Haggett v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Haggett v Woolworths Group Ltd [2025] NSWPIC 87
APPLICANT:	Shane Haggett
RESPONDENT:	Woolworths Group Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	17 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and treatment expenses in respect of psychological injury; whether injury predominantly caused by reasonable action with respect to discipline pursuant to section 11A(1); causation multifactorial; Hamad v Q Catering Ltd applied; Held – respondent’s medicolegal opinion that disciplinary action was the predominant cause of injury accepted; reasonableness of relevant action not challenged; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Shane Haggett (the applicant) sustained a psychological injury in the course of his employment with Woolworths Group Limited (the respondent).
Liability to pay compensation for the injury was disputed by the respondent in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the ground that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline pursuant to s 11A(1) of the Workers Compensation Act 1987, (the 1987 Act).
The applicant commenced the present proceedings by an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on
12 November 2024.
The applicant seeks weekly compensation from 19 July 2024 pursuant to s 37 of the 1987 Act and incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for preliminary conference in Sydney on 18 February 2025. The applicant was represented by Mr Beran of counsel. The respondent was represented by Mr Robison of counsel.
During the conciliation, the parties agreed that the pre-injury average weekly earnings (PIAWE) rate was $1,965.06. It was also agreed that a general order for the payment of medical and related treatment expenses should be made in the event the liability dispute was determined in the applicant’s favour. The applicant indicated that he would not be making any submissions that the relevant disciplinary action was not “reasonable”. There remained a dispute as to the whole or predominant cause of the injury.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether 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 discipline pursuant to s 11A(1) of the 1987 Act;
(b) the entitlement to weekly compensation in the period from 19 July 2024 and continuing; and
(c) the entitlement to the medical and related treatment expenses claimed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents; and
(c)    documents attached to an Application to Lodge Additional Documents lodged by the respondent on 5 December 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 6 September 2024. The applicant stated that he had been employed as a warehouse worker by the respondent for over 15 years. The applicant described 12 incidents in the workplace that he said had affected his mental and emotional well-being.
The first incident was in May 2022 when the applicant was excluded from training on a system in which the applicant had been selected as a subject matter expert. Two co-workers with lower levels of responsibility and who used the new system less frequently were invited to attend. The applicant said he was hindered in his ability to carry out his responsibilities effectively by being excluded from the training. The applicant discussed the matter with his supervisor, which led to a discussion about career aspirations, which was not followed up. The applicant felt undervalued and marginalised.
A further incident occurred on 30 May 2022 when the applicant’s supervisor, Richard Clark, approached the applicant in a bad mood and made offensive and intimidating remarks. The applicant said he felt verbally abused and offended by the use of explicit language, derogatory comments and threats.
Following a family holiday through Southeast Asia over Christmas 2022, the applicant shared his holiday experience with Mr Clark. Mr Clark remarked that the applicant should try to work his way up like he did so that he could take his family on better trips. This had occurred after the discussion around career advancement which had yielded no response. The applicant said the interaction left him feeling sad and he perceived that it was intended to lessen his efforts as a father and husband. The applicant felt the comments were demeaning and created a hostile work environment.
The applicant said that during his employment he sought out opportunities to contribute to and drive positive change. The applicant consistently went above and beyond his regular team leader duties and involved himself in various projects which demanded additional time on top of his usual busy day-to-day responsibilities. In around April 2023, the applicant was asked to oversee a project which demanded an additional two hours of his time per week. After the project was complete, the applicant was asked to take on a further project which required an extra three hours per week. The applicant reluctantly accepted but wondered whether the increased workload was intended to deliberately overwhelm him. The applicant persisted as it was hinted that this might lead to a promotion. The additional projects and responsibilities left the applicant feeling overwhelmed and led to burnout and mental breakdown. The applicant did not understand why he was chosen for these extra tasks when other team leaders with fewer responsibilities could have taken on the projects.
