Harris v Jalco Automotive Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Harris v Jalco Automotive Pty Ltd [2023] NSWPIC 18
APPLICANT:	Michelle Harris
RESPONDENT:	Jalco Automotive Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	17 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for entitlement pursuant to section 66; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of the reliability of evidence; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b); in relation to which her employment with the respondent was the main contributing factor; State Transit Authority of New South Wales v Chemler, Attorney General’s Department v K and AV v AW considered; Held – the applicant sustained a ‘disease’ injury (being the aggravation, acceleration, exacerbation or deterioration in the course of her employment of her major depressive disorder); section 4(b)(ii); in relation to which her employment with the respondent was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration; dispute remitted to the President of the Personal Injury Commission for medical assessment referral in relation to the degree of the applicant’s whole person impairment.
determinations made:	1. The applicant sustained a ‘disease’ injury (being the aggravation, acceleration, exacerbation or deterioration in the course of her employment of her major depressive disorder), pursuant to s 4(b)(ii) of the Workers Compensation Act 1987, in relation to which her employment with the respondent was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration. The injury will be deemed to have occurred on 17 March 2020 (that being the date agreed upon between the parties).
orders made:	1. I remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: (a) date of injury: 17 March 2020 (deemed), and (b) body systems/parts: psychiatric and psychological disorders. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the respondent’s application to admit late documents dated 29 November 2022 and attached documents, and (d) the respondent’s application to admit late documents dated 7 December 2022 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Michelle Harris (the applicant) is 56-years-old and commenced employment as a process worker on 3 December 2004 with Jalco Automotive Pty Limited (the respondent).
The applicant alleges that she sustained a psychological injury due to events which occurred during the course of her employment with the respondent. She also alleges that due to this injury, she has been incapacitated for employment since 17 March 2020, which was the last date when she worked for the respondent.
By way of a letter dated 22 March 2021, the applicant made a formal claim upon the respondent for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim letter alleged that her whole person impairment was 22% as a result of her psychological injury. The claim letter served medical evidence from Dr Rastogi in this regard.
On 13 August 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim pursuant to s 66 of the 1987 Act. The notice confirmed the respondent’s position (as also outlined in an earlier notice pursuant to s 78 of the 1998 Act dated
19 August 2020) disputing that the applicant had sustained a psychological injury pursuant to s 4 of the 1987 Act.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims compensation pursuant to s 66 of the 1987 Act.

ISSUE FOR DETERMINATION

The parties agree that the issue in dispute is as follows:
(a) did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with s 4 of the 1987 Act, to which her employment with the respondent was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute was listed for conciliation/arbitration before the Commission on
5 December 2022. On that occasion, Mr Bill Carney of counsel appeared for the applicant, instructed by Messrs Petrovski and Hunter. The applicant was present and was supported by her partner, Ms Kyah Harris. Mr Luke Morgan of counsel appeared for the respondent, instructed by Ms Tancred, and Ms Chung was also present representing the interests of the respondent’s insurer.
As the dispute was unable to be resolved, it proceeded to an arbitration hearing. The issue to be determined (see paragraph 6 above) was agreed upon, and it was also agreed that if I determined that issue in favour of the applicant, the dispute would be referred to Medical Assessment with a deemed date of injury of 17 March 2020 to be noted, and with the body system to be assessed noted to be psychiatric and psychological disorders. It was further agreed that all documents in evidence before me would be referred to the Medical Assessor.
If I determined the issue for determination in favour of the respondent, it was agreed that I would enter an award for the respondent in relation to the applicant’s claim pursuant to s 66 of the 1987 Act.
As a preliminary matter, the applicant advised that she would be alleging that her psychological injury had arisen as a result of both interpersonal conflict (referred to in the ARD as “being bullied and harassed by the Supervisor and HR Management”) as well as issues involving overwork and inadequate staffing. While there was an argument that the applicant’s allegations in this regard had not been sufficiently particularised, the respondent confirmed that it was able to meet the allegations.
As a further preliminary matter, the respondent sought leave to cross-examine the applicant. She did not oppose leave being granted in this regard, and I determined to grant leave for her to be cross-examined in a limited fashion.
I should also note at this stage that it became apparent during the arbitration hearing that there was statement evidence being relied upon by the respondent that had not been signed. I therefore granted leave for the respondent to lodge an application to admit late documents prior to 12 December 2022, attaching signed copies of the relevant statements.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the respondent’s application to admit late documents dated 29 November 2022 (respondent’s first AALD) and attached documents (admitted with the consent of the applicant at the arbitration hearing), and
(d)    the respondent’s application to admit late documents dated 7 December 2022 (respondent’s second AALD) and attached documents (admitted in accordance with paragraph 13 above).

Oral evidence

As noted, brief oral evidence was given by the applicant at the arbitration hearing.

