Goodacre v Trafx Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Goodacre v Trafx Pty Ltd [2024] NSWPIC 6
APPLICANT:	Anthony Goodacre
RESPONDENT:	Trafx Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim; psychological injury disputed; Attorney General’s Department v K applied; Held – applicant’s employment with the respondent was the main contributing factor to the contraction of the disease; lump sum claim is remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a disease being a psychological injury in the course of his employment with the respondent. 2. The applicant’s employment with the respondent was the main contributing factor to the contraction of the disease with a deemed date of injury 5 March 2020. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: a. Date of injury: 5 March 2020 (deemed) b. Body system: psychological c. Method: whole person impairment d. Documents to be referred: Application to Resolve a Dispute, Reply, Applications To Admit Late Documents dated 26 September 2023, 20 October 2023 and 30 October 2023.

STATEMENT OF REASONS

BACKGROUND

Anthony Goodacre, the applicant, alleges he sustained a psychological injury in the course of employment with the respondent, Trafx Pty Ltd with whom he worked as a traffic controller.
On 26 June 2020 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability under ss 4(a), 4(b) and 11A(3) of the Workers Compensation Act 1987 (the 1987 Act) relying on the opinion of Dr Graham Vickery dated 19 June 2020.[1]
[1] Reply p 5.
However, the respondent confirmed at the arbitration hearing that s 11A(3) was not relied upon and the issue in dispute related to “causation”. The applicant’s counsel confirmed that he was relying on s 4(b)(i) of the 1987 Act.
The claim for compensation is confined to lump sum compensation pursuant to s 66 of the 1987 Act.
The Application to Resolve a Dispute (ARD) was amended to correct the name of the respondent to “Trafx Pty Ltd” and on page 7 under the heading “Permanent Impairment” to refer to the date of injury as 5 March 2020 (deemed).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter proceeded to arbitration hearing on 6 November 2023 on the MS Teams platform. Mr Bill Carney, counsel, instructed by Mr Kato Simpson, solicitor, appeared for Mr Goodacre, who was present. Mr Rickard, counsel, instructed by Mr Stephen Harris, solicitor, and Mr Nathan Ye from the insurer, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant dated 26 September 2023 (AALD-A);
(d)    Application to Admit Late Documents filed by the applicant dated 20 October 2023 (AALD-B), and
(e)    Application to Admit Late Documents filed by the respondent dated 30 October 2023.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been sound recorded and a copy is available to the parties. A written transcript (T) has been made from the sound recording.

FINDINGS AND REASONS

Before considering counsels’ submissions I have briefly summarised the main evidence below.

Mr Goodacre’s statements

Mr Goodacre gave a statement to the insurer’s investigator which is dated 12 May 2020.[2] He is now aged 61. Mr Goodacre describes his extensive employment history including in the navy, army, land management studies, working in the mining industry in Western Australia, working in South Australia for various companies including being in charge of a drill team of four workers and various positions in New South Wales before starting with the respondent on 17 October 2018. His role with the respondent involved work as a traffic controller on roadwork sites in country New South Wales.
[2] Reply p 10.
He states from the very first day a supervisor, Mark Shaun [sic, Schorn], was constantly making sexual innuendo remarks to the younger staff members, particularly the females. He says Mark got Mr Goodacre’s phone and browsed porn sites.
Mr Goodacre says he reported this behaviour to the owner of the business, Martin Dorman. He said he made many complaints but they were ignored and the only thing that happened is that his shifts were cut. He states when he phoned to enquire about his loss of shifts he was told Mark did not want to work with him anymore.
At [20] he states that he asked for a meeting with management and supervisors to discuss his concerns and complaints but he was told to “(expletive deleted) off”.[3]
[3] Reply p 13.
He describes an incident that took place in Brisbane on 23 April 2019 when he and his partner and a friend from work were checking in at accommodation when his friend relieved himself in the front garden of the motel and he was confronted and manhandled by motel staff. On the motel registration form he had completed the section asking for his employer’s name, even though the stay was not work related. The next day his employer, Martin telephoned him and he threatened to sack Mr Goodacre over this incident. Mr Goodacre said he tried to explain what had happened but his employer would not listen. Mr Goodacre expresses his belief that this was an excuse and his employer was using the incident as an excuse because of all the complaints he had made about the respondent. Mr Goodacre says in this phone call he told his employer what he was doing was not right and he would take the matter to WorkCover.
Mr Goodacre says when he returned home on 28 April 2019, he rang his employer to look for shifts and initially was told there was no work. He says he noticed work crews from the respondent working around Batlow, where he lived and the crews were from Victoria. He said he rang his employer and “went off at him”. He was then given some shifts but not many. He recounts that on 3 June 2019 his employer attended his home with a disciplinary letter relating to the incident in April and two other matters. Mr Goodacre says the first thing his employer said when entering his house that it did not look like a drug addicts house. He said he and his wife took offense at this and went off at his employer, stating that the rumours and innuendo about them was unfounded and unfair and he named two employees of the respondent that spread such rumours, Mark Schorn and James Henry. He also said to his employer that the matters in the letter had nothing to do with Mr Goodacre’s previous complaints. Apparently at the bottom of the letter there was handwriting at the bottom saying there would be no disciplinary action taken.
Mr Goodacre says the next day his employer provided him with a company ute and told him he was now a supervisor. Mr Goodacre says he felt this was a way of bribing him to shut up and stop complaining. He said he again went off at him.
At [26] Mr Goodacre says he felt nothing was going to happen and his mental health was declining very fast, so he thought he would try to work and take the money he was being paid. He says from June to December 2019 he was running multiple crews, contracts and workers with no complaints against him.
Mr Goodacre states around 29 December 2019 he again was not getting shifts and he was also emailing Mel in the office about this. He thought there would be work in the Batlow area due to bushfires. He says another supervisor James Henry [sic, Hendry] turned up at his place and demanded he hand over the company ute and he spoke inappropriately to his wife. He said he gave him the ute to get rid of him. Then Mel rang and said someone would pick him up to take him to a job site to control a roadway. He said he went off and refused to do it without a vehicle as he felt it was unsafe to be working without a vehicle for emergency use in a bushfire area.
He says over the next six weeks he called his employer, supervisors and the office every second day but was met with no response and no work. He says he became aware that James Henry and another ex-worker were going around Batlow slandering him saying he was on drugs and no one wanted to work with him.
At his wife’s urging he went to his doctor on 14 February and because of his mental state he was deemed unfit for work and did not return to work. Mr Goodacre says he received counselling from Mick Sweeney from the Fitzroy Medical Centre at Tumut but the more he talked about it “the more agro I got.” At [33] he describes his symptoms from April 2019.
He has provided a further statement dated 18 August 2023.[4] He gives his date of commencement of employment with the respondent as October 2017 but this appears to be a typographical error as the correct date is 2018. He says he first complained about issues in November 2018. He states he was frustrated about the lack of change to the alleged bullying culture and complained to Fairwork. He says his mental state deteriorated greatly and he became depressed and eventually stopped working in February 2020. At [17] he states that he has suffered from bouts of anger over his life due to external stress but that he has always managed to cope with work and get on with life. He says the workplace bullying and harassment caused new symptoms.
[4] ARD p 1.
He says he was paid workers compensation payments until about 26 July 2020 until the insurer decline liability. He then received Centrelink payments. He lists the symptoms he experienced.

