Hell v Parks Victoria
[2022] VMC 1
•21 January 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT BALLARAT
WORKCOVER DIVISION OF COURT
Case No. L10524088
| Linda HELL | Plaintiff |
| v | |
| PARKS VICTORIA | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Ballarat (via WebEx) |
DATE OF HEARING: | 22 & 23 November 2021 |
DATE OF DECISION: | 21 January 2022 |
CASE MAY BE CITED AS: | Hell v Parks Victoria |
MEDIUM NEUTRAL CITATION: | [2022] VMC 1 |
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CATCHWORDS – Workers compensation – Rejection of claim – Mental injury – Complaints by an executive assistant of bullying by manager – Whether injury arose out of or in the course of employment - Capacity for pre—injury employment – Whether capacity for pre-injury employment with an alternative employer - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss. 39(1), 40 (1).
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Ms S Bailey | Gordon Legal |
For the Defendant | Ms M Tsikaris | IDP Lawyers |
HER HONOUR:
INTRODUCTION AND OVERVIEW
1 From 1 February 2018, Ms Linda Hell was employed by Parks Victoria (‘Parks’) as an executive assistant to a regional director. By statement of claim dated 28 February 2020, she claimed relief for psychological injury in the course of employment as a consequence of being bullied, criticised and poorly treated by her direct supervisor.
2 Ms Hell’s claim was brought under the Workplace Injury Compensation and Rehabilitation Act 2013 (Vic) ‘the Act’. Her WorkCover claim dated 17 October 2019 was rejected by notice dated 14 November 2019.
3 In its amended defence of 19 March 2021, Parks denied there had been any work-related injury. Further if there was such an injury, Ms Hell either had capacity for her pre-injury employment by August 2020 or, even before that, had capacity for her pre-injury employment with an alternative employer in accordance with the principles set out in Kerridge v Monsfelt Pty Ltd[1].
EVIDENCE OF THE PLAINTIFF
Background
[1] [2009] VCC 154
4 Ms Hell, aged 57 years, completed Year 11 and TAFE courses in business administration. She had worked in a variety of administration roles including temporary assignments. For over 25 years, she had operated a small data-programming business compiling databases for small business.
Employment with Parks
5 In April 2017, Ms Hell was placed (via an agency) with Parks on a temporary part-time assignment as a project administrator. Then from about September 2017, also with Parks, she was assigned to a concurrent part-time role as an executive assistant (‘EA’) to Ms Sally Lewis, West Region regional director.
6 From 1 February 2018, Ms Hell became a permanent, direct employee of Parks in the role of EA to Ms Lewis following an interview process. At the time, an issue arose as to salary classification level (whether the role of level 3 or level 4, a salary difference about $15,000). Ms Lewis assured Ms Hell that she should give it time and she would move her up when she could.
7 Initially, things were ‘fantastic’ and the professional relationship between Ms Hell and Ms Lewis was ‘awesome’. Ms Lewis told Ms Hell she was thrilled with Ms Hell and her ideas.
8 There was no formal induction although she received some support from another EA who worked for Ms Lewis’ boss. It was her first time in a public sector role of this kind, and it was very different to other roles she had done. She was learning ‘on the go’, but she always felt competent and confident about addressing anything that was wrong.
9 The position, which was very busy, involved managing incoming and outgoing correspondence including voluminous email communications. Ms Hell had to manage Ms Lewis’ email inbox which received about 200 emails a day and she herself would receive about 50 emails a day. Additionally, Ms Hell was expected to provide support to another Parks manager.
10 As time went on, Ms Hell began to feel like she could not cope with the amount of work and the demands on her. She asked to work from home one day per week so that people in the office weren’t making extra demands of her. Ms Lewis approved that.
11 In cross-examination, she said she performed all her usual tasks when she worked at home as she could log into the system, respond to emails, and take phone calls
12 Ms Lewis began giving Ms Hell feedback about missing things and not understanding departmental delegations and responsibilities. Increasingly, Ms Hell felt she was being criticised, badgered and micro-managed by Ms Lewis. An example was picking her up for not having sent an email although Ms Hell had tried to set up systems to manage this more effectively. The criticisms were not consistent or predictable – what could be OK today might be a problem next week.
13 She felt unable to talk to Ms Lewis about needing help. There was a lack of regular communication. For example, Ms Lewis had regular one on one meetings with all her staff but not with Ms Hell.
14 In about June or July of 2018, Ms Hell began thinking about applying for other roles and did apply for a role with another department. The reason was that she no longer felt comfortable in the role. She felt like she was struggling mentally.
