Griggs v Transport for NSW
[2021] NSWPIC 378
•28 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Griggs v Transport for NSW [2021] NSWPIC 378 |
| APPLICANT: | Paul Griggs |
| RESPONDENT: | Transport for NSW |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 28 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; fact of injury not in issue; claim for weekly and permanent impairment compensation together with medical expenses; respondent alleges injury wholly or predominantly caused by reasonable actions relating to discipline and/ or performance appraisal; Held - the injury was not wholly or predominantly caused by the matters relied on by the respondent, as the evidence discloses the applicant was diagnosed with and receiving treatment for a work-related injury well before the matters relied on by the respondent; in examining a defence under section 11A of the Workers Compensation Act 1987 (the 1987 Act), the relevant consideration is the causal link between the matters relied on and the injury, not any incapacity arising from the injury; each expert relied on by the parties assessed the applicant’s impairment at 22%; this being so, there is no need for a referral to a Medical Assessor, and the Commission will make an order that the respondent pay the applicant permanent impairment compensation in respect of a 22% whole person impairment; there was no issue as to the applicant’s preinjury earnings or that he remains totally incapacitated; having found against the defence under section 11A of the 1987 Act, it follows the respondent will be ordered to pay the applicant weekly compensation from 5 September 2018 to 3 March 2021; the parties are directed to provide written submissions on the question of whether the applicant is entitled to weekly compensation pursuant to section 38 of the 1987 Act within 14 days, whereupon that question will be dealt with ‘on the papers’; the respondent is ordered to pay the applicant’s section 60 of the 1987 Act expenses. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 4 September 2018. 2. The injury referred to in (1) above was not caused by the reasonable actions of the respondent with regards to performance appraisal and/ or discipline. 3. At the date of injury, the applicant’s pre-injury average weekly earnings were $1,281.27. 4. For the period 5 September 2018 to date and continuing, the applicant was and remains totally incapacitated for employment. 5. The respondent is to pay the applicant permanent impairment compensation in the sum of $58,000 for a 22% whole person impairment. 6. The respondent is to pay the applicant weekly compensation from 5 September 2018 to date and continuing as follows: (a) from 5 September 2018 to 5 December 2018 pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,217.21 per week, and (b) from 6 December 2018 to date 3 March 2021 pursuant to section 37 of the Workers Compensation Act 1987 at a rate of $1,025.02 per week. 7. The respondent is to have credit for any payments made up to and including 18 March 2019. 8. Failing agreement, the parties are to lodge and serve written submissions as to the entitlement or otherwise of the applicant to receive weekly benefits beyond 3 March 2021 within 14 days, following which that issue will be dealt with ‘on the papers.’ 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
The dispute in this matter concerns whether the applicant’s agreed psychological injury was wholly or predominantly caused by the respondent’s reasonable actions with regard to performance appraisal and/or discipline.
Paul Griggs (the applicant) seeks weekly compensation, payment of medical expenses and permanent impairment compensation for what he alleges is an injury arising from a number of matters over several years leading up to and including 4 September 2018.
For its part, Transport for NSW (the respondent) alleges the applicant’s injury arose wholly or predominantly from its actions regarding a complaint made against the applicant by a co-worker, notice of which was provided to the applicant on the date of injury. It alleges the actions it was taking in relation to that complaint were the whole or predominant cause of the applicant’s injury.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the agreed injury was wholly or predominantly caused by the respondent’s reasonable actions relating to performance appraisal and/or discipline (section 11A of the Workers Compensation Act 1987 (the 1987 Act);
(b) in the event the applicant is successful in his claim, whether the claim for permanent impairment compensation should be referred to a Medical Assessor for assessment, or whether the Commission should make an award for payment of permanent impairment compensation;
There is agreement between the parties as to the applicant’s pre-injury average weekly earnings (PIAWE) and that he is and has been totally incapacitated for employment since 5 September 2018. Additionally, both Independent Medical Examiners (IMEs) have assessed the applicant as suffering a 22% whole person impairment, though the respondent’s IME, Dr Whetton, attributed that impairment to the matters relied on by the respondent pursuant to section 11A.
