Goodworth v Wollondilly Shire Council
[2021] NSWPIC 23
•15 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Goodworth v Wollondilly Shire Council [2021] NSWPIC 23 |
| APPLICANT: | John Richard Goodworth |
| RESPONDENT: | Wollondilly Shire Council |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 15 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; claim for weekly benefits; whether applicant suffered injury; whether injury caused by reasonable actions of respondent with respect to discipline, performance appraisal and/ or redundancy; capacity – whether worker had capacity, and if so to what extent; Held- the applicant suffered a psychological injury in the course of his employment, to which his employment was the main contributing factor; Thazin-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR340 and Attorney-General’s Department v K [2010] NSWWCCPD 76 followed; corroboration in contemporaneous medical records is not necessary to establish injury, particularly in the context of a psychological injury: Baker v Southern Metropolitan Cemeteries Trust [2015] NSW WCCPD56 followed; the applicant’s injury was not wholly or predominantly brought about by the reasonable actions of the respondent; Smith v Roads and Traffic Authority of New South Wales [2008] NSWWCCPD130 discussed; the absence of medical evidence as to the cause of the applicant’s injury was a factor in determining whether a defence under section 11A was available; Hamad v Q Catering Ltd [2017] NSWWCCPD 6 followed; the applicant was partially incapacitated as a result of his injury during the period claimed; respondent ordered to pay weekly benefits from 5 January 2018 to 2 January 2019. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological/psychiatric injury in the course of his employment with the respondent, with a deemed date of injury of 7 December 2017. 2. The applicant’s employment with the respondent was the main contributing factor to the injury referred to in (1) above. 3. The applicant’s injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline, redundancy and/or promotion. 4. As a result of the injury referred to in (1) above, the applicant suffered partial incapacity for employment from the date he last worked for the respondent until 2 January 2019. 5. At the date of injury, the applicant’s preinjury average weekly earning was $1,050.98 6. For the period from 5 January 2018 to 3 June 2018, the applicant had capacity to earn in the amount of $350 per week. 7. From 4 June 2018 to 2 January 2019, the applicant had capacity to earn in the amount of $500 per week. 8. The respondent is to pay the applicant weekly compensation as follows: (a) From 5 January 2018 to 6 April 2018 at the rate of $648.43 per week pursuant to section 36 of the Workers Compensation Act 1987; (b) From 7 April 2018 to 3 June 2018 at the rate of $490.78 per week pursuant to section 37 of the Workers Compensation Act 1987; and (c) From 4 June 2018 to 2 January 2019 at the rate of $340.78 per week pursuant to section 37 of the Workers Compensation Act 1987. 9. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
John Richard Goodworth (the applicant) seeks weekly compensation and payment of medical expenses in respect of an alleged psychological injury suffered as a result of interpersonal conflict with management in the course of his employment with Wollondilly Shire Council (the respondent).
The applicant claims weekly benefits from 7 December 2017 to 2 January 2019. The respondent denies liability and places in dispute whether the applicant suffered a psychological disorder, whether the applicant’s employment was the main contributing factor the development of any psychological disorder and if it was, alleges the psychological injury was wholly or predominantly brought about by the respondent’s reasonable actions with regards to performance appraisal, discipline and/or promotion.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Injury: that is, whether the applicant suffered a recognisable psychiatric or psychological disorder (section 11A(3) of the Workers Compensation Act 1987 (the 1987 Act)), and if so whether such condition occurred in the course of
his employment with that employment being the main contributing factor (section 4,4(b) of the 1987 Act);
(b) Section 11A of the 1987 Act: if the answers to (a) above are in the affirmative, whether the applicant’s injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline, redundancy and/or promotion, and
(c) If questions (a) and (b) are resolved in the applicant’s favour, what was his incapacity for employment, if any, for the period claimed.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 1 February 2021. On that occasion, Mr A Parker of counsel appeared for the applicant and Mr D Saul of counsel for the respondent.
At the outset of the hearing, the applicant objected to the respondent relying upon a supplementary report of its Independent Medical Examiner (IME) Dr George dated 9 December 2020. That report was only served on the applicant on 27 January 2021, and after hearing submissions from both counsel the report was excluded from evidence and not taken into consideration by the Commission, as the applicant had not had time to adduce evidence in reply to the matters raised by it, and because there was no substantive explanation for the delay in serving the report.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) Applicant’s Application to Admit Late Documents (AALD) dated 20 November 2020 and attached documents, and
(d) respondent’s AALD dated 25 January 2021and attached documents, save the supplementary report of Dr Smith, which was excluded from evidence.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered a psychological injury
In its dispute notice dated 12 December 2018, the respondent alleged the applicant had not suffered a definable psychological or psychiatric disorder and noted that emotional upset, anxiety, frustration or anger does not constitute such a disorder.
