Inner West Council v BFZ
[2023] NSWPICPD 62
•6 October 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Inner West Council v BFZ [2023] NSWPICPD 62 |
| APPELLANT: | Inner West Council |
| RESPONDENT: | BFZ |
| INSURER: | StateCover Mutual Limited |
| FILE NUMBER: | A1-W1176/22 |
| PRESIDENTIAL MEMBER: | Acting Deputy President Kylie Nomchong SC |
| DATE OF APPEAL DECISION: | 6 October 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 2 December 2021 is revoked. 3. The matter is to be remitted to a different member for re-determination. |
| CATCHWORDS: | WORKERS COMPENSATION – issue estoppel – whether employer estopped from denying injury as a result of previous Certificate of Determination which entered consent orders – whether Member erred in finding the injury the subject of the present proceedings was the same injury the subject of the prior consent orders |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Catsanos SC, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr E G Romaniuk SC and Mr G Horan, counsel | |
| Turner Freeman Lawyers | |
| DECISION UNDER APPEAL | |
| PRINCIPAL MEMBER: | Ms J Bamber |
| DATE OF MEMBER’S DECISION: | 27 July 2022 |
INTRODUCTION
The respondent (BFZ) was employed by the appellant (Inner West Council) as a parking officer between 3 April 2018[1] and 26 May 2020.
[1] Respondent’s statement dated 27 April 2020, Application to Resolve a Dispute (ARD), p 1, [2].
On 5 January 2020, the respondent lodged a claim for workers compensation[2] alleging that she had suffered a psychological injury during the course of her employment. The respondent provided medical reports and certificates in support of her claim.
[2] ARD, pp 34–37.
The appellant’s insurer issued dispute and review notices in relation to that claim on 3 March 2020,[3] 30 March 2020[4] and 15 April 2020.[5] In the first of those notices, the appellant disputed that the respondent had a psychological injury (s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act)); disputed that, if there was an injury, the respondent’s employment was the main contributing factor to it (s 4(b) of the 1987 Act); relied on s 11A of the 1987 Act by alleging that if there was an injury, it was caused by reasonable actions taken or proposed to be taken by the employer with respect to discipline; denied that the respondent was incapacitated for work by reason of the alleged injury (if there was an injury) (s 33 of the 1987 Act); and stated that if there was any compensable psychological injury that the claimed medical related treatment was not reasonably necessary (s 60 of the 1987 Act).
[3] Reply to Application to Resolve a Dispute (reply), p 1.
[4] Reply, p 16.
[5] Reply, p 25.
These matters were repeated and elaborated upon in the latter two notices. The appellant relied on the expert medical opinion of Dr Lee.
The respondent filed an Application to Resolve a Dispute (ARD) which became proceedings number 2314/20 (2020 Proceedings).
On 27 May 2020, a Certificate of Determination (2020 Determination) was issued by the Commission in the following terms, (noting that the appellant in these proceedings was the respondent below):
“By and with the consent of the parties, the determination of the Commission in this matter is as follows:
1. The respondent is to pay the applicant weekly compensation of $1,240.57 under
s 37 from 18 March 2020 to 26 May 2020.2. Award for the respondent on the claim for weekly compensation after 27 May 2020.
3. The respondent is to pay the applicant’s s 60 expenses not exceeding $2,000 on production of accounts, receipts and/or valid Medicare Notice of Charge. Otherwise award for the respondent on the claim for s 60 expenses.
The following is not a determination of the Commission, however I note that the parties have agreed:
A. The applicant resigns her employment with the respondent effective 26 May 2020.
B. The respondent agrees it will not seek credit for any payment of sick leave made since 18 March 2020.”
On 9 March 2021, the respondent made a claim for a lump sum for permanent impairment. On 3 August 2021 the appellant issued a section 78 notice denying the claim.[6]
[6] ARD, pp 50–58.
On 28 February 2022 the respondent filed an ARD in the current proceedings. The matter in dispute is said to be “Lump sum compensation where liability in dispute”.[7] It referred to the 2020 Proceedings.[8] In the ARD, the respondent described the “Type of Injury” as “Personal” and stated that the injury had occurred between 1 April 2018 and 11 December 2019[9] and had arisen by reason of “Nature and conditions of employment as a Parking Officer from 1 April 2018 to 11 December 2019 involving incidents of bullying, harassment and verbal abuse by co-workers and incidents of verbal threats, intimidation and stalking by members of the public.”[10]
[7] ARD, p 2.
[8] ARD, p 3.
[9] The reference to “1 April 2018” is taken to be a typographical error given that the respondent did not commence work with the appellant until 3 April 2018.
[10] ARD, p 8.
The appellant filed a Reply to the ARD on 22 March 2022 (reply) asserting that two incidences of aggressive interactions with motorists should not be subsumed into the dispute and stated that the issue was previously raised in the 2020 Proceedings.[11]
[11] Reply, p 2.
At a preliminary conference on 1 April 2022, the respondent argued that the appellant was estopped from denying liability under ss 4(a), 4(b), 9A and 11A of the 1987 Act by reason of the consent orders in the 2020 Determination. The Principal Member directed that written submissions on the estoppel argument be filed by both parties and that the issue would be determined on the papers.
On 27 July 2022, the Principal Member determined (2022 Determination) that:
“1. The respondent is estopped from relying on ss 4, 4(b), 9A, 11A(3) and 11A of the Workers Compensation Act 1987 as a result of the Certificate of Determination - Consent Orders dated 27 May 2020.
2. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as a result of psychological injury sustained in the course of employment with the respondent from the nature and conditions of employment from 1 April 2018 to 11 December 2019, with a deemed date of injury of 11 December 2019.
3. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and Reply.”
The appellant has appealed that determination on two grounds:
(a) Ground One: The Principal Member erred in determining that the appellant is estopped from disputing liability for the injury alleged by the worker.
(b) Ground Two: The Principal Member erred in referring the assessment of permanent impairment to a medical assessor in the terms set out in paragraph [50] of the Certificate of Determination.
ON THE PAPERS
I have read the material in this matter including the material filed in relation to the 2020 Proceedings and the current proceedings, the written submissions of both parties, the clinical notes and the medical reports. I have read and considered the Principal Member’s reasons. Both parties submit that it is appropriate for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
Pursuant to s 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act), I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The monetary threshold
The respondent disputes that the monetary threshold to appeal as prescribed by s 352(3) of the 1998 Act is satisfied.
Section 352(3) of the 1998 Act provides as follows:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the compensation appealed against.”
The respondent asserts that, as the decision is interlocutory, there has been no order as to a monetary sum and therefore, it is unknown whether the monetary threshold to appeal as prescribed by s 352(3) of the 1998 Act is satisfied.
The appellant relied on the principles enunciated in Fine Meats (Boners PM) Pty Ltd v Hart[12] and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart.[13]
[12] [2007] NSWWCCPD 164.
[13] [2021] NSWPICPD 5, [14].
This issue was recently discussed and determined by Wood DP in DGL (Aust) Pty Limited v Martino.[14] In that matter, Wood DP referred to the above authorities, amongst others, and cited Snell DP in Ausgrid v Parasiliti:[15]
“No compensation was awarded in the Arbitrator’s decision. In those circumstances it is settled practice in the Commission that whether the threshold in s 352(3) is satisfied is determined by reference to the claim as particularised by the worker. The claim was particularised in the current matter at $25,781.25, in respect of 17 per cent whole person impairment. The assessment of 17 per cent in Dr Giblin’s most recent report (on which the claim is based) is impairment of 7 per cent, 6 per cent and 4 per cent in respect of the lumbar spine, left upper extremity and right upper extremity respectively.
...
The monetary value of the particularised impairment in respect of the right upper extremity, which was the component of the claim in issue, exceeds $5,000. The appeal has the capacity to affect recovery of the whole of that amount, if the finding that the condition of the right upper extremity is secondary to the left upper limb injury is set aside. The requirements of s 352(3) of the 1998 Act are satisfied.”[16]
[14] [2023] NSWPICPD 30 (DGL).
[15] [2020] NSWWCCPD 51 (Parasiliti).
[16] DGL, [22], citing Parasiliti, [9]–[11].
I note that the respondent has claimed $52,450 for 20% whole person impairment.[17]
[17] ARD, p 8.
I reject the respondent’s submissions and I find that the monetary threshold is satisfied.
Interlocutory or final decision
An issue also arises in this matter as to whether the Determination by the Principal Member was interlocutory or final in nature, with an appeal in relation to the former requiring leave to appeal but not in relation to the latter.
The appellant submits, on the basis of decisions including Tanwar v Aslam,[18] Licul v Corney,[19] and Maricic v Medina Serviced Apartments Pty Limited,[20] that because the Principal Member’s determination prevents the appellant from raising a defence to the claimed injury, it operates to finally determine the issue of liability. As such, the appellant argues that the Determination is not interlocutory but rather final in nature and therefore, leave is not required.[21]
[18] [2021] NSWPICPD 30.
[19] [1976] HCA 6; 180 CLR 213.
[20] [2007] NSWWCCPD 196.
[21] Appellant’s Amended Submissions on Appeal dated 29 August 2022 (appellant’s submissions), [2.2.3]–[2.2.4], [2.6.5]–[2.6.6].
