Gibbs v Trustees of the Roman Catholic Church of the Diocese of Lismore - [2012] NSWWCCPD 30

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Gibbs v Trustees of the Roman Catholic Church of the Diocese of Lismore [2012] NSWWCCPD 30
APPELLANT:		Vicki Gibbs
RESPONDENT:		Trustees of the Roman Catholic Church of the Diocese of Lismore
INSURER:		Catholic Church Insurances Ltd
FILE NUMBER:		A1-6958/11
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		7 February 2012
DATE OF APPEAL HEARING:	25 May 2012
DATE OF APPEAL DECISION:		1 June 2012
SUBJECT MATTER OF DECISION:		Psychological condition; injury; causation; evaluation of evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
REPRESENTATION:		Appellant:	Mr L Morgan, instructed by Monaco Solicitors
Respondent:	Ms E Wood, instructed by Astridge & Murray Solicitors
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 7 February 2012 is confirmed. Each party is to pay her or its own costs of the appeal.

INTRODUCTION

The appellant worker, Vicki Gibbs, worked for the respondent as a carer/activities officer at the respondent’s Mater Christi aged care facility at Toormina, near Coffs Harbour, between September 2003 and June 2005. She alleged that she suffered a psychological injury as a result of being “regularly harassed and bullied in the workplace, placed under an extreme amount of workplace pressure by her superior Ms Susanne Wheelahan and other staff, [being] intimidated and humiliated in the workplace and [having] unreasonable workplace demands made upon her” in the course of her employment.
The respondent disputed that the worker received any injury and, if she had, disputed that her employment was a substantial contributing factor to that injury. In the alternative, it argued that any psychological injury resulted from reasonable action taken by it in respect of performance appraisal, dismissal and transfer. It also disputed whether the worker suffered any incapacity.
In a reserved decision delivered on 7 February 2012, the Arbitrator found that the worker was not a reliable witness and that he preferred the evidence from Ms Wheelahan, and the other witnesses who gave evidence for the respondent, that no bullying or harassment occurred and that the respondent had not made unreasonable demands on the worker. As the worker’s medical case was largely dependent on the accuracy of the worker’s evidence, which the Arbitrator did not accept, he did not accept her medical case and made an award for the respondent.

THE EVIDENCE

The worker’s evidence

The worker married at 17 years of age and had three children over the next seven years. As a result, she has a limited work history. She abandoned secretarial studies to start a family and moved to rural Queensland with her first husband.
The worker said she experienced two bouts of depression prior to her employment with the respondent. She developed “post natal depression” following the birth of her third child. The relationship with her first husband broke down and a custody dispute followed. The ordeal was extremely testing, but she was not prescribed medication and, once she knew her children were safe, she began to rebuild her life. After the divorce, she did part-time work flower-picking, work for the CSIRO and for an order of nuns.
After entering a relationship with her second husband, the worker moved to Western Australia, where she lived in an isolated area where work was difficult to find. Her second husband was physically and emotionally abusive. He left her in the late 1990s, after she was diagnosed with breast cancer. She developed depression in association with this condition, for which she was prescribed antidepressants, which she took for about 12 months.
In 1998, the worker moved to Noosa and worked part-time for TAFE and the Historical Society. She also started studying a nursing assistance course at TAFE. She coped with this and with the requirements of looking after her son. She worked as a nursing assistant at institutions near Noosa. She moved to Coffs Harbour in 2003, when she was “positive, looking forward to [her] newfound career and [she] had no issue with [her] mental health”. She started work with the respondent in 2003 and, in January 2004, undertook the role of a diversional therapist in the dementia unit.
The worker said that her life “completely changed” after she decided not to attend a Christmas party barbecue in 2003, organised by Susanne Wheelahan, the then deputy director of care with the respondent. The worker said that Ms Wheelahan was “recruiting” a small group of followers for the purpose of becoming the director of care. The worker felt that her failure to attend the barbecue offended Ms Wheelahan, who sought retribution by marshalling her supporters to harass the worker over the next 18 months.
The worker alleged that, from January 2004 until the cessation of her employment in June 2005, she was subjected to:
“continuing harassment, bullying and intimidating conduct by a group of individuals employed at Mater Christi. The group included; Susanne Wheelahan, Marjorie, Judy, Kevin O’Donohue, Marie Moran, Leanne and another Diversional Therapist.”

In the first half of 2004, Ms Wheelahan became the respondent’s director of care. The worker said that, from that time, Ms Wheelahan would openly berate and humiliate her in front of other staff, raise her voice, ignore her at meetings and tell her that she was not doing her job properly. She also alleged that Ms Wheelahan made derogatory and demeaning remarks about her physical appearance “including telling [her] that she didn’t like the way [she] smelled”.
The worker said that she would be summoned to Ms Wheelahan’s office, where she would “start screaming at me and at other times she would do it in plain view of the staff”. She said that Ms Wheelahan admitted that she asked members of staff to watch and monitor her activity, making her to feel as if she was constantly being watched.
A woman named Marjorie (probably Marjorie Hawkins) became the deputy director of care at the time Ms Wheelahan assumed the role of director of care. One of her roles was to prepare shift rosters. The worker said that her “shifts started moving around so that [she] was constantly having to walk to and from work in the dark, either early in the morning or late at night”. She added that her lunch breaks were rostered differently to other diversional therapists, which caused her to feel as if she was isolated from her colleagues. In October 2004, her hours were reduced to 24 per week, which exacerbated her financial difficulties.
The worker’s immediate supervisor in the dementia unit was Judy Bragg, a registered nurse, who the worker described as “probably one of the worst offenders”. The worker alleges that Ms Bragg would require her to enter a small supplies cupboard and “yell and [sic, at] me and give me a dressing down for things I didn’t even do”. The worker said she felt she was unfairly targeted, as she was consistently accused of not doing her job properly.
The worker described Kevin O’Donohue, a diversional therapist who started work in the first half of 2004 as the head of the activities department, as the “worst offender” in harassing and belittling her. She said, “[h]is abuse of me was mental and emotional, but it also got to the point where he would physically do things to me. His harassment extended beyond the boundaries of work and took place when I was at home”.
The worker alleges that Mr O’Donohue formed an association with Ms Wheelahan, after which he began to make snide comments, attempted to trip her in the corridors and jump out from behind furniture to scare her. He allegedly also slammed doors into her fingers, rammed wheelchairs into her legs and made telephone calls to her home. He would, according to the worker, sometimes telephone her 10 times a day. She said that he made an allegation of sexual harassment against her. Other members of staff suggested that the worker and Mr O’Donohue were involved in a relationship outside work. This was denied by the worker, who said the only contact she had with him outside work was when he was harassing her.
In September 2004, Marie Moran, a trained diversional therapist, joined the facility and was placed in charge of the diversional therapists. The worker said she complained to Ms Moran, especially about Mr O’Donohue, without response. The worker said that Ms Moran was “constantly watching [her]” and caused her to feel “paranoid”.
The worker said that other diversional therapists with the respondent were confronted by the new techniques that she employed and would constantly “do little things to make my life at work hard”. These included stealing her equipment and changing her roster. She recounts that these employees made going to work “unbearable” and gradually made her “more paranoid, stressed out and depressed”.
In early March 2005, all of the diversional therapists who were employed by the respondent had their contracts of employment terminated as part of the restructuring of the respondent’s activities department. The worker was then re-employed as a casual recreation officer on 21 March 2005 after Ms Wheelahan rang her and offered her employment. Following her return to work, “[t]he bullying and harassment stepped up even further. It got to the point where I couldn’t sleep at night, I was paranoid the entire day and I would shake whenever one of the people I mentioned came near me”.
The worker complained that the roster would change without notice to her, that her hours were cut down and that she was berated by Ms Wheelahan for “doing too many hours”.
The worker’s employment with the respondent was terminated on 23 June 2005, when Ms Wheelahan allegedly told her that she was “no longer welcome on the premises. Do not come back”. She said she was ordered to leave the building. She felt numb and shocked, and became “even more depressed, suicidal and anxious”. Sometime after her dismissal, she moved in with Belinda Field, a fellow employee, who she described as her closest friend while working at the hospital. This arrangement ended when Ms Field assaulted the worker on 7 November 2005.
The worker gave brief oral evidence about the interview she had with Dr Patterson, her treating psychiatrist, on 2 December 2005. While she accepted that much of the history recorded by Dr Patterson was an accurate reflection of what she had told him, she denied having told him that she “began to believe that she was indeed Mary, the mother of Christ” or that the female lead in the movie Pulp Fiction was “playing out her life”. She agreed that Ms Field had told her that she was “the chosen one” but said that she never believed that she was Mary, either “then or now”. With respect to the movie Pulp Fiction, she said that Ms Gray had shown her the movie because she wanted her to see a part of the movie that reflected the worker’s life. She said that she did not find Dr Patterson “pleasant” and believed he was not really listening to what she had to say or was trying to say.

Other lay evidence

Included in the documents attached to the Application to Resolve a Dispute (the Application) is an unsigned copy of a letter of resignation dated 14 June 2005 from Helen Martin, who was employed as a registered nurse with the respondent between 1999 and 28 June 2005. It records difficulties encountered by Ms Martin with workloads, confidentiality issues, intimidation issues, inept rostering and non-compliance with EEO (equal employment opportunities) policies in the appointment of a deputy director of care.
Also attached to the Application is a signed statement from Jenny Cooper. She was employed in the respondent’s kitchen prior to October 2006, when she suffered an injury to her neck that resulted in “ongoing pain, etc, harassment, intimidation”. Ms Cooper said the worker was a caring worker whose “heart was right in the job”. She also recorded complaints with the rotating roster system employed by the respondent and with management’s reaction to her injury.
The Arbitrator did not find the evidence of either Ms Martin or Ms Cooper of assistance.

