Granger v State of New South Wales (NSW Police Force)
[2024] NSWPIC 666
•3 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Granger v State of New South Wales (NSW Police Force) [2024] NSWPIC 666 |
| APPLICANT: | Bronwyn Granger |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance management and discipline; worker alleged bullying and harassment, ill-defined job description, ostracization and marginalisation during course of employment; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair; Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie and Attorney General’s Department v K discussed and applied; Held – worker’s injury caused by all events at work, not wholly or predominantly performance management for misconduct; referral to a Medical Assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a psychological injury arising out of or in the course of her employment on 3 February 2020 (deemed). 2. The applicant’s employment was the main contributing factor to her injury. 3. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline. 4. I remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment as follows; Date of injury: 3 February 2020 (deemed) Body system: psychological/psychiatric disorder. 5. The documents to be reviewed by the Medical Assessor are (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents received on 5 November 2024. |
STATEMENT OF REASONS
BACKGROUND
Ms Bronwyn Granger (the applicant) claims lump sum compensation arising out of psychological injury alleged to have resulted from her employment as an administrative officer whilst employed by the NSW Police Force (the respondent).
Liability is denied by the respondent. It relies on s11A of the Workers Compensation Act (1987) (the 1987 Act) which prevents payment of compensation in circumstances where the psychological injury is determined to have resulted wholly or predominantly because of reasonable action taken with respect to performance appraisal and or discipline.
Internal review was unsuccessful resulting in application to the Personal Injury Commission (the Commission). The matter underwent the usual case management pathway eventuating in arbitration, as the parties informed me the dispute was not amenable to conciliation.
At arbitration, the applicant was represented by Mr Beran of counsel instructed by Mr Guerra. The respondent was represented by Mr Gaitanis of counsel instructed by Ms Harvey. The respondent’s insurer was present.
The dispute is narrow yet complex. The parties accept any case management pathway (specifically referral to a medical assessor) will be subject to my findings relating to whether events connected with performance appraisal and/or discipline were wholly or predominantly the cause of the psychological injury. Injury is not in dispute.
In considering the matter, I had regard to the oral submissions of counsel, the Application to Resolve the Dispute (ARD), the Reply and an Application to Admit Late documents (AALD) filed by the applicant on 5 November 2024. No oral evidence was called.
The law
The law relevant to this application is found in the 1987 Act.
A psychological injury must satisfy the definition of injury within the meaning of s 4 of the 1987 Act (relevantly)
"‘injury’
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…”
Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.” (my emphasis)
What is a psychological injury?
The parties agree that the applicant has suffered a psychological injury. This is defined in s 11A (3A) of the 1987 Act as:
“‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
Authorities establish the following:
i) in order to prove that a psychological injury has occurred, an injured worker must prove that either the nervous system was so affected, that a physiological effect was induced or that there has been an aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition. Mere emotional impulse, anxiety state, frustration and emotional upset, or a “straight litigation neurosis”[1] do not constitute psychological injury.[2] (Stewart)
ii) A finding of psychological injury requires expert evidence that such an injury is present.[3] (Calka)
iii) In considering the issue of establishing psychological injury in circumstances of the worker's perception of events at work, Roche DP in Attorney General's Department v K,[4] provides:
(i)employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shelled skull” principle (Spigelman CJ in Chemler at [40]);
(ii)so long as the events within the workplace were real, rather than imaginary, it does not matter that they have affected the worker's psyche because of a flawed perception of events because of a disordered mind;
(iii)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”
(iv)it is not necessary that the worker's reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
[1] New South Wales v Rattenbury [2015] NSW WCCPD46.
[2] Stewart v New South Wales Police Service (1998) 17 NSWCCR 202.
[3] HammondCare v Calka [2016] NSWWCCPD 2 at [118]-[123].
[4] Attorney General's Department v K [2010] NSWWCCPD 76.
What does “wholly or predominantly” mean?
I note this term is not defined by the 1987 Act. Review of authorities establish the following:
i) “wholly” and “predominantly” are separate concepts and only one of the definitions needs to be satisfied. The words are independent of each other;
ii) it is generally accepted that it means “mainly or principally caused”;[5] (Poonan)
iii) the question of causation must be addressed by medical evidence, and[6] (Hamad)
iv) causation is a question of fact to be determined on the evidence in each case.[7] (Kooragang)
[5] Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92 (Ponnan).
[6] Hamad v Q Catering Limited [2017] NSWWCCPD 6.
[7] Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452.
What does “reasonable action” mean?
