the applicant's employment was not the main contributing factor to the onset of his illness.
However, that approach is incorrect at law. It is well-settled that the absence of complaint to a treating practitioner is not itself determinative of whether the applicant has developed a psychological injury in the course of his employment.
In Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, Roche DP made it clear the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered an injury. The deputy president noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor and an arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.    However, on its own, the absence of such a complaint to Mr Baker's general practitioner until 26 September 2013 was not decisive of whether the events complained of caused the psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.    Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work,…and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complained of bullying to a general practitioner until 26 September 2013.
83.    The arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]) and, to the extent that the arbitrator thought that such corroboration was necessary, he erred.
84.    Moreover, as Beazley JA (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believe his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness."
For the respondent, IME Dr Vickery opined that the main contributing factor to what he diagnosed as the applicant's major depressive disorder was the May 2018 motor vehicle accident. However, there is no contemporaneous diagnosis of such a disorder following that accident.
Moreover, by a comment on 26 November 2018, it is apparent the applicant discussed with his general practitioner the history of workplace issues as follows:
"Feeling very bad
From Brisbane. Park Royal Darling Harbour Sydney assistant chief engineer contract
No induction for him.
Boss looking after assistant and Homex project and Apex project and lead does own research
Suddenly shouted at not allowed to call contractor/supplier
Was self a chief engineer,
Normal handyman can call contractor et cetera
Was told would be taught how to use Procurement SAF
Both does not know how to use computer
Found irregularities in online procurement system, corruption in him
Stressed that does not want to be part at his job at risk and may get police called in
Extremely stressed, could not sleep last night
Hand sweating, cannot sleep, wakes up 5:00 am, not much sleep, handshaking
Boss intimidated him, bullied him, not happy going to work, scared
Boys not happy
Self enquired, boss confronted
60% compliance covered up
From previous GM
Has reported to Singapore
Had audit three weeks ago, did not find out
Been giving another audit and also engineering audit
Boss resigned two weeks ago, so he may lose job audit, said wife has terminal cancer
Position advertised, self-expressed interest for position, interview schedule one week ago, Megan head HR for Australia were interview then acting GM also
During interview bullied by the above pair, visa enquired (tourist visa) migration agent in Brighton Filipino, able to get
Work rights turned out to be fake, he was killed by son
Received letter to leave, applied for protection visa, went to Fiji and came back with 457 visa, migration officer intervened
Three children got citizenship and a private parent visa
They shout that he may be dealt by police et cetera yet he actually has legal visa now, new job
Promised the job would be kept for him
Felt sick after nearly called ambulance
They assigned an IT manager to run, was a plumber, felt insulted".
Although that entry postdates the applicant's interview for the chief engineer role and the matters raised by the respondent’s representatives therein, it nevertheless is a relatively contemporaneous record and sets out matters which concerned the applicant.
That entry is also corroborated by evidence of the applicant providing information to internal auditors surrounding perceived irregularities with his boss, the chief engineer Mr Roberts. There is no question Mr Roberts resigned after having irregularities in procurement processes raised with him. That much is confirmed by Ms Knoetze, the respondent’s employee in her statement contained in the Reply.
The applicant provides uncontradicted evidence of hostility and intimidation by Mr Roberts since the applicant commenced employment. In his statement, the applicant says:
"20. On my first day on 15 August 2018, I was given access to an SAP the online procurement system with details of providers. I am familiar with it at least 10 years of experience, and I rang a provider of the name David Talbot for servicing all HVAC systems and air-conditioning for the Park Royal Hotel. I called Gary Roberts, the chief engineer. To my amazement, he responded with screaming loudly at me and have a go at me in front of all the engineering teams after acknowledging that I called the contractor. I was not made aware of any restrictions in calling or communicating with the list of contractors or suppliers.
21. Gary then told me words to the effect in a loud voice:
‘You are not to call any contractors or any suppliers whatever happens in the hotel if it gets burned [sic], it is me and Jerome, who will answer for it.'
22. At this stage I was shocked and scared, afraid that I had done something wrong for Gary to react in such way in a work environment, screaming and shaming me. Gary put me in front of everybody and insulted, being disrespectful towards me saying words to the effect of in a lower voice, pointing his finger at me about one foot distance:
'You are not allowed to call the contracts, not allowed to do rosters to the boys, they can do it themselves.'
I felt insulted, with Gary demoting me in public, I felt bullied physically and I was shocked as no one has put me in such a position in public.”
The applicant then went on to convey circumstances of Mr Roberts excluding him from work meetings and activities and passing on the applicant’s normal activities to less experienced personnel like an IT manager who lacked experience in engineering management.
It is apparent the applicant was concerned by irregularities in the system at the respondent’s workplace. He states that during the first week he raised with management issues concerning irregularities in the SAP system regarding payment to contractors. He says he confronted Mr Roberts twice at which time he alleges he was threatened and told not to speak to Ms Zhao, with whom the applicant had been discussing certain of the irregularities as she was the financial director.
There was no doubt that an internal audit was undertaken, and the evidence plainly discloses the applicant was in contact with those auditors. It is apparent from the tone and content of his email correspondence and his statement that these matters affected him and were at least partly responsible for the onset of his psychological condition.
I accept the applicant's evidence concerning his interactions with Mr Roberts, and to the extent any corroboration might be required of the applicant's early concerns once he commenced employment regarding Mr Roberts, it is apparent he raised various issues with the internal auditors and senior management. In my opinion, that evidence confirms the applicant’s issues with Mr Roberts were plainly playing on his mind as early as October 2018.
Moreover, the respondent has not provided a statement from Mr Roberts to contradict the applicant's evidence. Although Mr Roberts has left the respondent’s employ, no evidence has been proffered as to attempt to obtain a statement from him to refute the applicant's evidence. To the extent the applicant relies on his interactions and issues with Mr Roberts as the cause of his condition, I accept his evidence.
On the balance, in my opinion the evidence discloses the applicant suffered a psychological injury in the course of his employment with the respondent due to a number of factors in the workplace, including but not limited to his interactions with Mr Roberts and the internal auditors were the main contributing factor to the onset of that condition. I note no evidence is proffered to contradict the applicant's statement in relation to Mr Roberts yelling at him and treating him poorly once the applicant become aware of irregularities in the respondent’s procurement processes.
Although there is no issue the applicant suffered a psychological condition after the motor vehicle accident in May 2018 in that he was scared to drive, it is apparent he was able to function well in the workplace. There is no suggestion the May 2018 accident led to a condition which could be described as a major depressive episode. The applicant drove to Sydney for the job interview with the respondent, carried out his work duties and interacted with co-workers and senior management and auditors despite being new to his role.
On balance, I find the applicant's employment with the respondent was therefore the main contributing factor to the onset of his psychological condition. I note Dr Vickery found the personal stressors were the main contributing factor to the applicant’s condition, however, the clinical notes of the treating psychologist Ms Naum from October 2018 reveal:
“Motor vehicle accident — anxiety and panic attacks. Moved to Sydney not long ago for work from Brisbane. Adjustment Disorder very likely. Limited support in Sydney —- lives with his wife. Disclosed that his wife triggers him and reported that they often engage in verbal exchanges when he is driving and walking across the road. Rumination in the evening. Psyched re therapy."
Ms Naum then recorded in November 2018:
“Broke down in the session today. Things at work are rather complex. Patient reported series of bullying events that he has experienced. He had an interview on Monday and he reported that in the interview he felt threatened regarding his Visa and they mentioned contacting the Police. Patient was very distressed throughout the session, feeling terrified and not safe at work. Feeling overwhelmed and unsure what to do. Patient reported that he was so distressed after the interview on Monday and feels as though he let down his wife and that he thought a way out was to end his life."
Dr Vickery opined that:
“It is significant that in October 2018 it was noted by the psychologist that Mr Gacayan was suffering from chronic pain, fear of movement and fear of being in a car, anxiety and panic attacks as well as rumination and conflict in the marital relationship arising form the motor vehicle accident on 21 May 2018.”