Contemporaneous medical evidence

On 27 September 2004, the worker saw her general practitioner at the Toormina Medical Centre, Dr Leal, whose notes record:
“Becoming more anxious and depressed over past 8–9 months
Works at Mater Christi
Ex partner – leaving today
Money worries
Xanax in past – for stress – made lethargic
Poor sleep
Poor appetite”

Dr Leal prescribed Efexor, an antidepressant, and recommended that she return in two weeks.
On 8 October 2004, Dr Leal recorded that the worker was starting to improve, was sleeping a little better, and was less pessimistic. He gave her a further script for Efexor.
On 23 March 2005 (the worker having been made redundant on 2 March 2005 and re-employed as a casual on 21 March 2005), Dr Leal recorded that Efexor and multivitamins had helped.
On 12 May 2005, the worker saw Greg Norton-Baker, a counsellor (possibly a registered nurse) with Centrelink, who recorded that she experienced significant work-related stressors and distress. She was keen to return to work and appreciated that to attempt to do too much too soon may not prove sustainable.
On 9 June 2005, the worker saw either a nurse or counsellor at the Coffs Harbour Hospital who recorded, among other things:
“Harassed @ work
Mater Christi NH
AIN
was DT
Worked [with] dementia clients
New DON – perp
feels removing people old manager ‘favoured’/appointed
Accused
Push residents around
– new coord – DTs
cruel nasty
slam doors in [her] face
leaving residents alone
Physical assault – push chairs into me
forced to sign new contract – ↓ hours
[indecipherable] re unable [sic]
? union told no paperwork available
– Joined – lost more shifts
Current [treatment] – Effexor [sic] 75 mgs ‘not working’
– Ginko Biloba
– Deep Sleep”
The worker described “mini blackouts – anxiety”. The notes added, “trauma re work” and “doubts friends can be trusted” and “unsure of self”. The author of the note added:
“Discussed – impact of trauma
– self esteem
– trusting self others
– DASS”

On 15 June 2005, Dr Leal recorded “some anxiety again”.
On 16 June 2005, the worker presented at the hospital and produced “7 pages of issues related to work”. She was “concerned that issues may escalate over next week”. The notes added, among other things:
“Spoke to union rep. Meet next week
Not worry about little things
Bad attitude – recognise & change
Not take to heart what they do to others
Used to be a doormat – Ministers wife
Paid price for assertion”
The hospital note for 21 June 2005 records a phone call from the worker in which she “requested that I represent her at meeting [with] DOC – unable to attend. I suggested that a union representative.”
On 23 June 2005, the worker told Dr Leal that she had been interviewed by the director of nursing and was sacked during the interview. She was told there was no more work available.
On 29 June 2005, the hospital notes recorded that a union representative attended the meeting (on 23 June 2005) but was denied access. They added, among other things:
“Was to be re: EAP oppt
‘Sacked’ – told no more work available
Now getting increased support
from workers ++
Union rep to support
Share house …
Good for me
Female role models
Discussed – thinking/self messages
– Stress relief
– Relaxation
– Job preparation
– Centrelink”
On 30 June 2005, the worker saw Dr Adrienne Newman, another general practitioner at the Toormina Medical Centre, who recorded that the worker “still” had major problems with her previous workplace and had been put off. The doctor added that the worker was well supported by a counsellor at the hospital, who had suggested going on benefits for a while to avoid having to look for and start a new job. She issued a Centrelink certificate for the period 30 June 2005 to 30 September 2005.
On 22 July 2005, the worker presented to Centrelink and saw a psychologist, Anne Keniry. Ms Keniry recorded that the worker was hardly eating, in serious financial difficulties and displaying symptoms of PTSD, depression, anxiety and panic attacks. Ms Keniry also took a history of multiple traumatic events including that the worker had been harassed in her last workplace and had left her employment due to that.
On 29 July 2005, Dr Leal recorded that the worker was depressed and had lost considerable weight. He also recorded “[h]as had episodes of delusions – thought that movies were telling her things and also that people in her house were dealing drugs”. He increased her dosage of Efexor. On the same day, the worker saw someone at CRS Australia. In a document headed “Initial needs assessment Data gathering proforma”, under “Background information”, the words “harassment/bullying @ work” have been written.
On 5 August 2005, Dr Leal recorded that the worker was “feeling better”.
On 8 August 2005, Dr Leal provided a certificate stating the worker was “okay to study”.
On 29 August 2005, the Coffs Harbour Hospital notes record that the worker spoke to a counsellor. The notes are not legible, but it is clear that the worker was tearful and possibly confused and mentioned that she was in contact with the respondent’s staff.
On 2 September 2005, Dr Leal recorded that the worker was “[n]o better, needs psychiatric opinion”.
On 12 October 2005, Ms Keniry recorded that the worker had had a psychotic episode and saw Dr Jankovic, the psychiatric registrar at the Coffs Harbour Hospital.
On 13 October 2005, the worker attended at the emergency department of the Coffs Harbour Hospital with fears that she might be having seizures. She saw the resident medical officer, Dr Melissa Tien, and gave a history that her seizures started 18 months ago (and she was) feeling “black spots, black blotches” in her brain that were getting more frequent and lasting longer in activity. She denied any preceding aura, urinary incontinence, loss of consciousness or tongue biting. The previous day, her carer witnessed one episode, saying the worker blanked out and was incoherent with her eyes twitching. Her past medical history included left breast cancer. On examination, she appeared very tearful and scared. During her admission to the emergency department, she said that she continued to have several seizures but there were no neurological manifestations. A CT of the brain was apparently normal.
On 17 October 2005, the worker saw Ms Gray, a registered nurse and case manager at the Coffs Harbour Mental Health Service. In her report of 24 April 2007, Ms Gray said that the worker “presented with a Major Depressive Disorder (of a reported two year duration) and a six month history of psychosis”. Ms Gray added that, previous to this psychotic episode, the worker “had been the recipient of workplace-bullying in her role as [a] diversional therapist”. Early in her treatment, her then friend/carer, Ms Field, assaulted the worker. The assault “added considerably to the trauma already impacting on [the worker] from the workplace bullying”.
Ms Gray’s handwritten notes (dated 17 October 2005) record:
“Recent multiple stressors –
– Bullied out of workforce
– Financial difficulties – Have to share house
– dogs became ill – no money for vet
Tried to put down dogs herself → possible psychotic episode → lost in bush
for 24/24’s
*Long history of depression – strong
family history Mo’s side
*Son Δ schizophrenia 5 yrs ago
*Breast CA ’97 (lumpectomy)
*Regular ? Black-outs? Seizures
*History of abusive r’ships
**Case management re-opened 28/7/08
(closed 11/9/08) – early signs of decompensation
→ referred by Woolgoolga Living Skills staff”

Exactly when Ms Gray’s notes were prepared is unclear because, though the document is dated 17 October 2005, it refers to events in 2008 and 2009.

Between 20 October 2005 and 16 January 2006, the worker saw Dr Wong She, another general practitioner at Toormina Medical Centre. On 21 October 2005, Dr Wong She recorded that the worker had “depression with psychotic features” and noted on 1 November 2005 that the worker had an appointment with a psychiatrist that afternoon. The worker had previously cancelled an appointment with Dr Cadzow (a psychiatrist) to whom she had been referred by Dr Leal.
On 21 October 2005, Dr Jankovic prepared a Centrelink treating doctor’s report in which she diagnosed the worker to have depression with psychotic features. Under “history”, Dr Jankovic recorded:
“Depressed mood
Thought [sic] of hopelessness
Suicidal ideation
↑ psychosocial stress”
Under “current symptoms”, Dr Jankovic recorded “few month hx [history] of low mood”. The date of onset was recorded as being 6 October 2005.
On 7 November 2005, the worker presented at the emergency department of the Coffs Harbour Hospital with her psychologist, Helen Oliver, complaining that her “carer”, Ms Field, had assaulted her, slapping her in the face, pushing her into a chair and holding her around the neck. Though Ms Oliver expressed concern that the worker was suicidal, the worker was discharged into the care of her daughter. Ms Field was charged with assault and apparently found guilty. The hospital notes record:
“Stressed
due to alleged abuse by carer (had since October)
Background of depression
with occasional psychotic behaviour (mild)
past delusions of reference”

The notes added “no hallucinations” and “no delusions but does mention previously she was subjected to mind games in past – asserts they were psychological”.
On 17 November 2005, Ms Oliver prepared a Centrelink “Work capacity – Professional’s report” for the worker. Next to “Disability, illness or injury”, she recorded “Depression”, but added “? Mental illness no diagnosis as yet”. Ms Oliver said the worker had some current social deficits due to depression and a psychiatric condition, for example, “teariness, thought disorder → at times, confused verbal expression, ability to focus & concentrate”. Under “emotional”, Ms Oliver said:
“Severe level of emotional problems relating to life history in addition to psychiatric functioning counselling with me to continue following stabilisation of mental illness.”
On 18 November 2005, Ms Oliver wrote a note to the worker saying that she had spoken to Dr Jankovic, who was uncertain of the worker’s diagnosis, and had referred her to another psychiatrist for assessment.
On 23 November 2005, Ms Oliver reported that she had seen the worker since the assault of 7 November 2005. She observed that the worker appeared “fearful and confused”. The worker was eventually able to focus on the assault, but “alluded to the fact that her life had been one of continual physical and emotional abuse”. Ms Oliver had spoken to Dr Jankovic, who was yet to make a diagnosis, but who indicated “[t]hat her background of domestic violence may either wholly or in part be responsible for her current condition with the recent assault re-traumatising [the worker]”.
Though the worker had previously seen Dr Jankovic, the first detailed report dealing with her condition is from Dr Patterson on 2 December 2005, the date on which he first saw her. Dr Patterson took a history that the worker had a:
“> 2 year history of depression, characterised by persistent low mood, increased irritability, poor sleep with primary and secondary insomnia and early morning wakening, decreased weight (appropriately 12kg weight loss) and fluctuating energy.”
Dr Patterson recorded that the worker had experienced considerable self-harm ideation, and planned to asphyxiate herself and her dogs by carbon monoxide poisoning, or by hanging. She had also experienced over “at least the last 6 months an amalgam of psychotic symptoms”. These included “mood congruent delusions ‘that my body is dying’ and somatic delusions ‘stomach is cold inside out’”. She experienced “ideas of reference, including that the female lead in the movie Pulp Fiction was playing at [sic] her life”. She reported that people played mind games with her, including moving things around in her house, or playing music to influence her moods. A friend reportedly told her the she was “the Chosen One”, and she began to believe that she was indeed Mary, the mother of Christ.
Dr Patterson said the worker’s relevant past medical history included:
“over the last 18–24 months diffuse neurological symptoms, including ‘visual flashes’, episodes of difficulty with articulation and co-ordination with an aura and post-episode fatigue. She had identified triggers as being stress, light and sound. She denied loss of consciousness or seizure activity. I understand these episodes have been fully investigated by blood tests and a cerebral CT scan, which reported no abnormality – EEG is booked for 9^th December 2005.”
The worker reported no significant substance abuse to Dr Patterson, but had used marijuana in the last six months, though identified no influence on her psychiatric symptoms, and identified “psychosis before she began smoking”. Her son had been diagnosed with schizophrenia, though not treated or hospitalised. He suffered perceptual abnormality, persecutory beliefs and aggression. Her maternal grandfather had been aggressive and abusive, without clear psychosis. There was no family history of substance abuse or suicide.
Dr Patterson recorded the worker’s developmental history was “of moment”. She was born in country NSW and identified “few memories of childhood”. Her father was emotionally absent, and her mother “really needy”. The worker believed that her mother always blamed her for the death of a four-year-old sister in the same year that she was born and that “she was singled out for different attention from her parents, and was the odd one out”. Overall, she identified that as “a theme in her life, that she felt under-appreciated and that her life was ‘one long story of abuse … I was the one with the kick me stamp on my forehead’”. She identified her character as one of low self-esteem, self-assertion, chronic dysthymia and increased interpersonal sensitivity.
Dr Patterson said that the worker’s recent stressors were “multiple and varied” and included “a run in with the Director of the aged home where she worked, or the sense that she was being constantly belittled”. She also identified living in the women’s shelter as being “demeaning” and found the restricted space living with her daughter as uncomfortable. She had been “abused” by her “carer” who was a friend and generally identified “no money, no phone, no car” as stressors. Dr Patterson said it was difficult to “identify with any assurance which of these episodes had actually occurred, and whether indeed her recollection was coloured by the filter of her personality”.
As at 2 December 2005, Dr Patterson recorded that the worker related that her sleep, appetite and energy remained impaired and she continued to suffer a “characterological sense of being undervalued and dysthymic”. There did not appear to be any evidence of acute psychosis. Dr Patterson’s impression was:
“that [the worker] presents with a 6 month history of reported psychosis, and a >2 year history of symptoms consistent with a major depressive episode, in the context of numerous psycho-social stressors. Such presentation occurs on a background of character vulnerabilities as described. The neurological features require further investigation.”
On 20 January 2006, Dr Patterson said that the worker was “relatively well and certainly less perturbed than at my previous assessment”. She continued to experience “rather unusual ‘blackouts’”. She described that, for a period of seconds to minutes, she would lose track of time, without loss of consciousness or seizures. For several minutes following an attack, she felt “befuddled” and fatigued. On rare occasions, such episodes may be preceded by an aura, including a feeling of warmth over the left side of her face. Such “blackout periods” may occur numerous times during the day, but she may have several days with none. Once again, she identified stress, light, sound and fatigue as exacerbating factors. Dr Patterson was unable to identify any clear evidence of mood disorder, psychosis or risk factors. He said:
“I will investigate over subsequent reviews whether her symptom profile, (ie rapidly fluctuating hypomanic and depressive episodes) satisfy a diagnosis of bipolar 1 or 2 disorder, and therefore may benefit from a trial of either valproate or lithium.”
On 1 February 2006, the worker saw another general practitioner, Dr Platt, who she has seen intermittently over a number of years since. Dr Platt prepared a Centrelink treating doctor’s report on 1 February 2006, in which she diagnosed depression/anxiety with psychosis and post-traumatic stress disorder. Under “history”, Dr Platt recorded:
“Progressive worsening of symptoms over 2 yrs were triggered by problems at work.
Last year assessed by Dr Patterson, psychiatrist at the hospital.”