15 In cross-examination Ms Hell agreed that she was enjoying work and getting on well with Ms Lewis until at least mid-2018. She conceded that the other role that she applied for was a level 4 role. She was questioned about why she had applied for a level 4 role if she was still happy with Ms Lewis at that stage. She said she was already starting to see Sally Lewis in a different light and there were changes in how Ms Lewis was speaking with her. She said she was more upset than annoyed about the position with Ms Lewis was Level 3 rather than level 4.
16 In about August 2018, Ms Hell was berated by Ms Lewis in a meeting in front of six other people. This was for using an abbreviation (‘tel’ instead of ‘telephone’) in Ministerial correspondence. One of the duties of the EA role was to look after correspondence known as the ‘Ministerial letters’. If a member of the public wrote to the Minister for Parks about an issue in the region’s parks, the letter would be referred to Ms Lewis’s office and Ms Hell had to draft a response by Ms Lewis.
17 In the same meeting, Ms Lewis directed her to sit in the corner of the room and not at the table. Previously, she had always sat at the table with the rest of the team.
18 After this meeting, Ms Hell felt angry and despondent. She had never been put in a position like that before and did not know how to react.
19 In about late August 2018, at another meeting event in Colac, Ms Hell was carrying a pile of plates over to a table to put them down. As she passed by Ms Lewis, Ms Lewis gave her a physical ‘backhander’ on her left shoulder or arm and told her to be quiet (‘the backhander incident’).
20 Ms Hell had reacted to this event with ‘a million emotions’. She was shocked and upset that anyone would do that. She felt angry and stunned. She had never been hit in a workplace setting like that. Other people were around but she did not believe anyone saw this occur.
21 On 7 September 2018, after a week passed by without Ms Lewis saying anything about the backhander incident, Ms Hell sent her an email with the subject-line, ‘I wish to bring something to your attention’. After stating that the incident had caused her some discomfort, she wrote:
‘…I haven't brought it to your attention yet as I knew you had a busy time ... and I don't wish to make a big deal of it at this point in time. … I was taken aback you felt it was OK to get my attention in this manner and also that you singled me out before asking the room to be a quiet. I would appreciate you refrain from hitting or poking me to get my attention in the future, as I found it inappropriate and somewhat humiliating. Thanks Linda.´
22 Ms Lewis replied by email the same day saying that she agreed and ‘that was why I said sorry, I am truly sorry and have been cross with myself for days and days. … I tipped over the edge. I won’t do it again ever! Sal’.
23 On 26 October 2018, following a discussion in which Ms Lewis told Ms Hell she needed a high-functioning EA, Ms Hell wrote an email Ms Lewis stating that she considered herself to be a high-functioning EA and asked for more time to learn. She also wrote of being aware of other staff in EA roles with Parks who had continuous communication with their managers. This contrasted with her own experience of working as Ms Lewis’ EA with many times of no discussions for 2 or 3 days at a stretch and a lack of responses to text messages.
24 On 30 October 2018, Ms Hell met with Ms Lewis and told her she did not feel respected, that she felt overworked and might need to look for other work.
25 In February 2019, Parks’ HR team arranged for Ms Hell to do a ‘Manager Induction’ which she had not been offered before apparently due to an oversight.
26 On 28 March 2019, Ms Hell contacted Park Victoria’s Employee Assistance Programme (‘EAP’) about feeling bullied by Ms Lewis.
Performance Development Reviews (‘PDRs’)
27 The first PDR, in July 2018, was positive.
28 At the second PDR discussion, in early 2019, Ms Hell told Ms Lewis she felt over-worked and unsupported. Ms Lewis assured her that she would take this on board and Ms Hell felt better for a time. In cross-examination, she agreed she didn’t record any concerns in her PDR documentation at this stage.
29 Prior to her July 2019 PDR, Ms Hell made an inquiry about starting a grievance process against Ms Lewis for bullying. She contacted a HR officer, Ms Myli Kumarasigham, about this. She was told that if she did start a grievance process, she would be referred to a HR team in a different region. This was because Ms Kumarasigham would have to support Ms Lewis in any such process. Ms Hell said she would leave it for the time being.
30 In July 2019, just prior to the PDR, Ms Hell was informed she was being placed on a performance management plan (‘the PMP’). Ms Lewis provided a spreadsheet with areas for improvement. Examples given were when to remove the plastic wrap from fruit platters for meetings and checking milk was not past the ‘use-by’ date. Ms Hell felt this was nit-picking and micro-management.
31 During the July 2019 PDR, Ms Hell expressed concerns to Ms Lewis in the discussion and in the documents about feeling stressed. She said her mental health was being impacted due to being treated terribly by Ms Lewis. She described panic attacks and nausea when she came into work.