However, Dr Vickery does not indicate why that is of significance, nor does he explain why those factors, which grounded a diagnosis of adjustment disorder, constitute the main contributing factor to a different psychological condition which he diagnoses after the applicant had been exposed to workplace stressors. On balance, I do not accept Dr Vickery’s opinion surrounding the cause of the applicant’s major depressive episode. He has not, in my view, taken into sufficient account the workplace factors which the applicant was subject to from the outset of his employment.
Among the matters which were concerning the applicant was his interaction with the internal auditors and the outcome of their investigation. That much is clear from the text messages between the applicant and the auditor in which the applicant expresses concern over the outcome and the future of his employment. It should be stressed that those concerns are not said, even by the respondent, to have been raised in the context of either performance appraisal, discipline or promotion.
Moreover, Dr Vickery’s report of 22 July 2019 contains an inherent contradiction. On the one hand, he states the main contributing factor to the applicant’s psychological condition was extraneous, non-work-related factors. He then says later in the same document “The injury was wholly or predominantly caused by the action taken by the employer in respect of performance appraisal and promotion.” Plainly those conclusions cannot stand together.
Dr Oldtree-Clark, IME for the applicant, also diagnoses a major depressive condition. In his last report dated 2 March 2021, Dr Old-tree Clark took into account the motor vehicle accident and noted the differential diagnosis between the aftermath of that accident and the applicant’s work-related issues. That opinion is supported by general practitioner Dr Suleman who noted the applicant never raised any psychological sequelae from the motor accident with him, and as such he was confident there was no psychological impairment arising from it. In my view, that opinion is supported by the fact the applicant drove to Sydney notwithstanding his post-motor vehicle accident (MVA) fear of driving, was able to interview for a senior position with the respondent and to undertake that work.
In my opinion, the evidence in this matter on balance supports a finding that the applicant’s employment with the respondent was the main contributing factor to the onset of his psychological condition.

