Islam v Eureka Operations Pty Ltd t/as Coles Express - [2024] NSWPICPD 80

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2024] NSWPICPD 80
APPELLANT:	Tawfiqul Islam
RESPONDENT:	Eureka Operations Pty Ltd t/as Coles Express
INSURER:	Coles Group Limited
FILE NUMBER:	A1-W7948/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	10 December 2024
ORDERS MADE ON APPEAL:	1. The Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed. 2. The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed. 3. The Member’s determination of the appellant’s pre-injury average weekly earnings is revoked. 4. The matter is remitted to a different member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – no error in failing to deal with a submission that was not made – Brambles Industries Limited v Bell [2010] NSWCA 162 applied – ss 44C, 44G and 44H of the Workers Compensation Act 1987 (now repealed) – calculation of the worker’s pre-injury average weekly earnings, ordinary earnings and ordinary hours of work in circumstances where a fair work instrument applies to the worker – principles applicable to disturbing a factual decision of a primary decision-maker – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; Shellharbour City Council v Rigby [2006] NSWCA 308; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied
HEARING:	27 November 2024
REPRESENTATION:	Appellant:
Self-represented

Respondent:
Mr T Grimes, counsel, and Ms B Walsh, solicitor
Hall & Wilcox Lawyers
DECISION UNDER APPEAL:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] NSWPIC 515
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	28 September 2023

INTRODUCTION AND BACKGROUND

Mr Tawfiqul Islam (the appellant) commenced proceedings against Eureka Operations Pty Ltd t/as Coles Express (the respondent), claiming weekly payments and medical expenses in relation to:
(a)    an injury to his back on 11 July 2015;
(b)    a further injury to his back on 10 January 2018, and
(c)    a psychological injury on 6 November 2019, or, in the alternative, on 26 August 2020.
The issues for determination were identified as:
(a) whether the appellant’s incapacity was caused by his back injury/injuries, his psychological injury or a combination of those injuries;
(b) whether the appellant’s psychological condition was a primary injury or was secondary to the back injury/injuries, and
(c) if the psychological condition was a primary injury, whether the appellant’s entitlement to compensation was defeated by s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The dispute was listed for conciliation and arbitration on 29 March 2023. The dispute could not be resolved, and the matter proceeded to arbitration hearing. The arbitration could not be completed on that day and proceeded to two further arbitration dates of 9 May 2023 and 28 June 2023. At the end of the third day, both parties had completed their submissions, but the appellant had not had an opportunity to reply to the respondent’s submissions. The Member therefore directed the appellant to provide his submissions in reply in writing.
An agreement had been reached between the parties that the appellant’s pre-injury average weekly earnings figure in respect of the injury on 10 January 2018 was $733.38.
The Member issued a Certificate of Determination on 28 September 2023. He ordered the respondent to pay the appellant weekly compensation at the rate of $586.70 per week and to pay the appellant’s treatment expenses.
On 25 October 2023, the respondent lodged an application for reconsideration of the Member’s decision. The appellant attempted to file a number of applications for reconsideration which were rejected by the Commission. The appellant also lodged this appeal from the Member’s decision on 12 December 2023, before the respondent’s application for reconsideration had been considered by the Member. The appellant’s appeal was stayed pending resolution of the application for reconsideration and the issues raised therein.
The Member held a telephone conference on 15 December 2023, in which both parties made submissions in respect of the reconsideration application and the Member issued an oral decision. On 20 December 2023, the Member issued a Certificate of Determination confirming the decision given orally on 15 December 2023 as follows:
(a)    the appellant’s date of injury in respect of his back was 11 July 2015;
(b)    the appellant’s pre-injury average weekly earnings figure was $733.38;
(c)    Order 1 of the original Certificate of Determination was amended to add “as indexed or adjusted;”
(d)    leave was given to the respondent to apply to the Commission if it was alleged that the weekly amount awarded was incorrect;
(e) Order 2 of the original Certificate of Determination (the order that the respondent was to pay the appellant’s s 60 expenses on production of account, receipts and/or a current Notice of Charge) was withdrawn and instead the respondent was ordered to pay the appellant’s s 60 expenses resulting from the injuries sustained on 11 July 2015 upon production of accounts, receipts and/or current Notice of Charge, and
(f)    an award was made in favour of the respondent in respect of the alleged psychological injury on 19 November 2019.
In accordance with Order (d) above, the respondent filed further submissions in the Commission in respect of the appellant’s pre-injury average weekly earnings. The respondent pointed out that the agreement that the appellant’s pre-injury average weekly earnings figure was $733.38 related to the injury on 10 January 2018 and not the injury on 11 July 2015 (the 2015 injury) and that the parties had not reached an agreement as to the pre-injury average weekly earnings in respect of the 2015 injury. The respondent submitted that the figure for the 2015 injury should be $972.80 for the first 52 weeks and thereafter a figure of $495.16.
The Member listed the matter for further telephone conferences on 13 February 2024 and 14 March 2024 in order to deal with this issue. The Member then issued a further Certificate of Determination dated 24 April 2024, amending Order 1 of the Certificate of Determination dated 28 September 2023 to read:
“The respondent will pay the amount of $416 pw pursuant to ss 37 and 38 of the Workers Compensation Act 1987 from 22 September 2021 to date and continuing as indexed or adjusted.”
The Member further ordered that the respondent was to have credit for payments already made.
The appellant appeals the Member’s orders and determinations, asserting that the Member erred by failing to make specific orders for the payment of each of his claims for treatment expenses, by finding that his psychological condition was secondary to the 2015 (physical) injury and in the calculation of his pre-injury average weekly earnings figure.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicated that the appeal can be determined on the basis of the available documents and submissions and an oral hearing was not required. I considered Procedural Directions PIC2 and WC3, the documents before me, and the submissions by the parties that the appeal could proceed to be determined on the basis of these documents. I was satisfied that I had sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing in respect of the alleged errors in the determinations relating to the psychological condition and the payment of treatment expenses. I was not satisfied that I had sufficient information before me in respect of the alleged error in the calculation of the appellant’s pre-injury average weekly earnings. I issued a Direction on 4 November 2024 directing the respondent to produce the employment contract entered into between the parties in May 2014 after the appellant’s employment changed from casual night-time work to permanent part-time work. The respondent was unable to produce the document within the time frame but did provide other evidence tending to show the respondent’s standard hours of work. As neither party had made submissions about that evidence and because I also required further submissions in respect of evidence already tendered, and a late document from the appellant, I determined that an oral hearing to address those matters was necessary and was the appropriate course in the circumstances.
The oral hearing took place on 27 November 2024.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The appellant’s statements