A document from CRS Australia headed “Initial needs assessment Data gathering proforma” dated 9 March 2006 recorded under “Background information” the words “workplace bullying → PTSD → Oct 05 (manifested)”. It also referred to an assault by an ex-friend/carer. Under “employment”, it was recorded that the worker last worked in June 2005. In the top right hand corner of the document the words “Susanne Wheelerhan [sic] → workplace bully” appear.
On 23 June 2006, the worker saw Annmaree Wilson, clinical psychologist, on referral from the Victims Compensation Tribunal, for assessment of her condition as a result of the assault by Ms Field. Ms Wilson’s report of 9 July 2006 is discussed in more detail below, but it is mentioned here as it forms part of the relevant chronology. Ms Wilson recorded that, prior to the assault, Ms Gibbs worked at the Mater Christi nursing home, where she met Ms Field and they became best friends. Though she enjoyed her job, she “was placed under increasing pressure from management” and “eventually had a nervous breakdown”. At this time, she became depressed and suicidal. As she was unable to work and could not care for herself, she moved into Ms Field’s home and Ms Field became her carer.
On 22 September 2006, Ms Gray recorded that the worker had multiple stressors and referred to her having recently won victims of crime compensation of $8,200. She noted that the worker was pursuing legal action against:
“former workplace with bullying allegations → still waiting for car to be fixed → isolated accommodation and interference by landlord, along [with] physical issues ++ MSE – irritated, ↓ sleep, overactive ‘mind is going triple time’ → D/W Dr Patterson (VMO) today.”
On 16 October 2006, Dr Patterson recorded that the worker’s mood had fluctuated in accordance with her environment and level of stress. He thought that there was a mood instability that may respond to a mood stabiliser, such as valproate.
Dr Patterson’s last report is dated 9 March 2007. He reported that the worker continued to experience ongoing stressors regarding her family and finances. She had not experienced any further psychosis. Her goal was to obtain employment in the next three months.
Ms Gray reported to Centrelink on 24 April 2007. She said she had been the worker’s case manager since her initial presentation on 17 October 2005. In that time, the worker had consistently made valiant efforts to rehabilitate and return to the workforce. The nature of her illness, however, along with the stressors identified by Ms Gray, continually impeded her good intentions. The worker had a family history that included major depressive illness and psychosis. Her condition had fluctuated over the past 18 months, with an admission to the Mental Health Inpatient Unit the previous year and regular periods where the worker became severely depressed and at risk, requiring close monitoring, the most recent being in early April 2007. It appeared to Ms Gray that the worker’s condition was of a long-term nature.
In May 2008, Dr Platt referred the worker to Mr Bruce Petersen, clinical psychologist, for treatment. His report to the worker’s solicitor is considered below under “Opinion medical evidence”.
On 29 August 2008, Dr Vaux, psychiatrist, saw the worker at the outpatients department of the Coffs Harbour Hospital (described in the Direction for Production as the Coffs Harbour Mental Health Service). He referred to depression and anxiety and added “however background of personal [history of] psychosis & also multiple medical probs (haemchr/breast ca) – visual flashes & memory disturbance”.
Dr Vaux recorded on 2 November 2009 (wrongly referred to as 30 September 2009 at [111] of the Arbitrator’s decision) “some evidence of quasi psychotic [or] psychotic phenomena”.
On 10 November 2010, Dr Olutayo, psychiatrist, recorded in the Coffs Harbour Hospital records:
“51 yr old woman with psychotic depression
R/O Bipolar II disorder
+ underlying anxiety disorder
D/C from C/M 4/12 ago.”

Respondent’s lay evidence

Chronology prepared by Ree Higoe

Ms Higoe was the respondent’s occupational health and safety coordinator, a position she had held for over 11 years. Ms Higoe provided a chronology of relevant events relating to the worker between August 2003 and June 2005. Though she had limited day-to-day interaction with the worker, she would pass her in the corridors and see her at the facility at various times. She said the worker appeared to be an unhappy person.
Though I will list most of the incidents noted by Ms Higoe, many are discussed in more detail below when reviewing the evidence of the people involved.
Ms Higoe confirmed that the worker started with the respondent as a casual carer on 9 September 2003. On 13 January 2004, the worker’s “Initial Performance Appraisal”, conducted by the then director of care, Jan Smith, recorded that the worker was enjoying working in the dementia unit and that her overall assessment was “very satisfactory”. The worker’s status changed to permanent part-time, working 64 hours per fortnight, from 12 January 2004. Her hours were reduced to 48 per fortnight by notice on 12 October 2004, effective from 4 November 2004.
On 14 December 2004, Ms Wheelahan made a diary note that Marjorie Hawkins had complained about a “sharp response” by the worker to Ms Hawkins in the tea room after Ms Hawkins had asked a question. The worker was counselled regarding her attitude to colleagues and “to leave her problems at the door”.
On 20 December 2004, Ms Wheelahan had a further meeting with the worker. It was noted that Ms Gibbs “would try and be more aware of her feelings and seek help if she is finding her anger building up”.
On 16 February 2005, the worker told Ms Higoe of her displeasure that her hours had been reduced from 64 to 48 per fortnight. She would not sign the new contract and said it was illegal for her hours to be reduced.
On 2 March 2005, the worker was made redundant. Her redundancy was paid at 64 hours per fortnight. The worker was re-employed as a casual on 21 March 2005.
On 28 April 2005, the worker complained to Ms Wheelahan that she did not cope physically with night duty and would like to be removed from that area of work. She did not have her car on the road and was uneasy having to walk half an hour at 10 pm. She did not want to compromise her health by doing duties she could not cope with. These matters had been brought to the attention of the roster clerk, but the worker had been subsequently given two night shifts. The worker said she had been given numerous night duties as there were people going on leave. The worker was concerned that, by not working night duties rostered to her, other shifts that may be available to her may be compromised. Ms Wheelahan undertook to look at the roster and endeavour to change shifts from night duty commencing 2 May 2005.
On 17 May 2005, the worker made a complaint that a volunteer (Therese) had left a mess after flower-arrangement for residents and there had been minor slips by staff. Ms Wheelahan responded to the worker’s concerns. The file note said the worker had become quite defensive, complaining about the burden of work in House 4 and referring to the volunteer as “that woman”. The worker said she was sick of being criticised for her “bad attitude” and could no longer handle the interview and walked out of Ms Wheelahan’s office.
On 18 May 2005, Ms Moran prepared a file note in relation to a confrontational situation allegedly instigated by the worker.
On 6 June 2005, Ms Stiles, registered nurse with the respondent, wrote a file note that the worker had left the building without advising she was leaving.
On 14 June 2005, the worker told Ms Johnson, the human resources manager, that she had a problem related to “workplace stress”.
On 16 June 2005, Ms Wheelahan recorded that Kate Madssen was upset by the worker’s conduct.
On 17 June 2005, Ms Wheelahan recorded an incident concerning Ms Hale and the worker that occurred on 15 June 2005.
On 23 June 2005, Ms Wheelahan prepared a file note regarding an incident involving the worker’s treatment of a patient and her meeting with the worker when the worker was told that the respondent had no more work for her.
On 12 July 2005, Ms Johnson received a document from the worker outlining allegations about the workplace.

Judith Bragg

Ms Bragg was the worker’s direct supervisor and had daily contact with her. While she was initially impressed by the worker’s knowledge, commitment and enthusiasm, she observed the worker to have mood swings, arrive at work “already stressed”, and to have a “short fuse”, in that she was easily upset. She said the worker “was displaying symptoms of her own emotional issues, to the detriment of her performance in her role”. The worker talked a lot about her son and her financial situation. Ms Bragg became aware that those two issues were factors in the worker’s emotional health. Ms Bragg felt that the worker’s personal issues were not allowing her to perform her duties in accordance with the respondent’s goal of creating a stress-free environment.
Ms Bragg said that the worker had a poor professional relationship with her colleagues in the unit. She said, “it was like everyone else was trying to make life hard for her”. The worker told her at some stage that she was not coping with her work. She discussed this with the worker in a “quiet room”. She denied she had a discussion with the worker in a storage closet. At some stage, she reported the difficulties she had with the worker to Ms Wheelahan, the director of nursing. From her observations, Ms Wheelahan was extremely supportive of the worker and provided her “with the opportunity of being re-employed as a Carer, whereas this opportunity was not offered to all other Diversional Therapists” who had been laid off in March 2005.