The respondent submits that the Determination is interlocutory because it does not finally dispose of the rights of the parties but simply prevents the appellant from relying on ss 4, 4(b), 9A, 11A(3) and 11A of the 1987 Act. As such, the respondent argues that leave to appeal is required under s 352(3A) of the 1998 Act. [22]
[22] Respondent’s Amended Submissions on Appeal dated 14 October 2022 (respondent’s submissions), [3]–[4].
The issue of whether a determination of this kind is interlocutory in nature was recently considered by Wood DP in DGL. The Deputy President was taken to the Presidential decisions in Coates Hire Operations Pty Limited v Geddes[23] and Visy Board Pty Limited v Nguyen.[24] In similarity with the issues in this matter, both of those decisions involved appeals from determinations of arbitrators about a finding of injury before a remittal for assessment of the injured worker’s permanent impairment. Both of those decisions found that there had been a final decision which determined liability and that therefore, the determination was not interlocutory within the meaning of the then s 352(8).
[23] [2008] NSWWCCPD 120.
[24] [2010] NSWWCCPD 101.
However, Wood DP in DGL noted that these two cases were inconsistent with a number of subsequent Presidential decisions including Mosawi v Baron Forge (NSW) Pty Ltd[25] in which the President found that a determination of injury prior to a medical assessment was interlocutory in nature. Wood DP also referred to Moore v Greater Taree City Council[26] and South Western Sydney Area Health Service v Edmonds.[27] In the latter case, the Court of Appeal held that an arbitrator’s determination in relation to injury but prior to the claim being referred to an approved medical specialist, was an interlocutory decision. On a consideration of those authorities, Wood DP found that the decision was interlocutory in nature and that therefore leave to appeal was required.
[25] [2022] NSWPICPD 48.
[26] [2009] NSWWCCPD 17.
[27] [2007] NSWCA 16.
In this matter, the Principal Member determined that the appellant was estopped from denying liability on the grounds of injury, or on the ground that the employment was a substantial contributing factor, or that there was a psychological injury within the meaning of s 11A(3), or that, if there was such a psychological injury, that it was caused by the reasonable actions of the employer with respect to performance appraisal or discipline. Essentially, liability for the injury was determined by reference to the 2020 Determination but the assessment of impairment has not yet been made. Accordingly, in conformity with the decisions referred to in DGL, I find that the decision was interlocutory in nature. Leave to appeal pursuant to s 352(3A) is therefore required.
Section 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant argued the question of leave in the alternative to its primary submission that the decision was a final one. The appellant submitted that leave should be granted because it has been denied the ability to rely on a substantive defence on the merits.[28] Further, the appellant submitted that if the matter proceeds to an assessment and the appellant is only able to exercise its rights on appeal thereafter and was successful, then that would be adverse to efficient, cost-effective litigation.[29] Further, the appellant argues that being deprived of the substantive right to defend the question of liability involves a matter of public importance and gives rise to a clear and obvious injustice.[30]
[28] Appellant’s submissions, [2.6.5]–[2.6.6].
[29] Appellant’s submissions in reply, [15].
[30] Appellant’s submissions in reply, [16]–[17].
The respondent contends that leave should not be granted. The respondent referred to the decisions in Woolstar Pty Ltd v Wood,[31] DP World Sydney Ltd v Kelly[32] and to the text Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths 2014). The respondent contends the facts found by the Principal Member are not demonstrably unavailable on the evidence and therefore, there should not be a grant of leave to appeal.
[31] [2022] NSWPICPD 25, [11].
[32] [2011] NSWWCCPD 43, [13].
This matter is not straightforward. The Principal Member found the 2020 Determination created issue estoppel as to the issues of liability and the defence under s 11A.[33] Predominantly, the Principal Member found that the issue of injury had been determined. The appellant, on the other hand, had argued that there was a substantial change in the nature and extent of the respondent’s psychological injury and therefore estoppel could not apply.
[33] Walsh v Inner West Council [2022] NSWPIC 418 (reasons), [30].
I am of the view that an issue of principle arises as to whether, for the purposes of issue estoppel, the Principal Member has properly considered whether there is the requisite identity between the injury the subject of the 2020 Determination and the injury claimed in these proceedings.
Further, if an appeal on this matter only occurs after a Medical Assessment Certificate is issued, and the appeal is successful, then the time, effort and cost in relation to the medical assessment may be wasted as either the appellant will be totally successful or the Medical Assessment Certificate may require amendment. Accordingly, I am of the opinion that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined.
I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.
PRINCIPLES ON APPEAL
In terms of the ambit of the appeal, the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd,[34] that by reason of s 352(5) of the 2020 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. If the basis of the appeal is an alleged error of fact, the appellant must establish not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the Principal Member. There can be no appellate intervention without a finding that there has been error.
[34] [2022] NSWCA 138, [11].
The nature of an appeal was enunciated by Roche DP in Raulston v Toll Pty Ltd.[35] In that matter, the general principles applicable to appeals under s 352 were helpfully summarised, including that, by reference to Whiteley Muir & Zwanenberg Ltd v Kerr,[36] whilst an arbitrator (now member) may have preferred one view of the primary facts to another as being more probable, that finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong”. Further, Roche DP cited the decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[37] which is dealt with in more detail later in this decision.
THE EVIDENCE
[35] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[36] (1966) 39 ALJR 505 (Whiteley Muir), 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227).
[37] [2001] FCA 1833 (Owston Nominees) (Drummond and Mansfield JJ agreeing).
2020 Proceedings
The 2020 Determination was in the form of consent orders. There had been no hearing by which relevant material had been put before the Commission and there was no reasoning by any member of the Commission as to any of the issues in dispute. The 2020 Determination made no reference to the nature or extent of the respondent’s injury.
In the reasons for the 2022 Determination, the Principal Member made reference to the decision of Bouchmouni v Bakhos Matta t/as Western Red Services.[38] In that case, Roche DP looked at the various principles that applied to the application of estoppel in the context of consent orders. At the heart of the exercise is the necessity to determine what exactly was decided by the consent orders. In order to do that, Roche DP referred to Habib v Radio 2UE Sydney Pty Ltd[39] in which the Court (referring to an earlier case[40]) held that to ascertain what was necessarily decided “the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to”.[41] Reference was also made to the text Spencer Bower (3rd ed) which states at [39]:
“Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order ...”.
[38] [2013] NSWWCCPD 4 (Bouchmouni). See reasons, [14].
[39] [2009] NSWCA 231 per McColl JA (Giles and Campbell JJA agreeing), [186].
[40] Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslette(1958) SR (NSW) 69; (1957) 75 WN (NSW) 48.
[41] See also Kirkpatrick v Kotis [2004] NSWCA 1265; 62 NSWLR 567.
Accordingly, it is necessary to look at the available materials prior to the 2020 Determination.
The respondent’s materials prior to the 2020 Determination
In the current proceedings, the respondent filed the following materials that were available in the 2020 Proceedings and prior to the 2020 Determination:
(a) the respondent’s Workers Compensation Claim Form dated 5 January 2020;
(b) a statement from the applicant dated 27 April 2020;
(c) a report of Dr Safiqul Islam dated 17 December 2019;
(d) a report of Dr Hsien Lim dated 7 January 2020;
(e) a medico-legal report of Dr Martin Allan 26 March 2020;
(f) a medico-legal report of Ms Nezihe Ali 11 May 2020;
(g) clinical records of Bankstown Mental Health Services;
(h) reports of Dr Menendez dated 21 June 2018, 13 July 2018 and 2 August 2018;
(i) clinical records of Primary Health Care Medical & Dental Centre;
(j) clinical records of Petersham Family Medical Centre, and
(k) certificates of capacity.
The Application to Resolve a Dispute which became proceedings number 2314/20 was not put before the Principal Member in this interlocutory application by either party in these proceedings.
The Claim Form dated 5 January 2020 described the respondent’s injury as “anxiety and depression” and noted that she had previously suffered from the same condition due to domestic violence in March 2014. The respondent alleged that she had been the subject of bullying and harassment at work and further incidents of threats of violence and intimidation from the public.[42]
[42] ARD, pp 34–36.
In her written statement, the respondent stated that she was depressed, stressed and anxious all the time,[43] and that by October 2019 she was deeply depressed.[44] The respondent stated she visited her GP on 20 November 2019 and was advised by her doctor to increase her antidepressant medication dosage.[45] She stated that by 26 November 2019, her anxiety was out of control and she was unable to concentrate or focus. She stated that she was experiencing daily headaches and broken sleep from the stress as well as severe depression.[46] The respondent also described that she had previously been a victim of domestic violence but that the toxic work environment had rendered her unable to go to work due to severe symptoms of depression and anxiety.[47] The respondent stated that the workplace bullying and harassment triggered previously resolved anxiety.[48]
[43] ARD, p 5, [31].
[44] ARD, p 9, [49].
[45] ARD, p 10, [56].
[46] ARD, p 11, [64].
[47] ARD, p 14, [69]–[70].
[48] ARD, p 14, [71].
On 28 November 2019, the respondent stated that the appellant had notified her of an investigation into complaints that had been made about her (the respondent’s) behaviour in the workplace including allegations of sexist and racist comments.[49]
[49] ARD, pp 19–20.
The report of Dr Safiqul Islam is in the form of his handwritten notes on a letter addressed to him by the appellant dated 17 December 2019. Although his handwriting is somewhat difficult to understand, his response to the question of diagnosis was “most likely she suffers from … psychological disorders diagnosed under DSM V severe anxiety, depression, PTSD.” Dr Islam then noted that she “had issues at home in the past” and that she had previously “been treated for anxiety and depression including seeing [a] psychologist and psychiatrist”. He concluded that she was totally unfit for work.[50]
[50] ARD, pp 84–87.