Applicant’s evidence

The applicant relies on two signed statements of hers. She provided the first statement (at page 1 of the ARD) to an investigator and she signed it on 1 June 2020.
She says that she commenced her employment with the respondent on 3 December 2004, and had not experienced anxiety or depression prior to then.
She began to suffer from depression when her mother died in 2016. A friend then committed suicide shortly afterwards, and her marriage also broke down shortly afterwards. She says however:
“Around that time I also started to feel very anxious at work when I was constantly faced with new casual workers who needed to be trained. I found I was under pressure at work and could not concentrate on getting my paperwork done.”
In relation to more recent events at work (which occurred in recent proximity to the signing of her statement on 1 June 2020), she advises:
“I feel like I am a resilient person but with what has happened through work recently it has really affected me. The way my employer has responded to me has made my condition much worse. I have been depressed in the past, but I have never felt suicidal before. Recent events at work have led me to seek support from acute mental health services.”
She describes her role with the respondent as a process worker and line leader, responsible for one of its production lines. Her supervisor was Christine Kazzi (Kazzi) and her manager was Geoff Biscaya (Biscaya).
She felt under pressure from management to achieve production targets. She was usually the line leader for a production line that needed to be running constantly. She managed up to seven workers on this line. She had worked extra hours in the six months prior to her signing her statement, and she often took her tea breaks and lunch breaks at later times.
She advises that the respondent employed a lot of casual workers, whom she needed to train “almost every other day”. There was significant turnover of staff in this regard, and she remembers advising Kazzi that she was “not coping with the turnover of staff”.
She says that in addition, she had difficulties obtaining enough supplies and products to be able to complete production tasks. They were supposed to be supplied by Denis, but his assistant (Zoran) was unreliable.
She was also required to undertake paperwork, as well as to check weights of products, the labelling of products, the caps that were on products, and so on.
The respondent had not undertaken any formal performance appraisals of her, but it had also not raised any issues regarding her work performance with her.
She then says that in around February or March 2020, her niece attempted suicide and she told Kazzi that she “was not coping with work”. She says:
“I also spoke to Tina who is in WHS. Tina asked me how I was. As I started talking to Tina I could see Christine was laughing at me and Tina told her she shouldn’t laugh, ‘Because karma is a real bitch’.”
She later asked Kazzi for some time off work, and Kazzi telephoned Muhammad Khayum (Khayum - from the respondent’s human resources department) when she asked Kazzi if she might lose her job as a result of taking time off work. She says:
“While I was talking to Muhammed I could see that Christine was smirking. I told Muhammed I need more time off as I was not coping. Mohammed told me I needed to go to the doctor and get a certificate and get myself sorted. As I had just had time off I left in tears fearing for my job and feeling worthless.”
She obtained a certificate of capacity, and returned to work to deliver it to Khayum but he “laughed in my face”. She says that she was in “total shock at his reaction”, and:
“The way Christine and Muhammed laughed at me when I told them about my anxiety depression was a form of bullying. Their inappropriate response to my situation was the substantial cause for the deterioration of my depression and anxiety.”
She also says:
“I was made to feel worthless. I have always been a hard worker. I was also made to feel that my future with the company was uncertain and I feel like my position is not secure. After working so hard for them for such a long time, I feel they have shown me no loyalty or support in return. I also blamed issues external to the workplace for my anxiety and depression. I didn’t realise the workload and the constant pressure to train casual staff were also taking a toll on my mental health.”
In her statement, the applicant also outlines a number of other examples of interpersonal conflict which she experienced while employed by the respondent:
(a)    fellow workers had commented upon her gay marriage in the past - she was once told that she would “burn in hell for my lifestyle”;
(b)    an Iraqi worker in the past had told her a lewd story and tried to assault her - when she reported his behaviour, her then manager told her to “piss off”;
(c)    Kazzi had in the past refused to allow her to go home when she was unwell;
(d)    at a toolbox meeting in the past, she wanted to ask a question and was told to wait until the end of the meeting - two other fellow workers however were allowed to ask their questions during the meeting;
(e)    about 12 years ago, she had a manager (Glenn) “who called all the workers dickheads, f*&kwits and useless”, and
(f)    there was an incident when Kazzi approved of a fellow worker (Millie) tipping waste from a suck bucket back into the header tank on the Mortein line, causing contamination.
The applicant says that her last day at work with the respondent was 17 March 2020 (when it seems the episode referred to at paragraph 27 occurred). She says that she then attended work on 20 March 2020 to provide her certificate of capacity to Khayum. Her symptoms at the time included sleeping difficulties, concentration difficulties, “feeling anxious all the time”, and her appetite being “all over the place”.
She attended her general practitioner, Dr Le, in order to obtain the certificate of capacity. He referred her to treatment with a psychologist and a psychiatrist (initially Dr Hoang, and then Dr Modem). He also increased her medication from her pre-existing need for Lexapro to her now requiring Effexor, Seroquel, Avanza and Valium.
She says that approximately two weeks prior to her providing her statement, she felt suicidal and was treated at Campbelltown Hospital.
She concludes by saying that she believes that:
“my injury has been caused by pressure at work and the reactions of managers at work, showing me no support and not allowing me time off when I needed it. In the past I have had incidents at work that I have tolerated and now when I need some time off they have made me feel worthless”.
“I agree that when my niece made an attempt on her life earlier this year I became depressed. However I thought I was doing the right thing by asking my employer to have some time off to deal with my depression. The way my supervisor Christine and the HR person Mohammed laughed in my face really tipped me over the edge and my depression and feelings of worthlessness have become overwhelming.”
The applicant provided a subsequent statement dated 25 July 2022 (at page 13 of the ARD).
She confirms that throughout 2019, she was overburdened with work, she was undermined at work, and issues which she raised at work were not dealt with. She requested leave in 2020 as she had “reached my threshold and I was not coping with stress and my workload”. She then describes how her supervisor “smirked and laughed at me” and then “further mocked me and disrespected me”. She also describes how the respondent’s human resources representative laughed when she handed him a certificate of capacity. She felt disrespected, betrayed, frustrated, angry, and worthless.
She describes her treatment since her earlier statement, consulting with a psychiatrist
(Dr Modem) and a psychologist (Jayne Cat), and being prescribed Effexor, Mirtazapine, Stilnox and Diazepam. She had also been treated on a number of occasions at Campbelltown Hospital for her mental health, including on 1 April 2022.
She describes obtaining work with Next Logistics around October 2020. Her niece is her supervisor. She says her mental health is affecting this work, which is erratic as a result. In 20 months of working there, she believes that she would only have worked for 10 months of that time at the most.
She also outlines her current symptoms as including being socially anxious and reclusive, lacking self-esteem and confidence, lacking motivation, lacking concentration, feeling inept, feeling nauseous, having sleeping difficulties, being irritable and intolerant, having feelings of hopelessness and worthlessness, as well as loss of interest. Her marriage has been affected, and she lacks intimacy. She restricts her driving, often skips meals, and does not perform household and domestic chores.
The applicant gave further evidence when she was cross-examined at the conciliation/arbitration on 5 December 2022. She then conceded that she was aware that it was important for her statement evidence to contain an accurate history, and for the histories that she provided to her treating doctors and to Dr Rastogi to also be accurate.
She conceded that she probably did not specifically advise her general practitioner about being overburdened and overwhelmed by her workload in late 2019 when she consulted with him about her anxiety, saying that she probably just told him that “I was stressed”.
She was questioned as to why Dr Rastogi had such a detailed history regarding her work stressors in 2019 when her general practitioner did not have such detail, and she maintained that she had provided a correct history to Dr Rastogi both in relation to those work stressors and in relation to her personal life.
She was then questioned about her employment with Next Logistics and taken through various pay records of hers in late 2020 and early 2021 (which revealed that she had worked 80 hours per fortnight on a number of occasions, as well as occasions when she had worked 65 hours in a fortnight, 71 hours in a fortnight, 50 hours in a fortnight, and 45 hours in a fortnight). It was put to her that she had downplayed the extent to which she was able to work for the company when she said that her employment with it had been erratic. She maintained that the hours that she worked depended upon what she could do, and it was “very regular” for her to turn up to work for 10 minutes and then go home.
In re-examination, the applicant advised that her niece is her supervisor at Next Logistics, and she also advised that her attendance at work for that company had got worse in the latter part of her employment with it.
The applicant relies upon a report from a qualified psychiatrist, Dr Rastogi, dated
15 February 2021. The report is at page 40 of the ARD.
Dr Rastogi takes a history from the applicant consistent with the history of her work stressors referred to in her statements. In relation to her previous psychiatric history, she notes:
“There is history of grief and adjustment symptoms in 2016 following the death of her mother and was commenced on an antidepressant that she has been taking on an ongoing basis till recent change in 2020 by her psychiatrist. She continued working in full time capacity despite having mood symptoms and maintained a good social life.”
On examination, the doctor records:
“She described her mood as being depressed and anxious. Her affect was reactive and agitated. She describes feeling worthless and hopeless. She still had anxiety and high avoidance. She was struck with betrayal, unresolved grievances and disappointment with loss of her career. She denied any suicidal ideation or psychotic symptoms. Her insight and judgment are intact.”
The doctor diagnoses the applicant as suffering a major depressive disorder. She had a previous psychiatric vulnerability but it was being treated adequately by medication and not impeding her functioning at work or otherwise. She reported a long history of intimidation, verbal abuse, denigration, lack of support, and dismissal in her employment, and as a result, she experienced acute anxiety symptoms which “culminated into a depressive episode given the unrealistic work load and pressure on her and she continued to persist for years till psychological breakdown and acute suicidal ideation needing crisis intervention”. The doctor opines:
“Her depression is attributed to unresolved grievances, constant discreditation by her employer, lack of support and unrealistic workload and perceived alienation. She developed aggravation of her depression with issues of trust, poor self-esteem and loss of confidence and tarnishment of her reputation by ongoing harassment by her employer following denial of grievances.”
“The nature of her employment and cumulative work stressors with
discrimination, associated ongoing bullying and lack of support and dismissal
by her employer has solely attributed to her incapacity to work in preinjury role
and work in modified duties. This is a substantial contributor to her
psychological condition as she has not had closure and her grievances are
still unresolved. Since the injury she has remained disadvantaged due to
functional limitations and psychological vulnerabilities now posing a barrier to
vocational options.”