32 On 29 July 2019, Ms Hell first attended her GP, Dr Anderson and complained of bullying at work. The history recorded was of ‘bullying at work - problems with her boss - harassing and bullying her - hit her with a backhander almost 12/12 ago - being excluded at meetings’. She was given a certificate for one day. In cross-examination, she agreed there was no mention of panic attacks in this record.
Grievance Process
33 On 5 August 2019, Ms Hell informed Parks she wished to initiate a formal grievance process (‘the grievance process’) on two grounds: firstly, for being placed on a PMP just before her July 2019 PDR, and, secondly, for not being moved up a salary level due to the PMP being initiated.
34 On 23 August 2019, Ms Hell met with Ms Eleni Gregorivic, a member of Parks’ Northern region HR team. She reported being bullied by Ms Lewis including reference to the backhander incident. Ms Hell provided one bundle of emails showing how poorly she had been treated by Ms Lewis and another bundle of emails from people saying what a good job Ms Hell had done. She requested that these emails not be shared with Ms Kumarasigham and Ms Lewis, although later it became apparent that they had been.
35 On 6 September 2019, Ms Hell was informed that Parks had appointed an external investigator as part of the response to the grievance process.
36 As part of her EA function and to manage Ms Lewis’ emails effectively, Ms Hell had the necessary permissions to access Ms Lewis’ email in-box and even to author and send emails on her behalf. That remained the situation even after the grievance process was initiated. This meant she was seeing and reading email exchanges between Ms Lewis and Ms Kumarasigham about the grievance process, the PMP and the July 2019 PDR.
37 On 12 September 2019, Ms Hell had a panic attack and felt sick at work. This was after seeing a further such exchange of emails. She left work early and went home.
38 Ms Hell saw another GP at her usual clinic, Dr Dilabari, as Dr Anderson was unavailable. She was initially certified unfit for work for two weeks. Since that time, she has remained off work on certificates issued by Dr Anderson.
Subsequent Events
39 Ms Hell had wanted to go back to work because she didn't want Ms Lewis to ‘win’. She could see that Ms Lewis did not like her and didn't know how to get rid of her.
40 After she stopped work, the grievance process was ongoing and remained pending for many weeks. She was interviewed by a solicitor appointed by Parks in relation to a workplace dispute resolution. Eventually, there was an outcome which was that none of Ms Hell’s allegations regarding bullying were substantiated including that she was not assaulted in the ‘backhander incident’.
41 In cross-examination, Ms Hell agreed that part of the reason she was so upset was because of the outcome of that process and her grievances being found to be unsubstantiated. The other part of her distress was that she felt Parks lied in arriving at that conclusion. She conceded she wanted Parks to acknowledge she had suffered psychological injury which would be part of the process of healing.
42 In cross-examination, she denied that she would be able to move on if Parks was to acknowledge her hurt. That was because it had gone well past that now. They had ‘thrown her to the wolves’ and her mental health was no good. She agreed she was preoccupied with her with what happened to her at Parks.
Treatment and Current Circumstances
43 Ms Hell has remained under the care of Dr Anderson and saw him monthly in person or via telehealth. She was prescribed medications for depression and sleep.
44 In late 2019, she began seeing a psychologist, Dr Sandra Lorensini, via a mental health plan referral by Dr Anderson. She has continued to see Dr Lorensini monthly at her Ballarat rooms. She tried telehealth consultations but the internet connection at her property was poor. She would like to see her more frequently if she could afford to do so.
45 In cross-examination, she described living alone on a rural property outside Ballarat. She had various domestic animals and some fruit trees. She denied actively tending to the fruit trees or maintaining the garden which had weeds three feet high.
46 When Ms Hell had to go into Ballarat, she felt more stressed, anxious, and jittery. She tended to do her shopping and head straight back home.
47 In terms of current symptoms, she feels very stressed. She is frequently teary and cries a lot. She doesn't feel happiness even about events such as her daughter being about to give birth. Everything tends to get on top of her as her confidence is shot. Her sleep is poor.
48 There are intermittent panic attacks for no reason including whilst driving. She last had one at a petrol station whilst driving to see her parents about six months ago.
49 She has acne which Dr Anderson attributes to stress.
50 In terms of social activities, she tended to catch up with friends and family on Facebook. Her relationship with her daughter has become strained. Her friendships and relationships have been affected. She can no longer be bothered with people. She used to play the guitar frequently and now picks it up only two or three times in the last 12 months.
51 In cross-examination, she agreed that her parents lived in Werribee and if she visited them, she would drive from her home to Werribee in a round trip of 150 kilometres in one day. She visited her parents hardly at all and a few times her daughter had driven. On other occasions, her brother has driven them up to see her.