James Hendry’s statement

Mr Hendry gave a statement to the insurer’s investigator dated 25 May 2020.[5] He says he worked with Mr Goodacre for the respondent as site supervisor about a dozen times. He did not witness Mr Goodacre being bullied. He confirms on 30 December 2019 he had a flat tyre on his work vehicle and he was told by Mr Dorman to go and get Mr Goodacre’s work ute to use to do work with the bushfires. He said when he went to Mr Goodacre’s house to pick up the ute he did not come outside so they did not speak. Mr Goodacre’s wife came out and threw the keys to him. He says after he finished the 22 hour shift Mr Goodacre telephoned him and said very aggressively “bring my ute back home you white (expletive deleted) or I will kill you.” Mr Hendry said he hung up on him. He said he phoned Mr Dorman about the text message he had received from Mr Goodacre. However, up to this point in his statement Mr Hendry does not refer to receiving texts from Mr Goodacre. Mr Hendry said he sent a text to Mr Dorman the next day saying he could not put up with Mr Goodacre’s threats.
[5] Reply p 26.
Mr Hendry also refers to an incident in August or September 2019 when he was on duty at Batlow when Mr Goodacre driving a green BMW sped through the worksite at about 100kmph when it was a 40kmph zone. He said Mr Goodacre yelled out “why all you white (expletive deleted) are getting work and I am not” and that Mr Goodacre said he was going to sue that white dog Dorman for discrimination. Mr Hendry said he reported this incident to Mr Dorman. Mr Hendry denied being the source of rumours about Mr Goodacre.
Mr Hendry makes other comments but they are not specific and he does not appear to have witnessed the same.

Melia Belcher’s statement

Ms Belcher gave a statement to the insurer’s investigator dated 25 May 2020.[6] At the time she made her statement Ms Belcher had worked for the respondent as a Manager for several months, having been a traffic controller with them for six years. She says Mr Goodacre initially was employed through an agency as a casual on 19 November 2018 and in March 2019 he was transitioned to become a direct casual of the respondent.
[6] Reply p 32.
She says in about late April 2019 she was working in the role of a supervisor when a colleague, Liz, reported an incident with Mr Goodacre when he swore at her and did donuts in the work ute and left Liz at the isolated job site. Ms Belcher says she spoke in detail to Liz about the incident and the only thing to prompt Mr Goodacre was that Liz had asked him to move the leg of a sign in the back of the ute so she could put her lunch box in. Ms Belcher says Mr Dorman spoke to Mr Goodacre about this and mediated between him and Liz. Ms Belcher says she understood after this incident the client, Snowy Valley Council, had requested Mr Goodacre no longer work on their sites.
Ms Belcher says in approximately late August 2019 she was on night shifts with Mr Goodacre and he often had issues with other workers. She said one night he left her to address a fallen tree.
On 28 December 2019 there were bushfires and she contacted Mr Goodacre to get him to work but said he was unable as he had been drinking. She says in the following days she had numerous interactions with him via text messages and phone calls trying to get him to work. She said he was very negative about working with others and was making demands for others to pick him up and his whole demeanour changed and he ended up making threats about taking legal action against the respondent for discrimination and months of bullying and harassment.
She says Mr Goodacre went to Sydney and was unavailable for shifts in the first half of January 2020. In the next four weeks Ms Belcher says she was working out of Albury and the rosters and road crews were set and that Mr Goodacre, due to his previous demeanour, was not deemed a suitable candidate for work. She said he was continually harassing herself and threatening legal action throughout this time. She said Mr Dorman advised her to block him for her own well-being. The timeline of this part of the statement is confusing because at [19] she says she did not respond to Mr Goodacre’s texts or calls “from December 31 through to the time he went off work.”
She explains the reduction in Mr Goodacre’s shifts due to two clients not wanting him at their sites. She says she believes Mr Dorman addressed concerns and issues with Tony when they arose. She said it was obvious that Mr Goodacre did not like Mr Hendry or Gary Parker but he never mentioned to her that they bullied him. She says Mark Schorn had issues with other staff which were addressed and she adds they are not relevant to this matter. I have not placed weight about her comments at [23] as she is not qualified to draw medical conclusions.