The appellant provided a statement dated 10 November 2022.[1] He advised that he commenced employment with the respondent as a casual night shift worker on about 2 February 2013 but in May 2014 was made a permanent part-time worker, working 36 to 38 hours per week. He described his work activities, which included unpacking and replacing stock, emptying and replacing waste bins, cleaning, and serving customers. He added that on occasions, he was required to assist other team members to push cars with flat batteries out of the car wash area.
[1] Application to Resolve a Dispute (ARD), pp 1–21.
The appellant described the injury to his lower back on 11 July 2015, which he said was caused by lifting a bin liner out of a bin, which was heavier than he had expected. He said he experienced an immediate sensation, similar to an electric shock. He said he continued to work that day and experienced a second episode on the same day of a strange sensation in his lower back when moving a box of engine oil.
The appellant stated that when he was driving home after work that day, he began to feel lower back and left leg pain, so he pulled to the side of the road and phoned the store manager, Mr Raisul Mahbub, who provided him with the telephone number of the respondent’s injury nurse. He said the nurse advised him to seek urgent medical assistance from his general practitioner, or, if his own doctor did not handle workers compensation injuries, he should consult a doctor nominated by the respondent. The appellant indicated that his own doctor did not handle workers compensation claims so the respondent arranged for him to attend Dr Tony Antoun, general practitioner.
The appellant confirmed that Dr Antoun arranged for radiological investigations, referred the appellant for physiotherapy treatment and certified that the appellant was fit for modified duties with no heavy lifting. The appellant said that he returned to work but was still in pain and began to experience neck pain and pins and needles in his left side.
The appellant indicated that he continued to consult Dr Antoun until March 2016, when he attended Dr Robert Drummond, independent medical examiner, at the request of the respondent. He said that, even though he was in pain, Dr Drummond told him he was “fine,” and he should stop worrying about his injury.
The appellant stated that, at the time of his injury, he was working 36 to 38 hours per week and was earning an average of $750 nett per week. He said that after the injury, his hours were reduced to 28.5 hours per week and his nett weekly earnings were reduced to $630 per week. The appellant indicated that because the respondent did not put in place a return-to-work plan, he performed his regular duties but avoided cleaning the car wash bins.
The appellant stated that on 10 January 2018, he was cleaning and re-organising the stock room of the store when he suffered a severe increase in his lower back pain, and experienced right leg pain. He said he reported the incident to his store manager, Mr Bidyut Kar and to the respondent’s injury nurse.
The appellant said that the respondent’s nurse referred him to Dr Evangelos Koumoulas, general practitioner, who he attended on 10 January 2018. He added that Dr Koumoulas became his nominated treating doctor, and issued WorkCover certificates of capacity with limitations on the work he could perform. He said that the respondent accepted liability and commenced paying compensation on the basis that his pre-injury average weekly earnings figure was $669.58, which reflected 24 hours of work per week.
The appellant indicated that Dr Koumoulas referred him to Dr Ashish Diwan, orthopaedic surgeon, who he consulted on 29 March 2018, and who arranged for him to undergo cortisone injections, undertake physiotherapy, and attend an exercise physiologist, which offered him some relief. The appellant added that the respondent also arranged for him to be examined by Dr John Bentivoglio on 30 May 2018, who refused to record all of his symptoms, which caused the appellant some distress.
The appellant described receiving no benefit from spinal injections administered by Dr Diwan in August and September 2018. He indicated that, after reviewing the MRI scan of the appellant’s lumbar spine, Dr Diwan flagged the potential that the appellant might be a candidate for a spinal fusion at the L5/S1 level but should continue with conservative treatment. The appellant stated that the respondent did not provide him with suitable employment, despite Dr Diwan’s recommendation, however, he continued to work as best he could. The appellant recorded that he was experiencing upper and thoracic back pain, gastrointestinal pain, left shoulder, elbow and neck pain, and urological and reproductive difficulties but the respondent refused to pay for the treatment associated with those complaints. The appellant indicated that the respondent also failed to put in place a return-to-work plan and an injury management plan.
The appellant said that on 4 November 2019, Dr Koumoulas referred him to a psychologist, Ms Federica Zamboni for pain management and counselling, who advised him to take time off work. He said that he reported to Ms Zamboni that he had been bullied at work, but she told him that she was only treating him in respect of pain management.
The appellant referred to a number of notices issued by the respondent pursuant s 78 of the 1998 Act, in which the respondent disputed numerous claims for treatment relating to his various complaints.
The appellant referred to a statement he had made to the respondent’s investigator dated 5 November 2021 in relation to psychological symptoms he experienced, which he attributed to the manner in which he was treated by the respondent. He described the incidents of “bullying”. He said that he had not received any response from the respondent in respect of that claim, other than on 6 April 2021, when he received a notice issued pursuant to s 78 of the 1998 Act in which the respondent denied that claim. He said that Dr Koumoulas provided ongoing WorkCover certificates of capacity, certifying him as unfit for work as a result of his psychological condition, which had arisen from the bullying and harassment he experienced while in the course of his employment in or about 8 November 2019. He added that those symptoms continued, and he was receiving treatment from a psychiatrist, Dr Vladimir Sazhin, and that he had been assessed by Bankstown Lidcombe Hospital and Canterbury Community Health Centre as a result of his complaints.
The appellant asserted that he avidly pushed for the respondent to provide him with suitable employment in accordance with his treating doctors’ certifications. The appellant said that on 9 June 2021, the respondent issued a work capacity decision based on a vocational assessment conducted some 8 months earlier indicating that he had some capacity for work and advising that, as a consequence, his weekly payments of compensation and payment of treatment expenses would cease. He asserted that the decision was contrary to the certificates of capacity issued by Dr Koumoulas dated 23 December 2020, which certified that he had no capacity for work at all. The appellant provided details of his attempts to get the respondent to provide him with suitable employment. The appellant maintained that Dr Koumoulas continued to provide him with certificates certifying that he had no capacity for work.
The appellant made an earlier statement dated 5 February 2021.[2] He confirmed that he suffered a back injury in July 2015, after which his condition deteriorated over the following 1.5 to 2 years. He said that in January 2018 he advised the respondent’s injury nurse that his back pain had worsened, and the nurse referred him to Dr Koumoulas. He said that he was unaware as to whether that constituted a new claim or was part of his 2015 claim, however, he noticed that the injury management plan issued in December 2019 bore a new claim number. He added that he informed the nurse that his condition was pre-existing, but she did not listen.
[2] ARD, pp 498–507.
The appellant spoke of the treatment provided by Dr Diwan, and the limited relief experienced from the two cortisone injections. He described incidents when the Acting Regional Area Manager, Mr Santosh Kaparthi:
(a)    questioned him about the irregular conduct of a worker not wearing his safety vest, who he was not supervising;
(b)    questioned him and another worker about the expiry date of a pie, for which the appellant was not responsible;
(c)    announced that no-one was to work on both days of the weekend;
(d)    called him to the office for a meeting when he was on his break without the Union delegate being present and
(e)    later denied that the appellant had told him he was on his break.
The appellant advised that he sought help from the Union because his hours had been reduced twice after his first injury. He said that he subsequently complained to Mr Ivan Politis that he was being picked on for things that were not his fault.
The appellant stated that at the end of January 2019, the team members were advised that they could only work on one day of the weekend, but he later found out that one team member was working both Saturday and Sunday. The appellant said that when he asked the respondent for the team roster, the respondent refused to supply it to him.
The appellant indicated that he had heard from a new manager, who had started at some time between June and August 2019, that Mr Kaparthi had warned the new manager to be aware of the appellant and that Mr Kaparthi had said that the appellant was “controlling” all the team members. The appellant added that in early 2020, he was told that the new Health and Safety Officer had said that he did not want to visit the store when the appellant was there because Mr Kaparthi had told him that the appellant recorded conversations. The appellant said that he also heard that Mr Kaparthi had indicated that he was “waiting for the right time” to deal with the appellant.
The appellant spoke of further incidents when he:
(a)    was criticised in respect of taking temperature checks;
(b)    overheard a store manager saying that the appellant was a “mentally mad guy”;
(c)    emailed the store manager about the store manager having disclosed a private matter relating to the appellant, but when confronted, the store manager denied having said it, and
(d)    informed the Health and Safety Officer about the store manager having disclosed a private matter about the appellant but the Health and Safety Manager did not take any action.