The medical certificate from Dr Hsien W Lim dated 7 January 2020 states that the respondent had been seen in the Petersham Family Medical Centre from April 2016 to February 2019 and that she had a history of anxiety/depression. No diagnosis at all was given to the respondent’s condition as at the date of the certificate.[51]
[51] ARD, pp 89–90.
The medico-legal report of Dr Martin Allan dated 26 March 2020 included a history of medication for Major Depressive Disorder, Pristiq, for the previous two years and a clinical history including significant eating disorders for which she was treated for 5 to 6 years in her teens. In addition, the respondent is reported to have been the victim of domestic violence and [redacted]. Dr Allan noted that the respondent, as a result of those various traumatic assaults, had developed acute distress, anxiety, depression, flashbacks, nightmares and hypervigilance. Dr Allan stated that the respondent reported that these psychological conditions had resolved at the time she commenced employment with the appellant. After considering her history of workplace bullying and a mental state examination, Dr Allan concluded that there was a past history of PTSD as result of past traumatic events but his diagnosis of the symptoms arising from the workplace bullying was adjustment disorder with depressed and anxious mood.[52]
[52] ARD, p 96.
The medico-legal report of Ms Nezihe Ali (psychologist) dated 11 May 2020 states that the respondent was first seen for psychological counselling in January 2020. Ms Ali’s diagnosis (following the administration of the Becks Depression Inventory and the Becks Anxiety Inventory) was that the respondent was presenting with symptoms characteristic of adjustment disorder with depressed mood, with features of post-traumatic stress disorder. Re-administration of those tests on 7 May 2020 had shown a slight reduction in the score for depression but a more significant reduction in her anxiety score.[53]
[53] ARD, p 101.
The clinical records of Bankstown Mental Health Services include entries for presentations from 8 October 2020 to 4 November 2020. As such, there are no entries for presentations, diagnoses or treatment prior to 27 May 2020 (the date of the 2020 Determination). However, the clinical notes give a history of schizophreniform psychosis, PTSD, eating disorder and major depressive disorder. The notes stated that the schizophrenia was diagnosed in September 2020 and the major depressive disorder was diagnosed in 2018. The respondent had been admitted to RPAH Missenden Psychiatric Unit in 2014 for [redacted], schizophreniform psychosis and binge eating disorder. The clinical notes also stated that the respondent had a history of [redacted].[54] On a presentation on 13 October 2020, the clinical notes stated that a review of the file indicated a history of [redacted] in December 2019.[55] The respondent disclosed that [redacted]. At that time, the respondent reported that she believed her neighbours were monitoring her with cameras that face her garden and they were recording her movements and actions. Further she reported having engaged in compulsive behaviour leading to binge eating and over shopping. At that time, the diagnosis was of a presentation with paranoid and persecutory delusions and depressed mood.[56]
[54] ARD, p 140.
[55] ARD, p 146.
[56] ARD, p 150.
The respondent was referred to a psychiatrist, Dr Jose Menendez, by her GP, Dr Elhassadi. In his report dated 21 June 2018, Dr Menendez stated that the respondent had presented with a history of major depression in the context of grief, alleged eating disorder history and relationship/traumatic events. He described the respondent as experiencing increasing symptoms of depression since the death of her older brother in a motor vehicle accident 12 years prior and that the respondent’s grief was compounded by the recent death of her cat. Notably there is no history in this report of any psychological symptoms associated with the workplace.[57] In his report dated 13 July 2018, Dr Menendez states that the respondent presented with evidence of depression.[58] The last report dated 2 August 2018 stated that the respondent had cancelled all future appointments with him.[59]
[57] ARD, pp 264–5.
[58] ARD, p 263.
[59] ARD, p 266.
The clinical records of Primary Healthcare Medical and Dental Centre at Bankstown cover the period from 24 April 2019 to 19 February 2020. On most of the attendances the respondent was seen by her GP, Dr Islam. From April 2019 to August 2019, the attendances involved minor illnesses and injuries. On 19 August 2019 the respondent reported workplace bullying and feelings of depression, with a history noted of PTSD.[60] On 19 September 2019, the respondent reported that she was feeling better with the antidepressant medication. The respondent attended on 8 October 2019 complaining of bursitis relating to a motor vehicle accident that happened four to five months prior. On 20 November 2019, the respondent attended reporting worsening depression and was counselled.[61] Following two other presentations for unrelated issues, the respondent presented again on 11 December 2019 complaining of further workplace bullying and the reason for contact was noted as depression and anxiety.[62] On 17 December 2019, the respondent reported being under a lot of stress and not being able to go to work.[63] It should be noted that as a result of a medical certificate dated 19 December 2019, the respondent was certified as unfit for work and did not return to work for the appellant and then resigned on 26 May 2020. On 29 December 2019 the respondent reported that she was not willing to go back to work and that she was seeing a psychiatrist, Dr Mendez (sic). She reported her history of massive domestic violence and said that her work had escalated her anxiety and depression.[64] On 7 January 2020, the respondent reported still feeling depressed and was not prepared to go to work.[65] On 26 January 2020 the respondent reported being ‘under the weather’, not sleeping well, that she did not feel safe or confident to go back to work.[66] On 6 and 9 February 2020 the respondent again reported not feeling good, feeling rundown, not sleeping well, having nightmares and stress.[67]
[60] ARD, p 195.
[61] ARD, p 194.
[62] ARD, p 193.
[63] ARD, p 192.
[64] ARD, p 192.
[65] ARD, p 191.
[66] ARD, p 190.
[67] ARD, pp 188–189.
The clinical records of the Petersham Family Medical Centre span the period from 18 April 2016 to 30 October 2020. On 14 November 2016, the respondent presented with symptoms of distress as a result of a workplace incident where she said she was bullied at work and then unfairly dismissed.[68] On 9 January 2017, the respondent presented with feelings of anxiety and depression as a result of relationship problems and the recent termination because her company was in financial hardship.[69] In April 2017, the respondent reported that she was [redacted] and feeling depressed. The respondent also described anxiety.[70] In September 2017 the respondent reported [redacted].[71] It is unclear if this was a reference to the events in April or [redacted]. However, in a report from psychologist Ms Ami Iketani dated 12 November 2017, it is stated that the respondent reported [redacted].[72] The various reports from Ms Iketani in the Petersham Family Medical Centre clinical records all describe anxiety and depressed mood with some reports of sleep difficulties, panic attacks and low energy.[73] In November 2017 the respondent presented complaining of bullying at work (noting that this was in a prior employment to that with the appellant). She described an acute stress reaction, being in a low mood and teary.[74] On 8 April 2018 the respondent presented with a history of depression and anxiety and seeking medication for nicotine dependence.[75] In January and February 2018, the respondent presented for anxiety and depression as a result of [redacted].[76]
[68] ARD, p 209.
[69] ARD, p 210.
[70] ARD, p 219.
[71] ARD, p 215.
[72] ARD, p 289.
[73] See ARD, pp 300, 304.
[74] ARD, pp 212–214.
[75] ARD, p 210.
[76] ARD, p 211.
For the period during which she was employed by the appellant, there are the following entries in the clinical notes. In May and June 2018, the respondent presented for grief counselling as a result of the death of her cat and having found out that there may have been an error in the medication for her cat.[77] The respondent attended on 10 February 2019 giving a history of PTSD and that she was attending a psychologist at RPAH every two weeks. There was no other detail.[78] Finally, the respondent attended Dr Lim on 7 January 2020 advising that she had put in a complaint of bullying and harassment. It is noted as a mental health consultation without any further detail.[79]
[77] ARD, pp 222–4.
[78] ARD, p 225.
[79] ARD, p 226.
The Mental Health Treatment Plans issued by the Petersham Family Medical Centre during the period prior to the 2020 Determination state a diagnosis of mixed anxiety and depression.[80]
[80] See ARD, pp 267, 277, 307, 309.
The referral to Dr Menendez from Dr Elhassadi dated 13 June 2018 describes the presenting problem as anxiety/depression/unresolved grief.[81]
[81] ARD, p 273.
The last set of medical records which cover the period of employment and predate the 2020 Determination are the various Certificates of Incapacity.
The following medical certificates give no diagnosis:
(a) issued by Dr Elhassadi dated 13 June 2018;[82]
(b) issued by Dr Kyaw dated 27 August 2018,[83] and
(c) issued by Dr Elhassadi dated 3 September 2018.[84]
[82] ARD, p 276.
[83] ARD, p 262.
[84] ARD, p 258.
The following Certificates of Capacity provide diagnoses of (variously) PTSD, anxiety, stress, work related stress and depression:
(a) issued by Dr Islam dated 17 December 2019;[85]
(b) issued by Dr Islam dated 29 December 2019;[86]
(c) issued by Dr Islam dated 7 January 2020;[87]
(d) issued by Dr Islam dated 16 March 2020;[88]
(e) issued by Dr Islam dated 13 April 2020,[89] and
(f) issued by Dr Islam dated 11 May 2020.[90]
[85] ARD, p 313.
[86] ARD, p 316.
[87] ARD, p 319.
[88] ARD, p 331.
[89] ARD, p 334.
[90] ARD, p 337.