Martin Dorman’s statement

Mr Dorman is the Managing Director of the respondent. He has given a statement dated 25 May 2020 to the insurer’s investigator.[7] He states shortly after Mr Goodacre commenced employment he contacted Mr Dorman relating to the strange behaviour of a staff member called Glenn Piateck. He says that Mr Goodacre says he could handle the situation without Mr Dorman’s intervention.
[7] Reply p 18.
Mr Dorman states that there were ongoing issues about Mr Goodacre’s inconsistent and erratic behaviour on job sites and he refers to a document outlining some incidents reported to him by Mark Schorn, who is no longer employed by the company. He also refers to a document given to Mr Goodacre dated 3 June 2019 which he calls an invitation to a disciplinary meeting. I have referred to further parts of Mr Dorman’s statement below.

Mark Schorn’s statement

Mr Schorn has provided a statement to the insurer’s investigator dated 25 October 2023.[8] He states he was employed by the respondent from 2016 to 2020 as a supervisor. He says Mr Goodacre’s work performance was very poor. He refers to several incidents as follows:
(a)    On 8 February 2019 Mr Schorn says he had the day off and Gary Parker was in charge. Mr Schorn does not state how he obtained information about this but says Mr Goodacre was no answering radio calls being made to him on his mobile phone. The Council supervisor, Dan McCormick drove past him and said he was on the phone. Gary drove up to him and asked what he was doing and his answer was “(expletive deleted) off, can’t you see I’m trying to run a (expletive deleted) business here”. Mr Schorn also says that Gary saw Mr Goodacre littering that day.
(b)    On the following Monday at a toolbox meeting Mr Schorn said mobile phone were not to be used and Mr Goodacre said he had left his at home but Mr Schorn says this was not the truth as he heard it chime from his pocket and observed him using it later. He says Mr Goodacre did more littering this day.
(c)    Mr Schorn says Mr Goodacre had trouble with his vehicle descriptions and other traffic controllers complained about this as there was often confusion as to what was the last car he had sent. Mr Schorn said this issue was raised at a toolbox meeting and Mr Dorman was notified.
(d)    Mr Schorn says Mr Goodacre sent abrasive text messages to him and he demanded more shifts and he lists some messages from [18] to [22].
(e)    At [25] Mr Schorn describes an incident when he says Mr Goodacre apparently abused a fellow traffic controller called Liz, making her cry and that Mr Goodacre flew into a terrible rage and stormed off the site. Mr Schorn says he formed the view that Mr Goodacre was under the influence of the drug ice which he thought he consumed at a party the night before. Mr Schorn says he saw Mr Goodacre drive off the site at a high speed in a very dangerous manner, causing the vehicle to lose traction and slide sideways.
(f)    Mr Schorn says he contacted the employer to recommend that Mr Goodacre not be given a work ute and that he should not be put in charge of any jobs. He says the employer ignored this advice. He said after this James Hendry complained to him about Mr Goodacre’s driving at dangerous speed, weaving all over the road and cutting across blind corners.
[8] Respondent’s late documents p 1.
Mr Shorn says there was not a culture of bullying and harassment in the workplace. He denies verbally abusing Mr Goodacre or threatening his employment.
At [40] Mr Schorn when speaking of himself says he “was terminated from Trafx as a result of any behaviour towards other staff, male of female [sic]”. It is possible a “not” is missing from this sentence. He then adds “I quit my employment because I had a disagreement with Melia and I had made a comment in jest about her (not work related and not sexually motivated) and in discussions with Mel about the comments I quit on the spot.”

Treating medical records

On 28 May 2018 Mr Goodacre consulted Dr Lawrence at the Fitzroy Medical Centre and the clinical notes state:
“LONG LONG LONG
very long history of explosive episodes
with
immed remorse (after minutes)
past prejudicial events inc
1.Death of first wife in u/ground mining accident ‘next to me’
2.Section leader with 4CAVàengaged in effective covert drug busting
è   ‘disowned’ by comrades and assaulted multiple times
And
Left RAI
3 got involved with bikie gangs
And
Lots of drugs- denies this as a ‘treatment’ but more an outlet for his anxiety/aggression
Alcohol made it worse.
(recognised his symptoms commenced 1996 (after 1^st wife died)
3 second marriage failed due his violent/verbally excessive outburst
Adamant ‘I’d never hit a woman’
Sleep disturbed ‘always wake at 3…’
Intrusive dreams (not daytime thoughts) of a variety of traumas from past (and NOT specifically or recurringly re wife’s violent death)
BUT
Also ‘drive’s’ Himself wrt ‘doing good stuff’
è   Works with Work for the Dole as supervisor
è   Has furniture business where he specifically engages ex-addicts and ‘turns their lives around…’
…
Warrants trial AED à valproate”[9]
[9] ARD p 46.