Dianne Ireland

Ms Ireland is a registered nurse who supervised the worker during the evening shift. As the diversional therapists would usually leave work half an hour or so after Ms Ireland commenced her shift, she had only a limited recollection of the worker. She recalled that the worker was volatile in the workplace, responding to approaches in a negative and offensive manner. She said that the worker often misunderstood “what people were endeavouring to do and saw it as a criticism of her work”.

Susanne Wheelahan

Ms Wheelahan recounted that, after the worker’s position as an activities officer was made redundant, the worker applied for and obtained a casual position with the respondent as a carer starting on 21 March 2005. This happened though Linn Cameron, the chief executive officer, was opposed to the worker’s re-employment. Ms Wheelahan said she had “considerable empathy” for the worker, as she was aware that the worker was struggling financially and had personal issues as well as health issues.
Ms Wheelahan met the worker on 30 May 2005 to commence her three-monthly review. By that date, it had become apparent to Ms Wheelahan that there were ongoing issues with the worker’s conduct in the workplace.

The review concluded at an interview on 23 June 2005, when the worker’s services were terminated. Ms Wheelahan said, in a detailed file note dated 23 June 2005, that the worker told her at the interview that she had “undertaken psychological counselling and ‘upped’ her medication to prepare for this interview”. Ms Wheelahan told the worker that, as well as receiving measures of her performance, she had received unsolicited reports on her behaviour that were not favourable.
Ms Wheelahan told the worker that she rated poorly on communication, as the worker had walked out of an interview with her when she tried to discuss an incident with a volunteer in House 5. Ms Wheelahan then read a report (file note) that Vicki Stiles, a registered nurse, had prepared on 6 June 2005 about an incident on that day. As Ms Wheelahan read the report, the worker interrupted and explained her behaviour.
Ms Stiles recorded in the file note that, when the worker arrived for work on the morning of 6 June 2005, Ms Stiles told her she would be an “extra” and would start in H3. At 7.05 am, the worker entered the office “crying about her roster”. Ms Stiles suggested that the worker talk to the director of care (Ms Wheelahan), but Ms Gibbs said she could not as she would get into trouble. The worker was concerned about the next day’s roster. Ms Stiles said she would look into it and that the worker should see Ms Johnson if she was unable to speak to Ms Wheelahan. At 7.20 am, the worker could not be found, she having left the building at 7.10 am without telling Ms Stiles. The worker returned at 4 pm to work the 4 till 8 shift, though she was not rostered for that shift. She spoke to Ms Stiles about her future roster and left.
After reading the report from Ms Stiles, Ms Wheelahan told the worker that her performance was not good enough for her to continue to work at Mater Christi and that, “we would not continue with her employment as a casual employee”. The worker claimed that Ms Wheelahan had poorly treated her “all along”, which Ms Wheelahan said was “quite untrue”.
Ms Wheelahan said that, until May 2005, when she had challenged the worker over her treatment of a volunteer in the dementia unit and the worker walked out, the worker had always listened and interacted well with her in interviews. After the interview about the volunteer, the worker had accused Ms Wheelahan of being biased against her.
Ms Wheelahan said that she allowed the worker time out from work in the dementia unit when she appeared to get tired and stressed during her work there in activities, and organised for her to spend her afternoons on the “general” side of the facility. Ms Wheelahan got help for the worker with the gardening project in the dementia unit, which the worker started and was unable to finish as she found it too stressful.
Ms Wheelahan said she listened to the worker’s constant complaints about fellow workers and tried to be unbiased towards her or the people about whom she constantly complained. She responded “kindly by letter” when the worker asked about not working on night duty as a carer and arranged for her not to be offered any more night shifts.
Ms Wheelahan felt that, in the time she had known her, the worker was incapable of making rational judgment about how she had been treated. As the worker became angry and incoherent during the interview on 23 June 2005, Ms Wheelahan did not have the opportunity to remind her of these things and found it difficult to continue the interview. The worker “left, shouting out that we had treated her badly and we would hear from her”.
In her statement of 7 February 2008, Ms Wheelahan said that the worker had arrived for the 23 June 2005 meeting with a man (later identified as Ken McIntosh, a union representative). She sought advice from the human resources manager, Jan Johnson, who told her the man had no right to be present, because it was not an industrial issue, and that she should be firm with the man and tell him to leave. Ms Wheelahan recalls being quite nervous and, acting out of character, probably spoke rudely to the man.
The next part of Ms Wheelahan’s statement makes no sense as it is typed. It reads “but after coming into my office and hearing me say I understood the I was finishing off [the worker’s] appraisal, he left”. I assume that it meant to say that the man left after hearing that Ms Wheelahan was going to finish off the worker’s appraisal.
Ms Wheelahan then told the worker that she did not have any more work for her and that she would have to leave. At that time, the worker turned around and verbally abused Ms Wheelahan. Ms Wheelahan knew she was going to be abused because, by that time, she had become aware of the worker’s “activities with staff and residents”. The worker was having “emotional outbursts at work and had a strong suspicion that her performance was being criticised”. The worker left the building “yelling and ranting and saying that I’d hear from her again”. Ms Wheelahan recalls thinking that she should have been more friendly towards the man, but was nervous and probably got some poor advice as to how to handle him.
Ms Wheelahan signed a file note on 16 June 2005 (signed by Ms Madssen, a co-worker, on 23 June 2005) about a verbal disagreement between the worker and Kate Madssen. Ms Madssen told Ms Wheelahan that the worker had verbally harassed her since she (Ms Madssen) started with the respondent in January. Ms Wheelahan recorded Ms Madssen as saying “[t]he really scary thing is she [the worker] accuses me of saying things that I did not say”. When asked for examples, Ms Madssen said the worker said things like “I’ve been here a long time. Don’t you think I know what’s going on?” This was in response to an occasion when Ms Madssen and the worker were feeding a resident and Ms Madssen was trying to explain the resident’s improved response to staff since his pain control was working. Ms Madssen denied having said anything to the worker and said that the worker spoke so harshly to her that she was reduced to tears. She felt sick and did not want to work with Ms Gibbs.
Ms Wheelahan also prepared a file note on 17 June 2005, signed by her and Elizabeth Hale. It reads:
“Elizabeth Hale, carer, came to see me about an incident that had occurred with [the worker]. [The worker] had come to Elizabeth’s home on 15/6/05 and told her she had overheard Susanne [Wheelahan] say that Elizabeth’s job was under threat due to the amount of sick leave Elizabeth had taken in recent times.
Elizabeth then said she would ring Susanne and check. When she did this [the worker] started shaking. [The worker] then said that a new employee, Shelley Watson, had overheard this too. Elizabeth later checked with Shelley, who said she had not and that she was getting a hard time from [the worker], so much so that she had thought of leaving.
After the phone call, [the worker] continued to talk to Elizabeth about work and to say derogatory things about Susanne. Peter, Elizabeth’s husband overheard and asked [the worker] to leave.
Elizabeth and Peter are reluctant to document this, as they are worried that [the worker] is vindictive and may cause further trouble by approaching them again or by involving other staff members. I undertook not to mention Elizabeth and Peter’s names when I spoke to [the worker] about her recent behaviours.”
Ms Wheelahan and Ms Madssen signed a “Staff File Note” on 23 June 2005 concerning an incident reported to Ms Wheelahan by Ms Madssen involving the worker shortly before that date. A friend of a resident had asked the worker if the resident could be transferred from her wheelchair because she had a sore back. The worker allegedly replied “no” because the resident had to sit at the meal table in her wheelchair. Other carers got the registered nurse to countermand the worker and the resident was taken to her room and placed in a more comfortable position. Other carers apologised for the worker’s actions and the harsh way she spoke to the resident’s friend.
Ms Wheelahan also completed an Annual Performance Appraisal. This document is dated 30 May 2005 on page 1and 14 June 2005 on page 6. This is the document that Ms Wheelahan later said would have been dated 23 June 2005 and that 14 June 2005 was a mistake. Under “communication”, the comment “Poor – refer incident with SW [Ms Wheelahan] on 18/5/05” appears. The following note appears on page 3:
“14/6/05
Comment from Judy Bragg: ‘[The worker] appears to be tense a lot of the time and demonstrates a negative attitude generally towards other staff. This is evidenced by her comments and demeanour’.”
Under “List the appraisee’s [sic] major areas for performance improvement”, the following is recorded:
“To manage time better & manage workload to minimise stress which leads to emotional outbursts.”
The type of “training/development the appraisee [sic]” needed to improve performance was described as:
“To learn more about dementia
To develop personally to manage stress levels.”
On page 6, Ms Wheelahan wrote:
“I have told [the worker] that her performance has been poor and this has been evidenced by statements made by staff and a relative. I particularly referred to the day [the worker] left the building without telling her RN that she was leaving. I told [the worker] we no longer had employment for her.”

Elizabeth Hale

Ms Hale has been a senior carer with the respondent since 2000. She provided a statement on 7 July 2008 in which she said that her “first impression of [the worker] was that she is a very troubled woman emotionally, very up and down in her emotions”. One day the worker was “on top of the world” and the next day she “would be very dark in her mood, very negative in her speech, very critical of colleagues and her employer”. That was her observation of the worker “almost from day one of her employment”. In the worker’s first week with the respondent, she said how she had been picked on at her last place of work. Ms Hale added:
“I recall that with the progression of time I, and my colleagues, began to notice the mood swings and it was my belief that for the good of us all, someone should have contacted Vicki’s previous employer to establish what did happen in that workplace.”
Ms Hale said that Ms Bragg and the staff in the dementia unit “went to a lot of effort to support [the worker] because when she was experiencing one of her mood swings, she was totally unsuitable for her role in dementia”. She never saw Ms Bragg speak to the worker in a closet or storage room, but did see her speak to her in the “Quiet Room”, which she described as being quiet and private.
Ms Hale recounted two incidents in particular involving the worker. The first was at Ms Hale’s home in June 2005, shortly before she was diagnosed with cancer. The worker said to her that Ms Wheelahan had told her that Ms Hale was going to lose her job because of the amount of time she (Ms Hale) was having off work with her illness. Upon making enquiries, Ms Hale formed the view that what she had been told by the worker was false.
The second was when Ms Hale requested her nephew, who had recently completed an apprenticeship as a mechanic, to work on the worker’s car “as cheap as he could to help her out”. The nephew’s mother stopped him from performing further work on the car after the worker allegedly “sexually propositioned him and offered him drugs (Marijuana)”. The worker allegedly continued to contact the nephew over the next 18 months with text messages.
Ms Hale said that the worker had a short personal relationship with Kevin O’Donohue. She saw no evidence of Mr O’Donohue, or any of the diversional therapists, treating the worker unfairly. From her observation, the worker “often demeaned her colleagues”. She felt that the worker’s “irrational behaviour” had probably increased “as she appeared to be in conflict with more people in the workplace”.
Ms Hale could tell when the worker was “down” because she would come to work looking like “hell”, her hair would be untidy, and she would look very pale and gaunt, with “dark under her eyes”. On one occasion, the worker told Ms Hale that she was not sleeping at night and had been “scrubbing her ceilings” all night. She became concerned about the worker and did not think “what was happening with [the worker] was about her work because we all tried so hard to make her feel supported and part of the Mater Christi team, knowing the personal issues that were happening in her personal life”.