The doctor advises that the applicant has a poor vocational prognosis, and requires substantial ongoing psychological treatment. The doctor assesses the applicant’s psychological whole person impairment at 22%.
The ARD contains three reports from the applicant’s treating psychiatrist, Dr Modem – reports dated 24 June 2020 (at page 53), 22 July 2020 (at page 56), and 2 September 2020 (at page 58). The ARD however does not contain the complete reports. Fortunately, the complete reports are available as part of the clinical notes from Mt Annan Medical Centre, which are attached to the respondent’s first AALD. The 24 June 2020 report is found at page 87, the 22 July 2020 report is found at page 74, and the 2 September 2020 report is found at page 70.
Dr Modem obtains a history including:
(a)    the applicant having an abusive supervisor at work in the past;
(b)    the applicant having another abusive supervisor in the past of Iraqi background;
(c)    the applicant being told that she would burn in hell for her lifestyle choices;
(d)    the applicant being threatened by a supervisor in the past;
(e)    the applicant being “laughed at in my face, shoulders shrugged at me” when she requested time off work from her supervisor;
(f)    the applicant being overruled when she raised concerns about contamination issues, and
(g)    the applicant being mocked by both her supervisor and her HR manager.
In relation to the applicant’s past psychiatric history, he only obtains information regarding the death of her mother leading to her being prescribed ongoing medication.
The doctor diagnoses the applicant as suffering from a major depressive disorder, as well as some symptoms of post-traumatic stress disorder. In both his first and second reports, he notes:
“There are ongoing psychosocial stressors from bullying and harassment at her workplace and the ruminations of which are complicating her recovery.”
In his first report, the doctor recommends ongoing medication, investigations, psychological therapy, and courses. He notes the applicant’s reports of poor sleep, reduced appetite, depressed mood, isolation, deteriorating self-care, lack of motivation and energy, poor attention and concentration, as well as “nightmares where she sees herself in an environment surrounded by people from work laughing at her”.
In his second report, the doctor notes that the applicant is sleeping better, but still depending on people, not eating properly, struggling with day-to-day activities, isolating and avoiding friends, “feeling down when she thinks about the future”, having thoughts of self-harm, as well as lacking in energy, motivation and concentration. The doctor notes:
“She said that she is feeling lost due to the issues at work. She feels that she has been robbed of herself.”
The doctor recommends similar treatment to that recommended in his first report.
In his third report, the doctor reports similar symptoms as he did in his second report, and he makes similar treatment recommendations. He does however note the applicant’s improved mood and that she was looking for work. She did not report further thoughts of hopelessness, worthlessness and helplessness, but she did report that she would not be returning to her old workplace as he quoted her as saying “I cannot go there; they have done enough to me”. She was still experiencing nightmares where she saw herself in an environment surrounded by people at work laughing at her.
The evidence in the ARD from the applicant’s general practitioner, Dr Le, consists of various certificates of capacity (from page 60) and his clinical notes between 20 March 2020 and
29 September 2020 (from page 91).
The certificates of capacity cover the period between 20 March 2020 and 10 October 2020, although there is no coverage in the certificates regarding the period between 29 August 2020 and 9 September 2020. The certificates all certify the applicant as having no current work capacity for any employment. The first certificate dated 20 March 2020 advises the following – “boss laughed at her when she told her about her situation/illness, causing her stress, worsening her anxiety/depression”. The second certificate dated 26 March 2020 then adds the following line – “HR laughed as well when she submitted Workcover form 20/3/20 ‘which made her feel worthless’, not taken seriously”. The remainder of the certificates include both lines. All the certificates refer to pre-existing anxiety and depression as a relevant factor in the applicant’s condition.
I have considered Dr Le’s clinical notes, and will refer to them in more detail if directed during the parties’ submissions. The histories taken on 20 March 2020, 25 March 2020, and 26 March 2020 are however worthy of note:
“Friday March 20 2020 10:31:55
Dr Hoang Tam Le
went to see boss on 17 /3 about her illness/job
told her about her niece commited suicide, boss laughed at her
told her about her stress/suicidal thoughts, she was laughed at
asked if her job was safe, she shrugged her shoulder
told HR, was told to sort things out and get back to work
rang CEO, no returned call
no one called her to ask how she is
feels stress, worsening her anxiety/depression
unable to sleep
does not want to get out of house/her room
no motivation
suicidal thoughts
worried about her job/finance
anxious/afraid to get back to work
no alcohol
not suicidal now
awaits for counselling next wk”
“Wednesday March 25 2020 14:13:56
Dr Hoang Tam Le
sb psychologist, will see again next wk for sleep discussion
pt handed in wc to HR, was laughed at
feels down,worthless,stays in the room whole time
took temaze during daytime to help sleep, and 2 nocte
valium 1 bd
crying at one stage
temaze discussed
no temaze during day time
no daytime sleep
takes 1 temaze nocte only
need to see psych as well”
“Thursday March 26 2020 12:46:59
Dr. Van Lang Nguyen
Seeing psychologist weekly,
Also seeing psychiatrist next week
Needs referral
lives with wife and kids
h/o anxiety and depression
Worse with problems at work
Not suicidal
Seen psychologist yesterday
Pt declines further referral
Advised f/u with ntd next week
States HR laughed at her last Fri worsening symptoms
Meds - lexapro, Avanza”
In the period covered by the clinical notes, symptoms are noted including anxiety, depression, weight gain, hand shaking, head shaking, sleeping difficulties, palpitations, reduced motivation, lethargy, and nightmares about going back to the same workplace. The notes also refer to a suicide attempt made by the applicant on 5 April 2020.
Finally, there are clinical notes in the ARD from Difference Health Group (from page 103) and from Acacia Wellbeing (from page 142).
At Difference Health Group, the applicant consulted with a psychologist, Jayne Cat. I have considered the clinical notes and will refer to them in more detail if directed during the parties’ submissions, however the following is worthy of note:
(a)    the applicant attended nine psychology sessions at the practice between
25 March 2020 and 26 August 2020;
(b)    the applicant was initially referred to the practice by Dr Le on 17 February 2020, with a history of “anxiety/agitation…sleep disturbance…stress at work/home…brother killed himself when she was 17…best friend’s husband killed himself in December 2019…her best friend killed herself three years ago”;
(c)    on a treatment request form to the respondent’s insurer dated 25 May 2020, Jayne Cat writes that one of the factors impacting upon the applicant’s treatment progress was that “the people who caused the client to be off work are not being retrained for sensitivity so as not to laugh when someone is struggling”, and
(d)    the practice’s initial assessment template (completed on 25 March 2020) for the applicant (while it is difficult to fully interpret the handwriting) does seem to confirm that the applicant had a three-year history of symptoms, and also seems to mention the applicant’s difficulty with casual employees at work, her history of being affected by deaths and suicides in her family, as well as her being laughed at by her manager.
At Acacia Wellbeing, the applicant consulted with Jodie Perkins. There are records of telephone consultations between 30 March 2020 and 1 September 2020. It is not however clear as to the qualifications of Jodie Perkins, except that she clearly discussed the applicant’s mental health with her. The practice seems to be a counselling and psychological service, which was initially asked to contact the applicant on 30 March 2020. I have considered the clinical notes from the practice and will refer to them in more detail if directed during the parties’ submissions.
While the unknown expertise of Jodie Perkins makes it difficult for me to give significant weight to her opinions, her initial consultation notes with the applicant on 7 April 2020 are relevant and report:
“Current:
- Michelle reported waking up early this morning and experiencing suicidal ideation.
- She stated she also woke up early on Sunday and experienced SI that lead her to park outside her son’s house, as she wanted to “say goodbye” to him, due to having thoughts of wanting to end her life.
- Michelle’s wife encouraged her to go to hospital to speak to the MH team on Sunday, who are now providing some support to Michelle over the phone (potentially in home?).
Hx:
- Michelle discussed being bullied at work and identifed this process made her feel “worthless”. JP validated and explored this more.
- Michelle discussed her Hx of loss including her niece’s recent attempt to end her life 3 weeks ago. She also discussed the loss of her Mo 3 yrs ago, a friend (who ended life by suicide), another friend she lost to bowel cancer and her friend’s husband to suicide. Michelle also lost her brother to suicide when she was younger. JP validated, discussed grief and loss and highlighted resilience and resources.
Tx: Lexapro, Advanza, Temazepam.”