In the event he is successful, the applicant seeks an award in respect of a 22% whole person impairment, which is the degree of impairment which both Dr Whetton and the applicant’s IME, Dr Hong, have assessed him as suffering. The respondent seeks the matter be remitted to the President for referral to a Medical Assessor for assessment.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 23 August 2021. 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.
At the hearing, Mr C Tanner of counsel appeared for the applicant instructed by Mr F Dous, solicitor. Mr R Hanrahan of counsel appeared for the respondent, instructed by Mr B Quillan, solicitor.
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, [A]) and attached documents;
(b) Reply ([R]) and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 18 August 2021;
(d) respondent’s AALD dated 10 August 2021, and
(e) Report of Dr Whetton dated 19 February 2019, admitted without objection and marked Exhibit A.
Oral evidence
10.There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Section 11A
11.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.”
12.An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
13.“Wholly” and “predominantly” are separate concepts, and a finding of one or the other needs to be considered. In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith), the Arbitrator 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 and if such findings were made, “it needed to be one or the other.”
14.The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused.” The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). In Kooragang, Kirby P (as His Honour then was) noted that what is required when establishing causation in a worker’s compensation context, is a common-sense evaluation of the causal chain.
15.In Hamad v Q Catering Limited [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 improving the worker’s psychological injury resulted wholly or predominantly from its reasonable action 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. I note that in this matter, the respondent has provided IME opinion from Dr Whetton concerning the question of whole or predominant cause. That is an appropriate course of action in a matter such as this, where medical evidence is necessary to address the relative causative contributions of various incidents before a finding as to whether any reasonable actions of a respondent wholly or predominantly caused the applicant’s injury.
16.In order to succeed under section 11A, the respondent must not only show the requisite causal connection between his actions and the applicant’s injury, but also satisfy the Commission that its actions were reasonable.
17.Considering the meaning of reasonableness, Geraghty J in Irwin v Director General of School Education NSWCC 14068/97, 18 June (Irwin) said:
“The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ 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 the circumstances, by questions of fairness.”
18.Additionally, her Honour Judge Truss, noted in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) that when considering the concept of reasonable action, it is necessary to have regard not only to the end result but to the manner in which it was effected.
19.The relevant passages in Irwin and Ivanisevic were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSWCA 239.
20.The applicant in this matter was employed as a train guard based at Central Railway Station. The respondent’s case is that the provision of a letter on 4 September 2018 proposing a meeting regarding a complaint of bullying made against the applicant by his co-worker Mr Ferraro is causative of his injury. No details of the allegation or the complainant were contained in that letter, which was left in the applicant’s pigeonhole at work, and which proposed a meeting take place on 11 September 2018.
21.The respondent submitted the proposed meeting was not a disciplinary one, but rather a fact-finding exercise to allow the applicant to put his version as to what had transpired.
22.The allegations regarding the applicant concern alleged intimidation by him of Mr Ferraro, platform manager on or about 22 August 2018 by way of staring at Mr Ferraro over the course of a work shift.
23.Mr Hanrahan noted the applicant’s own evidence was that when he received the letter on 4 September 2018, he felt “blindsided, highly distressed and felt in shock.” The applicant attended his general practitioner and lodged a workers compensation claim. A general practitioner clinical entry by Dr Malia on 5 September 2018 described the applicant as “very distressed and disturbed. Angry on being issued an alleged breach of code of conduct.” [A180]
24.Mr Hanrahan submitted the respondent had acted reasonably in wanting to meet with the applicant to discuss the matters complained of, and the applicant instead acted unreasonably in not becoming involved in that process and instead avoiding the meeting.
25.The difficulty with the respondent’s position in this matter is the evidence discloses the applicant suffered from and sought treatment for psychological symptoms for some time before the matters upon which the respondent seeks to rely in support of its defence under section 11A.