The next consultation in the Fitzroy Medical Centre records is not until 26 February 2020 with Dr Cassandra Steel. The doctor has recorded that he has severe stress from his job and has been suffering bullying and discrimination because he is in a supervisor’s role and he has had to witness his workers being bullied and disgusting behaviour directed towards them by his other colleagues and bosses. It is noted “has PTSD and was diagnosed with Impulsive-Explosive disorder a while ago. These had all been well under control but have severely worsened and now associated with Acute depression and anxiety”.[10] Dr Steel issued a NSW WorkCover certificate of capacity and referred Mr Goodacre for psychological counselling.
[10] ARD p 46 and AALD- B p 11.
Dr Steel saw Mr Goodacre again on 17 March 2020 and has detailed notes about his ongoing psychological symptoms. On the same day Mr McSweeney has recorded in the Fitzroy Medical Centre clinical records that he saw Mr Goodacre and that he felt Mr Goodacre was genuinely traumatised by the workplace bullying, on top of his previous trauma. He has detailed notes about Mr Goodacre’s symptoms.
There are many other entries in the notes throughout 2020 dealing with his psychological symptoms which I have read, but am not going to summarise. An entry on 22 April 2020 refers to Mr Goodacre having been admitted involuntarily to hospital 25 years ago when he had broken up with a woman and stated to an inspector at the abattoir he was going to shoot himself after having displayed aggression during his job.[11] A referral was given to Dr Jaspreet Singh[12] although the wait for appointment was too long so referral given to another psychiatrist, Dr Howpage, however on 24 July 2020 Dr Steel recorded that Mr Goodacre felt misinterpreted by that psychiatrist so another referral was given to see Dr Singh.[13] Dr Steel had seen Mr Goodacre and make very detailed notes about his symptoms but from August 2020 he was then treated by other doctors in the practice whose notes are very brief, but it is apparent that prescriptions were still being given for psychological symptoms.
[11] ARD p 49 and AALD -B p 15.
[12] ARD p 39.
[13] AALD-B p 28.
In Dr Steel’s notes there are references to Mr Goodacre’s psychological symptoms such as anger affecting his relationship with his daughter causing her to move out and live with her sister. It appears that a domestic violence order (DVO) was applied for by his daughter. Dr Steel on 15 July 2020 wrote to the Court to advise that Mr Goodacre has been suffering from Severe Anxiety/Depression mood disorder and a large amount of stress from issues with WorkCover, noting he is suffering from insomnia, and has difficulties with concentration and memory.[14]
[14] ARD p 41.
Dr Steel wrote a report dated 17 July 2020 attributing Mr Goodacre’s anxiety and depression to workplace bullying against himself and his colleagues, as well as lost work opportunities as a result of speaking out against it. She adds he had a normal recovery from the grief reaction he suffered decades ago when his wife died suddenly and his recent depression is not related to that. Dr Steel repeated these views in a report dated 24 July 2020.[15] In the referral to Dr Singh dated 23 July 2020 Dr Steel refers to Mr Goodacre having been admitted involuntarily to hospital 25 years ago and was concerned about deteriorating further if he were to be admitted again. He wanted to be treated as an outpatient.[16]
[15] ARD p 43.
[16] AALD-B p 65.
Dr Howpage, psychiatrist, reported to Dr Steel on 30 June 2020.[17] She has the history that from March 2019 to December 2019 the situation at work became unbearable for Mr Goodacre. She notes he said he felt victimised and marginalised by his supervisors. He said after he made an official complaint he felt ostracised and he was not given enough shifts. The doctor details his symptoms. The doctor thought he alluded to paranoid anxiety when he recounted that his supervisor was going in town telling everyone that he was “a (expletive deleted) idiot”.
[17] AALD-B p 52.
In a further report dated 8 July 2020 Dr Howpage advised Dr Steel she had contacted Mr Goodacre at home after he had missed two appointments. She also spoke to his wife who felt his irritability, restlessness and agitation was a direct result of the work issues.[18]
[18] AALD-B p 62.

Dr Vickery

Dr Vickery, psychiatrist, provided a medico-legal report for the respondent dated 19 June 2020.[19] He notes Mr Goodacre’s symptoms including insomnia, fatigue, aggression, lack of motivation, feelings of paranoia when going shopping, reduced memory and concentration.
[19] Reply p 88.
Dr Vickery diagnosed intermittent explosive disorder related to his reported death threats and recurring aggressive outbursts which Mr Goodacre said are uncontrollable. In answer to question 2 Dr Vickery says that Mr Goodacre did not report any factors outside the workplace that may be contributing to his current presentation.
Question 3 is confusingly worded and refers to “Diane” and “her work situation” so does not appear to relate to Mr Goodacre. Dr Vickery nonetheless responds and lists various passages from various witness statements about events at work. Dr Vickery concludes that there is no evidence to substantiate any of Mr Goodacre’s allegations of bullying, harassment or victimisation by his employer. Dr Vickery stated that Mr Goodacre’s employment is not the whole or the predominant cause to any current psychiatric condition which is pre-existing and constitutional in nature. He considered that Mr Goodacre was unfit to perform any employment at that time and required treatment for his pre-existing intermittent explosive disorder. He also found he did not show any abnormal illness behaviour, sick role or malingering or embellishment.