The appellant referred to other incidents, including Mr Kaparthi:
(a)    slamming the console door;
(b)    asking the appellant three times if he was all right (which the appellant considered was bullying);
(c)    criticising the appellant for telling a customer the price for a car wash when the car wash was not working;
(d)    questioning the appellant as to why he was talking with a high-pitched tone, and
(e)    questioning the appellant as to whether the appellant wanted to work for the respondent.
The appellant said that, in July 2020 the respondent ceased the return-to-work plan and he was frightened that he would lose his job. He said that he was becoming impacted financially, psychologically and emotionally. He explained that prior to his back injury, he was working 35 to 37 hours per week, but after the injury his hours were reduced to 24 hours per week, until about May 2016 when he returned to 34 hours per week, which was then reduced to 32 hours per week and then further reduced to 28.5 hours per week, until he ceased work on 26 August 2020.
The appellant advised that he was diagnosed with a work-related adjustment disorder by Dr Koumoulas in July 2020, who referred him to Ms Liela Vergara, psychologist. The appellant denied experiencing any physical or psychological issues prior to his back injury in 2015 and denied having any other stressors in his life.
The appellant attached a typed record of the bullying and harassment he said he had been subjected to, which he had given to the People and Culture Manager, Ms Lara Davis. The appellant also lodged a workplace bullying form with Safework NSW on 18 December 2020, which contained allegations that were consistent with his statement dated 5 February 2021.[3]
[3] ARD, pp 489–497.
At the direction of the Member, the appellant lodged a further statement dated 13 February 2023, which was admitted into evidence, although not attached to an Application to Admit Late Documents. He provided a more fulsome history of his education and his prior employment. He also gave a detailed account of the duties he was required to perform in the employ of the respondent. The appellant repeated his earlier evidence as to the circumstances of injury occurring on 11 July 2015, and his subsequent treatment. He asserted that, at the time of the injury, he worked 36 to 38 hours per week over five days, including Saturdays and Sundays and received an average of $750.00 nett per week. He said that, on his return to work, his hours were reduced to 28.5 per week and his nett earnings reduced to $630.00 per week. He added that he used his sick leave and annual leave to top up his pay.
The appellant referred to the pleaded injury on 10 January 2018, describing that he experienced a significant increase in his symptoms as he was cleaning and re-organising the respondent’s stock room. He provided a summary of the treatment offered to him by the various treatment providers and made comment on the work capacity decision issued by the respondent.
Additionally, the appellant provided a response to the statement provided by Mr Kaparthi.[4]
[4] ARD, pp 515–517.

The respondent’s statements

The respondent relied upon statements from Mr Santosh Kaparthi, the respondent’s Area Manager, Mr John Wilsmore, Health, Safety and Environment Advisor, Ms Lara Davis, former Safety Advisor and People and Culture Advisor, Mr Feroz Bakht, Store Manager and Mr Soel Iqbal, Assistant Store Manager and Acting Store Manager, all in response to the appellant’s statement that he had been bullied and harassed in the employ of the respondent.