52 Her speech has altered, and her voice tends to quiver more.
53 She struggles to concentrate and cannot focus. She loses concentration very easily and often feels very foggy.
54 As for other stressors in her life, there were none whatsoever.
Work Capacity and Employment
55 Ms Hell has not worked anywhere since 12 September 2019. She felt unable to return to work with Parks because she had been unsupported and undermined there. She did not feel she could return to her pre-injury role nor any other role. She could not work as an EA in another workplace. An EA needs to be ‘on the ball’ and to think for the boss and act for the boss. She is barely able to think for herself.
56 In December 2019 and January 2020, for about two or three months, there was a period where Ms Hell felt like she could return to work. She started looking online at administrative roles, but then when she thought about actually applying for jobs, she would have panic attacks.
57 In cross-examination, she described looking on job search websites such as Seek and looked at anything that might suit her. She went through the process of applying in her head and it made her feel severely anxious.
58 In cross-examination, she was asked whether she discussed these efforts with Dr Anderson. She said she had told him that she was trying to look for work at one stage.
59 In cross-examination she agreed that she still had the contacts from her small business, but she was no longer in contact with them. She denied that if she reached out to these contacts, work with then flow in as she had already created the databases for those contacts.
60 In cross-examination she agreed that her LinkedIn profile described her as a self-employed IT consultant, but she had not been active on LinkedIn for a long time.
61 In cross-examination, she was asked what was stopping her from putting her feelers out to her previous contacts. She said she had to be on the ball to create a database as it was high pressure work. She conceded that she had not tried to do this work again. She agreed she had talked to Dr Anderson about giving it a go at some stage but did not feel able to do so currently.
Prior history
62 In cross-examination, Ms Hell was asked about a prior history of depression about 25 years ago in the context of family law matters. She initially said she saw a psychologist for the purpose of obtaining a report and for support. When further pressed, she agreed that she had suffered from depression for about two years, but it was due to the circumstances she was going through. At the time, her GP encouraged her to take anti- depressants felt she did not need that and just saw the psychologist.
63 As for why Dr Lorensini had provided a report which stated there was no recorded previous history of psychiatric or psychological treatment, Ms Hell denied that was an inaccurate history saying the main reason for seeing a psychologist was for the purposes of obtaining reports for her family law matter.
64 She could not explain, in cross-examination, why she told Dr Entwisle about her mother’s post-traumatic stress disorder but did not mention her own history of depression in the context of family law matters.
MEDICAL EVIDENCE RELIED UPON BY THE PLAINTIFF
65 Dr David Anderson, treating GP, prepared reports of 3 September 2020, 3 February 2021, 28 April 2021, and 17 November 2021. There was an initial history of workplace bullying by her boss including being excluded at meetings, verbally harassed, picked on for minor matters, receiving upsetting emails and generally being unsupported. She continued at work until stress made it impossible for her to continue. The diagnosis was of anxiety and depression secondary to workplace bullying. She was referred to a psychologist and was prescribed an antidepressant Mirtazapine initially 15 mgs and increased to 30 mgs. As for capacity, his initial opinion (in his report of 3 September 2020) was that she would be fit to return to work once her complaint had been accepted and addressed and her case settled. He opined that her cognitive functions were reduced, and her confidence was diminished. However, by February 2021, he was of the view that she was fearful about a return to work, and he did not think she could return to work in a similar job with another employer. By November 2021, he opined that her mental health had deteriorated because of the protracted process of the claim and litigation. He considered that completion of the court case would provide some relief, but recovery would take time. He remained of the view that she could not return to her pre-injury duties or at the same level with another employer. This was the situation for the foreseeable future. She may be able to try a graduated return to work where the pressure was less.
66 In cross-examination, Dr Anderson was asked about his opinion that Ms Hell could return to work once the conflict had resolved. He agreed that had been his hope, however, as time had gone on, he thought that was less likely. Her confidence and self-esteem had been affected.
67 Dr Anderson agreed Ms Hell continued to brood on her circumstances with Parks. He agreed that there would be an amelioration of her symptoms or improvement, but it would take a long time for her to get on with things.
68 Dr Anderson conceded it was reasonable to see why A/Prof Varma may have opined in November 2019 that Ms Hell had a capacity for part-time employment. However, since that time, her condition and deteriorated and it was difficult to see how she could do that now. In his view, she would not be fit to work now. He agreed that a psychiatrist was the best placed to arrive at diagnosis and prognosis. However, he was an experienced GP and able to form his own view of things.