In July 2023, the applicant had filled in for a shift ops manager for two unusually difficult weeks. Upon the manager’s return, the applicant was given highly positive feedback. The manager enquired whether the applicant was interested in a three-month secondment, which he accepted. Later, the applicant was informed that a colleague had been selected for the secondment instead. The sudden change in plans, without explanation, caused the applicant to feel disheartened and saddened and he left work in tears. The applicant considered the incident reflected a broader pattern of exclusion and unfair treatment in the workplace.
On 10 August 2023, the applicant and another team leader were invited to Mr Clark’s office for a meeting in which their leadership contributions were acknowledged and they were asked whether they were interested in sharing their ideas at other distribution centres. The applicant was excited and enthusiastic about this prospect. A few weeks later, the applicant learned that the other team leader had been scheduled to go to another distribution centre for a two-week assignment. The applicant had not been informed and felt excluded once again.
On 15 August 2023, the applicant was interviewed for a training partner role. The applicant was unsuccessful in his application, which left him disappointed since his supervisors had previously expressed confidence in his suitability for the role. The applicant was promised a 1:1 development plan meeting, which was never scheduled. The applicant felt let down once again.
The applicant described attending meetings whilst filling in for a colleague during which Mr Clark used inappropriate and offensive language.
A further incident was described in a meeting with several team members when the applicant was discussing a project he had been working on. Mr Clark suggested that the project had not gained any traction and was a waste of time. The comment caught the applicant off guard and he felt he should not have been publicly confronted in such a manner in front of respected senior leaders. The applicant felt belittled and his anxiety level significantly increased as a result of the interaction.
On 31 October 2023, the applicant celebrated his 15-year service anniversary together with some other staff. The applicant had expected a small celebration of this significant milestone consistent with past practice, however, no arrangements had been made. The applicant took it upon himself to quickly organise some refreshments and food. During the gathering, Mr Clark delivered a speech in which he remarked, “congratulations on being at WyRDC for 15 years, it is hard to get this far without being poached.” The applicant found the comment deeply insulting and offensive given his years of service and numerous expressions of interest in career progression. The applicant felt uncomfortable, undervalued and offended. The applicant later approached Mr Clark who said the comment was a joke. The applicant felt neglected and unsupported. A colleague asked the applicant if he was okay to which he responded, “no, I am not.” There was no further concern or support for the applicant’s well-being. The applicant said the comment had weighed heavily on his mind and had a profound impact on his sleep, mental health, family life and work life.
The applicant noted that he had been suspended on 14 November 2023. The applicant said that his poor mental state had significantly affected his decision-making and resulted in behaviour that was out of character for the applicant. The applicant was asked to attend a meeting on 20 November 2023 to explain his actions. During the meeting, Mr Clark made a comment about a colleague’s excellent performance. This left the applicant feeling extremely awkward and anxious. The applicant had discussed his mental health struggles with Mr Clark previously. Three days earlier, the applicant had told Mr Clark that he had reached out to Beyond Blue. The applicant felt Mr Clark would have been aware that this comment about a colleague’s KPIs was offensive given how much pride the applicant took in achieving his own KPIs. The applicant felt the comment was deliberate and calculated.
During a show cause meeting on 23 November 2023, Mr Clark made a sarcastic comment about the applicant being in a good mood considering his situation. Given the sensitivity of the meeting and being aware of the applicant’s mental health struggles, the remark left the applicant feeling intimidated and offended. This further exacerbated the applicant’s anxiety and demonstrated a lack of consideration for his emotional well-being.
The applicant said Mr Clark had openly boasted of terminating team members including his best friend. This made the applicant feel like everyone was replaceable and individual team members held no importance.
The applicant said that there was nothing outside of work causing him stress, although the events at work had put him under pressure, making it difficult to deal with outside issues.
The applicant said he had been treated by Dr Kumar from Grace Medical Centre and had been referred to a psychologist. When out in public, the applicant would look ahead to avoid crossing paths with anyone from his workplace. The applicant had hidden in shops waiting for teammates to pass. The applicant avoided shopping centres and going out in public without his wife’s support. The applicant was taking antidepressant medication for the first time in his life.