Marie Moran

Ms Moran prepared a handwritten file note dated 18 May 2005 in which she recounted that a volunteer told her that she found it difficult to work with Ms Gibbs, who had been rude to and critical of her. The worker was alleged to have angrily said that she was sick of (using her security pass) to “swipe” the door for the volunteer. The worker had also been critical of the way the volunteer had left the work area after doing some flower-arranging with residents. The worker had not offered any advice or assistance, but only verbally attacked the volunteer. The volunteer felt she could no longer work in an area where the worker was. Ms Moran felt that the volunteer was “visually shaken and upset”. After sitting in a concert with residents for 30 minutes, the volunteer started to cry and said she had to go.

Jan Johnson

Ms Johnson provided a handwritten file note of a conversation she had with the worker on 14 June 2005 in which the worker said she had problems with “workplace stress” that was an ongoing problem for the past two years. Ms Johnson said she would speak to the director of care for an update, check the personnel file for any record of issues, and call her with an update on 17 June. The worker requested an assurance that she would not be penalised for having approached Ms Johnson and asked if Ms Johnson was trustworthy and impartial. Ms Johnson “replied to all in the affirmative”.

Opinion medical evidence

Dr Leal

Dr Leal reported to the worker’s solicitor on 30 January 2007 that he had not seen Ms Gibbs since 2 September 2005 and was therefore unable to provide a report.

Dr Platt

Dr Cathryn Platt, the worker’s general practitioner after 3 February 2006, provided a short report on 7 March 2007 that does not address the issues of injury and causation. Presumably in response to an enquiry from the worker’s solicitor as to whether the worker’s condition was caused or contributed to by her work with the respondent, Dr Platt wrote:
“I cannot really comment as I did not know her then. When she was very unwell she would complain about her treatment at Mater Christi but there was nothing specific and not a lot that made sense.”

Mr Petersen

In a report dated 15 July 2009, Mr Petersen said that the worker was diagnosed as having post-traumatic stress disorder as a result of her experiences as a diversional therapist/activities officer with the respondent. As part of that condition, she also suffered from depression, anxiety and agoraphobia.
He took a history that, in the two years that the worker was at Mater Christi, she alleged she was subjected to physical and mental abuse. Certain members of staff allegedly subjected the worker to constant emotional abuse, which was witnessed by other members of staff. Her hours were illegally reduced and the same staff members marginalised her until her position was eventually terminated. He also recorded that Ms Field had tried to choke the worker.
The worker’s scores of depression, suicidal ideation and ARD-T and NIM Scales on the Personality Assessment Inventory (PAI 2007) were consistent with her claims, according to Mr Petersen. She had made slow but steady progress in the previous 12 months and was leaving her home more, and was slightly less depressed and anxious.

Dr Wilson

As noted earlier in this decision, Dr Wilson saw the worker on 23 June 2006 at the request of the Victims Compensation Tribunal for assessment of her claim for compensation arising from the assault by Ms Field. At the time of Dr Wilson’s assessment, the worker was on sickness benefits from Centrelink.
Dr Wilson said that, prior to the assault, Ms Gibbs worked for the respondent, which was where she met Ms Field. Though the worker enjoyed her job, she was placed under increasing pressure from management “eventually had a nervous breakdown” and “became depressed and suicidal”. As she was unable to work and could not care for herself, she moved into Ms Field’s home and Ms Field became her carer.
She recorded that the worker’s “early family life was very unhappy”, that her parents’ relationship was abusive, and that her mother eventually left the relationship. The worker had three children. She married in 1978 and her husband, a lay minister, was very unhappy with her, as she had experienced postnatal depression after the birth of her third child and, as a result, put on weight. Her husband attempted to have her committed to a psychiatric institution. When that failed, he left her with the three children in 1983. The worker then had another relationship, which she described as mentally and physically abusive.
Dr Wilson said that, “[p]rior to the breakdown” and the assault, the worker “lived a reasonably happy life”. She was very involved with her children, and her dogs. She had a passion for human rights, which she believed led to the difficulties she experienced at the nursing home. The worker presented as a sad, extremely vulnerable woman. Her self-esteem was notably poor as she kept referring to not being deserving of any recognition for the act of violence.
Under “History of exposure to significant stressors”, Dr Wilson recorded that the worker had lived a sad and difficult life. Her experience of childhood was unhappy. Her parents’ relationship was abusive and violent. She experienced physical and emotional abuse at the hands of two partners. Her two youngest children were kidnapped for three months in 1983.
Under “Psychiatric History”, Dr Wilson recorded that the worker:
“has experienced some serious mental health problems. She experienced postnatal depression after the birth of her third child. As a result, she put on a great deal of weight which she feels added to her self-esteem difficulties. As well, [the worker] experienced bullying and harassment at work. This resulted in [the worker] becoming increasingly depressed and suicidal. [The worker] is currently a client of the mental health service in Coffs Harbour.”
The worker reported no history to Dr Wilson of drug or alcohol abuse.
The worker reported a number of symptoms that she attributed to the assault by Ms Field (referred to by Dr Wilson as “the act of violence”). She noted feelings of “depression, hopelessness and helplessness”. She felt she had “lost everything” that was important to her, including one of her beloved cocker spaniels. After the assault, she was homeless and drove around the countryside with her dogs.
Dr Wilson recorded that the worker had constant feelings of anxiety. She felt “jittery” and confused and panicky in public areas, or on public transport. She “catastrophises” situations and imagined, for example, being in a serious car accident when in a car. The worker said she had experienced blackouts and seizures. The worker felt that the assault had interfered with her recovery from the nervous breakdown she experienced and that she had not had the opportunity to recover.
Dr Wilson’s opinion was that the worker had symptoms consistent with a number of DSM IV-R diagnoses, including post-traumatic stress disorder and depression. She was severely and chronically disabled. She added that:
“The act of violence in question, being the ‘straw that broke the camel’s back’ causing a change in her ability to function in the world and that her life has ‘completely’ changed after that event. The acts of violence in question have no doubt exacerbated pre-existing emotional difficulties experienced by [the worker] and have caused distress in and of themselves.”

Dr Akkerman

Dr Akkerman, psychiatrist, saw the worker at the request of the respondent’s solicitor on 20 February 2008 and reported on that day. The worker gave a history that she suffered from post-traumatic stress disorder caused by two years of constant abuse by Ms Wheelahan and her friends, Ms Bragg, Mr O’Donohue and others, including Marjorie, the second in charge.

The worker said that she had doors slammed in her face, wheelchairs ridden into her legs, things went missing, a book was slammed on her finger, she was not told about meetings and then got into trouble for not going, and she was pushed in the corridor. She complained to Ms Wheelahan, who said she would address it. Things would quieten down for a while but then would get worse. No action was taken.
The worker said that her symptoms started in early 2004 and she was at her worst in October 2005, when she tried to commit suicide. A friend, Ms Field, stopped her, but subsequently assaulted her. Her symptoms at the time were panic attacks, feeling very depressed, and disturbed sleep.
Dr Akkerman inquired as to the worker’s current symptoms and she volunteered the following: anxiety, disturbed sleep, tearfulness, nightmares, and waking in a sweat. On questioning, she complained of impaired concentration, memory fluctuations, a low energy level, reduced level of interest in things, increased appetite, and reduced libido.
The worker said that her childhood was boring, but did not say it was violent or abusive. Dr Akkerman said she had kept that from him, though he asked about it.
Under “Mental Status Examination”, Dr Akkerman recorded that the worker was evasive and had difficulty telling him things that she thought would incriminate her. She “tried to put herself in a good light”. Her mood was slightly depressed and her affect was similar. Her concentration was normal, as was her short-term and long-term memory. She was irritable and tearful.
Dr Akkerman diagnosed the worker to have an adjustment disorder with anxious and depressed mood. On “Axis II – she has Abnormal Personality Traits Not Otherwise Specified”. Her condition was not consistent with the history obtained. He thought that her abnormal personality traits were a consequence of her unfortunate childhood and that the adjustment disorder was secondary to the abnormal personality traits. Her employment was not a substantial contributing factor and she had problems coping with the vicissitudes of life all her life. Other, non-work related events in the worker’s life were very important and were the main cause of her condition. She was fit to return to work.
Dr Akkerman reviewed the worker on 21 October 2011 and reported on 24 October 2011. She said she was feeling better, though she sometimes lost track of time, was stressed in crowds, and had increased sleep. On questioning, her concentration, short-term memory, level of energy, level of interest, appetite and libido were all down. Her long-term memory was normal. She rarely got irritable, but occasionally got tearful. She no longer got nightmares.
The worker did not tell Dr Akkerman about her “violent and abusive childhood”. She said she enjoyed normal peer relationships. She also enjoyed school, where she was an average student. She had not worked since 2005.
The mental status examination was “largely unchanged”. The history was vague on details. She tried to put herself in a good light and avoided saying anything that might incriminate her. She left out important issues. Her mood and affect were slightly depressed. Her short-term memory was normal. She was not tearful, but was irritable.
Dr Akkerman’s diagnosis was unchanged. He felt she was ready for a gradual return to work and could work part-time in her old job. She should be able to return to her pre-injury duties in four to six weeks after her return to work. He felt that she had a whole person impairment of eight per cent, which was wholly due to her childhood. The prognosis was guarded.