“Injury” in the workers compensation context includes mental disorder: Anderson Meat Packing Company Pty Ltd v Giacomantonio (1973) 47 WCR 3. To establish a worker has suffered an injury, it is not enough that they feel frustration and upset, even of a high degree. It is necessary that there be a physiological effect and not a mere emotional impulse: Thazin-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR340.
The applicant does not claim his alleged injury is brought about by a single event but is rather one of gradual process. In doing so, he relies upon his perception of real events in grounding his claim for psychological injury.
In Attorney-General’s Department v K [2010] NSWWCCPD 76, Roche DP considered the issue of establishing psychological injury in such circumstances and provided the following summary of the relevant authorities on this issue:
“a.Employers take their employees as they find them. There is an ‘eggshell psyche’ principle which is the equivalent of the ‘eggshell skull’ principle (Spigelman CJ 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 and Chemler at [54]);
c. If events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and the 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 are 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 quality 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.’ (at [52])”.
In this instance, the applicant relied on the contents of the statement provided on behalf of the respondent by Mr Savage as evidence of real matters taking place in the workplace of which the applicant had a perception of being treated unfairly. Mr Parker relied on instances of Mr Savage recalling the applicant having to be prompted to complete work, in understanding higher level paperwork and administrative tasks and the manner in which the applicant carried and retrieved an escaped cat as examples of real events which the applicant perceived to have caused problems for him in the workplace.
Although the applicant’s evidence is somewhat vague as to the events which he said gave rise to his psychological injury, the matters raised by Mr Savage illustrate that there were real issues in the workplace. In his statement, found from page 1 of the Application, the applicant stated:
“7. I believe that I was singled out and mistreated by management during my employment.
8. I believe that my manager targeted me unfairly. We did not get along. I was often prevented from doing the jobs and duties that I was qualified to do.
9. I believe that my co-workers would often by quite slack in their duties. I felt that I would need to finish these tasks as the work just needed to be done. I would be shut down by management if I raised my concerns regarding these co-workers and I felt that they would face no repercussions. However, I would be quickly reprimanded if I made a wrong move and I found this very unfair.
10. Management would frequently criticise me unreasonably. I would often face negative performance reviews and I feel like I was hampered in my ability to progress in my career unfairly.
11. I requested transfers away from the animal shelter to escape my situation with management, however, I was refused each time.
12. This prolonged conflict and targeting by management took a significant toll on my mental health. I became anxious and my mood was low. I cannot attribute my symptoms to anything but my treatment at the hand of Wollondilly Shire Council.
13. Prior to leaving Wollondilly Shire Council I was earning approximately $1,000 in gross weekly payments.
14. After leaving Council, my mental health continued to deteriorate. I became even more anxious and at times was incoherent. I started to experience panic attacks. I seem to have constant migraines and my mood was very poor. I had low motivation and over time it seemed clear to me that I was depressed.”
In support of a finding of injury, Mr Parker referred the Commission to the matters listed by Associate Professor Robertson, IME for the applicant. The applicant told Associate Professor Robertson that there were a number of matters which led to him ceasing work, including “interference and obfuscation”, “favouritism”, problems with his manager whom he identified as “RC”, (taken to be Ms Robin Cooper), unreasonable and malicious use of performance management, and unreasonable denial of transfer applications. Associate Professor Robertson reported at page 4 of his report:
“At the time Mr Goodworth ceased employment he reported being in a state of shock, with the exacerbation of severe classic migraines characterised by nausea and severe headache and fatigue. He experienced some incontinence, potentially suggestive of the exacerbation of his previous surgically-treated benign prosthetic hypertrophy.
Mr Goodworth experienced initial and middle insomnia. He is excessively worried about his circumstances. The anxiety occasionally morphs into panic attacks, provoked feelings of dread, and a fear of having ‘a stroke’. He experiences generalised anxiety symptoms, a variable impairment of concentration and short-term memory, and demoralisation without any suicidal ideation. He also described dysphoric mood.”
For the respondent, Mr Saul noted there was no corroboration for the applicant having complained to his general practitioner regarding symptoms of any psychological distress until up to a year after leaving the respondent’s employ. If that is the case, it is not fatal to a claim for psychological injury. In Baker v Southern Metropolitan Cemeteries Trust [2015] NSW WCCPD56, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81. However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82. Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83. The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84. Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
At [85], the Deputy President did, however, note that absence of complaints to a general practitioner may be entitled to significant weight if a worker fails to complain of bullying and harassment for several months after they ceased work, however, that is not what happened in Mr Baker’s case.
The applicant ceased work in December 2017, and as early as 23 January 2018, presented to his general practitioner at which time reference was made to his not working since being made redundant and receiving supportive counselling. That presentation was against a background of a further visit to the general practitioner on 27 December 2017, shortly after the applicant ceased work at which time reference was made to the applicant suffering reflux and feeling depressed.