The Certificates of Capacity issued by Dr Islam dated 26 January 2020[91] and 9 February 2020[92] contain no diagnosis at all.
[91] ARD, p 322.
[92] ARD, p 325.
The Certificate of Capacity issued by Dr Argueta dated 5 March 2020 gives a diagnosis of “stress work related”.[93]
[93] ARD, p 328.
The appellant’s materials prior to the 2020 Determination
As noted above, upon the respondent making her claim in 2020, the appellant denied liability on all grounds including injury. The parties then engaged in a series of applications for review.
In denying the presence of an injury, the appellant referred to the Certificates of Capacity issued by Dr Islam dated 11, 17 and 29 December 2019 and 7 January 2020 and asserted that the diagnosis made in those certificates did not qualify as a psychological injury.[94] Further, the appellant relied on its own medico-legal report from Dr Leonard Lee who opined that the respondent did not present as objectively anxious or depressed but rather said that the respondent’s symptomatology suggested an underlying personality dysfunction and lack of insight. In that regard, the appellant said that such comments were consistent with the clinical records of the Petersham Family Medical Centre.[95]
[94] Reply, p 6.
[95] Reply, pp 6–7.
In the s 78 notification, the appellant also put in issue whether employment was a substantial contributing factor to any injury and also called in aid the provisions of s 11A of the 1987 Act. The same approach was taken by the appellant in its conclusion of a s 287A application for review.[96] The appellant identified that the documents relevant to the decision included the Certificates of Capacity from Dr Islam, the referral to Dr Menendez, the clinical records of the Petersham Family Medical Centre, the clinical records of the Primary Healthcare Medical and Dental Centre as well as various forms and statements.[97] The reason that this is important is that each of those documents were considered by the appellant in identifying the nature of the injury that the respondent contended that she had suffered as a result of the alleged bullying at the appellant’s workplace prior to the 2020 Determination.
[96] Reply, pp 16–24.
[97] Reply, pp 20–21.
As noted above, on 28 November 2019, the appellant notified the respondent of allegations made against her by other employees of the appellant. They included allegations of sexist and racist comments.[98] The respondent responded in writing denying the allegations and alleged that the complaint was an act of victimisation in response to her lodging her complaint of bullying and harassment on 1 April 2019.[99]
[98] Reply, pp 35–37.
[99] Reply, pp 38–40.
On 3 March 2020, the appellant notified the respondent that her complaints of bullying and harassment had not been substantiated.[100]
[100] Reply, pp 41–42.
On the same day, the appellant notified the respondent that the allegations made against her had been sustained and that the conduct complained of breached the appellant’s Code of Conduct and the respondent was issued with a formal warning.[101] The review and reasoning of the decision-maker and the documents relied on were attached.
[101] Reply, pp 43–45.
In the current proceedings, the appellant also filed a series of statements from co-workers of the respondent.[102]
[102] Reply, pp 88–159.
The report of Dr Leonard Lee, psychiatrist, dated 27 February 2020 stated that the respondent complained of low mood with impaired concentration, anxiety, and nightmares several times a week and believes that these symptoms are related to relentless negativity towards her at work.[103] In the report, Dr Lee noted the respondent’s previous history including [redacted] and domestic violence. In his mental state examination, Dr Lee found that the respondent did not present objectively as anxious or depressed and found that although she reported past experiences of abuse and trauma, the respondent had minimised them compared to her workplace experiences. Dr Lee also considered the clinical records of the Petersham Family Medical Centre going back as far as 2016. He also noted comments made by the respondent in her statement. In conclusion, Dr Lee rejected a diagnosis of anxiety or depression and suggested that a possible psychiatric disorder may be an underlying personality dysfunction and lack of insight.[104] Dr Lee found that if there had been a psychological injury, workplace factors were not the main contributing factor to the development of it.[105]
[103] Reply, p 164.
[104] Reply, p 174, [43].
[105] Reply, p 174, [44].
In his supplementary report dated 7 April 2020, Dr Lee was asked to consider further material. Dr Lee challenged Dr Allan’s acceptance that the respondent was not suffering from any level of impairment at the time of commencing her employment with the appellant. Dr Lee opined that such a statement was inconsistent with the respondent’s work history of multiple short-term jobs, several of which appear to have ended on unfavourable terms. Dr Lee opined that the respondent’s history was consistent with underlying dysfunctional personality traits. In addition, Dr Lee noted that even though the respondent began consulting with Dr Islam in April 2018, she made no complaint of depression or distress until 19 August 2019.[106] Dr Lee then set out the characteristics of persons with borderline personality traits. However, it is to be remembered that that was not the psychological injury which the respondent claimed she suffered due to workplace issues.
[106] Reply, p 177, [6].
In an Earning Capacity Assessment commissioned by the appellant, Mr Richard Erber, a rehabilitation counsellor and vocational assessor, set out the information provided to him by the respondent. In describing her injury, the respondent stated that she had been prescribed medication to assist with her anxiety and depression. The respondent described feeling depressed and anxious as a result of her workplace experiences. She reported low energy and low motivation and was reported to have nightmares at least once per week.[107] Mr Erber then made a series of recommendations for alternative jobs that he opined that the respondent would be able to undertake.
[107] Reply, pp 221, 222, 225.
The appellant relied on the clinical records from Westmead Hospital. They indicated a past history of eating disorders from as early as 1998,[108] with the respondent attending group therapy for same in 2011.[109] The respondent was noted to meet the criteria of Major Depressive Disorder in 2003.[110] The respondent presented [redacted] following a relationship breakdown and complaining of depression on 4 May 2014.[111] On the same occasion, the respondent complained that her ex-husband had been putting videos and posts on social media. The mental health assessment described the respondent to have “over-valued ideas on a background of vulnerable personality traits”[112] and some aspects of a delusional disorder.[113] A patient handover form dated 20 April 2016 noted a background of binge eating disorder, [redacted] and schizophreniform.[114] The discharge summary from that admission noted a past medical history of schizophreniform psychosis, binge eating disorder, [redacted], polycystic ovary syndrome and hypercholesteremia.[115] A further diagnosis was noted as including “traits of dependent and borderline personality”.[116] The respondent was scheduled in June 2014 after a psychotic episode [redacted].[117] The respondent presented on 3 July 2014 with anxiety and was noted as being at risk of distress due to psychosis.[118] As at 14 August 2014, the respondent was diagnosed as having an eating disorder that was exacerbated by psychotic disorder. In particular, the respondent was described as engaging in expressions with overt delusional content and [redacted]. The report recommended that she needed general psychiatric care for her psychosis and [redacted] in the context of her delusional beliefs.[119] On 5 September 2018, the respondent presented with a past history of post-traumatic stress disorder and depression and [redacted] because of increased family pressure and harassment at work.[120] She underwent a mental health assessment and was then transferred to Royal Prince Alfred Hospital. On 2 September 2018 the respondent was admitted to the emergency department of Westmead Hospital complaining of severe abdominal pain with an episode of vomiting. No complaints of mental health issues were noted at that time.[121] On 9 January 2019, the respondent presented [redacted] as very distressed and was referred for [redacted] counselling.[122]
[108] Reply, p 257.
[109] Reply, p 347.
[110] Reply, p 268.
[111] Reply, pp 604, 628.
[112] Reply, p 633.
[113] Reply, p 635.
[114] Reply, p 525.
[115] Reply, p 558.
[116] Reply, p 637.
[117] Reply, pp 437–438.
[118] Reply, p 641.
[119] Reply, p 381.
[120] Reply, p 309.
[121] Reply, pp 588–9.
[122] Reply, p 320.
The records of “psychCentral” commence on 30 May 2019. On that day, the respondent’s complaint was that [redacted]. The respondent also claimed that she was bullied at work and that [redacted]. The respondent said she had made a complaint to HR about the bullying but now feels there is retribution. The respondent gave a history of an abusive marriage [redacted]. There is a notation of psychological testing which revealed anxiety (1.4), depression (2.26) and trauma (2.56).[123] The clinical entry for 8 August 2019 notes that the respondent complained of a toxic work environment, that she was eating well and sleeping well with no nightmares.[124] The clinical note for the session on 5 February 2020 states that there was “no news from insurer” and that she was feeling uneasy about returning back to work for fear of backlash and conflict if she returns. She reported a complete loss of confidence.[125] The clinical record for the session on 20 February 2020 noted that she had seen a psychologist and had engaged in a cost benefit analysis about returning to work through identified suitable duties. The respondent reported being enthusiastic and eager to return back to the workforce.[126] There are records for sessions on 27 February 2020 and 16 April 2020 that refer to session notes attached. However, it is unclear from the bundle of documents produced which are the session notes being referred to. The record for the session on 13 May 2020 described the respondent as flat and teary and that she was “shared [sic] of her ongoing ‘bullying’ through payroll”, stating that they kept getting her leave entitlements wrong every week and she was increasingly frustrated.[127]
[123] Reply, pp 659–660.
[124] Reply, p 657.
[125] Reply, p 654.
[126] Reply, p 652.
[127] Reply, p 648.
In the bundle of documents for psychCentral is the GP Mental Health Treatment Plan completed by Dr Islam on 17 March 2020. In that document the provisional diagnosis is severe anxiety and depression, PTSD.[128]
[128] Reply, p 666.