26.Mr Hanrahan directed a number of his submissions to the applicant’s impairment only arising after the matters relied upon by the respondent in support of its defence pursuant to section 11A. However, one must look at the cause of an injury in considering a defence under section 11A, not the impairment which arises from that injury.
27.The applicant’s history regarding matters giving rise to his condition is not contradicted by any evidence from the respondent. The incidents, according to the applicant in his statement, which have contributed to his injury include:
(a)an ad hoc suspension in approximately 2015 or 2016 delivered by a director of the respondent because the applicant was wearing sunglasses at work and not his normal glasses, which gave rise to him not noticing that some doors on the train he was guarding had not opened. The applicant says he had been cleared to work in his sunglasses by his managers, and made a complaint surrounding the circumstances of the suspension which he alleges included an assault by the director, but says he was pressed to drop his complaint in exchange for a return to work;
(b)micromanagement by Mr Kulwinder Singh, who had obtained a position which the applicant’s wife had also applied for, and which appointment was disputed by her. Later, Mr Singh became the applicant’s manager and is alleged to have constantly placed him on performance improvement programs which the applicant claims were not justified and also micromanaged him on a daily basis;
(c)having notice of a suspension placed on the roster by his manager for his workmates to see, in circumstances where the normal course of conduct is to simply note a worker is not rostered on in those circumstances;
(d)lack of detail about allegations raised against him over the years by various managers;
(e)targeting by a co-worker after the applicant acted as a support person for another colleague in meetings concerning alleged bullying and harassment, and
(f)not being informed of changes to his roster, then being disciplined for failing to attend work at the correct time.
28.The applicant described these events as taking a toll on him over the course of several years.
29.Mr Tanner submitted, and I accept that there was no evidence from Mr Singh to contradict the applicant’s statement evidence.
30.The respondent relied on dispute notices which solely addressed its actions regarding the events in and around September 2018 concerning Mr Ferraro’s complaint against the applicant. It follows that if earlier events have contributed to the applicant’s injury, then the respondent will have offered no evidence demonstrating that any of its pre-September 2018 actions give rise to a defence under section 11A.
31.On balance, I am of the view there were multiple work-related factors which caused the applicant’s injury. The medical evidence discloses the applicant underwent treatment for work-related psychological issues well before September 2018, which was when the actions relied on by the respondent regarding performance appraisal and discipline were undertaken.
32.The evidence which demonstrates earlier psychological issues may be summarised as follows.
33.In his report for the respondent dated 25 June 2019, Dr Abeya, psychiatrist, was tasked with assessing the applicant’s fitness for work. In so doing, he set out a detailed history of complaints stretching back several years. At [A90], Dr Abeya noted:
“Mr Griggs informed me that his problems at work had started five years ago… Someone had come up to him and hit him hard on his shoulder. He said this person had informed him that he was a NSW safety inspector and that Mr Griggs was being suspended for what had happened.
Mr Griggs said he had immediately accused the man of assault as he said it was far more than attack on the shoulder and there was evidence to prove this. Mr Griggs said he had put his hand up to say that he had indeed made a mistake and there were subsequent meetings about this. He said during this, he had brought up the fact that he had been assaulted. He said his manager had then informed him that the person who was the alleged perpetrator was in fact a director of NSW Trains and he was therefore asked to drop his charges of assault. He said after that he dropped his charges he was allowed back at work.
After this event, he believed that there had been considerable changes in how he was treated at work. He said his shift manager, Mr Kulwinder Singh had started to ‘harass’ him. He described he was micromanaged continually and said he was put on PCIP nonetheless for no real reason... Around two years ago, he said the new area manager, Leisa, came on board and he believed that she had ‘ramped up’ the harassment. He said he was called to task for not making an announcement on the trains (He said he had informed them it was too long) but when he later did do this announcement at all the stations required, he was informed that there were three complaints that it was too long-winded… I note that he showed me documents to confirm these facts, noting that one issue had been brought up was the use of a swear word and stated that he had not been used at anyone. He said he was simply saying ‘I want to make sure when the shit hits the fan’ or words to that effect. He noted other instances when he was found to be not at the point of duty (NAPOD) on a day that he was actually off work. He said the same morning they had said he had a charge of ‘failed no advice’ though he was off work...