Dr Paisley

Dr Shannon Paisley, psychiatrist, provided a medico-legal report for Mr Goodacre dated 17 November 2020.[20] The doctor diagnosed Major Depressive Disorder. He says on his mental state examination Mr Goodacre was visibly angry, distressed and agitated about
[20] ARD p 18.
work-related events. He considered that his current condition was predominantly caused by the way he and others were treated in the workplace and triggered strong feelings of hopelessness, depression, anxiety and anger at the injustices that he was experiencing. The doctor found no evidence of any other non-work-related factors which may have contributed to his condition. Dr Paisley refers to the certificates of capacity which mention a pre-existing intermittent explosive disorder and he says the current condition is not merely a continuation or aggravation of this disorder. He states that Major Depressive Disorder is a separate disorder, with different symptoms, which began in the context of the work-related issues.
Dr Paisley re-examined Mr Goodacre again by video and provided a report dated 27 July 2022.[21] He again sets out the history about the workplace events, his personal history and current symptoms. He again diagnosed Major Depressive Disorder and repeated his earlier finding that there was no evidence of any other non-work-related factors which may have contributed to his condition. He assessed Mr Goodacre at 23% whole person impairment.
[21] ARD p 27.

Dr Bisht

Dr Bisht, psychiatrist, has provided a medico-legal report for the insurer dated 2 August 2021.[22] He sets out in detail Mr Goodacre’s symptoms. Dr Bisht states that Mr Goodacre denied past history of a psychiatric condition but he says he notes from the factual investigation there is a pre-existing diagnosis of intermittent explosive disorder for which Mr Goodacre was prescribed medication. Dr Bisht records Mr Goodacre’s account of the death of his first wife and his reaction to that.
[22] Reply p 105.
Dr Bisht diagnosed an adjustment disorder with mixed anxious and depressed mood as a result of the workplace. He states that employment has been a substantial contributing factor to the psychiatric condition. Dr Bisht explains that stressful work-related experiences occurred, the onset of the condition coincided with the stressful work experiences, and the workplace stressors would be considered severe enough to cause a psychological condition. Dr Bisht advises that there were not any significant non-work-related stressors and there was no pre-existing condition.[23] Later in his report Dr Bisht does refer to the prior diagnosis of intermittent explosive disorder but says there is insufficient information about that and so Dr Bisht formed the opinion that the current condition is not an aggravation of a pre-existing condition.
[23] Reply p 110.

Associate Professor Davies

Associate Professor Davies, psychiatrist, provided a medico-legal report to the insurer dated 19 May 2023.[24] The doctor sets out the history taken from Mr Goodacre which is consistent with that given to other practitioners. He details his current symptoms. The doctor diagnosed major depression using DSM-V. He offered the following summary and opinion:
“Mr Goodacre is a sixty year old man living in Batlow. He presents with anger, anxiety and depression which had been problematic in the context of ongoing problems in his workplace; which he said the company had failed to address. I note that although his complaints are refuted by management, they in fact did take disciplinary action regarding the employee about whose behaviour Mr Goodacre had complained. This suggests that his complaint had some substance in fact.
With regard to psychiatric diagnosis, ‘intermittent explosive disorder’ is not really an independent psychiatric disorder but rather a secondary symptom complex related to other underlying disorders. Medication is reported to be relatively ineffective. With regard to the underlying disorder, the overall picture would seem to be of a recent change in Mr Goodacre's coping ability as his employment history, if correct, is inconsistent with his recent problems and behaviour. There is, however, evidence of substantial past trauma in his life which may be a precursor. I would generally concur major depression (DSM-V).”
[24] Reply p 113.
Associate Professor Davies expressed the view that there was insufficient evidence available about Mr Goodacre’s past health to consider if any proportion of his impairment is due to a pre-existing condition. His answer to question 3 also indicated that he regarded further information was needed about his past health before a definitive answer could be given as to the role of any pre-existing condition.

Applicant’s submissions

Mr Carney made the submission that Mr Goodacre has a long and distinguished work history and this belies any argument that any issue from his first wife’s death in the mining accident decades ago was causative of his present psychological condition because he had not stopped working in various jobs in the past despite this having occurred.
He also submitted that while the respondent has statements about why Mr Goodacre’s shifts were cut, they have not dealt with his allegation that Mr Schorn was often saying offensive things and on one occasion was holding his stop sign and licking it, and he looked at porn sites on Mr Goodacre’s phone. Mr Carney submitted that these are serious allegations which Mr Goodacre said he reported to Mr Dorman, the owner of the respondent company. Also Mr Goodacre asserts that he was reporting such matters as sexual innuendos were being made to young female workers. Mr Goodacre says a meeting with management and supervisors resulted in him being told to go away.
Mr Carney submits that while the respondent has not raised a defence under s11A of the 1987 Act, the fact that a disciplinary letter was given to Mr Goodacre in June 2019 shows that there was conflict in the workplace. He also submitted that it is a fact that Mr Goodacre’s shifts were cut and, also, that the ute was taken from Mr Goodacre.
It was submitted that the notes made by Dr Steel refer to Mr Goodacre reporting severe stress related to his employment with the respondent such as witnessing other workers being bullied and absolutely disgusting behaviour being directed to them by co-workers. He said this is clearly a reference to Mr Goodacre’s complaints about sexual innuendo comments being made in the workplace, him making complaints and his shifts being cut.
Mr Carney submitted that the opinion of Dr Paisley supports a finding of Mr Goodacre having suffered a psychological injury pursuant to s 4(b)(i) of the 1987 Act as does Dr Bisht. Mr Carney submitted that Associate Professor Davies agrees that given Mr Goodacre’s long work history, including some in positions of authority, he was able to hold down a job unlike with the respondent. Mr Carney relies on his opinion that Mr Goodacre continues to have problems with depression and anger which the doctor says are consistent with the history he has given.
It is submitted that all the independent medical evidence supports the conclusion that Mr Goodacre does have a psychiatric condition and that the cause of it is the initial problems Mr Goodacre suffered in the employ of the respondent. Mr Carney submits that injury under s 4(b)(i) is proved that the main contributing factor causing the injury is the employment with the respondent. Mr Carney submitted that some of the events that the respondent’s witnesses refer to occurred after the initial causative events and after he was developing the psychological injury.