Again, this term is not defined by the 1987 Act. It is difficult to succinctly define, however the following non exhaustive summary of key principles has been extracted from authorities:
i) in determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer;[8] (Rashov)
ii) the test is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all circumstances, by questions of fairness;[9] (Irwin)
iii) when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected;[10] (Ivanisevic)
iv) the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken;[11] (Heggie)
v) the assessment of reasonableness should take into account the rights of an employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances;[12] (Heggie)
vi) reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action;[13] (Melder)
vii) procedural and policy documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable, and[14] (Aravanopules)
viii) the concept of reasonablenessdoes not require a counsel of perfection. It requires, that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.
[8] Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82].
[9] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).
[10] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).
[11] Northern NSW Local Health Network v Heggie[2013] NSWCA 225.
[12] Northern NSW Local Health Network v Heggie[2013] NSWCA 225.
[13] Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
[14] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81].
What does performance appraisal mean?
Authorities establish:
(a) an extended and continuing assessment process may not be a performance appraisal. The process and the time taken to engage in it must be objectively reasonable in all of the circumstances of the case.[15] (Dunn)
(b) Performance appraisal:
“is not a vague, continuing, informal process. It is defined to be somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure to which the parties move in order to establish employee’s efficiency and performance”.[16] (Irwin)
EVIDENCE
[15] Dunn v Department of Education and Training [2000] NSWCC 11.
[16] Irwin v Director General of School Education NSWCC 14068/97 Unreported.
Respondent’s evidence
The respondent bears the onus of establishing that employment was the whole or predominant cause to injury and that its conduct was reasonable.
Allegations of misconduct leading to performance management
On 14 January 2020,[17] the applicant was given a letter notifying her of allegations of misconduct engaged in on 10 December 2019 and the respondent’s intention to investigate. The grounds were (unedited):
“(1) You were less than forthright when you advised Senior Constable Rodwell you were taking an extended meal break due to a doctor’s appointment but got your hair coloured instead.
(2) You falsely recorded your flex sheet as having commenced duty at 7.00am and absent from the workplace for lunch for 2.5 hours, when in fact your commenced duty at 7.30am and were absent from the workplace between 12.30pm and 4.30pm.
(3) You did not seek approval from your Manager or Commander prior to taking an extended lunch break as previously instructed.”
[17] Folio 92 of the Reply.
As a result of the above, an interim risk management plan was commenced[18] on 21 January 2020 which relocated the applicant to the Campus Management Unit and appointed Adrian Doran as immediate supervisor with Inspector Connors the monitoring officer. The reasons for relocation was to ensure the applicant had no contact with officers who had made complaints against her and enable adequate supervision on a standard hours roster. The plan was to be temporary pending finalisation of the investigation.
Witness statements – lay evidence
[18] Folio 89 of the Reply.
Karina Nixon
Ms Nixon states[19] she was the applicant’s supervisor and recorded the applicant was conversant with her administrative duties having been employed for a period of 20 years in that role. She records that there were many mentoring and feedback discussions between July and October 2019 after mistakes/errors were identified. She records the applicant failed to complete tasks and directions. (I note that these mistakes did not form part of the above allegations of misconduct or performance management plan).
[19] Folio 50 of the Reply.
Paul Hardy
Mr Hardy[20] states he was employed as the senior sergeant coordinator of the student management unit. He recites that the applicant had been counselled with respect to work performance and breaches in policy and procedure. Multiple time management issues were identified along with a continued lack of understanding of her duties. He expressed doubts she was committed to the role. Staff had expressed concern about the applicant’s absences.
[20] Folio 58 of the Reply.
Douglas Conners
Inspector Conners[21] confirms he was the Manager of the Education and Training Command. He acknowledges the applicant raised concerns about the extent of her duties and that she had raised issues relating to communication and her perception of some interpersonal issues with staff and supervisors. He noted that in addition to the injury management process, she had been the subject of three separate complaint matters each investigated with adverse findings made. These related to untruthfulness, falsification of official records and disobeying reasonable directions. During the investigation and following service of an interim risk management plan, she was transferred to a different unit under the supervision of Adrian Doran. He records poor punctuality and poor performance.
[21] Folio 63 of the Reply.
Nicholas Hallett
Nicholas Hallett[22] informs me that he was the operations manager at the NSW Police Academy and confirms he served the applicant with the interim risk management plan, an action deemed necessary due to identified work performance issues and breaches in policy and procedure. To prevent issues relating to punctuality the applicant was placed on a set roster. He recalls the applicant was visibly distressed on learning of the interim risk management and actions moving forward. He states he did not observe any bullying or harassment of the applicant.
[22] Folio 71 of the Reply.
Qualified evidence
Dr Peter Young, consultant psychiatrist reported on 14 May 2020,[23] 30 June 2020,[24] 22 March 2022[25] and 11 March 2024.[26]
[23] Folio 33 of the Reply.