He said the next set of incidents had been related to Mr Carmelo Ferrero who was the regional platform manager. He felt it may be owing to the fact that he was support person to Michelle that had caused Mr Ferrero’s behaviour of bullying him. He showed me an email dated 22 August 2018 which stated that Mr Griggs had stared at him (at Mr Carmelo) in an intimidating way on this day though he was in fact [sic] not been at work that day… Mr Griggs expressed his overall view that they were ‘slowly chipping away at him’ till he ‘gives way’. He described a profound sense of hopelessness, feeling no matter how he tried he could not fix his situation and that he was fighting a battle he could not win.”
34.At [A106] IME Dr Hong provided a diagnosis of major depressive disorder and alcohol use disorder, the latter of which was in early remission. That report was dated 30 March 2020, and in relation to causation, Dr Hong said:
“Based on the available evidence, Mr Griggs’ employment with NSW Trains is a significant contributing factor to his injury and I note this is consistently recorded in other reports as well. I have not identified any other relevant factors from his general practitioner’s clinical notes. He has been a regular alcohol drinker, and his alcohol intake increased in the context of work stress and then he ceased drinking.”
35.I note that diagnosis and opinion was provided against a background of Dr Hong having the applicant’s general practitioner’s clinical notes and the lengthy history provided to Dr Hong by both the applicant and by virtue of a review of various material including, importantly in my view, the general practitioner clinical notes.
36.The clinical records of Dr Malia, general practitioner, are also in evidence. They disclose the applicant suffering psychological symptoms well before the matters relied on by the respondent in support of its defence pursuant to section 11A. On 7 August 2017, the applicant attended on Dr Malia and complained of distress caused by being bullied at work. On 27 August 2017, the applicant attended and Dr Malia recorded:
“Distressed at work. Feels his superiors are picking on him. Which makes him depressed. Adjustment disorder.”
37.Dr Whetton, respondent IME, also took a history of lengthy workplace issues. In his report dated 8 June 2020 [R101], Dr Whetton provided the following summary and assessment:
“Mr Paul Griggs gives a history of ongoing problems in the workplace from 2014. He states that bogus charges were made against him leading to performance improvement plans. He states that allegations were false and he has tried to have these removed from his work record. He said the outcome has been that the employer has built up a case against him, seeing him as incompetent and wanting to have him sacked. The result of this he said was depression and anxiety and, ‘it takes its toll’.”
38.Dr Whetton then noted that the applicant was suffering from a disease process relating to workplace issues which have been present since 2014. However, Dr Whetton indicated that the predominant cause of the applicant’s injury was employer action with respect to performance appraisal.
39.Given the history of issues predating September 2018 causing the applicant problems as set out in the GP clinical records and in all of his histories to the various practitioners, for the respondent to succeed in its section 11A defence, it would in my view need to provide some evidence that either the effect of these matters were minor or that they had ceased before the September 2018 matters upon which it relies. Dr Whetton does not provide that evidence. Rather, Dr Whetton’s view is the injury is predominantly caused by:
“… action taken or proposed to be taken by NSW Trains with respect to performance appraisal and social discipline as well Mr Griggs makes allegations that such actions have been part of what he describes as ongoing bullying and harassment over a number of years in the job.” (see Exhibit A at p6).