The appellant included the report prepared by Nezihe Ali dated 11 May 2020 described in paragraph [50] above. The appellant also included the clinical records of Primary Health Care Medical and Dental Centre discussed at paragraph [53] above; and of Petersham Family Medical Centre discussed at paragraph [54] above.
The respondent’s materials in relation to the injury, the subject of the current claim
On 9 March 2021, the respondent’s legal representative sent a claim letter to the appellant and its insurer. That letter enclosed a report of Dr Allan dated 2 March 2021 and stated that “there is no previous injury, nor any pre-existing condition or abnormality to which any of our client’s impairment is or may be due.”[129]
[129] ARD, p 39.
The report of Dr Allan dated 2 March 2021 stated that he had access to the following documents:
(a) his own reports dated 26 March 2020 and 24 September 2020;
(b) file of Petersham Family Medical Centre;
(c) file of Bankstown Medical Centre;
(d) letter from StateCover Mutual Limited dated 17 December 2019;
(e) Medical Attendant’s Statement dated 22 July 2020;
(f) Permanent Incapacity Claim Form dated 31 October 2020;
(g) Workers Compensation Claim Form dated 5 January 2020, and
(h) the respondent’s statement.[130]
[130] ARD, p 42.
Of those, items (d), (e) and (f) were not put before the Principal Member in this matter. Dr Allan did not identify the date of the statement of the respondent but it must have been the original statement dated 27 April 2020 as the respondent’s supplementary statement post-dates his report. These documents differed to the documents reviewed by Dr Allan in his earlier reports.[131]
[131] ARD, pp 91, 105.
As at 2 March 2021, Dr Allan diagnosed the respondent with schizoaffective disorder. He stated that the respondent had marked mood symptoms and paranoia. Dr Allan opined that the previously diagnosed major depressive disorder has evolved into depressive disorder with psychotic features and that his previous differential diagnosis of schizophrenia has evolved into a diagnosis of schizoaffective disorder.
However, this evolution is from his diagnosis of 24 September 2020 (after the 2020 Determination). In that report, Dr Allan noted the respondent’s past psychiatric health as including various eating disorders and trauma [redacted] in 2016 and 2017. He noted that at his initial assessment the respondent had developed symptoms consistent with an adjustment disorder with depressed and anxious mood. He noted that there had been a mild improvement of her symptoms by being out of the workplace but that she had remained incapacitated for work and her treatment was at an early stage.[132] Notwithstanding that statement, later in his report Dr Allan states that the respondent’s adjustment disorder had evolved into a major depressive disorder on the basis of the respondent reporting insomnia, high anxiety, minimal enjoyment in life, poor focus and concentration. Further, Dr Allan noted that the respondent was extremely paranoid; that the respondent felt that people monitored her; that she believed that her bathroom and bedroom were bugged and that she believed that people were talking about her online.[133] Dr Allan’s mental state examination revealed that the respondent experienced marked paranoia and delusional thinking. As at 24 September 2020, Dr Allan’s diagnosis was that the respondent was then suffering from chronic major depressive disorder with psychotic symptoms with the differential diagnosis of schizophrenia.
[132] ARD, p 110.
[133] ARD, p 111.
In her supplementary statement dated 14 September 2021, the respondent provided commentary to the statements of her co-workers but did not describe any change in her condition.
In a further medico-legal report dated 27 October 2021, Dr Allan responded to the comments made by appellant in relation to his change in diagnosis, asserting the reasons why he believed that there was a cohesive basis for the evolution of the respondent’s condition.[134] Further, Dr Allan opined that the respondent’s current condition was related to problems in her workplace.[135]
[134] ARD, p 128.
[135] ARD, p 129.
In relation to the schizoaffective disorder, Dr Allan states “it is entirely in evidence that she did not have such a psychiatric condition prior to the workplace issues arising …”.[136] I note that this statement stands in the face of an assertion that in preparing this report, Dr Allan had considered the clinical records of Bankstown Mental Health Services. As discussed in paragraph [51] above, those records state that the respondent had been admitted to RPAH Missenden psychiatric unit in 2014 for [redacted], schizophreniform psychosis and binge eating disorder.
[136] ARD, p 130, [1].
Finally, in his 27 October 2021 report, Dr Allan opines that there should be a one tenth deduction for causative influences from “past difficulties.”[137]
[137] ARD, p 130, [3].
On 3 February 2022, Dr Allan provided a further supplementary report. In this report, Dr Allan noted that he has been given access to further clinical records and conceded that the respondent did in fact have a history of psychotic episodes and schizophreniform psychosis.[138] However, Dr Allan opined that a background of mental illness did not mean there was no work injury. Dr Allan noted severe issues in 2014 and then opined that these issues created a vulnerability that led to a marked severe and enduring exacerbation of her underlying condition and it was the work related exacerbation which has continued to cause her difficulties.
[138] ARD, p 133.
Dr Allan then stated that his opinion has altered so that the respondent should be considered as having an underlying schizoaffective disorder with her workplace difficulties causing an exacerbation of her condition which has endured.[139] Significantly, Dr Allan was asked for his opinion as to whether the respondent’s employment was the main contributing factor to her injury and her incapacity for work. In his response, he stated that the employment was the factor which contributed to her resultant incapacity for work and that her work was the contributing factor to an exacerbation of her underlying difficulties.[140] As such, it is open as to whether Dr Allan has answered the question as to whether it was his opinion that work was the main contributing factor to her current condition. Finally, Dr Allan maintained that there should be a one tenth deduction from his initial assessment of March 2021 to take into account underlying problems.
[139] ARD, pp 135–136.
[140] ARD, p 136, [2].
The Bankstown Mental Health Services records for the period after the 2020 Determination, disclose that on 8 October 2020, the respondent presented with symptoms of compulsive eating and compulsive shopping since commencing Abilify in September. Whilst it is noted that there was a history of traumatic experiences, most recently workplace bullying which resulted in her not working, it is also noted that there was an abusive relationship prior to this. The clinical record sets out a history from 2014 including that of schizophreniform psychosis.[141] The follow up assessment on 9 October 2020 noted that the respondent was feeling severe paranoia and that she felt that her house was bugged and that her personal information will be shared publicly.[142] On 13 October 2020, the respondent reported feeling depressed since December 2019 in the context of workplace bullying. The respondent reported that she believed that her colleagues were still trying to hurt her and that they were manipulating people in her personal life and preventing her from accessing the assistance that she requires.[143] Similarly, the respondent reported that she believed that her neighbours were monitoring her with cameras that face her garden. The clinical note stated that the client appeared distressed and cried when asked about her previous employment and [redacted].[144] These formulations were replicated in the diagnosis of having paranoid and persecutory delusions regarding her neighbours. Further, the reported history of workplace bullying and targeting was stated to be “unclear regarding reality base to these reports.”[145] On 20 October 2020, the clinical record states that the respondent reported feeling good with good sleep and appetite and denied any paranoid ideations or delusional ideas.[146] However, on 27 October 2020, the respondent reverted to complaints of a deterioration in her mental state, reports of stress and anxiety and reports that she was being monitored and bugged. The respondent again reported that she believed that her co-workers were still harassing her indirectly. The respondent gave a history of [redacted] and that she left the council due to workplace harassment and bullying.[147]
[141] ARD, p 140.
[142] ARD, p 143.
[143] ARD, p 146.
[144] ARD, p 147.
[145] ARD, p 150.
[146] ARD, p 158.
[147] ARD, pp 160–161.
The clinical records over the following weeks include similar reports and in addition that the respondent believed that she was being talked about on the radio and TV, that she believed that she could read minds and predict the future,[148] and that she was being targeted by Centrelink.[149]
[148] ARD, p 162.
[149] ARD, p 165.
The respondent consulted psychiatrist Dr Mahendra Nepal. There are four reports from Dr Nepal dated 3 May 2021, 21 June 2021, 26 July 2021 and 23 August 2021. All of the reports are based on a diagnosis of schizophrenia. The first and second reports deal only with presentation and treatment. In his report dated 23 August 2021, Dr Nepal noted that the respondent had a long-standing history of schizoaffective disorder with paranoid ideas, anxiety and depressive features. He noted that she thinks that everyone including the health professionals, have been trying to harm her.[150] Dr Nepal described receiving a history from the respondent that her symptoms started two years ago in the context of bullying at work. He gave a diagnosis of schizophrenia paranoia and a differential diagnosis of schizoaffective disorder.[151]
[150] ARD, p 170.
[151] ARD, p 172.
In the Petersham Family Medical Centre clinical notes, the entry for 24 July 2020 states “?cyberbullying from work on-going”, that the respondent was undergoing divorce proceedings and wanted a referral to a female psychiatrist.[152] On 1 September 2020, the respondent was referred to a psychiatrist, Dr Choudhary.[153] On 30 September 2020, the respondent presented with a weight increase, that Dr Choudhary told her to cease Abilify and that she had since consulted another psychiatrist. Further, the clinical note states “extreme paranoia”.[154] On 30 October 2020, the clinical notes record that she had seen a psychiatrist and was diagnosed with psychosis.[155] On 15 January 2021 the clinical records state that the respondent had been diagnosed with schizoaffective disorder with a referral made under a Primary Health network to a psychiatrist.[156]
[152] ARD, p 227.
[153] ARD, p 228.
[154] ARD, p 229.
[155] ARD, p 230.
[156] ARD, p 230.