[24] Folio 41 of the Reply.
[25] Folio 19 of the Reply.
[26] Folio 16 of the ARD.
At initial assessment on 14 May 2020, Dr Young takes a history of stressors in the workplace since 2015 including those associated with changes relating to her substantive position, restructuring of the role and changes in management each who had different priorities and expectations. He records symptoms were severe enough resulting in episodes of chest pain, ultimately diagnosed as Takotsubo Cardiomyopathy (TC). A return to work was reported following the TC event with deterioration in symptoms in 2018 as a “result of residual fear relating to previous issues”. The applicant disclosed the three accusations of misconduct and a further accusation with reference to the improper use of a corporate credit card expressing she felt a constructive dismissal was looming.
Dr Young concluded that the whole or predominant cause of the condition was the perceived bullying and unfair criticism in relation to performance but overall prognosis was good.
In his report dated 30 June 2020 he again diagnosed adjustment disorder. Dr Young stated that the predominant cause of the condition was related to the formal complaints made against the applicant. He then reported that the applicant’s current condition was related to the same stressors that caused the stress induced TC. (It is unclear how he came to that conclusion as the applicant was not the subject of discipline or performance management at the time of the TC, but rather expressed she had over 15 months of stressors in the workplace.)
On 22 March 2022, following assessment, Dr Young diagnosed major depression and considered the whole or predominant cause of the psychological condition was perceived bullying which related to threatened or actual performance management procedures that have occurred and noted his findings were consistent with Dr Allan.
In his final report dated 11 March 2024, Dr Young confirmed the diagnosis of major depression, indicated it was his view that employment was the substantial contributing factor and finally that the whole or predominant cause of the injury was unfair criticism of her performance and performance management.
Applicant’s evidence
Four statements are in evidence. They are consistent. In her 2017 statement[27] the applicant informs me she had been employed by the respondent for a period of 15 years in an administrative role and she had experienced psychological symptoms following a dispute with her direct supervisor, Senior Sergeant Dawes who raised issues in relation to her performance to the immediate inspector in charge. Complaints of overwork, lack of support, poor ergonomics, ill-defined job description and marginalisation resulted in symptoms of stress induced cardiomyopathy and recourse to the Employee Assistance Program (EAP). Symptoms were severe enough to warrant cardiac investigation resulting in a diagnosis of TC.
[27] Folio 25 of the ARD.
In her 2018 statement[28] the applicant recorded since her TC (which was ultimately accepted as being compensable following a hearing in the Workers Compensation Commission) she had been “treated differently at work”.
[28] 2 August 2018 – Folio 24 of the ARD.
In her March 2020 statement[29] the applicant records an ‘injury’ at work on 3 February 2020 stating “this was the last straw for me on this day. I had many incidents leading up to this day”. The statement confirms she was subject to an interim risk management plan following a meeting on 21 January 2020 which sought to monitor workload following an allegation and pending investigation into misconduct. The statement informs me that she was transferred to another unit under the supervision of Adrian Doran whom she claims treated her unfairly and she felt she was being targeted. She felt she was not adequately trained to undertake the new tasks assigned to her. Emails relating to Mr Doran’s response to late attendance and medical appointments in work hours were claimed to be oppressive particularly as medical attendances related to her TC. She records she was repeatedly informed her work fell below standards and was dismissed when she raised reasons for any lapse in quality. She further records her new role was the subject of much confusion and the situation could have been avoided ‘if I had proper supervision and communication from the management team’.
[29] 18 March 2020 – Folio 13 of the ARD.
In her 2024 statement,[30] the applicant maintains she was targeted and bullied by her supervisors. She explains there was a high turnover of staff and that there were no effective handovers or follow up of work. There was a general lack of organisation within the student management unit all contributing to her workplace stress and psychological symptoms.
[30] 1 July 2024 – Folio 11 of the ARD.
The events leading up to the diagnosis of TC are expanded upon in this statement and she recounts a background of significant stress associated with 18 months of management changes, staff shortages, long hours, conflict with supervisors and overwork. The applicant explains that she had received regular medical attention and was ultimately diagnosed with major depression as early as 2017. She recounts severe levels of work related stress due to increasing work load, ‘micromanagement’ and being dismissed by her peers and supervisors.
Following TC treatment, she returned to work on a graded return to work plan but felt unsupported and that the office environment had “an air of passive aggressiveness”. Multiple changes in procedure and process were poorly communicated and attempts to raise her workplace difficulties via email with her supervising sergeant were ignored.
The statement confirms formal findings of misconduct were made against her following an internal investigation. She however maintains she did not falsify official records, engage in untruthfulness or disobey reasonable directions. She submits the complaints were vexatious and she was not given an option to engage in any appeal or provided with evidence. Complaints about poor or punctual attendance were stated to be exaggerated and any absences were predominantly connected with her accepted cardiac injury.