40.In his report dated 22 June 2020, Dr Whetton says the factual material produced by the respondent supports a finding the applicant’s condition was predominantly caused by actions taken by the respondent regarding performance appraisal or discipline. However, the documents provided to Dr Whetton in support of that defence as set out in his report concern only matters arising from September 2018. As such, in my opinion, Dr Whetton does not have the benefit of the clinical history of the adjustment disorder diagnosis in 2017 against a background of years of alleged workplace difficulties. Dr Whetton’s opinion, through no fault of his own, is not provided with the benefit of a complete clinical picture and I therefore do not prefer it over the other treating and IME evidence which in my view demonstrates long-standing problems at work causative of the applicant’s injury.
41.Rather, the preponderance of the medical evidence demonstrates on the balance of probabilities that the applicant’s accepted injury had a number of factors which caused and contributed to it. Whilst it is the case that the events which were first brought to the applicant’s attention on 4 September 2018 no doubt contributed to the injury, in my view, the evidence does not disclose to the requisite standard that those actions taken by the respondent were the whole or predominant cause of the applicant’s injury.
42.Given my findings in relation to causation, I do not consider it necessary to venture a detailed view on the reasonableness or otherwise of the matters relied on by the respondent in support of its section 11A defence. As already noted, the defence comprises two limbs, each of which must be satisfied before it can succeed. The failure by the respondent to satisfy me on the balance of probabilities as to the “whole or predominant cause” limb is fatal to the section 11A defence.
43.Nevertheless, in my opinion, the respondent’s actions in simply dropping a letter concerning an allegedly serious breach of the code of conduct into the applicant’s pigeonhole at work was not reasonable in the circumstances. That letter lacked detail as to the allegations made against the applicant and proposed he attend a meeting in circumstances where he would not be aware of the matters he was required to address at the meeting until he attended. It was not until the applicant engaged the help of a support person and requested details of the allegations that they were provided to him in a letter dated 10 September 2018, however, by that time the applicant was already under the care of Dr Malia for his injury and as such, the provision of that document on 10 September 2018 cannot be said to be causative of the injury.
44.As such, I find the respondent’s defence pursuant to section 11A unsuccessful.
Permanent impairment compensation claim
45.The respondent submits the claim for permanent impairment compensation should be referred to a Medical Assessor for determination of the applicant’s impairment. I note, however, that both IMEs agree the whole person impairment arising from the applicant’s injury is 22%. In my opinion, in those circumstances, there is no utility in referring the matter to a Medical Assessor. This is not a claim where one IME has found a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 is warranted and the other has not. Each of the IMEs finds the work-related impairment is the same, namely 22%.
46.Although the respondent notes the applicant had engaged in a prolonged history of alcohol intake over many years, its IME was appraised of that alcohol use and made no deduction for it in his various reports.
47.As such, there is no dispute between the IMEs as to the whole person impairment arising from the injury in issue, and I therefore make orders for the respondent to pay the applicant permanent impairment compensation in accordance with a 22% whole person impairment.
Medical expenses
48.No issue was taken with any specific medical expenses in this matter, and accordingly, I make an order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses in accordance with section 60 of the 1987 Act.
Capacity and pre-injury earnings
49.There is no issue the applicant was and remains totally incapacitated for employment. All of the medical experts, treating and IME, agree that this is the case. Likewise, there is no issue as to the applicant’s PIAWE, which is agreed to total $1,281.27. Accordingly, having found in favour of the applicant in relation to liability, I therefore order the respondent to pay weekly compensation in accordance with the orders set out on page 1 of the Certificate of Determination, with the respondent to have credit for payments already made
50.There remains, however, an extant issue not dealt with at the hearing concerning the applicant’s entitlement to ongoing weekly compensation beyond the second entitlement period pursuant to section 37 of the 1987 Act. Section 38 of the 1987 Act provides the circumstances in which an injured worker is entitled to claim weekly benefits beyond the second entitlement period. The parties have not addressed on the question of whether the applicant is entitled to ongoing payments, and I therefore will therefore direct the parties to file and serve written submissions dealing with this issue within 14 days of the date of this decision, following which the issue will be dealt with ‘on the papers.’
SUMMARY
51.For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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