69 He agreed there was no abnormal cognitive function, but in his view her condition did affect her thinking. He agreed that with time her functioning would improve, but how long that would take and how much improvement there would be was unknown. He could not predict when she might be able to work but that whilst he liked to be optimistic, he could not make any prediction and it would be too much to contemplate at this stage.
70 Dr Sandra Lorensini, treating psychologist, had prepared reports dated 21 April 2020, 23 February 2021 and 12 November 2021. The first attendance was in November 2019. She reported no previous history of psychiatric or psychological treatment. She reported being treated badly by Ms Lewis including being constantly criticised, excluded and, on one occasion, hit. She felt unsupported by her employer through the grievance process. She considered herself to be a truthful person and found it difficult to cope with lies and not being believed. The diagnosis was of a generalised anxiety disorder with depression and symptoms of post-traumatic stress disorder as well as fatigue, difficulty concentrating and sleep disturbance. The long-term prognosis for recovery was no more than fair. In terms of capacity, she had no capacity to return to her pre-injury role with Parks nor was she fit to perform the same duties at another workplace. Ongoing psychological intervention was required for an extended period.
71 In examination-in-chief, Dr Lorensini told the Court there was an error she wished to correct in her report 21 April 2020. She omitted the word ‘relevant’ as regards her statement of there being no previous history of psychiatric or psychological treatment. She wanted to clarify that there had been a history of past psychological treatment in the context of a family law issue. Ms Hell may not have given that history initially, but she did recall her mentioning in the course of treatment the family law issues some 25 years ago.
72 In cross-examination, Dr Lorensini was questioned about how and when she became aware of that error in her report. She said it was as a result of reading through her reports the night before.
73 In cross-examination Dr Lorensini conceded it was useful to know of prior psychological history, but these matters occurred 25 years ago.
74 In cross-examination, Dr Lorensini agreed it was an important matter for Ms Hell that she felt Parks had ignored the bullying and also that it was important to her to fight to prove that the bullying was not her fault. She conceded that Ms Hell was able to give a good account of herself and was communitive. She had sometimes broken down in her presence. She did not accept Dr Entwisle’s observation that concentration and memory were intact although she agreed she had not clinically tested memory.
75 When asked in cross-examination, whether an acknowledgement by Parks would assist in the resolution of symptoms, Dr Lorensini agreed it would help, but given the severe depression, severe anxiety, and post-traumatic stress disorder, these would all take time to resolve. As for capacity, she conceded there were compelling reasons to encourage Ms Hell to return to work as it would assist her psychological functioning. She would need to improve a lot before she was ready to return to work. She disagreed that meeting monthly simply perpetuated the symptoms.
MEDICAL EVIDENCE TENDERED BY THE DEFENDANT
76 A/Prof Shashit Varma, psychiatrist, provided a medico-legal report dated 6 November 2019. A history was obtained of bullying and harassment by Ms Lewis including behaviours such as yelling, isolating her and not talking to her and, on one occasion, hitting her. She felt overworked supporting Ms Lewis as well as another manger. Nothing was done after she lodged a formal grievance. She was very disturbed by seeing the exchange of emails between Ms Lewis and HR. There was past history of depression 18 years ago in the context of a family law dispute. The diagnosis was of an adjustment disorder with mild anxiety, secondary to alleged workplace bullying and harassment. He opined that it was a new condition and not an aggravation of any pre-existing condition. As for capacity, there was no capacity for full pre-injury duties at the previous workplace. She had capacity for 16 to 20 hours a week performing the pre-injury duties at the pre-injury workplace although only if a successful mediation occurred. The incapacity for work was materially contributed to by the claimed injury.
77 Dr Timothy Entwisle, psychiatrist, provided a medico-legal report dated 18 August 2020 and a supplementary report of 8 November 2021. A detailed history was taken of the busy and demanding nature of the role with Parks and the deterioration of the relationship with Ms Lewis. Ms Lewis was critical frequently, micro-managing her and Ms Hell felt set up to fail. There was a history of the PDR appraisals and of being placed on a PMP. Ms Hell denied any previous personal history of psychiatric illness.
78 He opined that the diagnosis was an adjustment disorder with depressed and anxious mood of mild severity. At the time of assessment, she was not obviously distressed. The prognosis was good for complete restoration to normal functioning. Employment was no longer materially contributing to any incapacity or impairment. At the time of assessment, there was now a current work capacity for pre-injury employment, having benefited from psychological treatment and medication. She also had capacity for pre-injury employment with another employer and also for suitable employment. In his supplementary report of 8 November 2021, he stated his opinion was not altered after reading Dr Lorensini’s report of 23 February 2021.