Incident notification form
By way of a P902 form[31] the applicant notified the respondent that she suffered injury on 3 February 2020 as follows (unedited):
“Over the course of my employment with Adrian DORAN manager of Campus Management Unit (CMU) at the NSW Police Academy, I felt bullied and intimidated by disciplinary emails sent by him. These emails were pertaining to my performance and workers compensation appointment management. They were sent to myself and upper management but the content of the emails was never previously discussed face to face with me. I was under the command of Mr DORAN whilst an alleged misconduct against myself was being investigated, but I feel I was put in an unsafe environment with no support. Taking into consideration my previous workplace injury I don't believe an adequate handover was taken into consideration. My initial determination of alleged misconduct puts me back under the management of Mr DORAN, which currently would not be in line with the restrictions of my medical certificate.”
[31] Folio 129 of the ARD.
Qualified evidence
The applicant qualified Dr Allan consultant psychiatrist and his reports dated 25 February 2021,[32] 23 September 2021,[33] 8 January 2024,[34] 16 September 2024[35] and 29 October 2024[36] have been considered.
[32] Folio 199 of the ARD.
[33] Folio101 of the ARD.
[34] Folio 181 of the ARD.
[35] Folio 11 of the AALD.
[36] Folio 3 of the AALD.
On 25 February 2021, Dr Allan recorded (unedited)
“Ms Granger describes enduring difficulties in the workplace occurring significantly prior to any recent disciplinary actions. She describes longstanding psychological distress which has developed into a major depressive disorder…
Symptoms are consistent with a major depressive disorder and had significant physical issues, in particular Takotsubo cardiomyopathy first diagnosed in 2017 in the context of ongoing workplace stress which has continued since that time…
…Takotsubo cardiomyopathy is associated with significant stress and is in itself entirely related to her workplace stressors and mood difficulties…”
On 23 September 2021, Dr Allan repeats the above history but also raises the ‘performance issues’. He records the medical discharge on 22 July 2021 and that the applicant felt that she had not received closure as the outstanding performance issues were “never resolved” which resulted in rumination and frustration. He concluded the workplace circumstances outlined in his earlier report were the main contributing factor to the development of her psychological condition.
In a supplementary report dated 8 January 2024, Dr Allan was specifically requested to comment on diagnosis and causation and relationship of injury to the events on 3 February 2020. Dr Allan repeats his history, relevantly, that the applicant had significant stress about 12-18 months prior to the cardiac event and felt that she had been ostracised and separated from colleagues and had a sergeant who was unsupportive. Relevantly he states (unedited):
“I found in her history that Ms Granger did not describe ‘marked stability’ in her mental health from that time (of the takotsubo cardiomyopathy) forward and she felt that she had remained under a level of stress ever since that time”.
He noted Dr Young’s diagnosis of adjustment disorder in May 2020 which he reported was due to the performance management but also noted that Dr Young had recorded:
“…her current psychological condition is related to the same stressors that caused stress induced Takotsubo Cardiomyopathy”
He acknowledged Dr Young diagnosed “major depression” following his review in March 2022 and had recorded the applicant was “feeling generally well” but did record (unedited):
“…there was ‘some stress because there was employment uncertainty and no permanent role’ during the late 2020 period but in late 2020, she had been transferred back to her substantive workplace and had felt much more anxious about this…
I remain of the opinion that there were (reportedly) significant difficulties arising in her workplace. She felt bullied and harassed and felt that complaints were vexations against her. There was a period of her being ostracised and harassed to the point that she developed stress related takotsubo cardiomyopathy previously. She described ongoing fluctuant psychiatric symptoms since that point. She was certainly distressed by any suspension and disciplinary matters, but felt that their origin was entirely vexatious and unfair.
I feel that it was the ongoing bullying and harassment that she perceived experiencing that remained the main cause of what ultimately remains a major depressive disorder based on my most recent report”.
In his September 2024 report, Dr Allan muddies the waters by reporting (unedited):
“I am of the opinion that there were significant stressful events ongoing in the workplace as outlined in my initial report with the disciplinary issues around the time of her going off work also being significantly impactful upon her mental state. I am of the opinion that the performance appraisal and discipline issues in 2019 and 2020 were significant in the development of her mental health conditions. I am of the opinion on review of all of the provided evidence that these disciplinary matters were the ‘predominant’ cause of her condition.