Dr Clark

The worker’s main medical support comes from Dr Clark, a consultant forensic psychiatrist, who assessed her at the request of her solicitor on 20 October 2010 and reported on 29 October 2010.
He took a history that Ms Gibbs worked with the respondent as a diversional therapist from September 2003 until 23 June 2005, when she was told she was “not welcome”. She said she was “bullied and harassed out of the job”. The situation was complicated when her carer, who she took on because she could not look after herself, assaulted her. She developed a severe reaction, withdrawing into a depressed frightened state, and had to be hospitalised.
Dr Clark recorded that the worker “experienced an obstructiveness, stress and bullying in her work situation, which caused her to react, as above”. This had been building up over time. There was a combination of poor support from her superiors, with perceived direct unfair treatment by her local manager. The worker described withdrawal and evident irritability since. She developed fear attacks or panics. The panic attacks she referred to were feelings she was going to die and an irrational terror or fear state.
Dr Clark felt it was clear from the worker’s account that she had developed a depressive illness. She had tried other jobs since, but was unable to sustain employment and had no income in the last three months. He said she “was diagnosed as having a Severe Depression – Major Depressive Episode, work caused” and had developed a concurrent stress reaction. He added that the formal diagnosis of her condition would be an anxiety or stress disorder, which, because of its reactive nature, was sometimes known as a “complex Post-traumatic Stress Disorder”, though it could not technically be called a post-traumatic stress disorder, since that diagnosis requires a life-threatening incident. The complex post-traumatic stress disorder went on to the chronic depression or dysthymia.
Dr Clark recorded that there was no family psychiatric history of any significance, no mental disease, suicide, alcoholism, drug addiction or trouble with the law. She had an uneventful rearing and there was no account of her being traumatised as a child or adolescent. He noted that “other accounts” maintained that she had been abused as a child. As Dr Akkerman noted, however, she tended to “minimise her symptoms”.
The worker had a 28-year-old son who has schizophrenia. She has two daughters. One works in Brisbane as a beauty therapist and the other in Perth as a drug and alcohol counsellor.
Following her loss of employment (with the respondent), the worker preferred not to mix socially for some time. She had her best friend, Ms Field, move in and act as her carer. Ms Field assaulted the worker, which resulted in police action against her.
Dr Clark said there was no past psychiatric history of psychosis and, on examination, no signs of a psychosis. She had no hallucinations or delusionary beliefs and her thoughts were normal. She was logical and coherent. On emotional state examination, the worker was a tense and guarded person. Since the problems at work, she became despondent and, at times, felt hopeless. She had poor sleep still with bad dreams. She experienced “intrusive thoughts and went over the details in a deliberate manner, carefully describing her recollections of the various mortifying events”. She did not socialise as before, having lost contact with friends, having been housebound for five years.
Dr Clark felt there was no evidence of any pre-existing condition and that it was “most probable that this depression started with the events at work”. There was no evidence that other factors were “impinging but the principal cause and the most probable cause of her depression is the stress she experienced whilst she was at work”.
In answer to the question of whether he believed the worker’s employment with the respondent had been a substantial contributing factor to her injury, Dr Clark said “[t]his is most probably the case”. He gave the same answer to the question of whether he believed that the “subsequent events upon our client leaving [the respondent] were related to that employment”. He thought she was unfit for anything but sedentary work and would only be able to work part-time in a less stressful position.
Dr Clark assessed the worker to have a 19 per cent whole person impairment as a result of her injury.

THE ARBITRATOR’S REASONS

The Arbitrator reviewed the evidence and, under “Discussions and Findings”, said that the assault of 7 November 2005 “significantly exacerbated” the worker’s psychiatric condition. Though he felt that the effect of the assault was capable of causing a psychological illness on its own, he concluded that the evidence clearly established that Ms Gibbs suffered from depression from early 2004, which may have been exacerbated in 2005, and that the assault was not the genesis of the worker’s psychological condition.
He accepted that the medical and lay evidence suggested the worker was suffering from a psychological condition during the latter months of her employment, and probably much earlier. In deciding whether her employment with the respondent was the cause of the worker’s depression, he said (at [108]) it was necessary to first consider her credibility and that of the witnesses who provided statements on behalf of the respondent.
He then referred (at [109]) to Dr Patterson’s evidence in his report of 2 December 2005 that the worker had an “amalgam of psychotic symptoms”. He was not sure that the psychotic symptoms noted by Dr Patterson could be discounted because there were only isolated references to them in the medical histories, as had been submitted by the worker’s counsel. He then referred to evidence that suggested the worker had been psychotic or delusional in the second half of 2005. That evidence included:
(a)     on 29 July 2005, Dr Leal recorded that the worker had “had episodes of delusions – thought that movies were telling her things and also that people in her house were dealing drugs”;
(b)     on 17 October 2005, Ms Gray recorded that the worker presented with a six-month history of psychosis;
(c)     on 21 October 2005, Dr Wong She recorded that the worker had “depression with psychotic features”;
(d)     on 29 August 2008, Dr Vaux, psychiatrist at the Coffs Harbour outpatients clinic, recorded that the worker was suffering from depression and anxiety against a “background of personal history of psychosis and also multiple medical problems”;
(e)     on 30 September 2009, Dr Vaux questioned whether there was some evidence of “quasi psychotic and psychotic phenomena” (as noted above, the correct date for this entry is 2 November 2009, though nothing turns on this discrepancy);
(f)      on 15 November 2010, Dr Olutayo, psychiatrist, recorded that the worker suffered from “psychotic depression”.
In addition to this evidence, the Arbitrator noted some of the lay evidence suggested the presence of psychosis. He referred to the worker’s statement of 7 February 2008 that her best friend (Ms Field) had befriended people who moved into her house and “played with [her] head”. The worker added that there was a relationship between Ms Field and the respondent’s deputy director of care, who conspired to have her housemates “play emotional games” with her mind. He thought that the worker’s evidence on these matters was “not credible” and suggested that the worker’s “interpretation of events at that time probably bore little relationship to reality” ([114]).
Though neither Dr Clark nor Dr Akkerman expressed the opinion that the worker suffered from a psychosis, the Arbitrator felt that the evidence to which he had referred, which he found “compelling”, suggested that Ms Gibbs was “afflicted by a psychosis from time to time in the past, either as a consequence of her depression, or of some other psychological condition” ([116]). In these circumstances, he felt that the worker’s perception of what took place around her in 2005, both at work and at home, “may not always reflect reality” and he was “unable to accept the she is a reliable witness as to the events that occurred in the course of her employment on and prior to 2005” ([117]).
With respect to the respondent’s evidence, the Arbitrator said that, as it was consistent with much of the contemporaneous medical records, internally consistent and not contradicted by evidence, other than that of the worker, it was “probably reliable” ([121]).
The Arbitrator then considered whether the worker had been harassed at work. After referring to the worker’s allegations against Ms Wheelahan, he said (at [124]) that he accepted the evidence from the respondent’s witnesses in preference to the worker’s evidence. That evidence was that Ms Wheelahan had been supportive of the worker and, despite Ms Cameron’s concern about the appropriateness of the worker’s behaviour at work, had offered her casual work after she was made redundant in March 2005.
He was unable to accept that the worker had been harassed, bullied, intimidated or had unreasonable demands placed on her at work. On the contrary, he found that the evidence established that Ms Wheelahan and senior staff probably went out of their way to accommodate the worker, “who presented at work with an increasingly fraught appearance and behaved in an increasingly erratic manner throughout her employment” ([124]). He did not accept that the worker was harassed by Mr O’Donohue in the manner she alleged in her statement or in her complaint of 5 October 2004.
Under the heading “Injury”, the Arbitrator acknowledged that it was unnecessary for the worker to establish that she had been harassed or bullied in the course of her employment to succeed in her claim ([127]). After referring to various authorities on injury (Austin v Director General of Education (1994) 10 NSWCCR 373; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) and Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General v K)) and noting that it did not matter if events at work affected the worker’s psyche because of a flawed perception resulting from a disordered mind ([129]), he said (at [130]) that it remained a necessary prerequisite to an entitlement to compensation that a worker’s misperception caused or contributed to a psychiatric condition.
The Arbitrator accepted that, in the last few months of her employment, there were a number of incidents of interpersonal conflict between the worker and other employees. He felt it was “entirely probable” ([131]) that the worker was responsible for the initiation of much of that conflict. He acknowledged that, at the meeting with Ms Wheelahan on 18 May 2005, the worker complained about the burden of work and said she was sick of being criticised for her bad attitude.
After referring to several incidents in May and June 2005, and several incidents outside work that were “potentially extremely stressful”, the Arbitrator considered Dr Clark’s evidence provided “little assistance in determining the issues of injury, or substantial contributing factor” because his history was “by no means consistent” with the facts he (the Arbitrator) accepted ([136]). He added that Dr Clark did not “grapple with” the issue of the worker’s psychological history and did not record a history of the worker’s adverse childhood experiences or her previous episodes of depression after the breakdown of her marriages. Importantly, Dr Clark had no history of the worker’s psychotic episodes in 2005 or of the stressors affecting her outside work.
The Arbitrator also had “considerable reservations” about the history and opinion of Dr Akkerman, who said the origin of the worker’s condition related entirely to her childhood but did not explain “the theory underlying that proposition” ([138]). He felt the doctor’s opinion was therefore little more than the “oracular pronouncement” of an expert, referred to by Lord President Cooper in Davie v Magistrates of Edinburgh [1953] SC 34.
The Arbitrator found the evidence of Dr Patterson, the worker’s initial treating psychiatrist, “of assistance” ([139]). That was because Dr Patterson had a history of the worker’s childhood experiences and her psychological development, he was aware of the psychotic episodes, had a limited history of the work with the respondent and that the worker had had a “run in with the matron” and that she had been constantly belittled. Dr Patterson thought that the worker suffered an episode of major depression over the previous two years, with a six-month history of psychosis. He queried whether some of the events described to him by the worker had occurred and noted that her “recollection was coloured by the filter of her personality”. He felt her depression had occurred “in the context of numerous psycho-social stresses and on a background of character vulnerability”.
The Arbitrator found Dr Patterson’s opinion “more balanced” ([140]) than either that of Dr Clark or Dr Akkerman, and that Dr Patterson gave due weight to the worker’s childhood, her vulnerable personality and psychosocial stressors. While the Arbitrator initially thought that Dr Patterson’s opinion was compatible with a finding that the events he found occurred in May and June 2005 were a contributing factor to the aggravation of the worker’s depression, he ultimately concluded that that approach “may be to read too much into his reports” ([140]). He said that Dr Patterson did not have an extensive history of the worker’s employment and did not express an opinion on the causal relationship between the worker’s employment and her depression.
Finally, after acknowledging (at [141]) that the facts on which a doctor expressed an opinion do not have to correspond with complete precision to those proved in evidence (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510 (Paric)), the Arbitrator said he was not satisfied that Dr Clark’s opinion was “persuasive” on the issue of causation. His reasons were that Dr Clark had assumed a history relating to the development of the worker’s illness that was “starkly different to the facts” he accepted and the doctor omitted matters of history that were important.
The Arbitrator concluded (at [141]) that the worker had not established that she suffered an injury in the course of or arising out of her employment or that her employment was a substantial contributing factor to her depression.