Mr Santosh Kaparthi

Mr Kaparthi provided a statement dated 9 February 2021.[5] He said that he was aware that the appellant had suffered an injury to his back but that the injury had occurred prior to Mr Kaparthi becoming the Area Manager of the store where the appellant worked. He stated that the appellant had never spoken to him about his back injury, but Ms Lara Davis the respondent’s Safety Advisor, had briefed him about the injury, and explained the appellant’s return-to-work program, the work restrictions that were in place in respect of the appellant, as well as other matters relevant to the appellant’s injury. He advised that he considered the appellant to be an average worker, as he not heard anything good or bad about the appellant. Mr Kaparthi advised that the appellant worked for 24 hours per week, working various days.
[5] Reply to Application to Resolve a Dispute (reply), pp 33–38.
Mr Kaparthi could not recall an incident about a team member failing to wear a safety vest. He said, however, that the respondent maintained a safety policy and promoted the culture of encouraging everyone to follow the safety rules and procedures and if he did raise such an issue with the appellant, it would only have been to reinforce the respondent’s safety culture.
Mr Kaparthi also could not recall having a conversation about a pie in the oven that had an expired use-by date, He explained that the use-by date for a pie was normally seven days and the maximum time in the oven was six hours, although there were different times for different products, such as vegetarian pies. Mr Kaparthi indicated that if he did speak to the appellant in respect of such a matter, it would have been part of standard procedure, which the team members were required to follow.
Mr Kaparthi said that it was not within his authority to direct when the team members were to work. He advised that the work roster was re-set over the entire business in 2018 and guidelines were introduced in every store indicating the days the team members could work. He indicated that the team members’ weekend rosters were to change in order to accommodate where possible for a manager or assistant manager to work on a weekend in order to provide seven-day management of the store. He stated that, at the time, the appellant was working on most Saturdays and Sundays. Mr Kaparthi explained that the new rostering system was released nationally in June 2018 and the team members were given time to “recalibrate” their rosters. He said that, in the appellant’s case, he was given until September 2018 to achieve that requirement. Mr Kaparthi stated that the appellant declined the respondent’s first offer and informed Human Resources, with the SDA Union becoming involved, but the outcome resulted in a determination that what they had requested the appellant to do was fair and reasonable and the appellant commenced working the new roster.
Mr Kaparthi denied that the appellant was “targeted” by him in respect of the changes to the roster and informed that he had approximately 100 part-time team members working under him and all of them were affected by the change. Mr Kaparthi also could not recall an incident in December 2018 in which the appellant alleged that he had spoken to the appellant on his ten-minute break about the roster and getting the Union involved. Mr Kaparthi asserted that he would not have spoken to the appellant if the Union was involved. He observed that the appellant was not a person who one would speak to casually, and if you did wish to speak with him, a meeting had to be arranged beforehand and entered in the calendar. Mr Kaparthi added that Mr Ivan Politis was the State Manager, but he was unable to recall whether Mr Politis called into the store on the day nominated by the appellant.
Mr Kaparthi observed that the Union was not part of management and was there to assist its members. He denied having lodged a complaint with the Union about the appellant and added that there was no system for making such a complaint.
Mr Kaparthi referred to Ashish Roy, who he said was a casual team member and not a part-time worker. He confirmed that Ashish had been given shifts on both Saturdays and Sundays, just as other causals had been offered. He said that the roster guidelines had, in the main, only affected full-time and part-time workers.
Mr Kaparthi confirmed that a new Store Manager, Mr Feroz Bakht, commenced in mid-2019. He explained that the previous Store Manager (Mr Bidyut Kar) had told him that he had experienced difficulties dealing with and accommodating the appellant. Mr Kaparthi indicated that he would have spoken to the new manager when he commenced about the appellant’s injury and working conditions and would have advised the new manager to do everything by the book when dealing with the appellant. Mr Kaparthi observed that the appellant appeared to be naturally suspicious of management and would immediately think that there was something sinister going on if Mr Kaparthi, for instance, invited him for a coffee. Mr Kaparthi added that he was unaware of the appellant recording any conversations.
Mr Kaparthi could not recall advising Mr Ashish Roy in February or March 2020 that he was waiting for the right time to deal with the appellant and said that, because of the appellant’s temperament, he would have made comments about the appellant to other team members. Mr Kaparthi denied that the appellant spoke to him about an allegation that the Store Manager said that the appellant was “mentally mad”. He added that the appellant preferred to not involve him in matters that affected the appellant and did not keep Mr Kaparthi informed of any such matters.
Further, Mr Kaparthi could not recall having an argument with the appellant about the console door policy but confirmed that it was his practice to ask how each team member was going when he visited the store as it was part of the respondent’s health and safety culture. He said that he would not have asked the appellant three times. Mr Kaparthi added that he did not recall an incident when the appellant gave a customer the price of the car wash, which was not working. He said that, if that happened, then the appellant should have advised the customer that the car wash was not available.
Mr Kaparthi advised that he had never had any extended conservations with the appellant and in fact avoided doing so. He denied asking the appellant whether he wanted to work for the respondent, or that the appellant should respond to him because Mr Kaparthi was his manager.
Mr Kaparthi asserted no knowledge of footage of an incident being burned. He said that he was not involved in the management of the appellant’s return-to-work plan. Mr Kaparthi said, however, that he was advised that the appellant’s return to work plan involved a transfer of the appellant to perform administrative work at the Enfield store working 10 to 12 hours per week but receiving his full pay. He observed that the appellant was contracted to work 24 hours per week and averaged 28.5 to 29 hours per week until he ceased work.
Mr Kaparthi maintained that in his dealings with the appellant he always acted in a fair and reasonable way and a professional manner and treated the appellant with dignity and respect. Mr Kaparthi denied that the appellant had ever complained to him about being bullied, threatened, harassed, intimidated or abused by him or by anyone else.