Then in his report 29 October 2024, Dr Allan reverts back to his original opinion after reviewing serial reports of clinical psychologists between 2017 and 2020, specifically Mr Troy and Mr Schmidt and registered psychologist, Dr Karen Hancock who contemporaneously reported workplace stressors between the above periods. Following a review of these reports he concluded (unedited);
“In my initial report from 2021 I stated ‘Mr Granger’s symptoms are consistent with a major depressive disorder and had significant physical issues, in particular takotsubo cardiomyopathy first diagnosed in 2017 in the context of ongoing workplace stress which continued since that time. She feels very much victimised and exposed to vexatious complaints regarding her conduct in the workplace and is currently on suspension’. I remain of the opinion that this accumulation of difficulties in her employment prior to any disciplinary measures being put in place against her led to the development of her mental health difficulties. There had been an office move, she had been ostracised, she had been separated from colleagues, she was supervised by a sergeant who was not supportive. She was reportedly ‘promised work but was given nothing to do and described being exceptionally bored’. Her supervisor changed to Inspector Green who had been a ‘micromanager’ and went on to describe how ‘she only discussed more her work related difficulties after the takotsubo diagnosis’. I am of the opinion that the origin of her difficulties were therefore clearly present around 2017. The predominant cause of her difficulties clearly predate any performance appraisal and discipline issues arising.”
Dr Karen Hancock
The applicant commenced treatment with Dr Hancock, registered psychologist in early 2019. Her serial reports are in evidence.[37]
[37] Folios 213-225 of the ARD.
In her report dated 18 December 2019,[38] she recorded a diagnosis of adjustment disorder with anxious and depressed mood ultimately resulting in a cardiac diagnosis reporting that takotsubo cardiomyopathy can develop in individuals within the context of overwhelming emotional distress despite no cardiac history. The report records ongoing anxiety symptoms and records a history of being “labelled and targeted at the workplace” and “highly fearful of re traumatisation at work”. The report refers to an unstable working environment, constant rotation in management, no clear line of reporting and inconsistency in responses across chains of command when clarification of tasks was requested. Also recorded was miscommunication with the inspector regarding allegations made by a student and poor performance.
[38] Folio 213 of the ARD.
In the report dated 10 August 2020,[39] deterioration in mental health was reported in the context of a further work rotation whilst a disciplinary matter was being investigated. The applicant reported difficulties with the new supervisor and a “lack of sensitivity and responsiveness to her WorkCover rehabilitation needs”. Following a temporary transfer to the Goulburn District Office, symptoms improved however it was recorded she was still experiencing anxiety and depressive symptoms due to uncertainty in the workplace.
[39] Folio 217 of the ARD.
In her report dated 25 November 2020,[40] Dr Hancock had some concerns about the return to work programme in that the applicant was slowly being transferred back from the Goulburn District Office to the Police Academy. Dr Hancock considered the applicant was being “set up to fail” and concluded she needed (unedited):
“…a more supportive environment to enable her to demonstrate her capacity rather than a ‘you need to do this by this time or else’ which is completely the opposite way of managing a person with mental health issues”.
[40] Folio 2020 of the ARD.
In her letter to the injury management officer on 6 April 2021, Dr Hancock [41] reported the return to work plan had been unsuccessful and diagnosed major depressive mood disorder and anxiety disorder and specifically (unedited):
“Ms Granger reports to be traumatised by her experiences in the workplace over the past 5 years. She indicated there was a build-up of stressors prior to June 2017 when she reported a workers compensation claim. Ms Granger reported there had been constant rotation in management with different perspectives and priorities. She reported an unstable work environment with uncertainty as to whom she reported, numerous changes in pathways and lack of clarity. She reported being accused of poor performance, and found this highly distressing, leading to feelings overwhelmed and severely anxious. She reported she was a victim of bullying and harassment and reported feeling isolated and excluded. She developed chest pain and a cardiac condition ensued (Takotsubo cardiomyopathy).
Ms Granger has engaged actively in treatment with me over the past 18 months, and has successfully applied the psychological skills she has learnt to the best of her capacity both in and out of the workplace. Although Ms Granger was fearful of returning to her former workplace where she perceived a lack of transparency poor governance and communication, she agreed to a trial at the District Office towards the latter half of last year. Ms Granger reported feeling supported there at the time and her confidence improved. However, Ms Granger reported that at the end of her trial she received performance appraisal inconsistent with her positive feedback she had received whilst working there”.
[41] Folio 223 of the ARD.
Her final report in these proceedings is dated 25 October 2024.[42] A timeline of stressors commencing in approximately 2015 is recorded ultimately resulting in what she reports to be stress induced TC. Dr Hancock refers to a “catch 22 scenario” relevantly (unedited):
“An employee can be unfairly targeted, this causes stress (in this case resulting in a physical manifestation of TSB), the employee attempts return to work with reduced capacity, depression interferes with performance, the person becomes performance managed. Added to the mix is Mrs Grangers reporting that the performance management and disciplinary action was another form of targeted harassment and undermining. As written in Andrew Smith’s (sic)[43] report and according to my discussions with Mrs Granger, she had worked in her position for 24 years and had never received complaints – it was only in the 12-18 months prior to her TSB that the culture began to change and she felt targeted.”