Respondent’s evidence

The respondent relies upon statement evidence from Clemantina Nicolitsis (Nicolitsis). The signed statement (at page 24 of the Reply) is dated 20 May 2020 and was obtained by Procare. Nicolitsis is known as Tina and is the respondent’s quality and WHSE manager.
Nicolitsis first met the applicant in 2019 following “changes in management”. She says:
“Michelle was quite vocal about the changes in management. She would talk
about PACT taking over and the previous Site Manager. My response was to tell
her to keep talking to Christine and allow her to try and improve things.
Michelle didn't seem too concerned about any of the topics she raised. She
didn't make any formal complaints to me. If she had I would have discussed that
with her supervisor Christine.”
She also says there were no issues regarding the applicant’s work performance, which was good and had been rewarded.
In relation to the conversation between herself, the applicant, and Kazzi (described by the applicant at paragraph 26 above), she says that she cannot recall the exact conversation on 12 March 2020, but does recall the applicant saying “Christine probably thinks I am going crazy with all my personal issues”. She says the applicant was “smiling and quite jovial”, and she says that she did not observe Kazzi laughing. She did not witness any tension in the conversation. She also says the conversation occurred in a corridor as the applicant and Kazzi were exiting Kazzi’s office.
When asked about non-work factors which may have contributed to the applicant’s psychological condition, Nicolitsis advises that she was aware that the applicant’s niece had attempted suicide, and that the applicant’s brother had gone missing overseas.
Nicolitsis has also apparently prepared a chronology of events, which is found from page 62 of the Reply. The chronology has not however formally been adopted or signed by her, and I do not intend to place much weight upon the contents of it as a result. It would have been very simple for the chronology to be adopted by her when she signed her 20 May 2020 statement, but she did not do so. There are also parts of the chronology which were clearly completed by Kazzi, but which have not been adopted or signed by Kazzi either (in circumstances where she has also provided a signed statement).
Kazzi’s signed statement dated 29 June 2020 is found at page 1 of the respondent’s second AALD.
Kazzi became the applicant’s supervisor in February 2019. She describes the applicant as a generally cheerful person, and she advises that there were no issues regarding her work performance.
She does say however that the applicant was “quite vocal” at toolbox meetings arranged to discuss issues that had come up with the respondent’s policies and procedures.
In relation to the applicant’s need to train casual workers, she advises:
“We also use a labour hire firm and use their casual workers when needed.
Sometimes those workers have worked with us before and other times they
haven't. The new workers do need assistance with our processes. Jalco
permanent workers help them with that and I might sometimes assign the
casual worker to the line leader, which is sometimes Michelle.”
She denies that the applicant was put under any pressure from management to achieve production targets.
She confirms the issue raised by the applicant at paragraph 30(d) above, and says that following that toolbox meeting, she spoke to the person running the meeting to ensure that from then on questions at toolbox meetings would only be able to be asked at the end of the meetings.
She also confirms the issue raised by the applicant at paragraph 30(f) above, but says that she was advised by the respondent’s laboratory “that everything had been flushed and it was ok to use the suck bucket if it was clean”.
She does not recall the issue raised by the applicant at paragraph 30(c) above, but says that if the applicant had needed to go home early because she was sick, she would not have questioned the applicant and would have allowed the applicant to go home.
In relation to the incident on 12 March 2020, she says that she did not laugh at the applicant. She told the applicant to go home and keep her updated as to how much time she needed off work. She says:
“As we came out of my office we bumped into Tina, our WHS officer. Michelle commented to Tina that I probably thought she was crazy. That was not true and I did not laugh at her.”
She also says that the applicant telephoned her later on that day to advise that the applicant’s brother had been found. The applicant was laughing during that telephone call.
In relation to the incident on 17 March 2020 (described by the applicant at paragraph 27 above), she says that she was very supportive of and concerned about the applicant during the meeting and “told her to take time off as her health is more important than anything else”. She did not shrug her shoulders. She advises that:
“I put Michelle on speaker phone with Muhammad so she could speak to him. Muhammad gave Michelle advice on the phone and he suggested she get a certificate from her doctor and we can go from there. I was offering her support.”
Interestingly, when Kazzi’s statement was initially prepared (by an investigator from Procare) and before it was signed, the above quotation (see page 35 of the Reply) also contained the following:
“If I was smiling it was because I was talking to Muhammad, it was not in response to Michelle situation. I was offering her support.”
When asked about non-work factors which may have contributed to the applicant’s psychological condition, Kazzi mentions the applicant’s brother committing suicide when she was young, the passing away of the applicant’s mother, the applicant’s niece attempting suicide, and the applicant’s best friend’s husband committing suicide.
There is a signed statement from Khayum dated 14 May 2020 at page 8 of the respondent’s second AALD.
Khayum concedes that his contact with the applicant was minimal and that in relation to her “I have not been made aware of any conditions related to mental health until this current claim”. He could not comment regarding the applicant’s allegations about the inadequacy of casual staff, pressure from management to achieve production targets, or what occurred at toolbox meetings.
He says that a production coordinator (Jupta) had first raised concerns with him about the applicant’s mental wellness. He did not contact the applicant at the time, but gave Jupta details of the respondent’s employment assistance program to pass on to the applicant.
The applicant then telephoned him in March 2020 requesting time off work, and advising him about her niece’s suicide attempt and another family member of hers who had committed suicide. He provided the applicant with details of the respondent’s employment assistance program, and urged her to contact them. He spoke to Kazzi and went to the applicant’s worksite, where Jupta “advised me that Michelle had been agitated that morning and told him how stressed she was about her married life at present”. He confirmed with Jupta and Kazzi that the applicant needed to be offered help from the respondent’s employment assistance program. He then offers the observation:
“I understand Michelle would say different things to different staff members about her personal issues.”
He says that he convened a meeting with the applicant and her union organiser, Jeff Buhler (Buhler), on 24 March 2020 after being asked to do so by Buhler. He says:
“During that meeting Michelle looked very lost and angry. She talked about being with the business for 16 years and made it clear she was not happy with the current situation at work. She felt that no one had looked after her. She spoke about Christine making a face to her and making comments to her that made her feel stressed and upset. Jeff Buhler advised me they were not happy with the reports, but also they know Christine Kazzi well and said they would talk to Christine later.”
He says he was presented with a certificate of capacity during the meeting, and was asked by the applicant why he was laughing. He replied that he was not laughing. He says he later had a conversation with Buhler in which Buhler told him that he “didn’t believe I had smiled or laughed”. He says that he has worked in human resources for 35 years and “would not laugh at an employee, particularly one going through mental health issues”.
When asked about non-work factors which may have contributed to the applicant’s psychological condition, Khayum mentions issues with her current partner as well as her having family members who had committed or attempted suicide.
There is a signed statement from Biscaya dated 2 June 2020 at page 15 of the respondent’s second AALD.
Biscaya describes the applicant as “quite a vocal line leader” and advises:
“As for the claimant’s work performance, over the years there have been mixed commentary from times where Michelle has performed very well, particularly in the insecticide area and with hand sanitiser. She has been a line leader and managed the process well. There have been other times when she has been frustrated with other staff working around her, including permanent and casual workers. At times she has felt they were not quick enough or were not doing the right thing. Sometimes that has been true and on other occasions that has not been correct.”
“Christine will try and bring the same casual staff back to the site to minimize the need for training. There might be a small percentage who don’t work out. The training of those casual staff should not be too time consuming as their role is not difficult. It might involve putting caps on bottles or putting bottles on pallets.”
Biscaya denies pressure being applied from management for production targets to be achieved.
He says that in the past, the applicant has had time off work for family related issues, but more recently, he was contacted by Kazzi about the applicant “becoming emotional and anxious at work, related to what was occurring outside of work”. He had a meeting with the applicant and Kazzi, and recommended that the applicant use the respondent’s employment assistance program. He also advised the applicant that “she could take time off work if needed and not to worry about her job as that would be safe”.