ANALYSIS
79 The legal and evidentiary onus of proof rested with Ms Hell to establish, on the balance of probabilities an entitlement to compensation for injury in accordance with the Act. She needed to establish injury arising out or in the course of her employment in accordance with s39(1) of the Act.
80 In the course of the evidence, it became apparent that Ms Hell had a prior episode of depression about 25 years ago for which there was psychological treatment in the context of a family law dispute. If the evidence were to support a finding that Ms Hell had a pre-existing or persisting psychological disorder, then she would be precluded from compensation under s.40(3) of the Act unless she established that employment was a significant contributing factor to any aggravation or exacerbation of such a condition.
81 Further, the burden of proof lay with Ms Hell to establish that she had an incapacity for pre-injury employment. She also had to show that any incapacity for employment resulted from or was materially contributed to by the injury in accordance with s.160 of the Act.
Diagnosis and nature of injury
82 On the issue of diagnosis, Counsel for Parks submitted that the expert opinions of the psychiatrists, between whom there was consensus of opinion, ought to be preferred. A/Prof Varma opined in November 2019 that the diagnosis was of an adjustment disorder with mild anxiety. Dr Entwisle, who assessed Ms Hell in August 2020, also diagnosed an adjustment disorder with depressed and anxious mood of mild severity.
83 In relation to the medical opinions relied upon by the plaintiff, Counsel for Parks submitted that both Dr Anderson and Dr Lorensini presented as big supporters of Ms Hell whose evidence lacked impartiality and objectivity.
84 I reject that submission in relation to Dr Anderson. I formed a highly favourable opinion of Dr Anderson whom I found to be a sensible and considered witness. His evidence was of having practised as a GP for some 38 years and Ms Hell’s treating GP since May 2012 (some six years before the events that were the subject of this litigation). He made appropriate concessions including that a psychiatrist in terms of expertise would be best placed to arrive a diagnosis and prognosis, however given his own long experience, he relied on his own clinical judgment.
85 Dr Anderson’s diagnosis was of anxiety and depression for which he prescribed a psychotropic medication (which he had then increased) and made a referral to a psychologist.
86 On the other hand, I agree with Counsel for Parks’ submission that caution was required in relation to Dr Lorensini’s evidence. I did not find Dr Lorensini to be either appropriately objective nor a particularly impressive witness. I was troubled by her explanation regarding her report of 21 April 2020 and by her telling the Court she had realised the error when reading over her reports and not as a result of discussing her reports with anyone.
87 That was because it became apparent was not the situation. In her closing address, Counsel for Ms Hell quite appropriately informed the Court that she had conferred with Dr Lorensini the evening before she was called to give evidence. Counsel had taken Dr Lorensini to a clinical note of 27 November 2019 which referred to the current events having ‘brought up feelings’ relating to the prior episode 25 years ago. Ms Bailey stressed that Dr Lorensini had not indicated to her in conference that she would seek to alter her report whilst giving viva voce evidence. I accept Ms Bailey’s explanation about this as did Ms Tsikaris, Counsel for Parks. Accordingly, Dr Lorensini was evasive at best about this and gave the strong impression she was an advocate for her patient.
88 Dr Lorensini’s diagnosis was of a generalised anxiety disorder with depression and symptoms of post-traumatic stress disorder. She alone considered there was any basis for finding symptoms of post-traumatic stress disorder.
89 Weighing the various opinions including the expertise of the psychiatrists and Dr Anderson’s experience, I prefer Dr Anderson’s view that the diagnosis or nature of Ms Hell’s condition was of anxiety and depression rather than an adjustment disorder. I consider that is appropriate in light of Dr Anderson’s long-term clinical relationship (including before the disputed events) with his patient, the prescribing and increasing of psychotropic medication and his view she had deteriorated over time since the time of A/Prof Varma’s assessment.
90 According to A/Prof Varma, Ms Hell was suffering from a new condition and not an aggravation of any pre-existing condition. I agree with that opinion which accords with the weight of the evidence particularly given the lapse of some 25 years since the prior episode.
Causation
91 Given my finding in relation to injury, the causal test that Ms Hell had to satisfy was that injury arose out of or in the course of employment.
92 There was generally consensus in the medical opinion on the question of causation. Dr Anderson and A/Prof Varma both were of the opinion that Ms Hell’s mental injury was secondary to workplace bullying as alleged by her. On causation, Dr Entwisle stated that employment was a significant contributing factor to her condition. Although as I have found this was not the correct test in this case, it is apparent that Dr Entwisle accepted the condition was work-related based on her perception and account of events.