Mr John Wilsmore

Mr Wilsmore, the respondent’s, Health, Safety and Environment Advisor provided a statement dated 3 March 2021.[6] He stated that he had not actually met the appellant in person, but he had spoken with him over the telephone, emailed him, and had conducted case conferences with the appellant and his doctor on four or five occasions. He said that the appellant had reported a back injury in 2015, which had been finalised and the appellant had been certified as fit for pre-injury duties. He described his role as the “middle-man” between the respondent’s claims team and the operations team, he also ensured that the documents relating to claims were up to date and conducted investigations in relation to the causes of claims in order to ensure that controls were put into place to prevent further injuries.
[6] Reply, pp 39–44.
Mr Wilsmore indicated that he commenced with the respondent in February 2020 and first had contact with the appellant by telephone in about March 2020 because there were concerns about the appellant not being compliant with his duties and in respect of taking breaks. He said that he advised the appellant that he wished to meet with him to discuss his duties, but the appellant refused to meet with him without being given two weeks’ notice and being allowed a support person. Mr Wilsmore said that usually, a team member could request a support person if the meeting was a disciplinary meeting, but as this was to be an informal meeting and not disciplinary in nature, there was no obligation to give two weeks’ notice or allow a support person.
Mr Wilsmore stated that the appellant requested that he be given two weeks’ notice of the meeting and that he would be able to have a support person present, so Mr Wilsmore advised the appellant that he would get back to him.
Mr Wilsmore said that when he was in the area of the store where the appellant worked, he called in to see the Store Manager, Mr Feroz Bakht, who told him that he was having difficulties with the appellant’s performance and attitude. He said that Mr Bakht provided examples of the appellant’s actions, such as leaving the counter unattended when he had been asked to look after it. He said the appellant was not present at the time of that conversation.
Mr Wilsmore said that he gave the Store Manager some strategies to help him deal with the appellant and did not speak with the Store Manager again about the appellant. Mr Wilsmore advised that he did receive some telephone calls from the Area Manager, Mr Kaparthi, about the appellant experiencing pain while performing restricted duties and he instructed the Store Manager that in those circumstances, the appellant was to cease work and attend his doctor so that his duties could be re-assessed.
Mr Wilsmore indicated that thereafter he communicated with the appellant by way of email, at the appellant’s request. He said that he usually attended the case conferences via video link, but those conferences ceased because the appellant became extremely agitated, particularly about the management of his case, which unduly prolonged the conferences.
Mr Wilsmore acknowledged that the appellant made a complaint that he had been bullied by Mr Kaparthi about an incident involving a pie in the oven. Mr Wilsmore did not recall any other complaints about Mr Kaparthi being made by any other team members.
Mr Wilsmore indicated that he had conversations with Mr Feroz Bakht about how to handle difficulties Mr Bakht was having with the appellant and the appellant’s attitude. He added that the appellant continued to send numerous email communications which were copied to him, many of which were berating in nature and usually made assertions that his claim was being mismanaged. Mr Wilsmore said he would only respond to the emails if necessary. Mr Wilsmore asserted that he had always dealt with the appellant in a respectful, business-like, fair and reasonable manner. He said that the appellant had never complained to him that he had been bullied, threatened, harassed, abused or intimidated.

Ms Lara Davis

Ms Lara Davis, the respondent’s People and Culture Advisor provided a statement dated 12 March 2021.[7] Ms Davis stated that she had dealings with the appellant over a two and a half year period when she had been in a “safety” role, looking after the rehabilitation of team members, and that she met the appellant face to face about three or four times during that period. She noted that the appellant had suffered a back injury with radiating pain down his leg, which limited his ability to stand for prolonged periods, squat and lift. She described the appellant as being guarded, suspicious, defensive and uncooperative.
[7] Reply, pp 45–50.
Ms Davis recalled that at the first meeting, the Union representative was present, and they went through every task the respondent was to perform and assessed each one as to whether the appellant could or could not do those tasks. She stated that even after a lengthy discussion of the tasks they proposed were suitable, the appellant would disagree and was resistant to the respondent’s proposals. Ms Davis indicated that the appellant was, for instance, unable to provide her with an estimate of for how long he could stand. Ms Davis said that she advised the appellant that if his restrictions did not align with his certificates of capacity, he should consult his doctor in order to have the doctor review the certification.
Ms Davis reported that at the next meeting, the appellant complained that he was unable to weight bear on one leg which was impacting the performance of his duties, so she again advised him to consult his doctor in order for the doctor to review his restrictions. Ms Davis said that, at the third meeting, the appellant was accompanied by a friend who took notes of the meeting. She said that the appellant informed her that he did not want to have any further contact with Mr Kaparthi because Mr Kaparthi would question him, which he disliked, so she advised the appellant about the complaint process and that he could report his complaint to Human Resources. Ms Davis added that the appellant reported that he would be unable to return to his normal duties because of his pain levels and he requested that the respondent find him another job. Ms Davis said that she again advised the appellant to consult his doctor in respect of his certification for work.
Ms Davis advised that the new Store Manager, Mr Bakht, contacted her in relation to the appellant’s return to work in order to ensure he was following the proper procedure and providing the appellant with the appropriate support. She said that she met with Mr Bakht, who told her that he was attempting to positively encourage the appellant, but the appellant was defensive and resistant, not working in accordance with the return-to-work plan and was difficult to manage.
Ms Davis stated that on one occasion she attended the appellant’s doctor with the appellant to discuss the appellant’s work capacity, but the doctor deferred to the appellant’s view of his restrictions.
Ms Davis indicated that the appellant complained to her that he did not like the manner in which Mr Kaparthi spoke to and questioned him but would not give her any specific examples. She said that she also received a complaint about Mr Kaparthi lodged by the Union on the appellant’s behalf, but it was exceedingly vague and non-specific, so she wrote back asking for more details. Ms Davis said that she then ceased working in that role.
Ms Davis advised that the appellant’s complaint about Mr Kaparthi did not have any impact on the appellant’s injury or his recovery. She pointed out that the appellant had a case officer, the Store Manager and herself, as well as the respondent’s Health and Wellbeing Officer, to assist him.
Ms Davis could not recall that the appellant had used the term “bullying” in relation to Mr Kaparthi, and simply recalled that the appellant indicated that he did not like the way Mr Kaparthi spoke to him and questioned him, and that the appellant did not want to deal with Mr Kaparthi. Ms Davis indicated that she firmly believed that those who were assisting the appellant, including herself, were attempting to support him and resolve his issues, including finding him an alternate position with the respondent, if necessary, but the appellant resisted during the whole of the return-to-work process. Ms Davis recalled that the appellant reached a stage where he would require everything, regardless of the subject matter, to be in writing.
Ms Davis asserted that at all times, she treated the appellant respectfully and acted professionally, and in a fair and reasonable manner. She added that the appellant had never raised an issue that she or anybody else had bullied, threatened, harassed, intimidated or abused him and reiterated that the appellant’s complaint about Mr Kaparthi was limited to the appellant’s dislike of being questioned by Mr Kaparthi.