He then refers to a meeting with the applicant and Buhler, at which the applicant spoke through some of her work concerns which her psychologist had told her that she should raise. It was agreed that she would continue with the counselling, and a further meeting would be arranged when “she was in a better frame of mind”. He says:
“I said to Michelle it was good to see that she was seeking some professional assistance with her family matters and anxiety issues.”
When asked about non-work factors which may have contributed to the applicant’s psychological condition, Biscaya mentions her niece attempting suicide and her brother disappearing overseas.
Finally, Biscaya advises that Kazzi “is very serious and caring with staff on site”, and Khayum is very experienced in his human resources role.
The Reply also contains:
(a)    a factual report from Procare dated 9 June 2020 (at page 1) - apart from the statements annexed to the report (which I have already discussed), the conclusions and summaries in the report are matters for myself to determine after my consideration of all of the evidence, and I therefore do not place weight upon those conclusions and summaries;
(b)    the applicant’s claim form dated 2 April 2020 (at page 53) - this document is incomplete as it does not attach the attachment referred to on page 5 of it, which necessarily affects the weight that I give to it – nevertheless, in the claim form, the applicant advises that she was injured “due to the work load that the company received, my work hours became greater, as I was putting the company first to get things done; I then have not taken care of my mental health and was still expected to work everyday and run a busy and fast growing team”, and she also provides Nicolitsis as a witness, advising “this person asked me how I was going and this is when the supervisor laughed”;
(c)    a record of conversation dated 3 June 2020 (at page 50) prepared and signed by Sally Johnston (the relevant Procare investigator), in relation to a conversation that she had with Buhler - in the record, Buhler is alleged to have advised Johnston “I did accompany Michelle to provide her Workcover Certificate to Muhammad; I did not observe him to laugh at Michelle; that might have been her perception” - again, I do not place much weight on this record as Buhler made it quite clear to Johnston that he did not wish to provide a statement and did not wish any record to be made of his interview with her – his alleged comment to her is undeniably hearsay evidence, and
(d)    a rehabilitation assessment report from Kairros dated 15 April 2020 (at page 78) - the report largely contains information and opinions regarding the applicant’s potential return to work and is therefore of limited relevance to the issue that I need to determine – however, the report does contain a history provided by the applicant that “she had several traumatic events occur in her personal life, over a period of 3-years which significantly impacted her mental health” - then, following her niece’s attempted suicide on 24 February 2020, she was “finding it difficult to focus and complete her work due to her stress and depressive symptoms” - she advised Kazzi , but during the conversation, Kazzi had a smirk on her face - she later had another conversation with Kazzi requesting time off work, and during this conversation Kazzi “again had a smirk on her face and shrugged her shoulders” - the applicant then reports that Khayum laughed when she provided him with her compensation claim papers.
The respondent relies upon medical evidence from Dr Blakemore. He initially assessed the applicant on 10 June 2020 and provided a report on that date, which is at page 91 of the Reply.
The history obtained by the doctor was broadly consistent with the statement evidence provided by the applicant. She mentions her stress in having to train casual staff, the supervisor who used to swear at “everyone”, her issues with her fellow worker of Iraqi descent, and her concern at the Mortein line being contaminated (an event which apparently occurred after the Christmas 2019 break). She tells the doctor that her work had been particularly stressful in 2020 and she needed a couple of days of sick leave. She then tells the doctor about her incidents with Kazzi smirking at her (when she requested more time off work) and Khayum laughing at her (when she handed a certificate of capacity to him). The doctor notes:
“She had been really stressed to start with, and became very distressed then at these
responses to her stressed state, Ms Harris said, it got her really down, she was really
worried about losing her job yet too stressed to go on.”
The doctor also notes that the incident with Khayum “seemed to spiral her down further”.
The doctor takes a history of the applicant’s distress when her mother passed away, but the applicant advises the doctor that she then recovered with treatment, was still going out, was not suicidal, and was “nothing like as depressed as she is now”.
The doctor also takes a history of the applicant’s brother committing suicide 35 years previously, however he takes an incorrect history of the applicant’s niece’s attempted suicide occurring after she submitted her compensation claim, rather than before it.
He notes that the applicant has been treated with psychological counselling and medication, but “remains seriously depressed”. She spent most of her time in bed, had no happiness or humour, had no appetite, and had suicidal thoughts. She told the doctor that “she dwells on them laughing at her, she could not see herself ever able to go back there again, after they laughed at her when she was so unwell”. During the doctor’s examination of her, she frequently returned to discussing the distress that she felt at being laughed at.
The doctor diagnoses the applicant with a major depressive disorder and opines:
“Their response, her apparently being laughed at, appears to have precipitated a serious psychiatric illness, or to have precipitated a worsening of a psychiatric condition which was already developing (leading her to have taken the sick leave).”
He finds no non—work factors involved in the applicant’s condition or any pre-existing condition of hers, and relying upon the history that she provided to him, he finds that she had been in a stressful job resulting in an accumulation of pressures. He concludes:
“The substantial or main contributing factor to the psychiatric condition appears to
have been the stresses of work, together with Ms Harris's perception that her seniors
did not care about her at all when she was very concerned about losing her job if she
took more time off, sick leave, due to work stress.”
He is not able to provide an accurate prognosis regarding the applicant’s condition, advising that she needs ongoing treatment, is not fit for work, and is “barely capable of looking after herself”.
A further report is then requested from Dr Blakemore by the respondent’s insurer. The doctor is provided with additional information, including the statement evidence (discussed above) provided by Nicolitsis, Kazzi, Khayum and Biscaya. The doctor is asked a number of questions and provides his report dated 15 July 2020 (which is at page 101 of the Reply).
The doctor now notes the distress that the applicant was feeling prior to her interactions with Kazzi and Khayum in March 2020, as a result of her brother going missing and her niece attempting suicide. He advises:
“While it is impossible to be certain, as Ms Harris was very unwell when I saw her and
quite vague, it is unlikely that the workplace events have been causative of her
psychiatric illness, the likelihood being that the personal events, the attempted
suicide of her niece and the brother going missing, have been the major causes.”
The doctor no longer believes the work factors mentioned in his earlier report “have been the whole and predominant cause of Ms Harris’s psychiatric illness”. He also opines:
“She appears to have been very unwell prior to the incidents of 17 March 2020 and so
needing to have to take time off work at any rate. It is unlikely that the perceived
attitude of her superiors then has been a whole or predominant cause of her
psychiatric illness.”
He does however note that those incidents (with Kazzi and Khayum in March 2020) appear to have “worsened, or, at least, not improved” the applicant’s condition, also opining:
“I understand from the above mentioned documentation that her supervisor and the
HR manager deny that they either acted or had spoken in any derogatory way to her,
the likelihood being that Ms Harris, who was already depressed enough to be unfit for
work, had been, as a result of her depressive illness, hyper sensitive to the perceived
attitude of her seniors with the perception or misperception, nonetheless, having the
result of making her feel very distressed, more distressed than she had previously
been.”
“Ms Harris's perception is that the attitude of her superiors worsened a depressive
illness which was already serious enough for her to need to go off work and when I
saw her she did not think she would ever be able to face returning to work in the
future for her present employers because of the perceived attitude of her superiors.”
The respondent’s first AALD contains documents that it obtained from:
(a)    Narellan Town Medical Centre (from page 1);
(b)    Mt Annan Medical Centre (where Dr Le practises)(from page 24), and
(c)    Next Logistics (from page 392).
I have considered this documentation and will refer to it in more detail if directed during the parties’ submissions.
I note however that the clinical notes from Narellan Town Medical Centre cover the applicant’s attendances there between 20 November 2017 and 12 April 2019. During that time, there are records of complaints about stress, anxiety, depression, and/or sleep disturbance on 6 March 2018, 4 May 2018, 3 August 2018, 22 September 2018,
14 December 2018, and 12 April 2019. There are no mentions of work stressors on those dates, and the only actions taken on those dates were the prescription of medication.
The clinical notes from Mt Annan Medical Centre cover the applicant’s attendances there between 11 December 2001 and 14 October 2022, a significantly longer period than the period covered by the notes from that practice that are attached to the ARD (see paragraphs 58-59 above).
It is difficult to decipher the handwritten clinical notes prior to 25 March 2011, but since then:
(a)    the notes refer to treatment for “stress” without any further history - on
5 March 2013, 31 August 2015, 14 October 2015, and 22 December 2015;
(b)    the notes refer to treatment for “stress at home and work, not depressed” - on
15 January 2016;
(c)    from 25 August 2016, the notes refer to treatment in relation to the applicant’s mother’s death - she was prescribed medication;
(d)    on 17 January 2017, the notes mention stress from the applicant looking after her father-in-law and from a good friend of the applicant’s committing suicide during the previous week – she was prescribed medication, a mental health plan was developed, and she was referred to a psychologist;
(e)    the notes do not mention consultations for psychological issues (except for the prescription of medication) between 17 January 2017 and 2 August 2017, when stress related to the applicant’s marriage breakup is first mentioned - the marriage breakup is also mentioned in the notes on 18 September 2017;
(f)    on 11 February 2018, the notes refer to “a lot of stressful things happening in her life”;
(g)    the notes refer to consultations on 22 March 2018, 15 May 2018, and
24 June 2018 for psychological issues;
(h)    the notes on 10 October 2018 record:
“Dr Mai Nguyen
Under severe stress
Had to look after father in law with Alzheimer's disease last year
Good friend committed suicide at 66 last yr
H/o brother committed suicide at 22
Mum passed away 2 yrs ago from cancer
Been thinking about bad memmories of same
Felt bad that could not stop friend fr committing suicide
Walked out of marriage to a new female partner last 1.5 yrs
Feel guilty about decission as ex husband is kind and loving
He is struggling to cope with same and not eating causing excess loss of weight
Pt feel increased anxious
Reduce sleep with EMW
Not suicidal
On Endep 100mg daily
Not keen to change med”;
(i)    the notes on 24 December 2018 record the applicant as suffering “less stress”, although she was “still working long hours to meet all financial needs”, and
(j)    however, the notes then refer to consultations on 7 January 2019,
18 February 2019, 7 March 2019, 25 March 2019, 10 May 2019, 3 June 2019,
15 July 2019, 29 July 2019, 2 August 2019, 13 August 2019, 28 August 2019,
1 October 2019, 20 October 2019, 4 November 2019, 22 December 2019,
20 January 2020, 21 January 2020, 17 February 2020, 26February 2020, and
11 March 2020 - all of these consultations relate to psychological treatment for the applicant, and the notes do not mention any work stressors involved (except on 10 May 2019 and on 17 February 2020, when “stress at home/work” is mentioned) - the notes otherwise variously mention the stressors being “general life stressors”, “stressful life factors”, the death of the applicant’s mother, the death of the applicant’s best friend, the suicide of the applicant’s brother when she was young, the breakup of the applicant’s marriage, the applicant having to care for her father-in-law, a ghost being in the applicant’s house, the suicide of the applicant’s best friend’s husband in December 2019, and the applicant’s niece attempting suicide.
The clinical notes also refer to the applicant’s ongoing treatment for her psychological condition, which involves regular consultations, mainly for the prescription of medication.
Further, and of relevance, the clinical notes contain:
(a) a handwritten response from Dr Le to a questionnaire sent to him by the respondent’s insurer on 26 March 2020 - in which, the doctor:
(i)acknowledges that the applicant had pre-existing anxiety and depression, but opines that “the event happened at work made it worse”;
(ii)advises that the event that led to the applicant’s current condition was that she was “under stress when her personal life was laughed at by HR/boss”;
(iii)advises that the applicant’s symptoms included stress, an inability to sleep, lack of motivation, withdrawal from social contact, and suicidal thoughts, and
(iv)opines that work was the main contributing factor to the applicant’s current presentation, and
(b) reports from Dr Modem dated 23 June 2021, 4 August 2021, 13 October 2021, 23 February 2022, 4 May 2022, 25 July 2022, and 5 September 2022 - these reports refer to the applicant’s ongoing psychological symptoms (in relation to which the doctor continues to consider that she meets the criteria for a diagnosis of major depressive disorder with symptoms of post-traumatic stress disorder) and the doctor’s management plan for those symptoms - the most recent report refers to the applicant continuing to experience nightmares and flashbacks in relation to the supervisor who yelled at her constantly, the fellow worker who tried to assault her, and people from work laughing at her.
In relation to the documentation from Next Logistics, there is a useful chronology of the fortnightly hours worked by the applicant since 12 October 2020 (from page 427 of the respondent’s first AALD). In my opinion the chronology clearly demonstrates that over time, the applicant has on average significantly decreased the employment hours that she has worked with the company. Apart from during the fortnight ending 19 June 2022, she has not worked more than 37 hours in a fortnight since 2 February 2022. Importantly, the company also sent an email to the respondent’s solicitors on 29 September 2022, in which its CEO (Chris Dobson) advised when questioned about the applicant’s promotional opportunities with the company – “not with her attendance issues and personal challenges”.