93 In my examination of the medical evidence, I am, of course, guided by the well-known principles enunciated in Pulling v Yarra Shire Council including the requirement to consider the whole of the evidence, including the medical evidence[2]. Furthermore, whilst the histories are of course dependent upon what the doctors have been told, ‘such considerations do not absolve the court from the obligation to properly engage in that evaluation’. [3]
[2] Ibid at [50] – [55]
[3] Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [51] in which Pulling J cites authorities including Allamanti Pty Ltd v Ernikiolis [2007] VSCA 17
94 Certainly, Ms Hell’s credit was central to my determination of this dispute. The critical importance of the plaintiff’s credit in cases of this kind has been noted by the Court of Appeal on numerous occasions including in Johns v Oaktech Pty Ltd[4]. Ms Hell needed to establish the reliability of the histories given to the medical witnesses, whose opinions were premised on the accuracy of her accounts to them. All medical opinions were in large part, and particularly as to the complaints of Ms Lewis’ conduct, based on Ms Hell’s account.
[4][2020] VSCA 10 at [76].
95 Ms Hell was cross-examined rigorously and at some length in relation to the nature and circumstances of her employment and the relationship with Ms Lewis.
96 For completeness, I observe that my task, as the authorities make clear, was not to determine where the truth lay in terms of the allegations. Rather, I was required to consider whether Ms Hell perceived, and was affected by, stressors actually arising from the circumstances in the workplace and her dealings with Ms Lewis. In that regard, I rely on the statement of principle in Pulling v Yarra Ranges Shire Council: ‘It was necessary to consider what [the worker] perceived about her co-worker’s conduct because, having regard to the no-fault nature of the workers’ compensation system, that causal connection can be established by a subjective perception that has a real connection with the workplace whether or not it is objectively correct’.[5]
[5] [2018] VSC 248 at [39]
97 I formed a favourable opinion of Ms Hell whom I found to be a truthful witness. She gave her evidence in a flat and unembellished manner. Her essentially unchallenged evidence was of a relationship with her direct manager that was initially ‘awesome’ and ‘fantastic’ before deteriorating markedly. Her accounts consistently referred to her constantly criticised, being micro-managed, picked on and excluded from meetings. As early as mid 2018, she was actively looking for other employment opportunities due to her increasing concerns about her treatment by Ms Lewis. The ‘backhander’ incident was corroborated by Ms Lewis’ reply of 7 September 2018 to Ms Hell’s email. By March 2019, Ms Hell had commenced counselling via Parks’ employee assistance program provider seeking strategies to cope with issues with her manager. She raised concerns in her July PDR with Ms Lewis. In July 2019, she consulted Dr Anderson about problems with her boss and described being harassed and bullied and excluded in meetings.
98 Moreover, as Counsel for Ms Hell submitted, no evidence was called by Parks either to contest or challenge Ms Hell’s evidence either that she was subject to bullying by Ms Lewis or that she perceived subjectively that she was being bullied based on a connection with actual events in the workplace.
99 It is true that Ms Hell had a strong focus on the lack of support of her employer, on the grievance process and outcome, on fighting for acknowledgement of the bullying and on her employer having lied. In cross-examination, at a number of points in her evidence, she openly conceded this was the case. In that regard, I observe that the claim form dated 17 October 2019 which was the subject of the Agent’s notice dated 14 November 2019 included reference to ‘Since making a grievance HR has not supported me in any manner’.
In submissions, Counsel for Parks said that whilst causation was not admitted nor conceded, the main thrust of the defence related to Ms Hell’s capacity for employment.
Weighing the whole of the evidence, particularly the evidence of Ms Hell whom as I said I found to be an honest witness, I find that the plaintiff has discharged the burden of proof that, on the balance of probabilities, her mental injury arose out of or in the course of her employment with Parks Victoria. I am persuaded that her accounts to the medical practitioners were reliable and accurate.
Capacity
Counsel for Parks submitted that if there was an incapacity (which was denied), it was not ongoing and had ceased by the time of Dr Entwisle’s assessment on 28 August 2020. Dr Entwisle opined that at that stage Ms Hell had a current work capacity for pre-injury employment. Even within two months of her ceasing work, A/Prof Varma opined that Ms Hell had a partial capacity for pre-injury employment at her pre-injury workplace.
Further, in accordance with the well-established principles in Kerridge-v-Monsfelt[6], if there were restrictions on her capacity, they were confined to one particular place of employment (Parks) and, probably, whilst one particular person was working there. Accordingly, the Court was urged to find that Ms Hell could still sell her labour as an executive assistant and had capacity for her pre-injury employment.