Mr Feroz Bakht

Mr Bakht gave a statement dated 17 February 2021.[8] He indicated that he had been the Store Manager of the Waterloo store since July 2019 and that the appellant was a part-time worker at that store. Mr Bakht stated that the store had been previously managed by a relief manager, Mr Sohel Iqbal, who conferred with him about the appellant, his injury and his work restrictions and advised Mr Bakht that, as the appellant was working on restricted duties, the appellant should have someone working with him to perform the duties that the appellant could not do.
[8] Reply, pp 51–55.
Mr Bakht said that when he commenced as Store Manager, the appellant was working on Monday, Tuesday, Wednesday and Saturday each week for a total of 28.5 hours, with no lifting and would do the work he was asked to do. Mr Bakht said however that the appellant would frequently complain about and criticise and say negative things about other team members and the respondent. He added that the appellant spent considerable time complaining about his situation to other team members and would deliberately make things worse, such as if he was told he was required to perform temperature checks on the food, he would leave ten customers waiting to be served while he performed that task.
Mr Bakht said that at some stage he learned that the appellant’s doctor had reported that the appellant had “mental issues” so he treated the appellant with sensitivity and did not push the appellant to do more than he was doing. Mr Bakht advised that for the first three or four months he and the appellant had a good working relationship.
Mr Bakht reported that there were two incidents at work that concerned him and made him think that the appellant was maximising his claim. The first was when the appellant’s foot became stuck in a power cord which made him stumble but he did not fall, after which the appellant stated that he was fine and kept on with his work. Mr Bakht said that in the second incident, he had been working next to the appellant, got up and tried to pass behind the appellant, at which time the appellant put his leg back, which Mr Bakht struck as he passed. Mr Bakht said that the appellant complained of back pain for the whole shift but refused to go home. He said that he reported the incident to the Safety Manager.
Mr Bakht indicated that the appellant was constantly complaining about issues with Mr Kaparthi and on the two or so occasions when Mr Kaparthi came to the store, it was apparent that they had interpersonal difficulties. He said that Mr Kaparthi would speak to the appellant in a professional manner and enquire how he was feeling but the appellant’s manner of response was disrespectful.
Mr Bakht stated that Mr Kaparthi told him he needed to support the appellant.
Mr Bakht disclosed that there was an incident, which the appellant reported four or five days later, in which the appellant alleged that Mr Bakht told the second-in-charge of the store (Niraj) that the appellant was “mentally sick.” Mr Bakht denied having made any such comment and said that Niraj, who had since left the employ of the respondent, also denied that this occurred.
Mr Bakht stated that the appellant had never reported to him that he had bullied, threatened, harassed, intimidated or abused the appellant.

Mr Sohel Iqbal

Mr Iqbal, former Assistant Store Manager and Acting Store Manager at the Waterloo store, provided a statement dated 17 February 2021.[9] He recalled that he had supervised the appellant at the Waterloo store and was aware that the appellant had suffered an injury to his back lifting heavy bins full of rubbish. Mr Iqbal could not recall whether the appellant went off work at the time but observed that the appellant continued to experience back pain from that time and for most of the time thereafter, the appellant worked on restricted duties.
[9] Reply, pp 56–58.
Mr Iqbal advised that he worked at the Waterloo Store until about 2019, at which time the appellant was performing only the duties of serving customers. He said that it was about that time when Mr Kaparthi became the Area Manager. He recalled that, on one occasion, the appellant saw Mr Kaparthi arriving and asked if he could take his break, which he did. He said that when Mr Kaparthi came in, Mr Kaparthi enquired as to when the appellant went on his break, and a few minutes later went out and came back in with the appellant. Mr Iqbal said that the appellant and Mr Kaparthi had a conversation, however, he was busy serving customers and did not hear the content of that conversation.
Mr Iqbal indicated that the State Manager also arrived and had a conversation with Mr Kaparthi. He said that after Mr Kaparthi and the State Manager left, the appellant complained to him about Mr Kaparthi, reporting negative things about Mr Kaparthi, and Mr Iqbal did not want to hear those complaints.
Mr Iqbal denied ever witnessing Mr Kaparthi bullying, harassing, threatening, yelling or shouting at the appellant. He added that the appellant thought that the respondent was against him, he did not trust anyone, and if anyone spoke with him, he would see it as bullying. He said that Mr Kaparthi would tell the appellant that he was a senior team member and he should look after the junior team members, but the appellant would respond by saying that it was not part of his duties. He said that the appellant argued with everyone, disputed everything and was of the view that the company was always at fault.
Mr Iqbal stated that, in his dealing with the appellant, he would always act in a professional manner and act respectfully, fairly and reasonably with the appellant. He advised that the appellant had never complained to him that he had ever bullied, threatened, harassed intimidated or abused the appellant.

The respondent’s “injuryNET Referral Form”

The respondent’s copy of its “injuryNET Referral Form” dated 15 July 2015 was in evidence,[10] in which the following details were recorded:
(a)    the time and date of injury was 5.30pm on 11 July 2015;
(b)    the injury was reported on 13 July 2015 at 9.30 am;
(c)    the injury was described as “Lumbar back pain”;
(d)    the mechanism of injury was described as “Lifting engine oil bending felt bur[n]ing pain lower back”.
[10] Application to Admit Late Documents (AALD) dated 24 March 2023, p 28.

The medical evidence relevant to the back injury or injuries

The appellant attended numerous medical specialists and underwent extensive psychological treatment. The issues the subject of determination by the Member that involve an evaluation of the medical evidence are, firstly whether the appellant’s incapacity resulted from the first injury in 2015 and/or the pleaded second back injury in 2018, or it resulted from his psychological injury, or a combination of those injuries. Secondly, whether the appellant’s psychological condition was a primary injury or was secondary to the back injury/injuries.
As there was no issue raised in respect of the extent of the appellant’s incapacity it is not necessary to summarise all of the extensive medical evidence. It is useful, however, to have regard to the histories recorded in both the treating medical practitioners’ notes and reports and in the medico-legal opinions. Accordingly, the following medical evidence is a summary of the relevant parts of that material.