As noted above, on 28 February 2022 the respondent filed an ARD in the current proceedings. The matter in dispute was said to be “Lump sum compensation where liability in dispute”.[157] It referred to the 2020 Proceedings.[158] In the ARD, the respondent described the “Type of Injury” as “Personal”.
[157] ARD, p 2.
[158] ARD, p 3.
The appellant’s materials in relation to the injury the subject of the current claim
Dr Leonard Lee re-examined the respondent on 21 May 2021 and provided a report dated 17 June 2021.[159] The respondent advised Dr Lee that her schizoaffective disorder was brought on by trauma on two occasions when members of the public tried to kill her. Further, that she considered that the bullying and harassment that she received at the appellant’s workplace ‘snowballed’ and that her boss made her feel like she had to put up with the harassment.[160] The respondent stated that she believed that the appellant had bugged her house and that her former colleagues stalk her and that the appellant is publicly spreading lies about her. She also reported that her friends and family are now no longer able to be trusted and that she had cut ties completely with one of her sisters.[161] The respondent reported that she believed that she could read other people’s thoughts and that the appellant has friends in Channel 9 whereby questions asked on the TV show, “Who Wants to be a Millionaire” are actually jokes about the respondent.[162] Dr Lee’s report analysed the clinical records of the Petersham Family Medical Centre. He concluded that, in contrast to Dr Allan’s opinion, the records show that the respondent had unresolved difficulties at the time that she commenced employment with the appellant in April 2018, that she was not “fine”.[163] Dr Lee then looked at the statements provided by the respondent’s co-workers.[164]
[159] Reply, p 190.
[160] Reply, p 191, [8].
[161] Reply, p 192, [11].
[162] Reply, p 193, [16].
[163] Reply, pp 197–198.
[164] Reply, pp 198–205.
Dr Lee opined that there is no indication that the respondent suffered from PTSD or a schizoaffective disorder by reason of her employment with the appellant.[165] Dr Lee opined that the respondent’s condition revealed features of a Borderline Personality Disorder.[166] Dr Lee considered the respondent was a poor historian and stated that the psychological testing revealed that the respondent gave an extremely high number of implausible responses which was consistent with invalid symptom reporting/negative response bias.[167]
[165] Reply, p 211, [125].
[166] Reply, p 211, [128].
[167] Reply, p 214, [135].
Finally, Dr Lee opined that in his opinion the respondent has not suffered from a work related injury.[168]
[168] Reply, p 217, [147].
THE PRINCIPAL MEMBER’S DETERMINATION AND REASONS
The Principal Member relied on the principles enunciated by Roche DP in Bouchmouni in relation to estoppel in the context of consent orders.[169]
[169] Reasons, [14].
In relation to the issue of injury, the Principal Member rejected the appellant’s submissions that the 2020 Determination provided no certainty as to the finding of injury. Instead, the Principal Member reasoned that, in order for the appellant to agree to pay weekly compensation and s 60 expenses to the respondent, then necessarily and when viewed objectively, there had to be an acceptance of a psychological injury which was relied upon in those proceedings.[170]
[170] Reasons, [16].
The Principal Member also reasoned that by reference to the content of dispute notices in the 2020 Proceedings, the appellant understood the psychological injury claim that was being made and that the deemed date of injury was 11 December 2019.[171] The Principal Member therefore concluded that the substance of the injury in the 2020 Proceedings was “a psychological injury that [the respondent] alleged was work related”.[172]
[171] Reasons, [22].
[172] Reasons, [27].
Further, the Principal Member held that because of its agreement to the consent orders in the 2020 Determination, then impliedly the appellant had abandoned its reliance on ss 4, 4(b), 11A(3) and 11A of the 1987 Act and had therefore admitted that the respondent had been injured during the course of her employment.[173]
[173] Reasons, [18].
Based on that reasoning, the Principal Member accepted the respondent’s submissions below that the 2020 Determination created “issues estoppel” as to the issues of injury and the defences under s 11A of the 1987 Act.[174]
[174] Reasons, [30].
The Principal Member rejected the appellant’s submissions below that because there had been a substantive change in the nature of the injury being a change in the psychopathology,[175] based on a change in the diagnosis by Dr Allan,[176] there could be no estoppel. The Principal Member found that in a psychological injury case, once a work related primary psychological injury has been found and if the employer has not established a defence under s 11A, then the Member usually remits the lump sum to the President for referral to a medical assessor. In this matter, the Principal Member concluded that the 2020 Determination meant that the appellant had conceded that there was a work-related psychological injury.[177]
[175] Reasons, [4]–[42].
[176] Throughout the reasons, the Member refers to “Dr Allen” but the reports are those of Dr Martin Allan. The misspelling is to be taken as a typographical error.
[177] Reasons, [33]–[34].
The Principal Member undertook an analysis of the reports of Dr Allan dated 2 March 2021 and 3 February 2022 in support of her rejection of the appellant’s submission that the condition for which the respondent now seeks lump sum compensation is a different injury to that the subject of the 2020 Determination. The Principal Member held that the appellant’s argument glossed over the fact that Dr Allan’s report of 2 March 2021 still found that there was a work-related psychological injury. Further, the Principal Member made a factual finding that Dr Allan’s change in diagnosis is not evidence of a new injury but “just reflects the evolution that occurs in psychological injury cases”.[178]
[178] Reasons, [42]–[46].
The Principal Member, relying on the decision of Roche DP in Jaffarie v Quality Castings Pty Ltd[179] held that there was a distinction to be made between a claim for weekly compensation or medical expenses and a claim for lump sum compensation.
[179] [2014] NSWWCCPD 79, [279].
The Principal Member concluded that a reasonably objective person considering the 2020 Determination, and the content of the dispute notices in the 2020 Proceedings, would understand by the language the parties used in the consent orders that the insurer was no longer relying on the matters it disputed about ss 4, 4(b), 9A, 11A(3) and 11A.[180]
[180] Reasons, [49].
On that reasoning the Principal Member concluded that the appellant was estopped in relying on those sections of the 1987 Act in this matter and remitted the lump sum claim to the President for referral to a Medical Assessor.
SUBMISSIONS
The appellant’s submissions identify the principles in Whiteley Muir and Owston Nominees in relation to an appeal under s 352.[181]
[181] Appellant’s submissions, [3]–[4].
The appellant refers to the fact that in the 2020 Proceedings, the respondent relied on the medico-legal opinion of Dr Allan in his report dated 26 March 2020 which diagnosed the respondent as suffering from an adjustment disorder. The appellant submits that in his report dated 2 March 2021, Dr Allan states that the respondent’s previously diagnosed major depressive order had evolved. The appellant contends that Dr Allan had not previously diagnosed the respondent with a major depressive disorder prior to the 2020 Determination. What he had done in his report of 26 March 2020 was diagnose a pre-existing post-traumatic stress disorder and major depressive disorder in remission as at the commencement of employment. Accordingly, the appellant’s argument is that the most recent diagnosis of Dr Allan speaks of a very different injury to the adjustment disorder which guided the conclusion of rights in the consent orders in the 2020 Determination. The appellant submits that on any view of the evidence, the injury the subject of the 2020 Determination was different in substance to the injury for which claim is now being made.[182]
[182] Appellant’s submissions, [8]–[21].
In respect of Ground One of the appeal, the appellant refers to the written submissions it made below in relation to the principles applicable to issue estoppel. In particular, that there must be certainty that the issue previously determined is the same as the issue newly raised for consideration, for issue estoppel to apply. The appellant argues that the Principal Member failed to grapple with that need for certainty as to the findings she made about the nature and substance of the injury in both proceedings.
The appellant submitted that the Principal Member’s reasoning at [22] of the Determination that the appellant “understood the psychological injury claim being made” highlights the error, because whatever understanding may or may not have existed, it does not provide objective certainty as to the injury relied upon in the 2020 Proceedings. The appellant argues that the mere finding by the Principal Member that there was a “psychological injury” in the 2020 Proceedings (see [27] of the Determination) cannot operate to provide the requisite level of certainty for estoppel.[183]
[183] Appellant’s submissions, [22]–[34].
The appellant submits that neither party would have understood the respondent to be suffering from a schizoaffective disorder at the time the 2020 Determination was consented to because it was not the case being advanced by the respondent at that time.[184]
[184] Appellant’s submissions, [35].
The appellant submits that it is antithetical to the principles of estoppel to suggest that a different or evolving medical condition can be the subject of an issue estoppel said to have arisen (in the 2020 Proceedings) before that condition had been diagnosed.[185]
[185] Appellant’s submissions, [40].
The appellant criticises the Principal Member’s attempt to reconcile the more recent diagnosis of Dr Allan by simply relying on his contention that (in the current claim) there was still a work-related psychological injury. Without specificity, estoppel does not apply.
In any event, the appellant submits that the Principal Member’s reliance on Dr Allan’s current diagnosis as being an evolution of the prior injury is misconceived. This is because, as noted above, Dr Allan’s current opinion is that the respondent’s current condition for which she is seeking lump sum compensation is the result of an evolution of her previously diagnosed major depressive disorder. However, the psychological injury the subject of the 2020 Proceedings was an adjustment disorder. Accordingly, the appellant contends that the Principal Member’s characterisation of the evolutionary process is an error of fact. The appellant contends that this error of fact creates the basis for the Principal Member’s error of law that estoppel applies.