[6]Ibid at [106]
Moreover, on capacity, Counsel for Parks submitted that Ms Hell’s evidence was unreliable, self-serving, and lacking in credibility. For example, it was noteworthy that when Dr Entwisle examined her, he found her to be not obviously distressed. Her claim to be unfit for employment was entirely inconsistent with her performance as a witness noting that she gave evidence for a two hour stretch and then was subject to cross-examination for most of a morning. She demonstrated good recall of dates and events and gave her account clearly and cohesively. She engaged in argument with Counsel when she distinguished between psychological treatment and having a psychological condition.
Ms Hell’s evidence on her incapacity for work, it was submitted, was further undermined and contradicted when the whole of her evidence was considered. Relevant matters were that she lived alone and independently managing a rural property including caring for animals; she had travelled 150kms round trips to Werribee to see her parents; she made at least monthly trips into Ballarat to attend appointments and household errands.
Moreover, both A/Prof Varma and Dr Entwisle, on clinical examination, concluded that Ms Hell’s cognitive function, including memory and concentration, was intact.
In my view, the evidence was persuasive (and not seriously challenged) regarding the high-level and demanding nature of Ms Hell’s pre-injury employment. It involved complex organisational skills, voluminous emails, sensitive correspondence, and diary management.
It was submitted by Counsel for Ms Hell that in fact her client’s performance as a witness showed she was a long way of short of being able to perform an executive assistant role. She was often long-winded and voluble in giving her evidence and sometimes confused dates. There was a pronounced quaver in her voice, she was tearful and sometimes distressed.
Again, on capacity, it was submitted strongly by Counsel for Parks that the expert and objective opinions of the psychiatrists ought to be preferred to the opinions of Dr Anderson and Dr Lorensini.
In fact, as was submitted by Counsel for Ms Hell, A/Prof Varma had opined that there was only partial capacity for pre-injury employment. Whilst Dr Entwisle’s opinion is somewhat obliquely stated in relation to capacity, it appears he accepted there was not a capacity for work at least until his assessment in August 2020.
Dr Anderson was cross-examined extensively on the issue of capacity and particularly his initially expressed view that she would be fit for her pre-injury employment once the present dispute had resolved. Dr Anderson agreed with Counsel for Parks that had been his hope, however as time had gone on, he was clear that he thought that less likely. Again, Dr Anderson made appropriate concessions, agreeing that A/Prof’s Varma’s opinion that there was partial capacity may well have been reasonable in November 2019, but it was ‘difficult’ to see that now as she was not fit to work now. He conceded there was no abnormal function but considered that her thinking was impaired.
Again, I found Dr Anderson to be highly persuasive on the issue of capacity. He impressed me with his stated view that whilst he liked to be optimistic and hopeful, he could not make a prediction about when she might be able to work. She could not do so at all now and that when she did so it would be in a lesser role. In my view, his evidence on this issue was sensible and realistic.
Whilst noting my previously stated reservations in relation to Dr Lorensini’s evidence, her view was similar to Dr Anderson that Ms Hell’s condition would need to improve a lot before she was ready to return to work.
Weighing the whole of the evidence particularly Dr Anderson’s evidence and Ms Hell’s own account (which I accept as honest) of her ongoing symptoms, I do not accept that Ms Hell has the capacity to perform her pre-injury duties including at another workplace. Accordingly, I do not agree with the submissions of Counsel for Parks in relation to capacity. It is true that Ms Hell presented as a competent witness over two half days but that is entirely different to a full-time employment as an executive assistant involving multi-tasking and organisation skills. Similarly, I am not persuaded that the matters referred to by Counsel for Parks such as intermittent trips to Ballarat or beyond or caring for domestic animals in any way was inconsistent with a finding of her lacking capacity for her pre-injury employment.
Weighing the whole of the evidence, I find that Ms Hell has no capacity for her pre-injury employment which commenced on 12 September 2021.
Further, essentially for the reasons already stated, I am satisfied that the weight of the evidence supports a finding that employment with Parks was a material contributing factor to her incapacity for employment. Whilst the opinion of Dr Entwisle was to the contrary, in my view, there was no basis for any other finding and no evidence as to any other stressors that may have contributed to her incapacity.
CONCLUSION
For the grounds set out in these reasons, I find:
a.Ms Hell suffered a mental injury in the nature of anxiety and depression with a nominated date of injury of 12 September 2019 and her injury arose out of or in the course of her employment with Parks Victoria;
b.Ms Hell had no current work capacity from 12 September 2019 and such incapacity resulted from or is or was materially contributed to by the injury.
c.She does not have a current work capacity.
d.She is entitled to reasonable medical and like expenses in accordance with the Act.
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