[42] Folio 8 of the AALD.
[43] Presumably referring to Andrew Schmidt
Dr Hancock considers that Dr Young had failed to take into account the long history of stressors in the workplace which ultimately caused the stress induced cardiac condition when he concluded that the performance management was the whole or predominant cause of the major depression. She also highlights the inconsistency in his report, relevantly (unedited):
“Her current condition is related to the same stressors that caused stress-induced takotsubos. This is inconsistent with the finding that it was wholly or predominantly the disciplinary action/performance management. i.e. the stressors (precipitants) were there before the performance management/disciplinary action. In summary, Ms Granger was not being performance managed nor had she received formal complaints against her prior to the Takotsubo’s Cardiomyopathy. The stress she experienced at work caused the TSB. She then attempted return to work and reported to me, and in her written response, that it was a gradual pressure, stress, workload and bullying.”
Andrew Schmidt
Following assessment on 19 November 2018[44], he recorded high workloads, interpersonal issues which he considered constituted bullying, harassment and intimidation within the workplace. The applicant felt unsupported and criticised. He considered the applicant had been “thrown in” at the deep end following her cardiac condition and that there was a lack of structure in her return to work program.
[44] Folio 227 of the ARD.
At consultation on 6 November 2019[45], the applicant reported a co-worker attacked her in a meeting and showed her up negatively in front of management.
[45] Folio 429 of the ARD.
At consultation on 20 November 2019[46] a record was made that the applicant was experiencing a “tough time with managers” and there was “resolved tension with co-worker but does not trust her”.
[46] Folio 429 of the ARD.
Dr Pavan Bhandari, psychiatrist
In her report dated 30 August 2019[47], Dr Bhandari recorded work place stressors resulting in the development of a cardiac condition and referred the applicant to trauma psychology as the applicant reported she was fearful of retraumatisation and the impact on her cardiac condition.
[47] Folio 229 of the ARD.
On 27 October 2019,[48] it was reported that the applicant felt overwhelmed and anxious as she was “not being given appropriate information and that her employer had not been communicating with her properly”. A diagnosis of major depressive disorder was made.
[48] Folio 232 of the ARD.
On consultation on 8 February 2020,[49] symptoms were recorded as significant due to conflict with her new supervisor following transfer to a new unit whilst complaints made against her where being investigated.
[49] Folio 233 of the ARD.
Dr David Fitzgerald, occupational physician
In a report dated 13 August 2018,[50] at the request of the respondent, Dr Fitzgerald reported communication difficulties and excessive workload complaints. A history of 18 months of stress and anxiety was reported prior to the diagnosis of her TC. Stress was recorded due to the volumes of work, poor ergonomics and management expectations not being aligned with a generic job description. He reported (unedited):
“…she describes a history of anxiety and this has been eventuating over the 18 months prior to her admission with cardiomyopathy. She relates this anxiety and stress as a consequence of perceived excessive workload and also more recently stress in terms of feeling ostracised and unsupported particularly about her medical issues and return to work as well as issues of performance management… she probably suffers from some generalised anxiety disorder and/or adjustment disorder which requires more intense assessment and treatment….
My view is that the psychological component was probably somewhat pre-existing and somewhat a standalone issue albeit it has probably been exacerbated by her feeling unsupported and feeling of being inadequately managed in terms of her return to work after her cardiac issues”.
[50] Folio 236 of the ARD.
Daniel Troy, clinical psychologist
Mr Troy commenced his treatment on 6 July 2017. He diagnosed major depression arising out of increased work load and the “physical ambient workplace conditions”, micro management by superior, a lack of respect in the workplace and the poor handling of a privacy breach by her superiors.[51]
[51] Folio 260 of the ARD.
Dr Jenna Isawsenko, general practitioner
At presentation on 3 February 2020,[52] it was recorded an investigation had commenced for “misconduct”, and that she was having difficulty receiving leave to access medical appointments and “scared that they will drive her into another episode of Takutsubo cardiomyopathy”.
[52] Folio 426 of the ARD.
In her report dated 25 June 2020.[53] she disagreed with Dr Young’s assessment that the applicant had returned to normal functioning, was currently fit for work and fit for pre-injury duties stating that although good progress had been made, the applicant continued to struggle with anxiety and depression and a graded return to work was in her best interests to prevent relapse.
[53] Folio 212 of the ARD.