Dr Koumoulas

Dr Koumoulas responded to queries raised by the respondent in respect of the downgrade of the appellant’s capacity for employment in 2021. Relevant to the issues on appeal, Dr Koumoulas wrote:
“Established back injury, radiculopathy, chronic fatigue. Needs walking aid, Deterioration in his psychological symptoms.”[11]
[11] ARD, p 270.
Dr Koumoulas provided a report dated 2 March 2022 at the request of the appellant’s then legal representatives.[12] He described the appellant’s conditions and the multiple treatments he was receiving as “complex.” He said that the appellant was primarily suffering from two injuries, namely a physical injury and a psychological injury. He explained the physical injury as a disc lesion with radiculopathy and associated myofascial pain affecting the upper and lower limbs, weight gain, pelvic floor myalgia causing urinary symptoms, diarrhoea, faecal incontinence and cervical pain with spondylosis. Dr Koumoulas discussed the appellant’s ongoing difficulties and his treatment plan, which included physiotherapy and pain management with Dr Anica Vasic, pain management specialist, assistance from the Community Mental Health team, and provision of increased psychotropics prescribed by Dr Vladimir Sazhin, the appellant’s treating psychiatrist. He expressed the view that the appellant’s psychological injury, diagnosed as major depression and generalised anxiety, was significant and worsening and exacerbated by the respondent’s denial of liability. He added that there was no doubt that it was related to the appellant’s employment.
[12] ARD, pp 574–575.
Dr Koumoulas also provided a report to the appellant’s legal representatives on 11 August 2022, in which Dr Koumoulas reported that the appellant suffered a psychological injury as a result of work incidents on 6 November 2019 and 14 January 2020.[13] He reported that on the first date the appellant was “spoken to” by the store manager and was told that he was a mentally sick person, which upset the appellant and the appellant sent an email to his manager asking him not to speak in that manner, however, the manager denied it. Dr Koumoulas recorded the history that in an incident five weeks later, the appellant was spoken to in an intimidatory and aggressive manner and was questioned as to whether he wanted to work in the store. Dr Koumoulas noted that the appellant became fearful of losing his job and started experiencing chest palpitations and symptoms of panic, so he was referred to a psychiatrist.
[13] ARD, p 577.
Dr Koumoulas referred to the incident on 14 January 2020, when the appellant’s manager allegedly slammed a door repeatedly and questioned the appellant in an aggressive manner, He said that all of the incidents were relevant, given the workplace injuries and ongoing symptoms.
Dr Koumoulas provided a further report dated 3 November 2022 directed to the appellant’s then legal representatives.[14] He advised that, since the injury in 2015, the appellant had been experiencing severe back pain with neuropathic pain affecting his left thigh. Dr Koumoulas observed that Dr Schwartz concluded that there was an element of L5 level radiculopathy, together with meralgia paraesthetica that was most likely contributing to the appellant’s symptoms. He further observed that Dr McGuigan assessed the appellant’s severe back and widespread body pain and included a diagnosis of fibromyalgia as well as cervical disease, secondary to the back injury in 2015.
[14] ARD, pp 411–412.
Dr Koumoulas referred to treatment provided by other specialists in respect of faecal and urinary incontinence, abdominal pain caused by ingestion of pain medication, erectile disfunction, significant weight gain, and diabetes possibly resulting from the weight gain. He further advised that the appellant had consulted Dr Diwan over a long period of time in the context of severe back pain emanating from the L5/S1 pathology and the complications arising from that pathology.

Dr Ashish Diwan, orthopaedic spinal surgeon

Dr Koumoulas referred the appellant to Dr Diwan for treatment of the appellant’s back injury. Dr Diwan reported to Dr Koumoulas on 29 March 2018.[15] He noted that the appellant’s presenting complaints were of left sided lower back pain and left sided buttock and posterior leg pain, with chronic symptoms presenting in 2015 but significantly worsening in November and December 2017. Dr Diwan noted that the appellant also complained of numbness in the C7/C8 dermatomal distribution of the right hand and occasional numbness and pins and needles in the right foot.
[15] ARD, pp 45–47.
Dr Diwan described the appellant’s restrictions at work and inability to enjoy sport and other activities of daily living and observed that the increase in the appellant’s symptoms was the source of great frustration for the appellant. Dr Diwan noted that since the recent exacerbation of his symptoms, the appellant did not find physiotherapy as helpful. Dr Diwan acknowledged that the appellant had been diagnosed with depression. Dr Diwan performed a physical examination of the appellant’s cervical, thoracic and lumbar spines.
Dr Diwan reviewed the results of an MRI scan performed on 4 August 2015, which disclosed a mostly left-sided posterior herniation and annular tear at the L5/S1 level, which he said was similar to the MRI scan performed on 16 February 2018, although the contained herniation of the nucleus pulposus appeared to have diminished in the later scan.
Dr Diwan discussed his proposed treatment management plan, including the option of a spinal injection and the potential for spinal surgery.
Dr Diwan reviewed the appellant again on 19 July 2018, when he noted that the appellant had been benefiting from assistance from a rehabilitation team but had experienced a radiating pain in the left posterior thigh and anterior knee pain during that program when simply bending forward while crouching on his knees.[16]
[16] ARD, p 48.
The appellant returned for review on 15 November 2018, at which time Dr Diwan reported that there was nothing further to offer the appellant unless at some stage in the future there was a convincing reason to perform spinal surgery.[17]
[17] ARD, pp 49–50.
Dr Diwan reported again on the appellant’s injury and continuing symptoms on 13 February 2020,[18] 22 April 2020,[19] 16 December 2020,[20] 18 August 2021[21] and 21 March 2022.[22] Those reports add nothing further to the issues in dispute in this appeal.
[18] ARD, pp 72–73.
[19] Partly reproduced at ARD, p 80.
[20] ARD, pp 176–177.
[21] ARD, pp 304–305.
[22] ARD, pp 396–397