Respondent’s submissions

Mr Rickard submitted for the respondent that the Commission needs to be satisfied that Mr Goodacre was in fact bullied and harassed as alleged by him in the circumstance where the respondent’s witnesses have denied this occurred. He submits that Mr Goodacre has not filed any corroborative evidence from the persons he says he was standing up for, such as the female traffic controllers.
It was submitted that there was evidence from Mr Dorman that Mr Goodacre exhibited inconsistent and erratic behaviour at work. It was submitted that it is relevant that Mr Dorman says he told Mr Goodacre that the Council did not want him to work on their jobs and that he needed to apologise to the Shire engineer about his behaviour. The reason why the respondent says this is relevant is because Mr Goodacre asserts he was wrongfully denied work whereas it was his own behaviour that led to the Council banning him from their work.
The respondent’s counsel acknowledged there were ongoing problems in the workplace but submitted that Mr Dorman addressed them and dealt with them adequately and properly because he says in his statement “I was constantly trying to mediate between Tony and other workers regarding Tony’s behaviour. Tony’s behaviour always related to the threatening way in which he talks to others.” Counsel submitted that Mr Dorman says he had discussions with Mark, James and Tony and he offered strategies for Mr Goodacre to deal with Gary Piateck who had left the company, and that letters had been sent to Mr Goodacre and Mark and that Mr Dorman stated even as at the middle of July Mr Goodacre indicated in a text message he believed matters had been addressed but he still complained about them.
Mr Rickard also referred to the denials in Mr Hendry’s and Ms Belcher’s statements to there being bullying of Mr Goodacre.
He submitted that one of Mr Goodacre’s major complaints is that because of his intervention on behalf of himself and others, he was starved of shifts and that constituted some form of bullying. Mr Rickard submitted that it is evident from the respondent’s witness statements that is totally refuted.
It was submitted that even though Mr Schorn is no longer employed by the respondent, and so has no vested interest, he made a statement and refers to Mr Goodacre’s behaviour as being the reason he was banned from working on the Council sites. It was submitted that this corroborates that any shortfall in work being offered to Mr Goodacre was not due to an attempt to discriminate, harass or bully him, but the by-product of his own behaviour that offended one of the respondent’s largest clients. It was also submitted that Mr Schorn gives evidence that he was not aware of Mr Goodacre advocating on behalf of younger, female traffic controllers.
Mr Rickard submitted the allegation made by Mr Goodacre that he was being slandered around the town by his co-workers was not substantiated by any evidence and that all the respondent’s witnesses denied knowledge of this.
He submitted that Dr Vickery refers to Mr Goodacre’s history of suffering from intermittent explosive disorder and to Mr Goodacre saying his recurring aggressive outbursts are uncontrollable. Counsel submits that Mr Dorman and Mr Hendry refer to Mr Goodacre’s actions that are illustrative of such aggression. Counsel relied on Dr Vickery’s history that Mr Goodacre had been prescribed medication for this condition but he stopped taking it in May 2019, and it was submitted that this ties in with Mr Goodacre being described by Mr Dorman as becoming more aggressive and making death threats.
Mr Rickard recited Dr Vickery’s opinion that Mr Goodacre’s employment is not the whole predominant cause of any psychiatric condition, which is pre-existing and constitutional in nature. I mentioned that the test under s 4(b) of the 1987 Act is not “the whole or predominant cause”. Mr Rickard acknowledged that the legal test under s 4(b) involves “the main contributing factor” to the contraction of the disease. However, he submitted that is in effect what Dr Vickery is saying, and he submitted that Dr Vickery is going further, to say employment has nothing to do with the condition, as he states it is a constitutional condition.
The respondent also submits that to the extent that Mr Goodacre relies on the opinion of Dr Bisht, it needs to be understood that Dr Bisht is relying on what he has been told. It was submitted it is not clear whether the doctor had access to the lay witness statements which Dr Vickery had access to. It was also submitted that Mr Goodacre’s account is uncorroborated and that Dr Bisht gave his opinion without any real knowledge of the pre-existing condition.
In relation to the opinion of Associate Professor Davies, counsel submitted to the extent he supports Mr Goodacre is because he relies exclusively on the uncorroborated evidence from Mr Goodacre and that the doctor said he requires more information about Mr Goodacre’s past functioning before a definitive decision can be made.
In summary, Mr Rickard submits for the Commission would not be satisfied that Mr Goodacre’s psychiatric condition is an injury because his co-workers have denied his allegations, including Mr Schorn who no longer works for the respondent, and Mr Goodacre has called no corroborative evidence. It is also submitted that the histories he has given to medical practitioners arise sometime after he ceased his employment. It was noted that the medical records from the Fitzroy Medical Centre have a huge gap between 2018 and 2020 suggesting he was not getting treatment there. It was also submitted that no evidence has been filed to show what medication Mr Goodacre had been prescribed in the past for his explosive disorder.