Respondent’s evidence

The respondent relies on written statements from Mr Clark, Kerrie Runge, Ben Gadsy and Jon Parsons.
Ms Runge gave evidence that she had worked closely with the applicant and he had never mentioned or spoken about being harassed by Mr Clark. The applicant had never said he had not been given opportunities for advancement.
Ms Runge said the applicant had relieved her role while she was on leave here and there. The applicant had been given responsibility for projects involving data and spreadsheets. The applicant enjoyed doing the projects.
With regard to the applicant’s claim that he was excluded from system training, Ms Runge said everyone had to attend the training to learn the system. Not all management could be off-site at the same time.
Ms Runge gave evidence that Mr Clark treated everyone the same way.
Ms Runge gave evidence about an incident on 13 November 2023 when the applicant used a forklift while unlicensed. At a meeting the following day, Ms Runge said the applicant admitted that he had done the wrong thing. Ms Runge then said:
“Then it was like a light switch had turned on and then he turned on Richard saying, ‘You don’t support us.’ He carried on. The fork incident that he had done he knew that he had done wrong, was pushed aside and it was focused on attacking Richard.”
Ms Runge said the applicant had mentioned the comment at the 15-year anniversary in the meeting about the forklift incident.
Ms Runge said the applicant had never disclosed any mental health issues until the meeting on 14 November 2023. During the meeting, the applicant mentioned issues with his sister. Ms Runge asked the applicant why he had not reached out for support earlier.
Mr Clark prepared two statements. Mr Clark said that the applicant had never really shown interest in progressing his career but was more interested in outside activities including renovating and selling houses. At some point, the applicant had requested a little more responsibility as team leader, as he was getting bored. As a result, they found a couple of projects around the systems used to track metrics throughout the business and set some challenges for him to improve results there.
Mr Clark referred to the 15-year service anniversary and said that such occasions were usually jovial. Mr Clark agreed he had a bit of a laugh and a joke with the applicant although he did not appear to appreciate it. Mr Clark said he had always had good banter with the applicant. When the applicant came and saw him about it, Mr Clark had apologised, not realising he had upset the applicant.
Mr Clark said that a week or so after the incident, the applicant divulged that he was having issues with his sister.
Mr Clark later became aware that the applicant had used a forklift while unlicensed and without authority. This was a significant safety breach and an investigation followed. The applicant was suspended as a result.
During the investigation, the applicant again divulged the issue with his sister and explained that the situation was having a huge impact on his mental health. The applicant explained that this was why he got upset about the comments made at the service anniversary. The applicant divulged some other matters which he asked Mr Clark to keep confidential.
During the investigation, Mr Clark supported the applicant and encouraged him to seek help from a doctor. Mr Clark said that he had a number of text messages from the applicant thanking him for his support. Mr Clark said he was not sure what had changed but all of a sudden the applicant claimed that Mr Clark had said things to him which he did not appreciate back in 2022.
Mr Clark confirmed that there had been an opportunity for some team leaders to go to a distribution centre in Perth. There were only a few spots available. The applicant was not selected as he never really showed a huge interest in progressing and was not as solid a team leader in comparison to those who were selected. Mr Clark denied receiving any emails or having any conversations with the applicant about his career aspirations or goals.
Mr Clark confirmed that he had been investigated and cleared after the applicant alleged that he had made some offensive comments. There was no evidence suggesting that this had taken place.
Mr Clark denied that he had hinted to the applicant that there would be a promotion if he took on certain projects. Mr Clark denied using offensive language and said that if he had, there would have been a lot more complaints about it prior to this. The applicant was the only one who had made this complaint.
Mr Clark said that the applicant did raise mental health issues at the initial meeting about the forklift incident. Mr Clark said he had been aware that the applicant had issues with his sister for a number of years. This all came out during the investigation, during which Mr Clark offered support both during and outside of work hours.
In his further statement, Mr Clark denied that there had been any breach of confidentiality about the disciplinary action taken against the applicant. Mr Clark did not recall making any comments about colleagues’ KPI results at the meeting but said if he did they would have been to celebrate a great result. Mr Clark did not understand why the applicant alleged that these comments were designed to irritate him and that was not his intention.
With regard to the comment about the applicant being in a good mood considering his situation at the meeting on 23 November 2023, Mr Clark said he recalled saying that it was great to see the applicant in such good headspace considering the seriousness of the situation. This demonstrated that he was coming along with his mental health challenges, which was a good sign. The comment had been taken out of context. The applicant had not raised any concerns about the remarks at the time and appeared happy to get recognition that he had come a long way in a short period regarding his mental health.
Jon Parsons provided further evidence as to the conduct of the disciplinary process.

Employer records

Amongst the documents in evidence are conversation notes from the meeting on
14 November 2023. These notes indicate that the applicant had asked Mr Clark why he hadn’t come and checked on the applicant about how he was going. The applicant disclosed that he was having thoughts of suicide. Mr Clark asked the applicant if he was seeing a counsellor or doctor. The applicant said he kept putting it off. The applicant disclosed that he had a lot going on this year at work and with his sister. The applicant was encouraged to see a doctor and get some help. Ms Runge was recorded to have suggested the applicant use the Sonder app.
The notes of a meeting on 20 November 2023 record that the applicant again raised mental health issues during the meeting. The applicant said he had approached Beyond Blue. The applicant referred to allegations involving his sister as well as some of the work issues mentioned in his statement evidence.
A show cause letter addressed to the applicant dated 23 November 2023 is attached to the Reply.
An undated response to the show cause letter, apparently drafted by the applicant, indicated that he had truly enjoyed working for the respondent and appreciated what the job had to offer him. The applicant said his employment had offered him growth, friends, good work/life balance, flexibility and interesting work.
The applicant sought to explain what had been going on his life in the lead up to the incident. The applicant referred to his sister’s schizophrenia diagnosis and the stress that this had caused the applicant and his wife. The applicant indicated that allegations about the applicant made by his sister in a delusional state had caused him to feel alone and as though he had no one to talk to. The applicant said he was going home every day waiting for the police or Family and Community Services (FACS) to knock at his door and was in constant panic.

The applicant then referred to a number of the work-related issues identified in his statement evidence including the comments at the 15-year service anniversary, which he described as the “tipping point”. The applicant said he had disclosed his negative headspace to Mr Clark the following day and explained that the embarrassing speech made him feel little. There was no follow-up, and the applicant felt uncared for.
The applicant said that on the date of the incident he had been struggling with his mental health due to personal and work pressures. After the meeting on 14 November 2023, the applicant reached out to Sonder and booked an appointment to see a psychologist face-to-face on 16 November 2023. The applicant saw his doctor on 18 November 2023, who referred the applicant to another psychologist.

Treating evidence

The clinical records of Grace Medical Centre are in evidence.
Following a consultation on 16 August 2018 it was noted:
“Also complains of memory loss, feeling stressed, feeling a bit flat, tired and not doing his usual activities in past 2/12 Denies feeling deeply depressed, hopeless or suicidal. Sleep ok. Appetite ok. Arguments with partner who has her own MH issues and is on meds. Works as a manager and enjoys job.”
At a consultation on 21 October 2022, it was noted:
“feeling anxious stressed this days”
On 5 March 2023, the applicant was noted to have reported:
“feeling stressd at work
some anxiety
no panic attackes
not medication
works as manager in ware house
…
Current Stressors -
work - warehouse supervisor
family committment
financial committment
pt reports all these compound into one and he is currently stressed”
The applicant consulted Dr Ahmed Hassanin on 18 November 2023 for a mental health care plan. The applicant’s “current stressors” at that date were said to include family problems, his car breaking down, work, financial stress and his wife’s recent surgery. The applicant returned extremely severe results on DASS 21, was prescribed medication and referred to “PsychMatters”.
At a consultation with Dr Young Lee on 8 December 2023, the applicant indicated that he wished to claim workers compensation.
On 16 December 2023, it was recorded that the applicant had been feeling very stressed and unable to focus. Dr Hassanin noted:
“…has been facing lots of bullying and harassment from one of his manager since the beginning of this year”
On 17 December 2023, Dr Pushpa Kumar Padmakaran issued a workers compensation certificate. It was recorded:
“Bullied and harassed by his manager. Felt insulted and not valued after remarks from the manager. Since then has been receiving negative remarks about it from others at work. Has reported this to HR team. Feeling anxious. This is affecting his home life.”
The applicant continued to attend consultations in which psychological symptoms were noted.
On 16 January 2023, Dr Padmakaran responded to correspondence from the respondent enquiring whether the applicant was able to participate in an internal investigation.
Dr Padmakaran responded that the applicant was not ready to face internal investigation. The applicant had reported low mood and feeling anxious and stressed. The applicant had not seen a psychologist yet and was willing to consider participating in the investigation after one month.
Dr Padmakaran prepared a report for the respondent’s solicitor on 3 June 2024. Dr Padmakaran noted the history recorded at the consultation on 17 December 2023. The applicant had reported that he had started feeling stressed and humiliated at work due to remarks made by his operations manager in front of work colleagues. The comment at the 15-year anniversary was noted, as was the comment that the applicant was in a good mood considering his situation at the meeting on 23 November 2023. The applicant said he had also been sworn at by a manager, as a result of which, the applicant felt undervalued and demeaned.
Dr Padmakaran said the applicant had previously been seen by his colleague on
5 March 2023 reporting work stress, anxiety and depression.
Dr Padmakaran said the applicant was likely to have some capacity to perform suitable duties with a different employer in four to six weeks.
Also in evidence are the clinical records of psychologist, Ms Sheree Simpson, whom the applicant first consulted on 31 January 2024.

Certificates of capacity

The first SIRA certificate of capacity was issued by Dr Padmakaran on 17 December 2023, certifying the applicant as having no current work capacity. The injury was said to be related to work due to the applicant being bullied and harassed by his manager and feeling insulted and undervalued.

Dr Napper

The applicant relies on a medicolegal report prepared by consultant psychiatrist, Dr Howard Napper, dated 11 October 2024.
Dr Napper took a history that was consistent with the applicant’s written statement.
The applicant reported that one of the worst experiences was the comment on
31 October 2023 at the celebration of his 15 years of service. The applicant said he had continued to think about that comment. The applicant felt belittled and embarrassed and was anxious about what other people thought of him. The applicant said this was an “overwhelming” time for him.
The applicant reported that in September 2023, as a consequence of the treatment from his employer, the applicant had experienced active suicidal ideation.
The applicant reported that he had consulted with his general practitioner in November 2023 and been prescribed fluoxetine and Seroquel. The applicant had consulted a psychologist until his workers compensation claim was denied in July 2024.
The applicant’s current psychological symptoms included ongoing anxiety and depression. The applicant’s attention and concentration remained impaired and his memory was poor. The applicant experienced memories of distressing work events and neglected his self-care.
Dr Napper said he had asked the applicant if there were any non-work related factors that impacted on his mental health. The applicant disclosed that his sister suffered from chronic schizophrenia and had been in and out of psychiatric wards. The applicant said that due to problems he was experiencing at work and the impact on him, it was difficult for him to deal with his sister’s illness and support her.
Dr Napper diagnosed an adjustment disorder with mixed anxiety and depressed mood. Asked about the cause of the applicant’s condition, Dr Napper responded:
“I consider that the work incidents that have been described in the section, “History of Injury”, are totally responsible for causing your client’s Adjustment Disorder with mixed anxiety and depressed mood. I find your client to be a credible historian and his account of work events correlates with the development of his psychological symptoms. I find no evidence of non-work related events that are responsible for his Adjustment Disorder with mixed anxiety and depressed mood.”
Dr Napper expressed the view that the applicant was totally unfit to perform his pre-injury duties and was totally unfit to work in the open labour market due to his adjustment disorder with mixed anxiety and depressed mood.

Dr Pothala

The respondent relies on a medicolegal report prepared by psychiatrist, Dr Vasantha Pothala, dated 19 June 2024.
Dr Pothala noted that he had reviewed the factual and medical evidence described in this decision above.
Dr Pothala recorded a history that was broadly consistent with the applicant’s statement evidence, noting the 12 incidents in which the applicant relied. Dr Pothala noted:
“After the incident on 31 October 2023, for about two weeks he said he was like a shell and he was “talking but nothing was there”. He said he was not feeling anything and felt he was let down by work. No one followed him up or enquired which made him feel he was “just a number there and no one cares” for him.”
Dr Pothala noted the forklift incident on 13 November 2023 and the meetings that followed.
Dr Pothala noted that Mr Clark had refuted allegations made by the applicant. Mr Clark acknowledged that he had made the comments on 31 October 2023 in a jovial manner and had subsequently apologised. Mr Clark had noted that the applicant had raised personal stressors involving his sister as affecting his mental health.
Dr Pothala noted that Ms Runge had refuted the applicant’s allegations of bullying harassment and said that he had been treated the same as everyone else.
Asked whether the applicant had sustained an injury to which employment with the respondent was the main contributing factor, Dr Pothala responded:
“The most important incident was him operating a forklift without licence. This resulted in his suspension and he was given a show cause letter as the claims were substantiated. Following the show cause meeting, Mr Haggett sought help from his GP and made workers compensation claim.
…
Based on the timeline, I can conclude that his employment was the main contributing factor to his adjustment disorder.”
Asked whether actions taken by the employer with regard to the forklift incident were the predominant cause of injury, Dr Pothala stated:
“Whilst there are a number of allegations made, from the evidence available and the
time line, I believe the predominant cause was actions taken by or on behalf of the
employer after the worker was found to have operated a forklift unlicensed,
including (but not limited to) Meetings between 13 and 23 November 2023 and
Allegations and Show cause Letters issued to the worker.”
Dr Pothala said the applicant was currently partially incapacitated and could return to suitable duties on a part-time basis.

Respondent’s submissions

The respondent acknowledged that there was no dispute that the applicant had sustained an injury pursuant to s 4 of the 1987 Act. There was, however, a dispute as to whether the injury was compensable. The primary issue in the proceedings was whether reasonable action with respect to discipline was the predominant case of the applicant’s injury.
The respondent conceded that such action was not the whole cause of the injury. The evidence recorded other stressors contributing to the injury. In weighing the contributing factors, the medical evidence was key. The respondent referred in this regard to the decision of Hamad v Q Catering Ltd[1].
[1] [2017] NSWWCCPD 6.
The respondent noted that the applicant had not sought to challenge the reasonableness of the relevant employer action. Rather, the applicant relied upon events which were not relevant to s 11A(1) of the 1987 Act as having caused his injury. No medical opinion had been expressed that would allow the Commission to find in the applicant’s favour on the question of predominant cause.
The respondent referred to the clinical records and submitted that the entries relating to the psychological injury coincided with the commencement of the disciplinary process. The evidence established that the applicant had operated machinery he was not licensed or authorised to use.
The respondent acknowledged that the applicant had identified a series of other incidents predisposing him to psychological injury in his statement evidence. The applicant perceived those events as stressors but there was little to no treating evidence to support the applicant’s statement.
The respondent submitted that s 11A(1) of the 1987 Act required the Commission to consider how potent each stressor was in creating pathology. That was a question in respect of which medical opinion was relevant. While acknowledging that the respondent bore the onus under s 11A(1), the respondent submitted that Dr Napper’s opinion was of no assistance to the Commission in resolving the dispute.
Dr Napper referred to the applicant’s statement evidence and was aware that a dozen matters related to work had been identified as stressors. Dr Napper did not go through each of those stressors and express a view as to predominant cause. Dr Napper did not take a history that included the disciplinary action. The opinion was not responsive to the s 11A(1) dispute. Dr Napper did not exclude disciplinary action as causative of injury.
The respondent noted that the clinical material disclosed that the applicant had a previous work-related back injury. The respondent queried whether that was consistent with
Dr Napper’s history.
The respondent also noted that the entry in the clinical notes on 18 November 2023 identified a range of non-work-related stressors. On 8 December 2023, it was noted that the applicant wanted to get workers compensation. It was not until 16 December 2023 that the applicant referred to bullying since the beginning of the year. The applicant had provided a retrospective account of the injury. There was no medical evidence contemporaneous to the relevant events.
On 17 December 2023, the applicant was noted to have identified various events in the workplace contributing to his injury, however, the applicant had not worked since the day after he was accused of using the forklift. The timing of the applicant’s attendance on his general practitioner and the commencement of medication was consistent with disciplinary action in relation to the forklift incident being the predominant cause of injury.
The respondent submitted that it was clear from the correspondence from Dr Padmakaran indicating that the applicant was not able to participate in the investigation due to stress, that the applicant’s symptoms were significant at that time.
The respondent submitted that the applicant had not seen a general practitioner before November 2023 in relation to the injury. This raised questions as to the weight to be given to the general practitioner’s evidence that the applicant had been bullied for a year.
The respondent submitted that Ms Runge had given evidence that she did not notice any change in the applicant’s demeanour and that the applicant had never complained of bullying or harassment. The applicant was not outwardly manifesting any injury to Ms Runge prior to the meeting on 14 November 2023.
The respondent submitted that Dr Pothala had given the only persuasive evidence dealing with the liability issue. Dr Pothala had the relevant statement evidence and treating evidence before him and demonstrated a full understanding of the history. Dr Pothala was aware of the events described in the applicant’s statement evidence. Dr Pothala found a temporal and causal link between the disciplinary process and the need for treatment and making of the workers compensation claim. Dr Pothala found that the predominant cause of the injury was action taken by or on behalf of the employer after the worker was found to have operated a forklift unlicensed, including (but not limited to) meetings between 13 and 23 November 2023 and the letters issued as part of that process.
Dr Pothala expressed the view that the applicant was only partially incapacitated.
The respondent noted that the applicant’s response to the show cause letter suggested that the applicant had enjoyed working for the respondent. The applicant was broadly happy with work. In light of this document, the applicant’s competing theory of causation was not persuasive.
The respondent submitted that the applicant had experienced a number of low order stressors which were both work and non-work related. The issue before the Commission was the predominant cause of the applicant’s psychological injury. The respondent’s onus was the subject of a clearly expressed opinion from Dr Pothala. The applicant’s medicolegal case failed to address the hierarchy of causation.
The respondent submitted that if the Commission did not accept that the s 11A(1) defence was made out, the evidence suggested that there should be some capacity to return to work. The evidence regarding capacity was incomplete. The applicant had not supplied any recent certificates of capacity. The respondent noted that Dr Padmakaran had indicated on
3 June 2024 that the applicant was expected to have capacity to perform suitable duties in
four to six weeks.
The Commission would not, in the circumstances, award weekly compensation on the basis of no current work capacity. A finding that the applicant had capacity to work 50% of a full-time load might be reasonable.

Applicant’s submissions

The applicant observed that the respondent bore the relevant onus. Referring to the test in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[2] (Nguyen), the applicant submitted that the Commission had to feel a sense of actual persuasion on the balance of probabilities that the predominant cause of the applicant’s injury was reasonable action with respect to discipline. The applicant did not have to prove anything.
[2] [2008] NSWCA 246.
The applicant submitted that Dr Pothala’s history was incomplete and did not grapple with the contemporaneous documents.
The applicant did not lodge a claim for workers compensation until 1 March 2024. The clinical records indicated that prior to making the claim, the applicant was telling his doctors what had caused the injury. An account of bullying and harassment was given to
Dr Hassanin on 18 November 2023. On 17 December 2023, the applicant reported that he felt insulted by remarks from his manager. The particular incident on 31 October 2023 at the anniversary celebration was noted.
At the time of these consultations, the applicant had not yet made a claim. The applicant was simply outlining what he believed were the causes of his psychological condition and seeking treatment.
The psychologist’s notes also referred to the incidents of bullying and harassment relied on by the applicant.
The applicant noted that 12 events had been identified as causative of the psychological injury in the applicant’s statement evidence. Cross-referencing the applicant’s evidence with the respondent’s witness evidence, many of the events were confirmed, albeit perceived differently.
The applicant noted that the incident following the applicant’s family holiday to Southeast Asia had not been taken up by Dr Pothala.
The applicant‘s evidence was that two-weeks prior to the show cause letter, he had been aggrieved by the comments made at the anniversary celebrations to the point of suicidality.
With regard to the disciplinary process, the applicant noted at the meeting on
14 November 2023 he had raised psychological symptoms. Although the record of that meeting referred to personal stressors, s 4 of the 1987 Act was not an issue. Reference was made to the comments made at the 15-year anniversary as well as other events at work including public belittlement. The applicant noted that Dr Pothala had the record of that meeting but had not engaged with it in expressing his opinion on predominant cause.
The record of the meeting on 20 November 2023 similarly referred to the applicant’s mental health not being the best at the time of the forklift incident. The applicant had said he was not thinking properly. The applicant identified a range of work issues which he considered had impaired his judgement resulting in the forklift incident.
The applicant’s response to the show cause request had clearly identified issues relating to work well before a compensation claim was made. The applicant submitted that this indicated that a range of factors were the cause of the decompensation. The speech at the anniversary celebration was clearly one of the main contributing factors to the applicant’s mental breakdown.
Turning to the medicolegal evidence, the applicant observed that Dr Napper referred to some of the incidents of bullying and harassment. It was unfair to suggest that Dr Napper had ignored the other incidents simply because they had not been referred to. One of the worst incidents according to the history recorded was the comment made at the anniversary celebration.
The cumulative effect of the incidents reported by the applicant was that by September 2023, the applicant experienced active suicidal ideation such as jumping off a cliff. This was reflected in the contemporaneous notes of the disciplinary meetings.
The applicant submitted that Dr Napper had a more correct history. He considered that the incidents described in the history recorded by him were totally responsible for the diagnosed condition.

Dr Pothala had the notes of the disciplinary meetings but did not refer to them at all when giving his ultimate opinion. Dr Pothala impermissibly reasoned post hoc ergo propter hoc in concluding that disciplinary action was the predominant cause of the applicant’s condition. Dr Pothala failed to engage with the evidence of significant psychological issues prior to the commencement of the disciplinary action.
The applicant submitted that the respondent had not met the burden of proof. The Commission would not feel persuaded that the disciplinary action was the predominant cause of the injury, at the very least because of the evidence of active suicidal ideation prior to those events.

Respondent’s submissions in reply

The respondent submitted that there were factual questions as to the truth of the allegations made by the applicant but ultimately the question of causation was not able to be determined without the benefit of medical evidence except where there was a singular cause.
Dr Pothala said he had been briefed with the contemporaneous meeting records. While they were not quoted, clearly he had regard to them in giving his opinion.
In contrast, the history recorded by Dr Napper was incomplete or inadequate.
The first accounts of suicidality due to previous stressors appeared contemporaneously with the disciplinary process. There was no contemporaneous evidence of symptoms of the degree alleged by the applicant at the time they were alleged to have occurred.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 as it applies to this case as:
“4     Definition of ‘injury’
In this Act:
“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
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
“Psychological injury” is further defined in s 11A(3) of the 1987 Act:
“(3) a psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”
A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:
“(1) 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.”
Sub-section 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[3]
[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.
There is no dispute between the parties that the applicant sustained a psychological injury arising out of or in the course of his employment with the respondent. The primary dispute between the parties is whether that injury is compensable under the 1987 Act having regard to s 11A(1) of the 1987 Act.
For the respondent to succeed in establishing its s 11A(1) defence, it is necessary for it to demonstrate on the balance of probabilities that reasonable action with respect to discipline was the whole or predominant cause of the applicant’s injury.
The applicant did not make any submission that the respondent’s action with respect to discipline was unreasonable at the arbitration hearing. The sole liability dispute concerns the hierarchy of causative events in determining the predominant cause of the injury.
In Hamad v Q Catering Ltd,[4] Snell DP noted the significance of medical evidence in determining the whole or predominant cause of an injury:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. 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 s 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 appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 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.”
[4] [2017] NSWWCCPD 6.
In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246.
The respondent conceded that action with respect to discipline was not the “whole” cause of the applicant’s psychological injury. The evidence before the Commission also confirms that the applicant’s psychological condition was multifactorial.
Aside from various work-related causes of the applicant’s psychological injury, the lay and medical evidence indicates that the applicant experienced significant psychological stress as result of personal matters, including events involving his sister.
Those matters are not, however, described at all in the applicant’s statement evidence. In fact, the applicant denied that there was anything outside of work causing him stress.
The applicant did suggest that work stress made it difficult for him to deal with outside issues. Similarly, the applicant told Dr Napper that the problems he was experiencing at work made it difficult for him to deal with his sister’s illness and support her.
Those accounts are, however, difficult to reconcile with the account of events set out in the response to the show cause notice and as described by Mr Clark. A range of personal stressors were reported to Dr Hassanin on 18 November 2023.
The applicant’s statement evidence and Dr Napper’s history also notably omit reference to significant events at work which coincided temporally with the applicant seeking medical treatment in November 2023. The applicant only referred briefly to the disciplinary action to provide context to further comments made by Mr Clark which he perceived as hostile. Dr Napper’s history made no reference to the disciplinary action at all.
Given that being suspended from work and the subject of disciplinary proceedings is inherently likely to be very stressful for most workers, those omissions are surprising.
The Commission notes that there is no dispute that employment was the main contributing factor to a psychological injury arising out of or sustained in the course of the applicant’s employment with the respondent for the purposes of s 4 of the 1987 Act. The sole liability dispute before the Commission is whether disciplinary action was the predominant cause of the injury. The liability dispute is not directly addressed by either the applicant’s statement evidence or Dr Napper’s report.
The applicant correctly notes that he bears no onus in relation to s 11A(1) of the 1987 Act. Omissions or inconsistencies in the applicant’s evidence are, however, relevant to the weight to be given to the applicant’s own evidence and the evidence of Dr Napper on the question of causation.
Having considered the totality of the evidence, I do accept that many of the workplace events described by the applicant in his statement were real events. I am also satisfied that the applicant perceived those events as creating a hostile work environment. The clinical records confirm that the applicant reported workplace stress, amongst other stressors, to his general practitioner in March 2023, well prior to the disciplinary action in November 2023.
In particular, I accept that the applicant found the comments made by Mr Clark on
31 October 2023 at his 15-year anniversary celebration embarrassing, belittling and distressing. This finding is consistent with the records of the meetings held on 14 November 2023, 20 November 2023 and 23 November 2023 as well as the applicant’s written response to the show cause letter. Mr Clark’s evidence also confirms that the applicant expressed his distress at the comments to him the following day.
The applicant’s evidence and the history recorded by Dr Napper was that the cumulative effects of the workplace events prior to the forklift incident were so significant that the applicant was experiencing significant psychological symptoms including active suicidal ideation by September 2023.
As the respondent notes, however, there is simply no contemporaneous medical evidence to corroborate the applicant’s claim. The medical evidence before the Commission indicates that the applicant did not seek or obtain treatment for psychological symptoms until after the initial disciplinary meeting on 14 November 2023.
Furthermore, while I have accepted that the applicant found the relevant workplace events distressing or hostile, other than the 15-year anniversary comments, I am not satisfied on the evidence that the applicant indicated to his colleagues that those workplace events had contributed to him experiencing psychological symptoms at any time prior to the meeting on 14 November 2023.
The disclosure of mental health challenges to Mr Clark prior to that meeting appears to have occurred in the context of the personal stressors involving the applicant’s sister and the comments at the 15-year anniversary. The evidence from Mr Clark and Ms Runge suggests that the applicant’s other complaints about his treatment in the workplace during the
14 November 2023 meeting took them by surprise.
I have noted the applicant’s observation that the entries in the clinical records in November and December 2023, the meeting notes and the response to the show cause letter in which the applicant complained of psychological symptoms due to bullying and harassment in the workplace, were all recorded well prior to the claim for workers compensation. While I accept that observation is correct, the fact remains that there is no treating evidence or other contemporaneous record of the applicant experiencing psychological symptoms due to the events described as bullying and harassment at the time the relevant events occurred, other than the conversation with Mr Clark after the 15-year anniversary comments.
It is evident from Dr Pothala’s report that he had before him the same factual and treating evidence that is now before the Commission. The applicant has suggested that Dr Pothala did not adequately consider all of that evidence before coming to his conclusion as to the predominant cause of the injury, particularly having regard to the omission from his history of some of the events referred to in the applicant’s statement evidence and the failure to engage explicitly with the contents of the meeting notes and response to the show cause letter.
It is clear, however, that Dr Pothala was aware of the applicant’s claim that a dozen workplace events which he characterised as bullying and harassment had caused his psychological injury. Dr Pothala gave particular consideration to the incident at the 15-year anniversary. Dr Pothala then referred to the forklift incident and the disciplinary meetings and letters that followed. Dr Pothala also acknowledged the evidence of personal stressors involving the applicant’s sister.
Dr Pothala did not suggest that the workplace events prior to the forklift incident were not causative of the applicant’s injury, although he did acknowledge that Ms Runge and Mr Clark had refuted the applicant’s allegations of bullying and harassment.
It was on this background that Dr Pothala found that the “most important” incident and the “predominant” cause of the applicant’s psychological injury was the action taken by or on behalf of the respondent after the applicant was found to have operated a forklift unlicensed. Dr Pothala reasoned that it was after those events occurred that the applicant sought medical help and made a compensation claim.
While the history recorded by Dr Pothala is not perfect and did not repeat in detail each of the events relied on by the applicant, I am satisfied that it sufficiently aligned with the other evidence so as to provide a proper factual foundation for his ultimate opinion[6].
[6] See Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.
Dr Pothala’s reasoning was also criticised by the applicant on the basis that it was unduly focused on the temporal connection between the disciplinary action and the applicant seeking medical assistance.
I accept that Dr Pothala did not explicitly engage with the evidence that the applicant had complained of various workplace events broadly categorised as bullying impacting his mental health at the 14 November 2023 meeting and in the meetings and correspondence that followed.
I am not persuaded, however, that Dr Pothala simply assumed that because the applicant sought treatment after the disciplinary action that the disciplinary action was the cause of the applicant’s psychological condition.
Dr Pothala gave explicit consideration to the other causative events identified by the applicant. Dr Pothala appears to have accepted that the earlier events described in the applicant’s statement evidence contributed to the applicant’s injury. Dr Pothala did not find that disciplinary action was “the whole” cause of the applicant’s psychological injury.
I accept that the opinion of Dr Pothala ought to be given weight. There is no competing medical opinion on the hierarchy of causation.
Dr Napper has given evidence that the earlier workplace events were the “total” cause of the applicant’s psychological injury. The evidence from the applicant’s general practitioner and the clinical notes from the applicant’s psychologist, Ms Simpson, are consistent with that view.
Importantly, however, neither Dr Napper nor the applicant’s general practitioner was asked to comment on the relative impact of the applicant being the subject of disciplinary proceedings. I am not satisfied that either of those doctors was armed with a complete factual history.
While the applicant was not obliged to satisfy any evidentiary onus for the purpose of
s 11A(1) of the 1987 Act, the omissions in the applicant’s medical evidence leave Dr Pothala’s opinion largely unchallenged.
Referring to the decision in Hamad v Q Catering Ltd, the respondent highlighted the significance of medical evidence in determining the extent to which aspects of a worker’s history contributed to a psychological injury, particularly where there are competing contributing factors.
After considering the medical evidence together with the factual evidence in this case, I am satisfied that Dr Pothala’s opinion should be accepted. I feel a sense of actual persuasion that action with respect to discipline constituted the predominant cause of the applicant’s psychological injury. There being no challenge to the reasonableness of such action, the defence under s 11A(1) of the 1987 Act is made out.
The applicant’s psychological injury is not compensable and there will be an award for the respondent.

[2025] NSWPIC 87

17 March 2025