Certificate of Determination – Matter Number [2019] NSWWCC 28
Member Perry found that the nature of the applicant’s employment gave rise to a significantly greater risk of her suffering from her cardiac injury “than if she had not been employed in employment of that nature” and identifies various stressors resulting in that finding in paragraphs 33-34, 48, 63, 73-74, 88 and 91-93 of his reasons dated 7 December 2018.[54]
SUBMISSIONS
[54] Folio 160 of the ARD.
Respondent’s submissions
The submissions were extensive but when summarised are as follows;
(a) injury is not in dispute. The respondent accepts the applicant sustained an injury within the definition of s 4 of the 1987 Act but seeks to rely on the defence found in s 11A of the 1987 Act particularly with regard to discipline and/ or performance appraisal;
(b) the respondent understands that it bears the onus of establishing that employment was the whole or predominant cause to injury and also that its conduct was reasonable and is satisfied that it can easily meet that onus;
(c) the applicant’s evidence “until the last minute” was consistent with the respondent’s evidence on causation, that is, the performance related events were the predominant cause of her injury. It was not until the latest supplementary report of Dr Allan in October 2024 that he changes his view on causation;
(d) the statement of the witnesses are compelling and given that issues had been raised about the applicant’s conduct by other staff members, the respondent was obligated to meet and address those issues with the applicant in a performance improvement plan;
(e) the actions taken by the respondent are objective and reasonable and the way the respondent dealt with the situation was fair, and
(f) the evidence shows that the whole or predominant factors that give rise to the applicant’s injuries were the events that transpired on 3 February 2020 evidenced by the contemporaneous complaints to the treating doctor and the P902 notification of injury form on or around that date.
Applicant’s submissions
The submissions were also extensive but are summarised as follows:
(a) in the factual circumstances, it is ‘patently obvious’ that there are numerous ‘real events’ that are accepted and not disputed despite the fact that there are some factual disputes or different views about various events in the case. These events had a significant impact on the applicant’s mental health, were contemporaneously documented yet ignored by the respondent’s qualified medical specialist;
(b) I was referred to the authority Hamad v Q Catering[55] specifically, there is no support from the respondent’s medico-legal expert to deny the allegations of injury arising from various work place interactions between 2017 to the date of the performance review. It is not sufficient to look to one record and then infer that other events had nothing to do with the injury, particularly in circumstances where the events are not denied by the respondent. The applicant has raised the events with the specialists, both treating and qualified;
(c) There is a history of at least three years of cumulative events that caused the applicant to psychologically decompensate. These factual issues are not disputed by the respondent and having regard to Attorney General v K[56] the respondent cannot satisfy in the Hamad sense that the whole or predominant cause of the injury was either the performance improvement plan and or discipline;
(d) There is no single event, but multiple events which gave rise to injury. The performance related events that occurred on 3 February 2020 were just one event and the evidence demonstrates the events on 3 February 2020 were not the “whole or predominant” cause of her injury;
(e) It is accepted that Dr Allan expresses a clearer view with regards to causation only late in the piece in October 2024. That view is not fabricated but rather reflects all of the evidence forwarded to him including the treating psychologists with a full history of their treatment and diagnosis between 2017 to 2020. An expert is required to reconsider a position in light of new evidence and appropriately report findings on reassessment. This is exactly what Dr Allan has done.
[55] [2017] NSWWCCPD 6.
[56] [2010] NSWWCCPD 76.
FINDINGS AND REASONS
I understand the respondent’s position and certainly on first reading of the medical evidence, the performance events in February 2020 were significant in the development of the psychological injury. This is because, the applicant had continued to work after her TC event and had allegedly not raised any ongoing issues with the employer of significance until the performance management commenced.
However, a comprehensive and global analysis of the evidence exposes weaknesses in this position. It is evident from the reports of Mr Schmidt, Mr Troy, Dr Bandari, Dr Hancock, Dr Fitzgerald and ultimately Dr Allan that the applicant had been diagnosed with major depression from at least 2017 due to a number of workplace factors that were outside of performance based issues, including overwork, frequent and repetitive managerial rotations each expressing different priorities and expectations, an ill-defined job description where the daily goal posts seemed to alter and the perception that she was being treated differently and generally dismissed when asking for assistance, in addition to the performance matters.
I acknowledge the reports of Dr Young who overall considers the performance issues in February 2020 were the predominant and main cause for the development of the psychological condition. However, his analysis is inconsistent with his overall conclusion, specifically “her current psychological condition is related to the same stressors that caused stress induced Takotsubo Cardiomyopathy”. I note that at the time of the development of the TC, the applicant was not the subject of any performance management!
It is important to reinforce the respondent bears the onus of establishing the psychological injury was wholly or predominantly caused by its reasonable actions in relation to discipline and performance management and must do so on the balance of probabilities. The content of the standard of proof has been the subject of much authority and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out (Nguyen).[57] It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to performance management.