ISSUES IN DISPUTE

Ms Gibbs has challenged the Arbitrator’s determination on the grounds that the Arbitrator erred in:
(a)     the manner in which he purported to apply the principle in Chemler and Attorney General v K;
(b)     the comprehension and evaluation of the evidence by finding that the worker’s credit was impugned by a psychotic or delusional perception, and
(c)     overlooking material facts in coming to his determination.
More specifically, the worker has alleged that the Arbitrator erred in that he:
(a)     failed to reveal the basis upon which he made his determination, and made findings against the evidence, and against his own findings, in that he found that the events at work, and the worker’s perception of them (referred to by the Arbitrator as her “misperception”), did not cause any psychological injury because “she was already so badly affected by such an injury that it could not be said that her perceptions influenced the course of her condition” (appellant’s submissions 6 March 2012 at [4]) (Chemler, reasons and findings of fact);
(b)     made no determination as to the allegations the worker made against Kevin O’Donohue, a work colleague Ms Gibbs alleged had abused and harassed her (Mr O’Donohue);
(c)     failed to explain why the allegations made (by the worker) against Mr O’Donohue did not constitute evidence of conduct that actually occurred at work that was perceived by Ms Gibbs as creating an offensive and hostile working environment (Mr O’Donohue);
(d)     failed to explain how (if the Arbitrator determined that Ms Gibbs was already so psychologically injured that her perception of these events could not have contributed to her already contracted disease) it was that such egregious behaviour (by Mr O’Donohue) towards Ms Gibbs did not aggravate her condition (aggravation);
(e)     found that Mr O’Donohue had probably ceased work on 2 March 2005, if not before, when there was no evidence to that effect (Mr O’Donohue);
(f)      overlooked a significant body of evidence when he found that the worker was an unreliable witness as to the events that occurred in the course of her employment on and prior to 2005, and failed to explain the onset of a (psychological) condition that occurred after the cessation of employment (evidence overlooked and onset of condition);
(g)     misdirected himself in relying on evidence from Dr Patterson, psychiatrist, and failed to recognise that the worker’s episodes of psychosis were limited in time to a period following the termination of her employment (Dr Patterson’s evidence);
(h)     concluded that, when the worker started work with the respondent, she was, or may have been, so psychotic or otherwise psychologically injured that no further event would aggravate or contribute to it (aggravation), and
(i)      rejected the evidence of Dr Clark, the worker’s qualified psychiatrist, because the Arbitrator erroneously concluded that the worker was or may have been suffering from psychosis throughout the period of her employment with the respondent (Dr Clark’s evidence).

The psychological decompensation that followed the worker’s reaction to losing her job in the circumstances she perceived led to the advent of her psychotic condition for a short time when she required the assistance of the Area Health Service medical experts. The Arbitrator’s reasons in dismissing the worker’s credit on the basis of Dr Patterson’s opinion failed to take into account those factors. There was no factual basis for his pre-dating the psychotic state to the period of employment, or postdating it to his consideration of her when she gave evidence.

Discussion and findings

I do not accept the above submissions.
The Arbitrator was well aware that the psychotic episodes were not documented until the second half of 2005 and expressly acknowledged that fact at [109]. However, the documented evidence from Ms Gray was that the psychotic symptoms had been present for six months before 17 October 2005. If that history was accurate, it put the start of those symptoms in April 2005. The Arbitrator was entitled to consider that matter in his assessment of the reliability of the worker’s evidence.
As I have already noted, while the evidence suggests that the worker’s symptoms increased after her dismissal, there is no persuasive contemporaneous medical evidence that the events at work with the respondent caused that increase. Ms Keniry’s history was that the worker had experienced multiple traumatic events. Though Ms Keniry referred to the worker having been harassed at work, the Arbitrator did not accept that the worker had been harassed. Further, Ms Keniry’s history that the worker “left her employment due to that” (harassment) was incorrect.
The submission that it was not until the worker had stabilised that the cause of her condition was investigated is of limited assistance. There is no persuasive medical evidence supporting the claim until Dr Clark’s report of 29 October 2010, which he prepared after his examination on 20 October 2010. I have not overlooked Mr Petersen’s report of 15 July 2009 (see [125] above), though neither party made any submissions about it at the arbitration or on appeal. That report is of little probative value because, rather than taking a history and expressing an opinion based on that history, he appears to have assumed that the worker suffered from post-traumatic stress disorder as a result of her experiences with the respondent. That was the very issue in dispute. To the extent that he based his opinion on a history that the worker had been subjected to constant emotional abuse while she worked with the respondent, the Arbitrator did not accept that to be so and, as a result, his opinion is of little weight.
It may well be that, at the time the worker came under the care of Dr Jankovic, Ms Gray and Ms Oliver, the worker’s state was so severe that the concern was the recent history. However, that does not advance the worker’s case that the Arbitrator erred in his approach or conclusion.
The submission that Dr Patterson “acknowledged the involvement of the respondent” is of limited assistance. He merely recorded that “recent stressors are multiple and varied” and included an “alleged run in with the Director of the aged home where she worked, or the sense that she was being constantly belittled”. He did not suggest that work with the respondent, or the circumstances of the termination of her employment, were the cause of the worker’s condition. Rather, after referring to other stressors, namely, the abuse by her carer and “no money, no phone, no car”, he said it was difficult to identify with any assurance which of these episodes had actually occurred and whether her recollection was reliable, it being “coloured by the filter of her personality”.
The relevance of the passage quoted from Hancock is unclear. The Arbitrator’s reliance on Dr Patterson’s evidence had nothing to do with the issues discussed Hancock, which concerned the application of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) to proceedings in the Commission. Counsel did not refer to either Hancock or Makita at the arbitration and made only limited references to Dr Patterson’s evidence. In particular, in responding to the Arbitrator’s question about whether, by reason of her psychological condition, the worker was a reliable historian, counsel said, at T37.10–43:
[COUNSEL]: Well, that’s in the submission I was making. You’ve got that from Patterson and you’ve got that from –
ARBITRATOR: The GP’s notes, yes.
[COUNSEL]: – the GP’s notes and that’s it. Now, if she was – and, look, there’s three files of material here. She’s been on – she’s been getting the disability pension all the time which incidentally, you’re probably aware you don’t get that that easily and she’d be carefully looked at and you’ve got the notes in front of you there. But if you look at her psychiatric state, some do say she’s delusional and past delusions are referenced at page 115 which is her – but that’s – don’t forget she’d been treated by Patterson at that stage and they say she’d been stressed since October.
ARBITRATOR: Yes.
[COUNSEL]: And it says:
Due to alleged abuse by carer.
That needs to be read with a grain of salt. Patterson is a person who takes her history. Patterson is a person whom you heard about the consultation. It’s a matter for you what she said that the Applicant agreed that you should have this chosen one thing said by her flatmate, but she’s quite adamant that she’s never said anything about being the mother of Christ. Whether that came up, whether there was another thing that the flatmate said is a matter for – you can only speculate on but there is no corroboration for that.”
To say that Dr Patterson’s report was located at a particular time of the narrative, in circumstances that were transitory, is of limited assistance. The Arbitrator was entitled to consider it and give weight to the doctor’s opinion, which he did after having regard to the worker’s childhood, her vulnerable personality and a number of psychosocial stressors she experienced. He was correct to observe that Dr Patterson did not have an extensive history of the worker’s employment and did not express an opinion on the causal relationship between the worker’s employment and depression.
It is not to the point that none of the medicolegal experts diagnosed the worker as continuing to suffer from a psychosis or that no expert regarded her as suffering from a psychotic condition while employed by the respondent. Dr Patterson’s history was that the worker had experienced an “amalgam of psychotic symptoms” over “at least the last 6 months” and that “over the last 18–24 months” her medical history included “diffuse neurological symptoms, including ‘visual flashes’, episodes of difficulty with articulation and co-ordination with an aura and post-episode fatigue”. Though the Arbitrator did not refer to the latter part of this history, it provides further support for the doubts he expressed about the reliability of her evidence that she had been harassed at work.
The Arbitrator did not dismiss the worker’s credit solely on the basis of Dr Patterson’s opinion. As discussed earlier in this decision, he found the worker’s evidence to be unreliable and accepted the evidence of Ms Wheelahan and the other witnesses relied on by the respondent.

DR CLARK’S EVIDENCE

The Arbitrator’s reasons

The Arbitrator found (at [136] and [137]) that Dr Clark’s evidence provided “little assistance in determining the issues of injury, or substantial contributing factor” because Dr Clark:
(a)     had a history that was “by no means” consistent with the facts the Arbitrator accepted;
(b)     accepted, at face value, the worker’s history that she was bullied and harassed in her employment;
(c)     did not grapple with the issues of aspects of the worker’s psychological history;
(d)     did not record a history of adverse childhood experiences or her previous episodes of depression after the breakdown of her marriages;
(e)     did not express an opinion as to whether anything flowed from the history of adverse childhood experiences or whether anything flowed from the minimisation of that history;
(f)      had no history of the worker’s psychotic episodes that occurred in 2005 and the implications of such episodes in assessing the reliability of the worker’s history, and
(g)     did not appear to have any history of the stressors that were affecting the worker outside her employment with the respondent, including problems with subtenants.
The Arbitrator returned to Dr Clark’s evidence at [141], where he acknowledged that it is unnecessary for the facts on which a doctor expresses an opinion to correspond with complete precision to those that are provided in evidence (Paric).

The worker’s submissions

It was submitted that the Arbitrator erred in rejecting Dr Clark’s evidence. Reliance was placed on the following statement by Beazley JA (at [88]) in Hancock:
“The fact that the reports did not refer to the subsequent non-work related incidents did not amount to a failure to satisfy the requirements of expert evidence. As explained above, the principle in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case. Accordingly, the absence of any express reference to those specific incidents did not mean that the facts upon which Dr Summersell based his opinion, including falls and instability of the knee, did not form a proper foundation for his assessment as required by the principle in Makita. The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports. Although his Honour dealt with Dr Summersell's reports as a matter of weight, he incorrectly applied the principle in Makita as that principle was explained in ASIC v Rich. That constitutes error in point of law.”
The fact that Dr Clark said there was no history of psychosis did not detract from the weight to be given to his report because that history related to a period after the employment with the respondent ceased. The Arbitrator wrongly concluded that the worker was or may have been suffering from psychosis throughout the period of employment. Had the Arbitrator not been mistaken as to the facts, Dr Clark’s opinion would have been of value as to the current diagnosis, and the incapacity and the impairment that the workplace injury caused.
There is no evidence that the worker’s childhood experiences had caused anything more than unhappiness and Dr Clark’s opinion that her rearing was uneventful was given in the full knowledge of the other opinions that had been given. Though Dr Patterson took a more detailed history of the worker’s childhood, he did not link it with any of the stressors that caused the psychiatric state with which the worker presented to him.