Applicant’s submissions in reply

Mr Carney submitted that Associate Professor Davies states there is no medication to treat explosive behaviour disorder and that this is not a disorder and the references to it are a red herring in the case.
He submits that what is clear is that something happened in the course of employment, being real events, and that Mr Goodacre’s perception of events is what is relevant. The fact that real events occurred is demonstrated by Mr Dorman stating that Mark was also given a disciplinary letter about events at work.

Determination

At first glance the weight of the medical evidence supports the conclusion that Mr Goodacre did sustain a psychological injury in the course of his employment with the respondent, such as the opinions of the medico-legal psychiatrists Dr Paisley, Dr Bisht and Associate Professor Davies. However, the respondent has submitted that these experts’ opinions cannot be safely relied upon because they have been based upon the uncorroborated statements from Mr Goodacre, and the respondent witnesses have denied Mr Goodacre’s allegations.

It is the case that Mr Goodacre has not filed any witness statements to confirm that the assertions he has made did occur. However, there is some evidence in the respondent’s statements to show real events did occur in the workplace or have not been denied by those witnesses.
I am mindful that it is difficult to gauge the facts because many of the statements lack specific detail, are not first-hand accounts and the timelines are somewhat confusing. An example of an assertion made by Mr Goodacre not being denied is in relation to the conduct of Mr Schorn. Mr Goodacre refers to this conduct occurring from the start of his employment, which he dates as in October 2018. Mr Dorman and Ms Belcher say he started work in November 2018. Nothing turns on the precise date.
Mr Goodacre alleges Mr Schorn made sexual inuendo remarks, offensive comments, licked a stop sign and used Mr Goodacre’s phone to access porn sites. Mr Schorn states at [38] of his statement that he categorically denies that he made any sexual advances to any female staff, but he does say that Mr Dorman did speak to him about two females who had raised concerns about Mr Schorn encroaching into their personal spaces. He does not give a date for the conversation with Mr Dorman. While he denies sexual advances, he does not deal with whether he made sexual inuendo remarks or offensive comments. Mr Schorn also does not deal with Mr Goodacre’s accusation that he used Mr Goodacre’s phone to access porn sites and he also does not deal with the accusation about the stop sign.
Mr Dorman does not address these allegations even though Mr Goodacre says he reported them to him on numerous occasions including throughout March and April 2019. However, at [20] of Mr Dorman’s statement he relates a telephone conversation on 15 May 2019 in which Mr Goodacre referred to Mark Schorn and Glenn Piateck and Mr Dorman advised Mr Goodacre to block their comments or remove contact with them. From the context, this does not seem to relate to Mr Goodacre’s complaint about sexual inuendo etc. But this advice by Mr Dorman to Mr Goodacre does suggest there were interpersonal conflicts in or arising from workplace relationships.
The respondent’s counsel placed considerable reliance on Mr Schorn’s statement because it was submitted that he was no longer working for the company and so was a disinterested witness. I do not accept that this necessarily makes Mr Schorn a more reliable witness, particularly when there seems to have been ill feeling between him and Mr Goodacre. But what I find relevant is that Mr Schorn does not actually deny the specific allegations made by Mr Goodacre, nor does Mr Dorman deny that Mr Goodacre reported such matters to him.
Interestingly, Mr Dorman does state that shortly after Mr Goodacre commenced he reported strange behaviour by a Glenn Piateck. Mr Goodacre does not refer to Glenn Piateck but the fact that Mr Dorman says Mr Goodacre reported such matters to him, leads me to accept that he would have also reported the allegations about Mr Schorn to Mr Dorman if they occurred.
I accept Mr Goodacre’s account about these matters and make a factual finding that such conduct did occur in the workplace because the allegations have not been denied by Mr Schorn.
Furthermore, at [19] of Mr Goodacre’s statement he asserts all of these complaints were ignored and when he rang to find out why his shifts were cut, he was told Mark did not want to work with him anymore. Mr Dorman does not deal with this part of Mr Goodacre’s statement.
The reduction in shifts being offered to Mr Goodacre did occur as the respondent’s witnesses refer to this happening. However, there is a difference in accounts as to why this occurred. Mr Goodacre refers to speaking on the phone with Mr Dorman on 24 April 2019 being a conversation after the incident in Brisbane. He alleges that Mr Dorman would not listen to his explanation and threatened to sack him and Mr Goodacre told him he was taking the matter to WorkCover. Mr Dorman does not refer to this conversation, although he generally denies threatening to sack Mr Goodacre.
However, Mr Goodacre says when he got back from Brisbane, he rang Mr Dorman on 28 April 2019 looking for shifts and was initially told there were no shifts. In the days following he saw respondent crews working in the area he rang Mr Dorman again saying it was not right and he would follow this up. He says he was then given some shifts. I find on the balance of probabilities the conversation did occur, noting that Mr Dorman does not deal with this conversation.
Mr Dorman gave as one reason for the reduction in shifts due to work slowing down in the winter months, yet Mr Goodacre seems to date some shift reduction occurring before then from the above account.
The second reason given for reduction in shifts was that two clients did not want Mr Goodacre to work on their jobs. Ms Belcher gives some evidence about a complaint by Liz about Mr Goodacre’s behaviour towards her swearing, doing donuts in the work ute and leaving her in an isolated location. Ms Belcher does not give a date for this excepting that it was after she returned from leave in late April 2019. Ms Belcher says she understands it was after this incident that the Council requested Mr Goodacre no longer work on their sites. Mr Goodacre does not deal with the dispute with Liz. However, I accept that it did occur, even though Ms Belcher did not witness it firsthand, her account is quite detailed about her knowledge of it and she says she had spoken to Liz.