[57] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
To satisfy me that this was the case, I would have expected, as a bare minimum that Dr Young would have given a medical explanation as to why the previous workplace events (including the undisputed complaints of overwork, marginalisation, conflict with supervisors, micromanagement, workflow issues, lack of procedure/process and lack of support both before the development of TC and after, including fear of retramatisation) were no longer contributing or relevant factors to the psychological condition as at February 2020 with reference to the history. He did not do so. He does however, at one instance, acknowledge the stressors prior to the diagnosis of TC as playing a role in the current major depression, which dilutes to an extent, the respondent’s argument with respect to “wholly or predominantly”. To be fair, Dr Young does refer to some of the above raised issues, but he does not discount their role in causation. This is a significant oversight as major depression was diagnosed as early as 2017 by Daniel Troy and there is no evidence to suggest symptoms had abated to an extent that would enable a finding of events in February 2020 (relating to performance management) as being the whole or predominant cause of any diagnosis at that time. This finding is supported by Dr Allan’s comment in his January 2024 report, that the applicant had not reached “marked stability” in her mental state since her TC diagnosis. This along with the contemporaneous evidence of the treating doctors between 2016 to 2020 cause me to find the psychological injury was not wholly or predominantly caused by workplace events on 3 February 2020 because:
(a) it is known to the respondent (with formal findings made by the Workers Compensation Commission) that the applicant’s employment was such that it contributed to the condition of TC, a condition that develops in acute and sustained periods of stress and that such stressors were present within the workplace and largely attached to her employment as an administrative assistant since at least 2016;
(b) complaints of overwork, under resourcing, marginalisation, ostracization, conflict with management and unrealistic or un notified job expectations and management priorities were ongoing complaints made by the applicant since at least 2017 with her expressing a fear to re traumatisation, matters acknowledged by Inspector Conners in his statement;
(c) a diagnosis of major depression was recorded as early as 2017 by Daniel Troy, clinical psychologist;
(d) the clinical notes show that the applicant continued to be treated by various mental health specialists, including Dr Hancock, Dr Bandari, Mr Schmidt and Mr Troy for psychological issues arising out of her workplace well prior to the disciplinary action which related to overwork, ill-defined expectations arising out of her job description, ostracization and marginalisation by management;
(e) the evidence reveals that the applicant continued to make repeated complaints to her treating doctors and continued to receive treatment in the 2017, 2018 and 2019 years, well before the performance issues arose, and
(f) the above chronology of treatment and issues is consistent with the applicant’s statement in that the issues raised relating to performance in February 2020 were “this was the last straw for me on this day. I had many incidents leading up to this day”.
I have not ignored the respondent’s arguments. The respondent quite correctly points out that the P902 incident form attributes injury to the performance issues on 3 February 2020 and that the initial reports of Dr Allan suggest that the performance issues were the main contributing factor to the development of the psychological injury (and wholly and/or predominantly a cause of them), an opinion he maintained until his last supplementary report in October 2024, (which up until that time were entirely consistent with Dr Young). These are cogent arguments in isolation, but when globally and impartially assessed fail to reflect the complete clinical history, ongoing complaints and treatment undertaken by the applicant between 2017 (and before) which continued prior and subsequent to the performance issues.
I do accept that the actions taken by the respondent were entirely reasonable. Serious issues of time abuse were raised and it engaged in action to minimise risk. Why it took 35 days to escalate the matter with the applicant is unknown and not optimal, but this does not detract from the fact that its actions were properly executed and reasonable after identifying genuine concerns in relation to conduct. However, nothing turns on this.
Having reviewed the evidence globally I find that the respondent has not discharged its onus of establishing on the balance of probabilities that the psychological injury wholly or predominantly arose from the reasonable actions of the employer relating to performance and discipline.
At this point, I accept the medical evidence supports performance issues played a role in the over clinical profile but complete and impartial analysis of the evidence does not allow me to find that those issues were wholly or predominantly causative of the applicant’s psychological injury. Simply put, I am not satisfied the performance issues principally caused (Poonan) the injury either wholly or predominantly, in circumstances where workplace tensions, difficulties and issues were continually raised and treated since at least 2017.
In conclusion, independently of the concession made by the respondent, I find that the applicant suffered an injury in the course of her employment and I further find for the reasons given that employment was the main contributing factor to the injury. I find that the cause of the injury was multifactorial, and the respondent has not discharged its onus of proof in establishing its reasonable actions were wholly or predominantly the cause of the applicant’s injury.
SUMMARY
For the above reasons, I made the findings and orders as set out on page 1 of the Certificate of Determination.
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