Applicant’s submissions

The applicant’s submissions have been recorded and I will not summarise them in detail.
The applicant addresses her statement evidence (especially the statement which she signed on 1 June 2020) and points out that the evidence was contemporaneous, and should be accepted.
In relation to her employment with Next Logistics, she concedes that she initially worked upwards of 70 hours per fortnight in that employment, but submits that her employment hours fell away remarkably during 2022. She submits that her erratic employment hours were tolerated by the company because her niece was her supervisor there.
In relation to the statement evidence of Nicolitsis, the applicant submits that Nicolitsis concedes that she did not have a ‘hands-on’ role in relation to the applicant. Nevertheless, the statement does (see paragraph 65 above) highlight issues that the applicant had with work and that she had raised there appropriately.
In relation to the statement evidence of Kazzi, the applicant submits:
(a)    she confirms (as contended by the applicant) that the respondent used casual employees who needed assistance from people like the applicant - see paragraph 73 above;
(b)    she confirms that the applicant’s questions were ignored during the course of a toolbox meeting, and she also confirms the disagreement that she had with the applicant in relation to the possible contamination of the respondent’s Mortein line – see paragraphs 75 and 76 above, and
(c)    in her unsigned statement, she concedes that she could have been smiling during her meeting with the applicant on 17 March 2020 - see paragraph 79 above.
In relation to the statement evidence of Khayum, the applicant also submits that he was not significantly involved in her management.
In relation to the statement evidence of Biscaya, the applicant submits that he supports her difficulties in dealing with casual workers - see paragraph 89 above.
The applicant also submits that the denials in the statement evidence relied upon by the respondent as to pressure being placed upon the applicant to meet production targets are not credible. The respondent must have had production targets, and it is hence easy to accept that difficulties with unskilled workers would necessarily put pressure on line managers to meet those targets.
The applicant then refers to the statement evidence relied upon by the respondent as a whole, and notes that there is universal agreement that there were no work performance issues with her. She was a valuable worker who had been rewarded. This needs to be considered in the context that prior to 17 March 2020, despite seeking treatment for stress and anxiety, she had maintained her work performance with the respondent, demonstrating her commitment to her work.
In relation to the medical evidence, the applicant submits that Dr Modem and Acacia Wellbeing both refer to the applicant’s work stressors (and especially her meetings with Kazzi and Khayum) in their treatment records and reports. Dr Rastogi’s report “speaks for itself”, the doctor having taken a history of the applicant’s psychological vulnerability but still supporting the relationship between her work stressors and her current condition. The applicant submits that “this must be the case” as she was functioning well until March 2020.
The applicant notes that Dr Blakemore’s initial report supported her compensation claim, and submits that even his second report supports the proposition that work stressors caused an aggravation of a psychological condition in March 2020. The applicant also points out that the doctor has not taken into account issues raised by the applicant with regard to staffing, overwork, target issues, and other issues such as the disagreement between Kazzi and her over possible contamination of the respondent’s Mortein line.

Respondent’s submissions

The respondent’s submissions have been recorded and I will not summarise them in detail.