On 18 December 2017, the applicant had attended his general practitioner after being taken to hospital suffering from dehydration while working in a factory after being made redundant by the respondent. At that time, there was no mention of any symptoms of depression or psychological sequelae.
Mr Parker also relied upon the statement of Ms Cooper, in which she referred to the applicant having been transferred into the animal shelter because of difficulties in his preceding area of work. He submitted this was evidence that the employer was not happy with him. He then referred to paragraph 28 of Ms Cooper’s statement where she described the applicant displaying “some unique behaviours” and that he “lacked the intellectual ability to manage his role well”.
Mr Parker submitted it was apparent there were a number of issues in terms of interpersonal relationships between the applicant, his co-workers and managers. He submitted the Commission would not accept the view of Dr George, IME for the respondent who failed to diagnose the applicant with any psychological condition. He submitted the history taken by Dr George was inadequate, and that the lack of a fulsome history was an important factor when evaluating the weight to be given to the doctor’s opinion. Mr Parker noted the applicant presented with a tense affect, which Mr Parker submitted was suggestive of some psychological problem and which would necessitate Dr George providing an explanation as to why, despite that presentation, there is no psychological condition present.
On balance, I am of the opinion that the applicant suffered a workplace psychological injury in the course of his employment with the respondent. In so finding, I have taken into account the applicant’s evidence, and note that he has had a perception of real events which, in my view, are sufficient to ground a finding of injury. Although the applicant made no complaint to his treating general practitioner until after he had been made redundant, it is apparent from the lay evidence of Mr Savage and Ms Cooper that there were interpersonal issues between the applicant, his colleagues and management whilst he was in employment with the respondent. Moreover, when one examines the exit questionnaire completed by the applicant and found from page 12 of the Reply, it is apparent the applicant felt aggrieved with a number of matters including his salary, staff counselling, and lack of recognition of his efforts in the workplace.
In my view, those contemporaneous lay records and statements support in broad terms the view of Associate Professor Robertson, who found the applicant suffered from an adjustment disorder with anxiety and depressed mood. That diagnosis by Associate Professor Robertson was conditional upon an acceptance of the applicant’s version of events. In my view, the applicant’s version should be accepted. Although both Mr Savage and Ms Cooper dispute the applicant’s perception of various workplace issues, it is apparent those issues were real, and as such the applicant’s perceptions are sufficient to ground a finding of injury consistent with the line of authority commencing with Chemlar and Attorney-General’s Department v K.
The applicant’s perception that his managers were not supportive of him is supported in part by Mr Savage having referred in his statement to the applicant having issues following direction and a suspicion on the part of Ms Cooper that the applicant’s behaviour may have been caused by his being on the autism spectrum. For her part, Ms Cooper questioned whether the applicant had the “intellectual capacity” to carry out his employment. In my view, it is apparent there were real issues in the applicant’s relationship with his co-workers and supervisors, and his perception of those issues are what gave rise to his psychological injury
Accordingly, taking into account all of the medical and lay evidence, I am satisfied the applicant suffered a psychological injury in the course of his employment with the respondent, to which that employment was the main contributing factor.
The section 11A defence
An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC167 and Department of Education and Training v Sinclair [2005] NSWCA465 (Sinclair).
Section11A(1) provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
“Wholly” and “predominantly” are separate concepts. In Smith v Roads and Traffic Authority of New South Wales [2008] NSWWCCPD130 (Smith) the Arbitrator had made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the respondent employer. Snell ADP (as he then was) said at [62] that the concepts “wholly” and “predominantly” are different concepts and if such findings were to be made “it needed to be one or the other.”
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused.” The test of causation to be applied is that set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR452 (Kooragang), namely whether on a commo-sense evaluation of all the evidence, the applicant’s injury was brought about by the respondent’s reasonable actions with respect to performance appraisal, discipline or promotion.
In Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the respondent employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its onus in proving the worker’s psychological injury resulted ‘wholly or predominantly’ from its reasonable action to be taken or proposed to be taken with respect to discipline.
The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a section 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to psychological injury.
30. In Hamad, Snell DP said at [88]:
“There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in section 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the applicant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under section 11A(1) were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In accordance with Deputy President Snell’s decision in Hamad, medical evidence in a case such as the present one which addresses those relative causal contributions is necessary to ground a finding as to whether the reasonable actions of the respondent “wholly or predominantly” caused the injury at issue.