Section 11A

Section 11A(1) of the 1987 Act provides:
"No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers."
An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
“Wholly" and "predominantly" are separate concepts and the finding of one or the other needs to be considered. The phrase “wholly or predominantly caused" has been held to mean “mainly or principally cause". The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In order to successfully raise a defence under section 11A, the respondent must not only show the requisite causal connection between his actions and the applicant's injury, he must also satisfy the Commission that its actions were reasonable.
In this matter, the respondent argues its reasonable actions with respect to promotion, discipline and/or performance appraisal were the whole or predominant cause of the applicant's injury. I reject that argument for the following reasons.
Having accepted the applicant's interactions with Mr Roberts and with the respondent's internal auditors were a contributing factor to the applicant's injury, I find the work-related causes of the applicant's injury were multi-factorial. That is, the applicant's injury was caused not only by the respondent's actions with respect to performance appraisal, discipline and/or promotion in particular in the meeting with the applicant which took place on 21 November 2018. Rather, I am of the view that a multiplicity of factors caused the relevant injury, including those in the lead up to that interview which are not relied on by the respondent as conduct related to performance appraisal, discipline or promotion.
Given the multitude of factors which the applicant faced in his employment with the respondent, I am not satisfied on the balance of probabilities that the respondent has discharged its onus of proof in establishing its actions with respect to promotion, discipline and/or performance appraisal were the whole or predominant cause of the applicant’s injury.
A test pursuant to section 11A is a conjunctive one. That is, the respondent must show not only that its actions were reasonable, but that they were the whole or predominant cause of any injury. Having found the respondent has not discharged the onus of proof regarding the whole or predominant cause element. I do not consider it necessary to make any findings in relation to the conduct regarding performance appraisal, discipline and/promotion. Certainly, the applicant's interactions with the internal auditors and with Mr Roberts were not part of any formal disciplinary, promotion or performance appraisal process and, quite appropriately, the respondent does not contend they were.
Having found the applicant's injury was caused by a number of factors, and not wholly or predominantly those relied upon by the respondent in support of its defence under section 11A, I find in favour of the applicant.

SUMMARY

In light of the above findings and reasons, the Commission will make the orders as set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 109

17 March 2022