The respondent submits that the success of the applicant’s claim depends upon acceptance of the opinions of Drs Modem and Rastogi, but argues that those opinions do not have a proper foundation when the clinical records of the applicant’s general practitioner and the issues in her private life are considered.
The respondent submits that the applicant has undertaken a “post-facto reconstruction” prior to consulting with Drs Modem and Rastogi by looking back and seeing the work incidents with Kazzi and Khayum on and after 17 March 2020 as the precipitating factors in her condition, in circumstances where the factors that she had been consulting her general practitioner about for some time were then subsumed.
The respondent refers to the applicant’s claim form dated 2 April 2020 and especially the description of injury referred to in the form (see paragraph 95(b) above), and submits that what the applicant is really saying is that “work has not allowed me to get my head right as far as issues in my personal life”.
The respondent then refers to the clinical notes of the applicant’s general practitioner (see paragraph 111 above) and submits that a close examination of the histories in those notes reveals that the applicant was not coping prior to 17 March 2020 and that there is no mention of any work issues as being responsible in this regard.
The respondent submits that there are no contemporaneous records in relation to work issues in the treating medical material.
The respondent submits that considering the clinical notes of the applicant’s general practitioner, Dr Rastogi needed to obtain a much more comprehensive history than she did of the applicant’s symptoms prior to 17 March 2020. That is a significant weakness with her report. Further, the history that she took in relation to the applicant’s employment with Next Logistics does not correlate with the pay records produced by that company in relation to the date when she examined the applicant.
The “tipping point of the case” is that if the Commission cannot accept the history provided by the applicant to Dr Rastogi, it also should not accept the applicant’s evidence as to what occurred at work and the genesis for her psychological condition.
I then raised with the respondent why the applicant’s incidents with Kazzi and Khayum on and after 17 March 2020 would not constitute an aggravation of a pre-existing psychological condition of hers. The respondent conceded that it “may have a problem” if that was the way that the applicant had advanced her case. However, both Drs Modem and Rastogi opined that the applicant’s condition was “effectively 100% caused by work”. The respondent argues there is no medical evidence to support an aggravation of a pre-existing condition as a result of the alleged relevant incidents with Kazzi and Khayum.

Applicant’s submissions in reply

In reply, the applicant submits:
(a)    Dr Rastogi does have “enough” evidence of the applicant’s psychological treatment prior to March 2020 in order to provide a reliable opinion regarding causation of the applicant’s psychological condition;
(b)    If Dr Rastogi’s report is carefully examined, she does support the proposition that the applicant’s psychological condition was aggravated by work stressors – see the quotations from her report at paragraph 48 above – her opinion as to work stressors being solely responsible relates to a question posed specifically as to the applicant’s incapacity, and not to her condition in general;
(c)    in any case, Dr Blakemore supports the proposition that there was an aggravation of the applicant’s psychological condition following her incidents with Kazzi and Khayum on and after 17 March 2020, and
(d)    there is plenty of contemporaneous evidence (both medical and otherwise) regarding the applicant’s complaints of being laughed at by Kazzi on
17 March 2020, and then later being laughed at by Khayum.

FINDINGS AND REASONS

Did the applicant sustain a psychological injury (either the contraction of, or the aggravation, acceleration, exacerbation, or deterioration of a disease) in accordance with
s 4 of the 1987 Act, to which her employment with the respondent was the main contributing factor to the contraction of, or to the aggravation, acceleration, exacerbation, or deterioration of that disease

“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) 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.”
It is apparent from the clinical notes produced by the practice where the applicant had been treated by general practitioners since 11 December 2001, that she had had significant psychological treatment prior to March 2020. However, the notes do not refer to any significant time being taken off work in this regard. I accept that the applicant had a strong work ethic, which in my opinion is supported by the respondent’s statement evidence as to the lack of any significant performance issues with her, in circumstances where she worked for the respondent for over 15 years.
Whilst the applicant complains (particularly in her statement evidence - see paragraphs 21-24 and 30 above) of various stressors arising from the workplace prior to March 2020, those stressors are not specifically mentioned in the general practitioner’s clinical notes, there only being vague references to work stress in those notes on 15 January 2016, 10 May 2019, and 17 February 2020.
In contrast, the clinical notes specifically mention a number of unfortunate personal events which have occurred in the applicant’s life (see paragraph 111(j) above), commencing with the death of her mother in 2016. The applicant had been taking anti-depressant medication since the death of her mother.
Although the clinical notes do not provide a specific diagnosis for the applicant’s psychological condition prior to March 2020 (other than “anxiety”, “stress”, and “depression”), the degree of medication prescribed to the applicant and her regular attendance for consultations point to there being a significant condition.
On the evidence in the clinical notes, that significant condition could not be argued to be due to work in anything other than a very minor degree.
I believe therefore that the question for me is whether the condition was aggravated by the events which occurred in March 2020 between the applicant, Kazzi, and Khayum.
In relation to the conversation which took place between the applicant, Kazzi and Nicolitsis, when the applicant alleges that Kazzi was laughing at her (see paragraph 26 above), the applicant has a specific recollection as to what Nicolitsis said following the laughing. She is consistent in her statement evidence and her report in her 2 April 2020 claim form in this regard that the words used were “karma is a real bitch”. For the applicant to remember such specific words, they must have been significant to her.
Although Kazzi denies laughing at her (see paragraph 78 above), Nicolitsis (see paragraph 67 above) cannot remember the precise conversation but suggests it was a jovial conversation.
The conversation was a real event which took place, and one that clearly etched itself into the applicant’s memory. While Kazzi might not have intended any offence, in the context of a jovial conversation, I am willing to accept the applicant’s evidence that she laughed.
In relation to Kazzi smirking while the applicant was talking to Khayum on the telephone on 17 March 2020 (see paragraph 27 above), I refer to my discussion regarding the statement evidence of Kazzi at paragraph 79 above. In her signed statement, Kazzi does not deny smirking, and in her unsigned statement, Kazzi says that if she was smirking, it was because she was talking to Khayum.
I find the evidence of Kazzi to be unsatisfactory in this regard, and I therefore accept the unchallenged evidence of the applicant that Kazzi was smirking.
In relation to Khayum laughing at the applicant when she provided him with her certificate of capacity (see paragraph 28 above), I note that Khayum (see paragraph 86 above) denies laughing, although he does concede that the applicant accused him of laughing at the time when she provided him with the certificate and he had to defend himself immediately.
This is contemporaneous evidence from Khayum that whether he was actually laughing or not, the applicant immediately perceived that he was and challenged him. The applicant’s perception in this regard is also alluded to in the record of the conversation between the Procare investigator and Buhler (see paragraph 95(c) above), evidence that I would not give much weight to otherwise.
The meeting between the applicant, Khayum, and Buhler in this regard was a real or actual event which took place, and at which the applicant perceived a hostile working environment from Khayum. An injury which resulted is compensable – see State Transit Authority of New South Wales v Chemler [2007] NSWCA 249.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (K), Roche DP discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
Applying these conclusions, I find that real events occurred between the applicant, Kazzi, and Khayum in March 2020 which affected her psyche.
In relation to whether these events aggravated what I have found to be a pre-existing psychological condition of the applicant’s, the respondent makes two submissions that are not supported by the evidence.
First, the respondent submits that there are no contemporaneous medical records in relation to the March 2020 events.
I have already given significance to the applicant’s general practitioner’s clinical notes in relation to her pre-existing psychological condition. I intend to also of course give significance to those clinical notes in relation to the March 2020 events, especially as the relevant practice has been treating the applicant for over 20 years. Although Dr Le has not been treating the applicant at the practice for this whole period, he is still certainly in the best position (having access to the entire clinical notes as well as his own history of treating the applicant for her pre-existing condition) to opine regarding the effects of the March 2020 events upon her psyche.
His clinical notes on 20 March 2020, 25 March 2020, and 26 March 2020 (as reproduced at paragraph 58 above) are about as contemporaneous as possible, and they describe a worsening in the applicant’s psychological condition (characterised by symptoms such as an inability to sleep, a lack of motivation, a desire not to leave the house, and suicidal thoughts) due to being laughed at by Kazzi and Khayum.
Dr Le also provides consistent certificates of capacity (see paragraph 57 above) advising as to the “worsening” of the applicant’s “anxiety/depression” as a result of being laughed at at work. The first certificate of capacity is dated 20 March 2020.
Dr Le further provides a questionnaire response to the respondent’s insurer (see paragraph 113(a) above) on 26 March 2020 in which he acknowledges the applicant’s pre-existing anxiety and depression, and opines that it has been made worse due to being laughed at by Kazzi and Khayum.
Apart from the evidence from Dr Le, there is also the following contemporaneous evidence regarding the effects of the March 2020 events upon the applicant’s psyche:
(a)    the history provided in her 1 June 2020 statement – provided under three months after those events;
(b)    the history which she provided to Dr Modem - provided just over three months after those events;
(c)    she was treated at Difference Health Group - its notes (see paragraph 61 above) include an initial assessment template on 25 March 2020 that refers to the applicant being laughed at by her manager;
(d)    she was treated at Acacia Wellbeing from 7 April 2020 - its notes on that date (see paragraph 63 above) refer to both the applicant being bullied at work as well as personal matters, and
(e)    the history which she provided to Kairros prior to 15 April 2020 (see paragraph 95(d) above) - which is entirely consistent with the proposition that she had a significant pre-existing psychological condition which was aggravated by Kazzi and Khayum smirking and/or laughing at her in March 2020.
The respondent submits that the applicant undertook a “post-facto reconstruction” (see paragraph 128 above) in order to ascertain the cause of her psychological distress from 2020, but this submission is not made out when one considers all of the above evidence showing contemporaneous complaints of being laughed at at work and showing the subsequent need for treatment in this regard.
The respondent also notes that the applicant’s 2 April 2020 claim form does not seem to refer to the incidents with Kazzi and Khayum on and after 17 March 2020, but as noted at paragraph 95(b) above, the claim form produced in the Reply is incomplete, and therefore unreliable.
Second, the respondent submits that there is no medical evidence suggesting an aggravation to the applicant’s pre-existing psychological condition as a result of the
March 2020 events – it submits that the medical evidence from Drs Rastogi and Modem suggest that work stressors were the cause rather than an aggravating factor in the condition.
While Dr Modem may not have obtained a detailed history regarding the applicant’s pre-existing psychological condition, his opinion is important as he is the applicant’s treating psychiatrist, and he emphasises in an ongoing manner in his reports the applicant’s nightmares and flashbacks which largely involve people from work laughing at her. This is an ongoing symptom, which is found of significance by the doctor, and which I also regard as significant. It suggests that the events in March 2020 still affect the applicant’s psyche.
While Dr Rastogi did not have access to the clinical records of the applicant’s general practitioner, she did obtain a history of the applicant’s pre-existing psychological condition (see paragraph 46 above) submitted by the applicant to be “enough”.
It would have been preferable for the doctor to consider the clinical notes, and the fact that she has not does affect the weight to be given to her report. However, she still obtains a history that the applicant had been taking anti-depressant medication for non—work stressors since 2016, and importantly indicates that the applicant was nevertheless continuing to work and maintaining a good social life. This history is consistent with the evidence, although it is not as detailed as it could be if the doctor had considered the relevant clinical notes.
As pointed out during the applicant’s submissions in reply, I agree that the quotations from the doctor referred to in paragraph 48 above support the propositions that:
(a) the applicant “developed aggravation of her depression” as a result of work stressors, and
(b) it was the applicant’s incapacity after March 2020 (rather than her condition per se) which the doctor determined to be solely related to work stressors.
The most significant medical evidence supporting an aggravation of the applicant’s pre-existing psychological condition as a result of the events in March 2020, comes again from the applicant’s general practitioner, Dr Lee, as well as in my opinion from Dr Blakemore.
Dr Le was fully aware of the applicant’s pre-existing condition and states categorically that it was made worse by the March 2020 events. As previously indicated, I intend to place significant weight upon his opinions.
In relation to Dr Blakemore, his second report is instructive. He does not believe that the March 2020 events were the “whole or predominant cause” of the applicant’s psychiatric illness. The major causes of the illness have been various life events of the applicant’s.
However, he does accept (see paragraph 107 above) both that the March 2020 events made the applicant feel “more distressed than she had previously been” and that “the attitude of her superiors worsened a depressive illness”.
Therefore, while Dr Blakemore does not support a claim that the applicant’s psychological injury was contracted or caused by work events, in my opinion he does support a claim that her psychological injury was aggravated by work events.
Considering all the medical evidence as a whole, I am satisfied that the applicant’s pre-existing psychological condition was aggravated in March 2020 as a result of her incidents with Kazzi and Khayum then.
I next need to consider whether, pursuant to s 4(b)(ii) of the 1987 Act, employment was the main contributing factor to the aggravation of the applicant’s psychological condition. It is only the aggravation of the condition to which employment needs to be the main contributing factor, rather than the condition as a whole.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