In this case, there is no evidence put forward by the respondent which demonstrates that its reasonable actions with regards to either redundancy, performance appraisal, discipline or promotion were the cause of the applicant’s injury. The medical evidence relied upon by the respondent goes to the question of whether the applicant suffered a psychological condition. Having found this to be the case and that the condition was a workplace injury, it is incumbent upon the respondent to provide medical evidence which would be sufficient to ground a finding that the injury was wholly or predominantly caused by its reasonable actions in one of the relevant criteria. It has failed to do so.
Mr Saul submitted this was a matter where the cause of the applicant’s injury, in the event one was found, was so obvious as not to require any medical evidence to be presented in support of the respondent’s case. I reject that submission, as the lay evidence, including that presented on the part of the respondent, prima facie points to a number of factors which gave rise to difficulties in the workplace for the applicant. Some of those factors were matters relied on by the respondent in support of its section 11A defence, and others were not.
Absent expert medical opinion from the respondent as to which, if any, of the many factors which have given rise to the applicant’s injury was wholly or predominantly responsible for it, I am not satisfied on the balance of probabilities that the applicant’s injury was caused by the matters relied on by it in support of the defence under section 11A.
Taking into account the totality of delay and medical evidence in this matter, in my view the causes of the applicant’s psychological injury are multifactorial. They included interpersonal conflict with supervisors, and perceptions of being singled out or overlooked in the course of his employment, not just with respect to performance appraisal, discipline, promotion and ultimately redundancy.
As such, in my view the respondent’s defence pursuant to section 11A fails.
Capacity for employment
The evidence surrounding the applicant’s post-employment earnings is less than clear. The late documents disclose the applicant’s last pay period with the respondent expired on 5 January 2018. However, it is apparent that by as early as 18 December 2017 he had obtained employment working in a factory, as on that date he attended his general practitioner after collapsing at that job due to dehydration. The GP entry on that date referred to the applicant as having already been made redundant. It is therefore not possible to be entirely clear as to when the actual claimed period commences. The applicant claims from 7 December 2017, the respondent says he was paid until January 2018. On balance, the documentary evidence in my view supports a finding the applicant was paid by the respondent until 5 January 2018, and the claim should therefore commence from 6 January 2018. That finding is consistent with the applicant’s PAYG payment summary upon which he relied in completing his tax return, and in my view is persuasive evidence
Regardless of the date he last worked for the respondent, there is no issue the applicant has worked as a taxi driver on a part time basis since 2 January 2019, the date on which his claim for benefits ends. There is also no issue he was retained in various roles through a labour hire firm before taking up the role taxi driving, and that he also applied for a number of positions throughout 2018. It is apparent he therefore had some capacity for employment even in the immediate aftermath of his termination.
The applicant has filed a Wages Schedule which sets out his alleged post-injury earnings and the claimed preinjury average weekly earnings (PIAWE). On 11 March 2021, the parties forwarded to the Commission an email indicating they had reached agreement on the applicant’s PIAWE at the rate of $1,050.98 per week.
I find the applicant was partially incapacitated for employment from the time he ceased work with the respondent. I accept he was able to carry out employment in other roles from the time he ceased that employment, at least on a part time basis. Doing the best I can, for the period up to 3 June 2018, I find the applicant was capable of earning $350 per week. I base that finding on the fact that as soon as December 2017, the applicant had obtained employment at a factory, and to his credit, he openly disclosed his attempts at finding work in his statement which proved unsuccessful.
By 4 June 2018, the applicant was applying for full time jobs with various councils, including but not limited to the respondent. The fact the applicant was applying for jobs on that basis in my view supports a finding that his capacity for work had increased. Nevertheless, the fact a worker applies for jobs does not mean they have the actual capacity to carry them out.
Once again, doing the bast I can, I find the applicant’s capacity for employment from 4 June 2018 to 2 January 2019, which is the conclusion of the period claimed, was $500 per week. In so finding, I have had regard to the jobs which the applicant had applied for, but also taken into account his evidence, which I accept, that his attempts to return to full time work were unsuccessful in this period owing to the lingering effects of his injury. Those effects are set out from [15] to [21] in his statement found at page 2 of the Application, and I accept his evidence as coming from a witness of truth given he has made admissions of applying for various jobs in the aftermath of leaving work with the respondent, such admissions prima facie being contrary to maximising the value of his claim.
Accordingly, I find the applicant was partially incapacitated for employment from the date he last worked for the respondent until 3 June 2018 and was capable in that period of earning $350 per week. For the period from 4 June 2018 to 2 January 2019, I find he was capable of earning $500 per week.
Medical expenses
The applicant made a claim for medial and treatment expenses. There was no substantive dispute in relation to the treatment claimed, rather the dispute surrounding it arose from the issue of injury and the section 11A defence. Having made the above findings, it follows the respondent will be ordered to pay the applicant’s reasonably necessary medical and treatment expenses.
In light of the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.
Cameron Burge
MEMBER 15 March 2021
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