In respect of Ground Two of the appeal, the appellant alleges that the Principal Member was in error in referring the assessment of permanent impairment to a Medical Assessor because there was an underlying failure to determine the nature of the injury the subject of the claim. The appellant contends that before any referral for medical assessment is made, the preliminary issue of the nature of the injury and of liability should have been determined on its merits.
The respondent argues that a s 352(5) appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact and law.[186]
[186] Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, [16]–[17].
In relation to Ground One, the respondent submits that the Principal Member correctly identified the legal principles to be applied in relation to issue estoppel and that the core facts were not open to dispute.[187]
[187] Respondent’s submissions, [14]–[15].
The respondent submits that there is identity in the process because, in the 2020 Proceedings, the worker claimed weekly payments and s 60 expenses based on a description of the injury being the “[n]ature and conditions of employment as a Parking Officer from 1 April 2018 to 11 December 2019 involving incidents of bullying, harassment and verbal abuse by co-workers and incidents of verbal threats, intimidation and stalking by members of the public” and had thereby suffered a “psychological injury”; that being the same mechanism of injury being claimed in the current proceedings. Accordingly, on the respondent’s submission, when the parties agreed to the consent orders for the 2020 Determination, it was settled that the respondent had suffered from a work-related psychological injury, and that, in the respondent’s submission, is sufficient to found issue estoppel.
The respondent submits that her diagnosis has differed over time due to the evolution of her severe and enduring mood problems and contends that the Principal Member engaged in no error of fact in relying on the reports of Dr Allan to support that view. The respondent contends that the Principal Member’s path of reasoning was palpably correct and that her factual findings are not challengeable for error.[188]
[188] Respondent’s submissions, [18]–[21].
The respondent submits that the Principal Member correctly identified the relevant case law from Bouchmouni and that the Principal Member correctly rejected the appellant’s argument that the consent orders provided no certainty as to the finding of injury. On the respondent’s case, the dispute notices in the 2020 Proceedings put liability in dispute and by entering into the consent orders for the 2020 Determination, the appellant had impliedly admitted that the respondent had sustained an injury arising out of or in the course of employment.
The respondent argued that the Principal Member correctly relied on the dispute notices to find that the employer understood the respondent’s claim as to her psychological injury in the 2020 Proceedings.
The respondent submits that the Principal Member was correct in rejecting the contention that there is a different injury in the current proceedings. The respondent says that the changing diagnosis was not evidence of a new injury for the purposes of s 4 of the 1987 Act but rather, as Dr Allan had identified, it was the evolution of the psychological injury that was the subject of the 2020 Determination. Accordingly, the respondent contends that the Principal Member’s decision on estoppel was correct.[189]
[189] Respondent’s submissions, [23]–[27].
The respondent rejects the appellant’s submissions that on any view of the evidence, the injury the subject of the 2020 Determination was different to the injury the subject of the present proceedings. The respondent contends the appellant did not produce any expert evidence to that effect and that therefore, the appellant cannot establish the required character of factual error in respect of such a finding.[190]
[190] Respondent’s submissions, [28].
The respondent submits that it was an objective finding by which the Principal Member correctly applied the law and that it was open on the evidence, if not compelled by the evidence.[191]
[191] Respondent’s submissions, [31].
In reply, the appellant submits that, like the Principal Member, the respondent fails to grapple with the question of certainty as to the nature of the injury the subject of the 2020 Determination. The appellant says that the umbrella use of the term “psychological injury” cannot operate to accommodate a change in diagnosis and psychopathology from an adjustment disorder to a schizoaffective disorder.[192]
[192] Appellant’s submissions in reply dated 25 October 2022, [24].
The appellant submits that the proposition that the respondent’s current psychological condition involves an evolution with an ongoing work connection does not overcome the problem in Dr Allan’s diagnosis that the respondent’s current condition is a schizoaffective disorder said to have evolved from the respondent’s pre-existing major depressive disorder, when the diagnosis the subject of his 21 March 2020 medical report was an adjustment disorder. Further, the appellant submits that in the context of the evidence which references both pre-existing and otherwise causally unrelated factors, the absence of additional workplace incidents is not a matter which goes one way or the other to the correctness of the Principal Member’s conclusion on estoppel. Accordingly, the appellant repeats that estoppel does not arise.
In relation to Ground Two, in reply, the appellant submits that principles of estoppel cannot be used to bind the appellant to a diagnosis of injury that did not exist when the estoppel is said to have arisen.
CONSIDERATION
In order for the appeal to succeed, I must be persuaded that the Principal Member was in error, as is required by s 352(5) of the 1998 Act. Further, I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Owston Nominees:[193]
“24. What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes, supra at 538.”
Ground One – That the Principal Member erred in determining that the appellant is estopped from disputing liability for the injury alleged by the worker
[193] Owston Nominees, [24]–[25], [28].
The doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties.[194] It is to be noted that in the recent decision of the Court of Appeal in Miller v Secretary, Department of Communities and Justice (No. 10)[195] it was held that estoppel, in the form of Anshun estoppel, was applicable to the workers compensation statutory scheme. In my opinion, and based on the above authorities, I find that issue estoppel applies in the statutory scheme.
[194] Lambidis v Commissioner of Police (1995) 37 NSWLR 320.
[195] [2022] NSWCA 190.
Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings, between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue.
The necessary ingredients said to have been decided in the 2020 Determination are:
(a) that the respondent suffered an injury;
(b) that the said injury occurred during the course of her employment with the appellant;
(c) that the employment was a substantial contributing factor to the development of that injury, and
(d) being a psychological injury, it was not caused by the reasonable actions of the employer.
It is well settled that for issue estoppel to apply there must be the requisite level of identity between the issues in the prior decision and the issues for determination in the current litigation. The issues under consideration must be the same. Barwick CJ in Ramsay v Pigram held that it applies where:
“that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties ... The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.”[196]
[196] [1968] HCA 34; 118 CLR 271, 276.
This is because issue estoppel (and res judicata) are predicated on the desirability of finality in decision-making.[197]
[197] Murphy v Abi‑Saab (1995) 37 NSWLR 280.
However, estoppel is to be applied strictly.[198] Issue estoppel will apply only to prevent the assertion in later proceedings of the precise matter of fact or law that has already been necessarily and directly decided in the earlier decision. Issue estoppel will only arise if the determination of the issue was indispensable in the sense that it was so fundamental that the decision cannot stand without it.[199]
[198] Ramsay v Pigram; Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363, [47].
[199] Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213, [61].
There are three conditions which must exist for issue estoppel to apply:[200]
(a) the first decision was final;
(b) the same question has been decided, and
(c) the same parties, or at least parties with the same legal interest, are the same.
[200] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 935, per Lord Guest.
In this matter, there is no doubt of conditions (a) and (c). Accordingly, the issue that the Principal Member was required to determine was whether the same question or questions (being those identified in paragraph [130] above) were decided in the 2020 Determination.
In my view, it was a necessary step in the Principal Member’s determination for her to identify precisely the issues that were determined by the 2020 Determination.
I have considered the material before the Principal Member in accordance with the principles in Owston Nominees.
As I have noted above, the 2020 Determination made no reference to the nature or extent of the respondent’s injury. There had been no arbitration on the issues of liability and the orders were made by consent to resolve the dispute.
The authorities referred to by Roche DP in Bouchmouni, including Habib, provide that in these circumstances an examination must take place of the evidence to ascertain what matters were in dispute and what matters were necessarily resolved in the actual decision assented to by the parties. The Principal Member recognised this and referred to these authorities.[201]
[201] Reasons, [14].
In terms of identification of injury in the 2020 Proceedings, the Principal Member referred to the fact that the appellant contended that the respondent’s allegation of injury was that bullying and harassment during her employment led to the development of symptoms consistent with an adjustment disorder with depressed and anxious mood and that the appellant had contended that the respondent had suffered no psychological disorder at all.[202] However, when determining the nature of the injury the subject of the 2020 Determination, the only factual finding made by the Principal Member was that the substance of the injury “was a psychological injury that [the respondent] alleged was work related.”[203]
[202] Reasons, [25].
[203] Reasons, [27].
Later in the reasons, the Principal Member went on to analyse the arguments put by the appellant that the change in diagnosis by Dr Allan to one of a schizoaffective disorder meant that the injury the subject of the current claim was different to the injury for which the 2020 Determination was made. However, the Principal Member reached the conclusion that the only relevant characteristic for determining the nature of the injury was whether it was work-related.[204]
[204] Reasons, [42].
In my view, this constituted an error of law. As the appellant has submitted,[205] the term “injury” refers to both the event that caused the injury and the pathology arising from it.[206] Roche DP in that case (Department of Juvenile Justice v Edmed) also held that for the purposes of a determination of a lump sum entitlement, it is the pathology which must be determined.
[205] Appellant’s submissions, [40].
[206] Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, [26]–[27].
It was insufficient for the Principal Member to simply describe the injury the subject of the 2020 Determination as a psychological injury that was alleged to be work related. Specificity is required for the application of estoppel. In my opinion, the materials available in the 2020 Proceedings make it clear that the pathological injury that was claimed by the respondent and resolved by the 2020 Determination was an adjustment disorder with depressed and anxious mood and/or its constituent symptoms of anxiety, depression, stress, and/or PTSD.
In my view, the Principal Member was in error in not making that finding.
Further, the Principal Member was in error because she was required, under the principles in Bouchmouni and Habib, to conduct an analysis of the available material in the 2020 Proceedings to confirm the nature of the injury. From the reasons, the Principal Member’s Determination appears to have been based only on a small proportion of those materials.