In considering the causal factors to the aggravation of the applicant’s psychological condition in March 2020, apart from the work-related factors at that time (the applicant’s incidents with Kazzi and Khayum), the only other factors referred to in the evidence are the applicant’s niece attempting suicide and the applicant’s brother going missing.
While these factors may have been influential in the applicant consulting with Kazzi on
17 March 2020 in order to seek time off work, I find that they were overwhelmed as causal factors in the relevant aggravation of the applicant’s pre-existing psychological condition following the applicant’s interactions with Kazzi on that date, and with Khayum afterwards.
I find that following that initial aggravation, her (as Dr Rastogi puts it) “long history of intimidation, verbal abuse, denigration, lack of support, and dismissal in her employment” became apparent to her, so that she concentrated upon those issues as well as the events which occurred in March 2020 at work, when she consulted with Drs Modem and Rastogi.
There is in fact very little medical evidence to suggest that the aggravation of the applicant’s pre-existing psychological condition from 17 March 2020 was due to the attempted suicide of her niece or her brother going missing. Neither Dr Modem nor Dr Rastogi mention those factors at all, presumably because the applicant did not advise the doctors in that regard.
Dr Blakemore initially did not obtain a history in relation to the applicant’s brother going missing, and obtained an incorrect history that the applicant’s niece’s attempted suicide occurred after 17 March 2020. He then corrects this history in his second report and provides the opinion referred to at paragraph 105 above. However again, the doctor is providing opinions regarding causation of her “psychiatric illness” per se, rather than opinions regarding causation of the aggravation of that illness on and after 17 March 2020.
I therefore again rely mainly upon the medical evidence from Dr Le. His clinical notes do not refer to the brother going missing, but he was aware of the applicant’s niece’s attempted suicide (which is mentioned on 11 March 2020 and 17 March 2020). With this knowledge, he still provides the opinions referred to at paragraphs 156-158 above. In his opinion, the event which made the applicant’s pre-existing anxiety and depression worse from 17 March 2020 was when the applicant’s personal life was laughed at by Kazzi. There is no mention of the applicant’s niece’s attempted suicide either in his certificates of capacity or in his questionnaire response to the respondent’s insurer.
It is also important to consider the progression of the applicant’s psychological condition since March 2020. The incidents with Kazzi and Khayum when the applicant was laughed at, continue to haunt her (according to both her evidence and the medical evidence from
Dr Modem regarding his current treatment of her). Dr Le also only mentioned those incidents when he provided certificates of capacity covering the period between 20 March 2020 and
10 October 2020. There does not appear to be any ongoing mention of the applicant’s niece’s attempted suicide (that is referred to in the treating medical evidence relied upon by the applicant) after 17 March 2020.
Finally, it is important to note that in relation to the applicant’s brother going missing, Kazzi refers in her statement (see paragraph 78 above) to the fact that he was found on
12 March 2020, prior to the events which occurred on and after 17 March 2020.
In summary, although the medical evidence presented could be more detailed and accurate, when it is considered in its entirety (with significant weight being given to Dr Le’s opinions), I am comfortably satisfied that employment events (being the incidents when Kazzi and Khayum laughed at and/or smirked at the applicant on and after 17 March 2020) were the main contributing factor in the aggravation of the applicant’s pre-existing psychological condition. In weighing up the competing causative factors referred to in AV, I cannot find any convincing evidence of non-work factors at the time when the aggravation occurred.

SUMMARY

I therefore find that the applicant sustained a ‘disease’ injury (being the aggravation, acceleration, exacerbation or deterioration in the course of her employment of her major depressive disorder), pursuant to s 4(b)(ii) of the 1987 Act, in relation to which her employment with the respondent was the main contributing factor to that aggravation, acceleration, exacerbation or deterioration. The injury will be deemed to have occurred on
17 March 2020 (that being the date agreed upon between the parties).
In accordance with the agreement between the parties (see paragraph 9 above), the dispute will now be remitted to the President for referral to a Medical Assessor, in order that the applicant’s whole person impairment from the injury that I have found is assessed. All the evidence that I have considered (see paragraph 14 above) will be provided to the Medical Assessor.

[2023] NSWPIC 18

17 January 2023