Furthermore, Mr Dorman at [17] of his statement refers to this incident which he says occurred on 11 May 2019. He says he spoke to Mr Goodacre about it and in that conversation told him the Council did not want him working at their sites.
The respondent has not relied upon a defence under s 11A of the 1987 Act so whether or not the conduct of the respondent was reasonable in reducing Mr Goodacre’s shifts is not the test I have to apply. To ascertain if Mr Goodacre has discharged his onus of proof to establish that his psychological condition is an injury contracted in the course of his employment with the respondent principles such as discussed in Attorney General’s Department v K[25] are relevant. Secondly, there needs to be consideration as to whether the employment was the “main contributing factor” to the contraction of the disease.
[25] (2010) 8 DDCR 120; [2010] NSWWCCPD 76, K.
At [52] in K Roche DP summarised the conclusions that can be drawn from the various authorities he considered. They are:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
I accept Mr Carney’s submission that real events occurred in the workplace such as Mr Schorn’s conduct and reduction in his shifts, which were perceived by Mr Goodacre as creating a hostile working environment and I find that causation is established that a psychological injury was sustained by Mr Goodacre. As was stated in K, it does not matter that Mr Goodacre’s perception may be flawed.
As to whether there were in fact rumors being spread about him in the town is hard to judge. Mr Dorman in his statement at [20] refers to speaking to Mr Goodacre on the phone on 15 May 2019 and he states, “Tony told me that he should not have lost his temper around such gossip”. This passage seems to support that there could have been discussion about Mr Goodacre. However, I place no weight upon this assertion as it is not detailed enough for me to reach a conclusion.
I find another significant fact supporting the proposition that there were issues in the workplace is the fact that at [33] Mr Dorman states Mr Goodacre was given a disciplinary letter and so was Mark. Mr Dorman at [16] refers to an invitation to a disciplinary meeting dated 3 June 2019 which he says is provided with his statement, but it is not in evidence, nor is the diary note referred to at [24]. Furthermore, in the phone call on 3 June 2019 Mr Dorman says Mr Goodacre asked why there was no mediation and Mr Dorman replied because he had spoken to both of them.
I have no doubt that Mr Goodacre exhibited very poor behaviour in the workplace such as his conduct towards Liz and threats made to Ms Belcher, however this does not negate the findings I have made about him sustaining a psychological injury in the course of his employment with the respondent.
Mention has been made as to whether Mr Goodacre did have a pre-existing explosive behaviour condition. Mr Dorman has referred in his statement at [24] to Mr Goodacre telling him he had an impulsive explosive disorder and he had not been taking his medications. Dr Lawrence recorded in the Fitzroy Medical Centre notes on 28 May 2018 that Mr Goodacre had a very long history of explosive episodes and that he warranted a trial of Valproate. However, there are no other entries until 26 February 2020 when Dr Steel did refer to a diagnosis “a while ago” with PTSD and impulsive/explosive disorder. She has a history that this condition had been well under control but had severely worsened and now he was diagnosed by her with acute depression and anxiety.
Dr Vickery bases his opinion on his understanding that there is no evidence to substantiate Mr Goodacre’s assertions of “bullying, harassment or victimization” in the course of his employment. The use of these terms are, in themselves, problematic as they are imprecise and can be used differently by people referring to interpersonal conflict in the workplace. The use of these terms also reflects an individual’s perception. I have found above that Mr Goodacre’s allegations about Mr Schorn are factual as was the reduction in his shifts, he calls this bullying and harassment which is his perception. I am satisfied real events occurred in the workplace which caused him to have this perception and it does not matter based on K, that at times his perception was not reasonable. Therefore, I find I cannot accept Dr Vickery’s conclusion that Mr Goodacre’s psychological condition is constitutional because it was based on the premise that no causative facts occurred in the course of employment.
I prefer the opinion of Dr Paisley who did consider the presence of a pre-existing intermittent explosive disorder, but he opined that Mr Goodacre’s current condition is not merely a continuation or aggravation of this disorder. He diagnosed a separate Major Depressive Disorder with different symptoms which he found commenced in the context of the work-related issues. I find Dr Bisht’s opinion is consistent with that of Dr Paisley, albeit with a diagnosis of an adjustment disorder with mixed anxious and depressed mood. Finally, Associate Professor Davies, like Dr Paisley, did diagnose Major Depression. He too considered the past so-called intermittent explosive disorder and says in recent times there seems to have been a change in Mr Goodacre’s coping ability when one considers his past employment history. I find the weight of this body of medical evidence should be preferred to that of Dr Vickery for the reasons I have already given.
As to the requirements of s 4(b)(i), that the employment needs to be the main contributing factor to the contraction of the disease, these specialists have all stated there were no non-work-related factors identified. They all considered the role of any underlying condition but, on the available evidence, I find their views do provide evidence for me to conclude that Mr Goodacre’s employment was the main contributing factor to the contraction of the disease. Therefore, I accept his counsel’s submissions that he has satisfied his onus in establishing injury pursuant to s 4(b) (i ) of the 1987 Act.
I order that the lump sum claim be remitted to the President for referral to a Medical Assessor to assess permanent impairment in relation psychological injury with a deemed date of injury 5 March 2020. The documents to be referred are to include those in evidence in these proceedings.

[2024] NSWPIC 6

8 January 2024