Discussion and findings

I do not accept these submissions.
As Dr Clark had assumed a history relating to the development of the worker’s illness that was “starkly different to the facts” the Arbitrator accepted and which omitted matters of history that were important, the Arbitrator was not “satisfied that his opinion [was] persuasive on the issue of causation”. That finding was open and discloses no error.
Dr Clark’s history was based on the worker’s statement of 20 July 2010, which was, in essence, that she had been bullied and harassed out of her job and experienced obstructiveness, stress and bullying in her work situation. He diagnosed depression and concluded, after noting that there was no pre-existing condition, that it was “most probable that this depression started with the events at work”.
The worker’s childhood experiences were not decisive in the Arbitrator’s determination, but were a matter that he was entitled to consider in assessing the weight to he gave to the expert evidence. That was especially so in the context of Dr Patterson’s history that the worker believed she had been “singled out for different attention from her parents, and was the odd one out”. That was, according to Dr Patterson’s history, a theme in her life, namely, “that she felt under-appreciated and that her life was ‘one long story of abuse’”.
The Arbitrator’s conclusion about the weight he gave to Dr Clark’s evidence did not depend wholly, or even mainly, on the missing history of the psychosis or the lack of analysis of the childhood experiences, though those were matters the Arbitrator was entitled to consider. The Arbitrator did not accept the essential plank in the worker’s case, namely, that she had been bullied and harassed at work. In light of that critical factual finding, which was open to him, logic dictated that Dr Clark’s evidence was not persuasive on the issue of causation. This conclusion involves no breach of the principles discussed in Hancock and was open on the evidence.

OTHER ISSUES OF CONDUCT

The worker’s submissions

The worker complains that there are other allegations in the evidence “that have not been responded to” (the worker’s submissions on appeal 6 March 2012 at [22]). They are:
(a)     in her statement (of 7 February 2008), Ms Wheelahan only dealt with a clerical error in her notes dated 14 June 2005;
(b)     Ms Wheelahan’s version of what occurred on 23 June 2005 corroborated the worker’s account as found by the Arbitrator at [66] of his decision;
(c)     Ms Wheelahan did not answer the worker’s allegation that her attitude to the worker changed radically after the barbecue at Christmas 2003, which the worker did not attend;
(d)     Ms Wheelahan did not answer the worker’s allegations that she had been rude to the worker at meetings, or the allegation that she had made derogatory and demeaning comments about the worker’s appearance, including how the worker smelt;
(e)     there was no challenge to the worker’s evidence that, on 18 May 2005, she said she was “sick of being criticised for her bad attitude”. This related to an incident when the worker had criticised a volunteer named Therese, and
(f)      on 12 October 2004, the worker’s hours were reduced from 64 to 48 per fortnight. She alleged that the reduction caused hardship, stress, financial difficulties and tiredness due to having to work extra and odd hours to recover some of those lost.

Discussion and findings

It is unclear if the worker’s challenge is that the Arbitrator failed to consider the above matters or if the above matters were unchallenged in the evidence and therefore the Arbitrator erred in not accepting them as fact. I do not accept either submission.
Dealing with the allegations against Ms Wheelahan, the Arbitrator said, at [123]:
“The applicant says that Susanne Wheelahan openly berated her, in the presence of other members of staff, screamed at her, and requested employees of the respondent to, in effect, spy on her. Ms Wheelahan, on the other hand, says that she provided her with duties outside the dementia unit when she appeared to be stressed; listened to her constant complaints about fellow workers; and arranged for her not to be offered any more nightshifts at the applicant’s request. Ms Cameron, the respondent’s financial controller stated that Ms Wheelahan offered the applicant the option of casual work after she was made redundant on March 2005, ‘on compassionate grounds’, despite the fact that Ms Cameron was ‘concerned about the appropriateness of Vicki’s behaviour in the workplace’. Judyth [sic] Bragg also gives evidence that Ms Wheelahan was ‘extremely supportive of Vicki’.”

In this paragraph, the Arbitrator acknowledged the worker’s main allegations against Ms Wheelahan and Ms Wheelahan’s response to them. He added (at [124]) that he accepted the evidence of Ms Wheelahan and each of the other witnesses who have provided statements in the respondent’s case. This finding was open and discloses no error.
With regard to the worker’s relationship with Ms Wheelahan in general, I observe that, in the undated document headed “To Whom It May Concern”, the worker said that Ms Wheelahan was “very understanding” about the worker’s problem with working night shifts and was “also understanding about the 4–8 shifts” and the worker’s fear about walking home in the dark. This evidence relates to a discussion the worker had with Ms Wheelahan on or about 13 June 2005 and is inconsistent with the worker’s allegation that Ms Wheelahan had been rude to her and treated her badly. That the worker still worked some “4–8 shifts” does not support her allegations against Ms Wheelahan.
I will deal with the specific points noted at [311] above in the order in which they appear.
First, it is incorrect that Ms Wheelahan’s statement of 7 February 2008 only dealt with the clerical error in her notes dated 14 June 2005. Her statement added that:
(a)     she always had a professional relationship with the worker;
(b)     she had considerable empathy for the worker, as she was aware that the worker was struggling financially and had personal issues as well as health issues;
(c)     by 30 May (2005), it had become apparent to Ms Wheelahan that there were ongoing issues with the worker’s conduct in the workplace;
(d)     the meeting with the worker on 23 June 2005 was the final part of a performance appraisal and she was going to say that “we didn’t have any work for her anymore because she really wasn’t performing satisfactorily and that it wasn’t fair to the residents to continue to have her there”;
(e)     the receptionist told her that the worker had arrived (for the meeting on 23 June 2005) with a man;
(f)      she rang Jan Johnson, the HR manager, for advice on what to do;
(g)     she probably spoke rudely to the man, which was out of character;
(h)     she told the worker that she did not have any more work for her and that she would have to leave. At that time, the worker turned around and verbally abused her;
(i)      she knew she was going to be abused because, by that time, she had become aware of the worker’s activities with staff and residents. The worker was having emotional outbursts at work and had a strong suspicion that her performance was being criticised;
(j)      the worker left the building yelling and ranting and saying “that I’d hear from her again”, and
(k)     she was “quite thrown” because the worker had a man with her on 23 June 2005.
Second, I do not understand the relevance of the submission that Ms Wheelahan’s version of the conversation on 23 June 2005 corroborated the worker’s account. This submission has not been developed in any further argument relevant to whether the Arbitrator erred. It was never alleged that the conversation on 23 June 2005 (either on its own or in combination with other accepted events) caused the worker’s psychological condition and there is no medical evidence to that effect.
Third, it is true that Ms Wheelahan’s statement did not deal directly with the worker’s allegation that her attitude to the worker changed after the Christmas barbecue in 2003. However, Ms Wheelahan’s statement that she always had a professional relationship with the worker and had considerable empathy for her was inconsistent with the worker’s allegation.
Ms Wheelahan’s evidence also included her file note of 23 June 2005 in which she said, as noted by the Arbitrator at [68], that the worker’s allegation that she had treated her poorly was “quite untrue”. This evidence was inconsistent with the worker’s claim that Ms Wheelahan’s attitude to her had changed radically after Christmas 2003. The evidence that Ms Wheelahan allowed the worker time out of the dementia unit when she appeared stressed was also inconsistent with the worker’s allegation of a change in attitude by Ms Wheelahan after Christmas 2003. The suggestion of a change in attitude is not supported by any evidence, other than the worker’s assertion.
Fourth, while it is true that Ms Wheelahan did not specifically deal with each of the allegations in this paragraph, her general response that she did not treat the worker poorly and, in fact, tried to assist her and had “considerable empathy” for her, was evidence that the Arbitrator was entitled to take into account, and did take into account, in assessing the evidence overall.

Fifth, on 18 May 2005 a “very distressed” volunteer told Ms Moran that she found it difficult to work with the worker because the worker had been rude to and critical of her. The worker had allegedly spoken to the volunteer in an angry manner after the volunteer asked the worker to swipe the (security) door pad for her. The volunteer was visibly shaken and upset, and said she could no longer work in an area where the worker was. She continued to sit in a concert with residents, but after 30 minutes started to cry and said she needed to go.
On 17 May 2005, the worker had made a complaint about a mess the same volunteer had allegedly left with flower arrangements for residents. The statement from Ms Higoe records that Ms Wheelahan spoke to the worker about her concerns and added:
“File note: [The worker] became quite defensive during our interview complaining about the burden of work in House 4 referring to the Volunteer as ‘that woman’ and is sick of being criticised for her ‘bad attitude’. [The worker] told me she could no longer handle the interview and walked out of my office.”
It is difficult to see how this evidence assists the worker in establishing that the Arbitrator erred. Ms Moran’s file note suggests that the worker’s conduct had caused significant distress to a volunteer. Dealing with the interview with Ms Wheelahan on 18 May 2005, the Arbitrator noted the worker said she was sick of being criticised for her bad attitude and that she walked out of Ms Wheelahan’s office. That evidence does not establish that the Arbitrator erred in his approach or conclusion. That the worker had been spoken to about her attitude did not establish her case and did not support her allegation of bullying and harassment.
Last, dealing with the reduction in the worker’s hours, the evidence in the report by Austrace Investigation & Consultant Specialists states that wage details for the worker demonstrate that her wages were reduced to 48 hours on only one fortnight period and that, for the remainder of her employment on a permanent part-time basis, she was paid for 64 hours per fortnight. At the hearing of the appeal, neither counsel was able to confirm if that statement was correct, indicating that the wage material in evidence did not provide any assistance.
Accepting the worker’s evidence on the reduction of hours makes no difference to the result. Her counsel made no submissions on this point at the arbitration and, in any event, there is no persuasive medical evidence that the reduction in hours caused the worker’s psychological condition.

CONCLUSION

The Arbitrator did not accept the worker’s case. For reasons fully explained, he found that her evidence was unreliable and did not accept her version of critical events and preferred the evidence of the respondent’s witnesses. This led to the inevitable conclusion that, on the evidence, the worker had not established her case. It follows that his findings and conclusion were open to him and disclose no error.

DECISION

The Arbitrator’s determination of 7 February 2012 is confirmed.

COSTS

Each party is to pay her or its own costs of the appeal.

Bill Roche

Deputy President
1 June 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE