Hainey v Jeld_WEN Australia Pty Ltd
[2022] NSWPIC 265
•2 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hainey v JELD_WEN Australia Pty Ltd [2022] NSWPIC 265 |
| APPLICANT: | Kathleen Hainey |
| RESPONDENT: | JELD_WEN Australia Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 2 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation in respect of alleged psychological injury; injury pleaded as aggravation of underlying condition; respondent alleges cause of aggravation multi-factorial and that applicant not totally incapacitated as alleged; Held-In matters where an injury is pleaded by way of an aggravation or exacerbation, the relevant test is whether the employment is the main contributing factor to the aggravation or exacerbation, not to the underlying condition; Federal Broom Co Pty Ltd v Semlitch; Kelly v Western Institute NSW TAFE Commission; Ariton Mitic v Rail Corporation of; Meaney v Office of Environments and Heritage - National Parks and Wildlife at [138]-[147] followed; the meaning of “Main contributing factor” is “principal” or “primary”, and there can be but one main contributing factor”; AV v AW applied; in this matter, there is no issue the applicant suffered a pre-existing psychological condition; nor is there any issue she had endured a number of non-work-related stressors; however, despite those stressors she was able to carry out full time employment with the respondent until her workplace problems with her former manager culminated in her leaving work; the evidence, in particular contemporaneous file notes from human resources, demonstrates the applicant’s former manager acknowledged the alleged issues in the work place and that he had not acted appropriately towards the applicant; a common sense evaluation of the lay and medical evidence supports a finding the applicant’s employment with the respondent was the main contributing factor to the aggravation of her pre-existing condition which in turn led to her absence from work; Kooragang Cement Pty Ltd v Bates referred to; the balance of the evidence also discloses the applicant remains totally incapacitated for employment; even though the respondent demonstrated that from time to time the applicant attended a local store and also went to her own birthday celebration, in my view that evidence does not equate to a capacity for employment; the applicant was cross examined at length as to her capacity, and her evidence as to her ongoing problems with employment is accepted as that of a witness of truth; respondent ordered to pay the applicant weekly compensation as claimed. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological injury by way of aggravation of a pre-existing condition in the course of her employment with the respondent, with a deemed date of injury of 20 January 2020. 2. As a result of the injury referred to in (1) above, the applicant has been and remains totally incapacitated for employment. 3. The applicant was paid weekly benefits up to 17 April 2020, at which point liability for her claim was denied. 4. At the date of her injury, the applicant’s preinjury average weekly earnings (PIAWE) were $1,153.85 per week. 5. The respondent is to pay the applicant weekly compensation at the rate of $923.08 per week (being 80% of her PIAWE) from 18 April 2020 to date and continuing. |
STATEMENT OF REASONS
BACKGROUND
Kathleen Hainey (the applicant) was employed by JELD-WEN Pty Ltd (the respondent) as a customer clerk - data specialist from December 2017. She claims to have suffered a psychological injury in the course of her employment with the respondent by way of an aggravation to a pre-existing condition and claims weekly compensation.
The respondent denies liability and alleges the causes of the decline in the applicant’s condition were multi-factorial and included a number of significant personal matters which bore no relationship to her employment.
The applicant originally sought payment of weekly compensation from January 2020, however, at the hearing leave was granted to amend the period claimed pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act) to commence from 18 April 2020 at a rate of $923.08. There is no issue the applicant’s pre-injury average weekly earnings (PIAWE) were $1,153.85 and accordingly the relevant weekly amount pursuant to section 37 is $923.08.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant’s employment is the main contributing factor to an aggravation to an underlying psychological condition, and
(b) whether the applicant has any capacity for employment, and if so to what extent.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 4 May 2022 via audio-visual link. 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, the applicant was represented by Mr Stockley of counsel, instructed by Mr Garling, solicitor. The respondent was represented by Mr Perry of counsel, instructed by Ms Tancred, solicitor.
At the conclusion of the hearing, the respondent indicated it may wish to tender further documentation into evidence. The parties were granted a further week to lodge any such documents and any submissions in relation to them. No further documents or submissions were lodged with the Commission.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents excluding the report of Dr Khan found at page 135 which the applicant elected not to rely on;
(b) Reply and attached documents;
(c) respondent’s Application to Admit Late Documents (AALD) dated 24 March 2022, and
(d) respondent’s AALD dated 26 April 2022.
Oral evidence
The applicant was cross-examined via video link by Mr Perry. The cross-examination was thorough and appropriate and went to issues of the applicant’s state of mind, capacity and ability to leave her home after the alleged injury. The cross-examination also traversed non-work-related factors which the respondent alleges contributed to the applicant’s psychological condition.
In my view, the applicant presented as a witness of truth. She made appropriate concessions as to her pre-existing psychological issues and the matters which contributed to it. She gave evidence without exaggeration and, despite plainly finding the process difficult, in my view she did her best to assist the Commission to the best of her ability.
The applicant acknowledged during cross-examination that she had discussed with Dr Roberts, the Independent Medical Examiner (IME) for the respondent that the death of her mother and the revelations of her son being assaulted at school were factors which had contributed to her psychological condition before the culmination of her taking time away from work.
Mr Perry cross-examined the applicant over a verbal disagreement she had with a colleague, Caysie Elliott. She acknowledged that confrontation was over non-work-related matters and led to a panic attack, however, she stated she had previously had a panic attack several months before the confrontation. The applicant stated that panic attack had related to work matters.
On re-examination, the applicant gave evidence that she had suffered panic attacks at work in or about late 2019, before any confrontation with Ms Elliott.
FINDINGS AND REASONS
Whether the applicant suffered a psychological condition
In this matter, the applicant alleges she suffered a psychological injury by way of an exacerbation of a pre-existing condition. The respondent has declined liability on the basis the applicant’s employment was not the main contributing factor to her injury.
As the applicant is alleging an aggravation or exacerbation, she must demonstrate her employment was the main contributing factor to the aggravation of her condition, not to the underlying condition itself.
There is well-settled law on a question of aggravations to the effect that when examining questions of causation in the context of the main contributing factor test, it is necessary to look at the cause of the aggravation or exacerbation, not that of the underlying condition: see for example Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71; Ariton Mitic v Rail Corporation of NSW [Matter number 8497 of 2013, 8 April 2014]; Meaney v Office of Environments and Heritage - National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147]; Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 and Cant v Catholic Schools Office [2000] NSWCC 37.
An examination of these authorities together with the Court of Appeal decision in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 demonstrates that the proper test is whether the aggravation impacted the individual concerned. It is not necessary for the overall underlying condition to be made worse, but what must be shown is a demonstrably increased impact of the injury or condition caused by a work-related aggravation on the worker.
Snell DP dealt with the nature of the test for main contributing factor in AV v AW [2020] NSWWCCPD 9. In that matter, the Deputy President expressed the view that the test of main contributing factor is more stringent than the test applicable in section 4 of the 1987 Act when considering whether employment is a substantial contributing factor. The Deputy President noted that the requirement in section 4(b) that employment be the “main contributing factor” permits the existence of only one such factor. The requirement of main contributing factor therefore involves a more stringent connection with the employment than the requirement of a substantial contributing factor.
The question of main contributing factor is one of causation, as was pointed out by the Deputy President in AV v AW and the Court of Appeal in its discussion of section 9A of the 1987 Act in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 (8 October 2009). As such, it is necessary to examine the question on a common-sense basis after an evaluation of all the evidence: see Kooragang Cement Pty Ltd v Bates 35 NSWLR 452.
There is also little question that where a relevant aggravation might involve both employment and non-employment factors, the evaluative approach involves a consideration of the causative role of both. It is necessary to consider firstly whether there were competing causal factors of the aggravation, and in considering those relevant contributing factors, whether employment represented the main one.
In this matter, there are a number of pre-existing factors which the applicant concedes played a part in her psychological condition. They included an assault to her son by a school administrator in the position of authority and the death of her mother, approximately a year before the deemed date of injury. The respondent’s case is that the causes of the applicant’s deterioration were multifactorial, and that employment was not the main contributing factor to the deterioration in her underlying condition.
The applicant was subjected to cross-examination by Mr Perry as to the histories provided by her to various medical practitioners and to aspects of causation, together with her capacity for employment. On balance, as already stated I find the applicant to be a witness of truth. She made appropriate concessions, listened carefully to the questions asked of her and did her best at all times to address them. I make no criticism of the applicant’s credit in this matter, and to the extent there is a discrepancy between her evidence and those of other lay witnesses, I prefer her version of events.
The Commission had the benefit of a number of reports from the applicant’s treating psychiatrist, Dr Nguyen. In those reports, Dr Nguyen made reference to the pre-existing factors which played a part in the applicant’s condition and nevertheless found the applicant’s employment was the main contributing factor to the aggravation of it. As a treating practitioner who has had the benefit of seeing the applicant over a lengthy period of time, in my view Dr Nguyen’s opinion carries significant weight unless it can be shown there was some demonstrable error in either his reasoning as to causation or in relation to the history provided to him and recounted by him.
In his initial report dated 7 April 2020 to the applicant’s general practitioner (GP), Dr Nguyen said:
“She reported being treated differently to other people whose family members had died that year at work and were not criticized. She felt singled out by the manager.
She reported telling the supervisor twice that if he didn’t stop bullying her, she would take it up with HR. She reported being tearful and telling the supervisor that some of the things he said were affecting her mental health. She involved HR. She has since made a complaint against the supervisor and 3 others in the office have also made complaints against him.”
Mr Perry submitted that Dr Nguyen had effectively downplayed the effect of the pre-existing matters, however, I reject that submission. Dr Nguyen is a treating practitioner and provides a view which is wholly supportive of the applicant’s claim. In doing so, he has had regard to the non-work-related factors disclosed to him.
The applicant’s supervisor in the lead up to her leaving work was Ben Palmer. In the documents attached to the Reply is an internal investigation including file notes taken by Ms Honeybell of Human Resources (HR). They plainly disclose a problematic relationship between the applicant and Mr Palmer. According to the file notes, the applicant told Ms Honeybell:
“Ben Palmer was Kathleen’s manager in her previous role within the Corinthian business. Kathleen held the position of ‘Internal Sales’ before she moved to IT and became a member of Jackson’s team. Kathleen said she now loves her job.
- When Kathleen’s mother passed away (Influenza A), Ben was making comments to other people such as ‘If she was on my team, I would have fired her by now for taking all this time off work’.
- Kathleen said she also heard from other people that he made comments about her work ethic.
Kathleen confirmed she had confronted Ben Palmer twice.
In 2019, Kathleen spoke with Ben and told him she felt like he was bullying her. She told him that if it didn’t stop she would go to HR. His response was ’ok’.
Kathleen then had to take time off work to look after her son and again was told by others that Ben had been talking about her. He didn’t say anything directly to her, just to others. When Kathleen confronted Ben, she made him aware that she knew it was still happening. Ben didn’t really give her a response, just said it wouldn’t happen again.
Kathleen returned to work on Wednesday 15th January 2020 after Christmas leave period.
Upon her return, Tracey told her that she had heard Ben ‘bad mouthing her at the Christmas party’ (which Kathleen didn’t attend).
During the morning on Thursday 16th January, Kathleen spoke with Ben again.
Kathleen reported the conversation as:
KH – Crying, I’m aware this is still happening
BP – Who’s telling you this?
KH – Everyone
BP – Admitted it and said he didn’t know why he did it. BP said he had received complaint KH is too loud and noisy
KH – Why didn’t you come to me and talk to me then rather than go to others?
BP – I don’t have an answer and don’t know why I treat you this way. I can’t believe I have done this to you (KH said Ben’s bottom lip was quivering).
- Kathleen felt he was being honest and truthful at this point.
Kathleen then felt Ben had discussed this meeting with Caysie Elliot, telling her what the discussion was about.
Kathleen told me that she was confronted by Caysie Elliot openly and in front of others.
She had an altercation in relation to money. Caysie owed Kathleen and her partner some money.
Kathleen said she would like to go to work and not worry about people talking about her. She just wants the behaviour to stop and be able to go to the office and do her job.”
Ms Honeybell then contacted Mr Palmer. Her file note of their conversation reads as follows:
“I notified Ben of the reason for my call:
1. Difficulty with previous manager Ben Palmer
Ben Palmer acknowledged what had been occurring and that he did have the meeting with Kathleen on Thursday 16th January 2020. Ben said since that discussion, he had made a conscious effort to shut down any conversation regarding Kathleen and hasn’t spoken to anyone about her or the conversation since.
Ben assured me the behaviour has stopped.
JH confirmed that Kathleen would like to return to work, do her job and not have to worry about people talking about her behind her back. JH confirmed if there is any substance to any of this moving forward, a formal investigation will be conducted. Ben confirmed he fully understood and said again the behaviour would stop.
JH asked him to ensure she was notified if any of this re-occurs in the future. Ben agreed he would keep me posted.
JH told Ben that I would again contact Kathleen to advise the outcome of the informal solution and seek her acceptance.
Ben thanked Jill for her time and assistance in resolving the issue.”
It is apparent form the content of these file notes, which were put into evidence by the respondent, that the applicant’s concerns regarding her relationships with her manager were real, and the contents of the file note constitute an admission by Mr Palmer that his conduct towards the applicant had not been appropriate. The file notes also contradict to an extent the contents of Mr Palmer’s supplementary statement in which he denies speaking inappropriately either about or to the applicant. There is no adequate explanation for the discrepancy between the file notes and Mr Palmer’s later statement, and to the extent there is such a discrepancy, I prefer the contemporaneous file notes to his later statements.
In any event, even if I were to prefer Mr Palmer’s evidence that there was no bullying or harassment of the applicant, there is no doubt her relationship with Mr Palmer was strained and that she raised issues with him. The contemporaneous evidence by way of file notes discloses an alarming discrepancy with Mr Palmer’s own statement and, more importantly, with the section 78 notice relied on by the respondent. That document states:
“With respect to the allegations of inappropriate workplace conduct on behalf of Mr Ben Palmer, we have considered the statements of several of your co-workers compiled during an internal investigation. Several of your colleagues indicated that they did not believe your interactions with Mr Ben Palmer as well as the comments made by him constituted bullying and harassment on his part. Further, Mr Palmer indicated that up until January 2020, he considered that you both had a ’good working relationship.’
When asked if she had heard Mr. Ben Palmer speak inappropriately to or about you, Ms. Caysie Elliott advised she had not and explained that up until recently that she, Ben Palmer, and the DATA team which includes you, Tracey Rafferty and Lyndon Mackay all sat in close proximity with one another in the open office area and would joke around together ‘all the time’.
In addition, Mr. Palmer informed the factual investigators that it was not until you had asked to speak with him in ‘late January 2020’ in his office, that you had ever informed him of any concerns you had with him.
Mr. Palmer advised that you informed him during that meeting that you felt he was bullying you as you had heard comments that he had made to others about your absenteeism. Mr. Palmer stated he could not recall exactly what was said during that meeting but that you mentioned that others had told you what he had been saying and about his team being disloyal to him and if he thought he could trust them that he was wrong. Mr Palmer advised you had informed him that you were going through issues and mentioned your son had recently suffered an assault at his school and you also mentioned that there were rumours among your colleagues of a relationship between you and a fellow colleague.
Further, you did not, at the time of your conversations with Ms Honeybell and Mr Renehan on 22 January 2020, want to formalise your concerns and agreed for Ms Honeybell to talk with Mr. Palmer about the issues you had raised. Ms Honeybell advised that upon informing you that she had spoken with Mr. Palmer on that same day you had again informed her that you were happy with the action taken and stated ’it felt like a weight had been lifted’ and confirmed you did not wish to take things further and just wanted to be able to go to work. Ms Honeybell was under the impression that you intended to return to work on 28 January 2020.”
In my opinion, the contents of the section 78 notice do not sit well with the contemporaneous file notes of Ms Honeybell in which she confirmed Mr Palmer admitted to the applicant’s concerns surrounding what was being said about her and that the allegations as to how she was treated were based in fact. Moreover, it is not necessary for a worker alleging psychological injury to proceed with a formal (or indeed informal) complaint process to succeed in establishing the presence of an injury. The fact a worker decides not to take matters further in the context of workplace tension or conflict should not be used against them as part of a reason for disputing the presence of an injury. That is especially so in the context of a matter such as this where not only the applicant but the manager about whom she complained each acknowledge there were issues between them at work.
Dr Nguyen’s opinion is also supported by the fact the applicant, despite grieving the loss of her mother and having discovered the assault upon her son, continued to work for the respondent until such time as matters in the workplace got the better of her. Whilst it is true that the applicant was able to work until 20 January 2020, a date on which she had a confrontation with Ms Elliott, which at least in large part, concerned the repayment or otherwise of a loan to Ms Elliott by the applicant, it is also apparent that there had been a number of issues in the workplace which materially caused or contributed to her condition.
These include, for example, the discussion and altercation with Mr Palmer only several days before 20 January in which she made a complaint of the way in which she had been treated by him for a period of time.
It is noteworthy that the applicant was paid weekly benefits up until April 2020. During the period between her last day at work on 20 January and the issuing of the section 78 notice declining liability, the applicant made a number of visits to her treating GP and psychiatrist. During the course of those visits, the applicant clearly noted that there had been ongoing stressors in the workplace for over 12 months. That is consistent with the case pleaded by her, and also with the opinion of Dr Nguyen and the statement of Ms Honeybell, who herself indicated the applicant was having issues at work throughout 2019.
Dr Nguyen’s opinion is also supported by that of IME Dr Allan who also accepted the applicant’s version of events that the workplace stressors were the main contributing factor to the deterioration in her condition. In his report to the applicant’s solicitors dated 23 November 2021, Dr Nguyen noted he first saw the applicant on 31 March 2020. At that time, she reported to Dr Nguyen high anxiety related to alleged bullying and harassment at work by her previous supervisor. I reiterate that this consultation took place at a time when the applicant’s claim had been accepted. In that report, Dr Nguyen recounts the following history:
“She reported that her previous manager made disparaging comments about her to other colleagues, berated her for taking time off after her mother died and told her to stop moping around three days after her mother died. She reported being treated differently to other people whose family members had died that year at work and were not criticised. She felt singled out by the manager.
She reported telling the supervisor twice that if he did not stop bullying her, she would take it up with human resources. She reported being tearful and telling the supervisor that some of the things he said were affecting her mental health. She stated that she involved HR and has since made a complaint against the supervisor. She stated that three others in the office have also made complaints against the supervisor. She has been unable to work since 20 January 2020 after a panic attack returning from work that day.”
In my view, that history is broadly consistent with the applicant’s evidence. Although she was cross-examined by Mr Perry, the applicant remained steadfast that her issues arose primarily because of problems with her supervisor at work. In my view, notwithstanding Mr Perry’s thorough and appropriate cross examination, the applicant remained steadfast and believable as to the cause of the aggravation of her condition and her ongoing problems.
Moreover, IME for the respondent, Dr Roberts, in my view, incorrectly focuses on the cause of the underlying psychological condition from which the applicant suffers, rather than the cause of the aggravation which forms part of her alleged injury. In his first report, Dr Roberts took the following past psychiatric history from the applicant:
“When questioned as to whether she had ever attended upon a psychologist, psychiatrist, counsellor or general practitioner for the treatment of any nervous condition , and if so when for the first time Ms Hainey stated that she had a history of depression; that five years ago she had seen a psychiatrist Dr Anas who diagnosed her with a Bipolar disorder. She referred to having had a few episodes of mood disturbance prior but she believes that she had been stabilised for five years…”
In terms of workplace stressors, Dr Roberts took the following history:
“Ms Hainey stated that problems arose in terms of her relationship with Mr Ben Palmer that she alleged that he had become aggravated with her and that problems arose with what she described as between her supervisors in regard to a starting date.
Ms Hainey alleged that Mr Ben Palmer had said that she had had to ‘back filled her position’ and in commenting in relation to this, he made the comment ‘I effing wish I never recommended you’.
Ms Hainey stated that a change in her relationship with Ben Palmer didn't ’piss me off'.
Ms Hainey stated that when her mother died she had two weeks off that on returning to work there was gossip; that Ben Palmer made a comment in regard to her that if she had taken two weeks off because of the death of her mother and had been on his team, he would have fired her, ie. terminated her employment.
Ms Hainey referred to an incident when she had been sitting in a chair; that Ben Palmer had placed his hands on her shoulders; that two days after returning from leave after her mother died, she referred to Ben Palmer as having made the comment 'it's time to stop moping about’.
Ms Hainey stated that a few months later it was brought to her attention by multiple people that Ben Palmer was talking ’shit re me’ and doing so behind her back, of her having been referred to as being ’a dickhead'.
Ms Hainey stated that she approached Mr Palmer three times in 12 months and had said to him ‘stop, leave me alone’ and indicated further to Mr Palmer that if his bullying continued she would inform Human Resources.
Ms Hainey referred to having had to take time off on a second occasion and then on a third occasion she had organised an afternoon to take her son to an appointment, of Mr Palmer on a third occasion when she required him to be off work in order to take her son to an appointment, made the comment ’Is she ever at her desk – does she ever do any work’.
Ms Hainey stated that at the time of the last Christmas break the above comments were made; that she said to herself she would not put up with this; that someone had informed her that over the new year Mr Palmer had been making negative comments about her at a Christmas party; that Ben Palmer was ’bad mouthing me’ and described a response to that circumstance that she became shaky and teary.
Ms Hainey stated that she approached Ben Palmer and told him to stop talking in regard ‘to me’ and to stop spreading rumours.
Ms Hainey stated that in response to that comment to Mr Ben Palmer, Mr Palmer apologised for his behaviour indicating to Ms Hainey that ’he owned it’.
Ms Hainey stated that she reached a point where she felt that she couldn't trust anyone in internal sales.
Ms Hainey formed the view on the basis of her assessment of Mr Palmer's behaviour that he had no intention on ceasing behaving in the manner that he did.”
The history of workplace problems is consistent with the applicant’s version and the contemporaneous documents. Dr Roberts took a history of external stressors, including the death of the applicant’s mother and the assault on her son. Dr Roberts noted the conduct in the workplace may well have affected the applicant owing to her pre-existing vulnerability to psychological injury due to her pre-existing condition. He then, however, makes the following comment which I believe demonstrates an error on his part as to the nature of the alleged injury. At page 12 of his first report, Dr Roberts says:
“The presence of a pre-existing mood disorder renders Kathleen Hainey vulnerable to the development of psychiatric sequelae arising in response to stressors to a greater degree than would the case than if this condition was not present.
It could be argued although it could not be proven but is in my view probable on reasonable psychiatric grounds that if the pre-existing state of a bipolar disorder was not present it would be unlikely that Ms Hainey would have been vulnerable to the stressors under consideration.
In regard to Ms Hainey' s diagnosis I consider that an appropriate diagnosis would be that of an aggravation of a pre-existing state arising as a result of exposure to the stressors referred to in the workplace but I do not consider that these stressors were a substantial cause of the decompensation, the substantial cause being the vulnerability of the pre-existing condition.”
With respect to Dr Roberts, that is not an appropriate characterisation of what is required to find a psychological injury by way of aggravation. Having accepted the aggravation was caused by workplace stressors, he then reverts to saying those stressors were not “a substantial contributing factor” to the cause of decompensation, which he says was substantially caused by the vulnerability brought about by the pre-existing condition.
In my view, Dr Roberts falls into error on two bases. Firstly, he mischaracterises the very nature of injuries by way of aggravation in that he acknowledges the worsening condition but reverts to saying it is caused by the underlying, pre-existing condition. The very existence of section 4(b) of the 1987 Act and the abundant case law cited above make it clear one must look at the cause of the aggravation, not of the underlying condition which has been aggravated. On his own report, Dr Roberts appears to concede the workplace stressors caused the relevant aggravation.
Secondly, Dr Roberts refers to a “substantial contributing factor” which is not the test for an injury by way of aggravation. In practice, however, little turns on this particular error because the main contributing factor requirement is plainly more stringent than that of substantial contributing factor. The important error in this part of Dr Roberts’ reasoning is that he is looking to the cause (be it substantial or main) of the underlying condition, not the aggravation itself.
In his second report, Dr Roberts deals with various statements of co-workers and issues complained of by the applicant. He concludes the non-work-related stressors far outweighed the work-related ones in causing any aggravation. I do not accept that opinion, as Dr Roberts does not, in my opinion, adequately deal with the fact the applicant was able to continue with her employment despite outside stressors, and it was only when matters came to a head with Mr Palmer and then Ms Elliott that she was rendered incapacitated for employment.
I prefer the views of Dr Nguyen to those of Dr Roberts and note Dr Nguyen’s opinion is broadly supported by Dr Allan, IME for the applicant. Dr Allan takes a comprehensive history of the pre-existing issues from which the applicant suffered. He also had the benefit of the reports of Dr Nguyen. Dr Allan took a detailed record of the applicant’s interactions with Mr Palmer, and also of the death of the applicant’s mother, her prior psychological diagnosis and the reports of her son being assaulted. What becomes apparent not only from Dr Allan’s report but from the preponderance of the medical evidence is the applicant was able to continue working until her condition worsened as a result of the workplace stressors. Having taken into account the various stressors and the comprehensive history provided both by the applicant and in the documentation before him, Dr Allan concludes:
“I note Ms Hainey’s previous experiences of clear depressive symptoms. I note that there was reference to her having a bipolar disorder but I do not in her history identify symptoms that would warrant such a diagnosis of severe type 1 or type 2 bipolar disorder. She describes depression, a level of irritability and the commencement of lamotrigine seemingly in response to this, which may have mildly assisted with some mood instability but based on the information given to me, I would not have made the diagnosis of bipolar disorder.
She describes symptoms consistent with a chronic major depressive disorder which had been in a state of remission for many years, which has then been exacerbated by her workplace circumstances.
I note that her mother died in 2019 and she admits to grief around this but also indicates a sense of ‘relief’ given her mother’s palliative state, which was ongoing for several years prior to her mother’s death. Her youngest child had suffered from anxiety and depression but has had psychological assistance which has helped. On occasion, the child had expressed self-harm thoughts which were distressing at the time but were managed effectively.
Furthermore, there was the stress of a ‘loan’ provided to a co-worker who then did not pay her back in a timely fashion and had verbally ‘attacked’ Ms Hainey in the workplace some point thereafter. These were all relevant stressors but they were not the cause of her decline in mental state. The enduring difficulties with Mr Palmer over a 12-month period were the predominant cause of a decline in her mental state, in my opinion, with the personal issues involving her mother’s death, her child’s self-harm ideation and a financial issue as being minor contributing factors to the decline in her mental state.”
On balance, I find that the preponderance of the medical evidence establishes to the requisite standard that the applicant’s employment was the main contributing factor to be aggravation of her underlying psychological condition which forms her claimed injury. As such, I find for the applicant on the question of primary liability. In so finding, I prefer the opinions of Dr Nguyen, treating psychiatrist and Dr Allan, IME for the applicant to those of Dr Roberts, IME for the respondent.
Capacity for employment
Mr Perry cross examined the applicant on a number of visits which she has made to local retailers during the period of claimed total incapacity. The applicant states that she attends those places primarily to obtain cigarettes, and also that either her partner or her children most often visit those stores and use her credit card to make purchases.
In my view, there is nothing which substantively disputes the applicant’s claim of being totally incapacitated for employment during the period claimed. The applicant’s evidence is that she continues to suffer panic attacks and is essentially agoraphobic. In support of her claim, she relies on relevant workers compensation medical certificates which assert she remains totally incapacitated.
Although there is some evidence of the applicant attending her own birthday party, such an event and indeed the visits to local retailers are in no way commensurate with the notion that she is capable of carrying out employment on even a part-time basis. To suggest someone suffering from a psychological condition is, by virtue of being able to attend a local service station or a grocer to buy a packet of cigarettes, capable of carrying out employment either a full-time or part-time basis is, in my view, not made out and borders on the fanciful without further evidence in support of that proposition.
Accordingly, in my view, the evidence establishes on the balance of probabilities that the applicant remains totally incapacitated for employment and has been since 20 January 2020. There will accordingly be an award for the applicant against the respondent in relation to the claim for weekly benefits.
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