The material that was before the Principal Member reveals that the abovementioned identification of the injury (being the pathology of the injury) is consistent with the claim form, the respondent’s materials, the dispute notifications and review decisions and the medical evidence that was available as at 27 May 2020, being the date of the 2020 Determination including:
(a) the Employee Claim Form dated 5 January 2020 described the respondent’s injury as “anxiety and depression”; [207]
(b) the respondent’s written statement described symptoms of depression and anxiety;[208]
(c) the respondent’s treating GP described her symptoms as “most likely” severe anxiety, depression, PTSD;[209]
(d) the medico-legal report relied on by the respondent in the 2020 Proceedings was that of Dr Allan dated 26 March 2020 which stated that due to past traumatic assaults, the respondent had developed acute distress, anxiety, depression, flashbacks, nightmares and hypervigilance but that all of those conditions had resolved by the time the respondent started working for the appellant. Dr Allan’s diagnosis of the respondent’s symptoms arising from the workplace bullying was “adjustment disorder with depressed and anxious mood”.[210]
(e) Ms Nezihe Ali (psychologist) in her report dated 11 May 2020 also concluded that the respondent was suffering from an adjustment disorder;[211]
(f) Dr Jose Menendez, a psychiatrist who reviewed the respondent in 2018, diagnosed depressive symptoms but stated it was related to grief and other non-work related issues;[212]
(g) the Clinical Records of Primary Healthcare Medical and Dental Centre at Bankstown disclose injuries associated with domestic violence, [redacted] and symptoms of depression and anxiety associated with her workplace issues;[213]
(h) the Clinical Records of the Petersham Family Medical Centre reveal no presentations in relation to workplace issues until January 2020 at which time the notes say that the respondent advised that she had put in a complaint of bullying and harassment. However, during the remainder of the period that the respondent was employed by the appellant, she presented in May and June 2018 for grief counselling on the death of her cat. In February 2019, there is a history of PTSD and that she was attending a psychologist in RPA every two weeks but no detail as to why.[214]
(i) the Mental Health Treatment Plans and referrals in that period state a diagnosis of mixed anxiety and depression,[215] and
(j) those Certificates of Capacity which do contain a diagnosis state variously that the respondent’s condition included PTSD, anxiety, stress, work related stress and depression. Further, the appellant relied on the Petersham Family Medical Centre notes (discussed above).[216]
[207] ARD, pp 34–35.
[208] See paragraph [45] above.
[209] See paragraph [47] above.
[210] ARD, p 96.
[211] See paragraph [50] above.
[212] See paragraph [52] above.
[213] See paragraph [53] above.
[214] See paragraph [54] above.
[215] See paragraph [56] above.
[216] See paragraph [60] above.
The s 78 notification dated 3 March 2020 disputed, amongst other liability issues, that the respondent had any psychological injury at all. In doing so, the appellant pointed to the diagnoses on the certificates of incapacity issued by Dr Islam on 11, 17 and 29 December 2019 and 7 January 2020 and denied that any of the conditions met the definition of a definable psychiatric disorder. However, the notice makes it clear that the claim being denied was for an injury comprising severe anxiety, depression, work related PTSD and stress.[217] In making the decision, the appellant also reviewed the clinical notes of Primary Healthcare Medical and Dental Centre at Bankstown and the Claim Form.[218]
[217] Reply, p 6.
[218] Reply, p 11.
The Review Decision is dated 30 March 2020 and it is clear from that document that the injury for which the claim was being made (and disputed) was anxiety and depression[219] and that the documents forming the basis of the claim included the Certificates of Capacity, the referral to Dr Menendez, Petersham Family Medical Centre clinical records, the respondent’s written statement, the clinical notes of Primary Healthcare Medical and Dental Centre at Bankstown and the Claim Form.[220] As discussed above, these materials contained diagnoses (in the main) of depression and anxiety.
[219] Reply, p 19, [4].
[220] Reply, pp 20–21.
The Review Decision dated 15 April 2020 referred back to the two previous decisions but this notice referred to the report of Dr Allan dated 26 March 2020 and identified the diagnosis of adjustment disorder with depressed and anxious mood.[221] Specifically, the appellant noted that Dr Allan did not think that any of the respondent’s past health issues were causative of her current condition.[222] Liability was denied on the ground that the respondent was suffering from that ‘injury’ and the appellant preferred the opinion of Dr Lee that the respondent had underlying dysfunctional personality traits.[223] The notice also denied liability on the other grounds.
[221] Reply, p 28.
[222] Reply, p 28, [4].
[223] Reply, p 28, [6].
As I have stated, for the purposes of issue estoppel, specificity is required in relation to the issue the subject of the estoppel and accordingly, I find that the Principal Member erred in failing to conduct the requisite analysis of the above materials and erred in fact and law when she determined that it was sufficient to find that the injury was a “psychological injury that [the respondent] alleged was work related” for the purposes of determining whether estoppel applied.
This same error affected the Principal Member’s determination of the nature of the injury the subject of the claim in the current proceedings when she found that it is a “work related psychological injury”.[224]
[224] Reasons, [42].
The Principal Member undertook an examination of the report of Dr Allan dated 2 March 2021 in which he compared his initial diagnosis of adjustment disorder with depressed and anxious mood (26 March 2020 report[225]) to a diagnosis that he made after the 2020 Determination of major depressive disorder with psychotic features (24 September 2020 report[226]), to the diagnosis he recorded in his report of 2 March 2021[227] of schizoaffective disorder.[228] Axiomatically, because the diagnosis made by Dr Allan after the 2020 Determination was different to the diagnosis he made prior to the Determination, it could not be relied on by the Principal Member to inform a finding as to the nature of the injury that the parties agreed upon in resolving the 2020 Determination.
[225] ARD, p 90.
[226] ARD, p 104.
[227] ARD, p 117.
[228] Reasons, [43]–[44].
The Principal Member then considered the report of Dr Allan dated 3 February 2022 in which he acknowledged the respondent’s background of mental illness and mental health issues in 2014. The Principal Member noted that Dr Allan found that the respondent remained well until she commenced her employment with the appellant.[229]
[229] Reasons, [45].
The Principal Member then concluded by accepting the respondent’s submissions that the change in diagnosis “just reflects the evolution that occurs in psychological injury cases.”[230]
[230] Reasons, [46].
In Marr (Contracting) Pty Limited v White Constructions (ACT) Pty Limited[231] the Full Court of the Federal Court held that:
“… it is not permissible to extend an estoppel to include what is its logical consequence when it is combined with some additional, even undoubted, fact. The estoppel itself must reach the target. It will not be eked out by inferences from further facts. This was established by the High Court in O’Donel v The Commissioner for Road Transport and Tramways (New South Wales)(1938) 59 CLR 744. In that case Latham C.J. said (at 758-759):
‘That judgment did create an estoppel as to one proposition - but that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption.’”
[231] [1991] FCA 694; 32 FCR 425; 104 ALR 181.
In my opinion, the very fact that the Principal Member found that there was an evolution over time into a different type of psychopathology necessarily means that there can be no issue estoppel. It cannot be eked out by a further fact-finding exercise into the aetiology of the respondent’s current condition or an acceptance of the respondent’s submissions that “there have been no additional workplace incidents or events”.[232] It is clear that the injury for which the respondent now claims lump sum compensation is different in kind to the injury which was the subject of the 2020 Determination. Further, it is a matter for a merits consideration as to whether there had been other incidents or events (workplace or otherwise) in the respondent’s life since the 2020 Determination.
[232] Reasons, [46].
I accept the appellant’s submissions that the change in the nature of the pathology of the injury cannot be ignored because Dr Allan considers the current claim to also be related to the respondent’s prior workplace issues.[233] Whether or not the respondent’s employment with the appellant was a substantial contributing factor to her current condition is a matter for consideration on the merits.
[233] Appellant’s submissions, [43].
Similarly, whether a defence is available under s 11A is also a matter for consideration on the merits in the context of this different psychopathology.
Ground One of the appeal is upheld.
Ground Two – That the Principal Member erred in referring the assessment of permanent impairment to a medical assessor in the terms set out in paragraph [50] of the Certificate of Determination
In reliance upon Jaffarie v Quality Castings Pty Ltd,[234] the Principal Member found that there was a difference between incapacity and permanent impairment and then determined that it was necessary to refer the issue of permanent impairment for an assessment by a medical assessor.
[234] [2014] NSWWCCPD 79, [279].
However, as noted by the appellant,[235] when the Court of Appeal considered the issue in Jaffarie v Quality Castings Pty Ltd[236] it endorsed the principle that “the Senior Arbitrator was obliged to determine what was the nature of the work-related injury suffered by Mr Jaffarie”.[237]
[235] Appellant’s submissions, [55].
[236] [2018] NSWCA 88.
[237] Ibid, [81].
In view of my findings in relation to Ground One of the appeal that no estoppel arises in these proceedings by reason of the 2020 Determination, I find that the Principal Member was in error in referring the matter for assessment prior to the issues of injury and liability being determined.
CONCLUSION
Leave to appeal the Principal Member’s interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act.
I uphold Grounds One and Two of the appeal.
Accordingly, the Certificate of Determination dated 2 December 2021 is set aside.
The matter is to be remitted to a different member for determination.
Kylie Nomchong SC
ACTING DEPUTY PRESIDENT
6 October 2023
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