Associate Professor Tillman Wolf Boesel, pain medicine physician

Dr Koumoulas referred the appellant to Associate Professor Boesel. A/Prof Boesel reported to Dr Koumoulas on 12 October 2020.[23] He referred to the injury in July 2015 and the onset of pain of “an electric nature.” He recorded that there was a further episode on the same day, while the appellant was changing some engine oil, with an onset of symptoms as he drove home from work. A/Prof Boesel noted that the appellant returned to work on suitable duties but suffered an exacerbation of his pain and the symptoms began to affect the thoracic and cervical spines. A/Prof Boesel observed that the appellant had not recently had rehabilitative input, despite Dr Diwan recommending a permanent change of duties, an option which was not available. He further observed that in the context of the appellant’s relationship with the workplace and his managers, the appellant began to experience increasing stress and depression requiring medical treatment. A/Prof Boesel provided a brief diagnosis of the appellant’s physical condition and the presence of pain amplification, depression, severe anxiety and excessive somatic focus which he said were major factors to the appellant’s condition.
[23] ARD, pp 131–133.

Dr Louis McGuigan, rheumatologist

Dr McGuigan reported to Dr Koumoulas on 4 November 2020.[24] Relevantly, Dr McGuigan recorded the history of injury provided to him by the appellant. The history was of an injury five years previously, in which the appellant felt symptoms akin to an electric type of shock when picking up an object from the floor at work, followed by another such shock a few minutes later. He recorded that the appellant suffered significant pain during the drive home from work that day and that the appellant had continuing back problems ever since, spreading to the thoracic and cervical spine and both shoulders. He diagnosed the appellant as suffering from fibromyalgia.
[24] ARD, pp 152–153.

Dr Kathiravel Nadanachandran, neurosurgeon

Dr Nadanachandran reported to Dr Koumoulas on 12 November 2020.[25] He recorded the history that the appellant was lifting a bin when he experienced a feeling similar to an electric shock in the back which later developed into severe back pain on the drive home from work. He did not record a history of the alleged second injury.
[25] ARD, pp 158–159.

Medical records from Optimum Health Solutions

Medical records recorded by Optimum Health Solutions were in evidence.[26] At the initial assessment, which appears to have been in April 2018, the assessor recorded a history of the appellant having experienced a feeling of an “electric shock” passing through the left side of his body in 2015 and a further incident a few days later, when bending and twisting to pick something up from the floor. The date of the original injury was noted to be June or July 2015, with a flare-up of isolated lower back pain in December 2017, as well as the onset of left sided radiculopathy.
[26] ARD, pp 413–416.
At a further assessment on 22 May 2019, it was noted that the appellant suffered a disc bulge in 2015 and a disc annular tear in 2018 causing increased pain to the extent that the appellant was unable to walk.

Mr Michael Chrysanthou, exercise physiologist

Mr Chrysanthou of Wellness Within Consulting performed a functional capacity evaluation of the appellant. In his report dated 15 July 2021, he recorded the appellant’s injury as a “shock” feeling travelling up his back in July 2015 when lifting a trolley. He noted that the appellant initially felt fine but later that day attempted to move some 5 litre oil drums and again suffered a shock type of feeling, so he reported the injury and drove home from work.[27]
[27] ARD, p 540.

Dr Robert Drummond, orthopaedic surgeon

Dr Drummond was qualified by the respondent to assess the appellant and provided an opinion on liability following the injury in 2015. He reported to the respondent on 19 November 2015, listing the date of injury as 11 July 2015.[28] Dr Drummond recorded a history of the appellant suffering what could be described as transient lumbar pain two and a half years earlier, following a lifting incident in his previous employment and another episode in June 2015 after getting out of bed early one morning. Dr Drummond reported that the appellant described an injury at work on 11 July 2015 when he was moving 5-litre containers of oil which involved lifting and twisting movements, in which he experienced a feeling like an electric shock in the lumbar and lumbosacral regions, radiating into the thoracic region. Dr Drummond noted that the appellant complained of the onset of sharp lumbosacral pain while driving home that evening and he notified his manager and sought medical treatment.
[28] AALD, pp 29–36.
Dr Drummond observed that the MRI scan performed in August 2015 disclosed changes in the lumbosacral disc. Dr Drummond indicated that the appellant returned to selected duties with weight restrictions. Dr Drummond noted that “[t]wo weeks while working he felt his body locked due to back pain.”[29] He recorded that the appellant’s pain was gradually relieved following a gym program, however, the appellant noticed the development of occipital neck pain when performing stretching exercises and the onset of mid thoracic discomfort while watching television. Dr Drummond indicated that the appellant was working, avoiding repetitive lifting and heavy weights of over 15 Kilograms, working 25 hours per week.
[29] AALD, p 30.
Dr Drummond diagnosed a lumbosacral intervertebral disc protrusion occurring on 11 July 2015, which he said was consistent with the description of injury. He added that the appellant had a minor degree of anxiety about his symptoms and about his other widespread subjective symptoms in the neck and thoracic spine.

Dr John Bentivoglio, orthopaedic surgeon

Dr Bentivoglio was asked by the respondent to assess the appellant and provide an opinion in respect of the appellant’s physical injury/injuries on three occasions. He also provided additional reports in response to further questions posed by the respondent.[30] Following his initial assessment, Dr Bentivoglio reported to the respondent on 1 June 2018.[31] Dr Bentivoglio recorded the following history of injury:
“[The appellant] advised me in late June 2015 he was lifting an object that was unexpectedly heavy. He experienced an electric shock with pain present in his back radiating up to his thoracolumbar region. The incident occurred in the middle of his shift. He advised me he had not had a significant problem with his back previously. He reported the incident but was capable of finishing work that day. He went home and took some pain-relieving medications. The following day, at the end of his shift, he twisted his back and had an increased amount of pain and on the way home started to experience symptoms radiating down his left lower limb.”[32]
[30] Reply to Application to Resolve a Dispute (reply), pp 59–88; AALD, pp 37–46.
[31] Reply, pp 59–65.
[32] Report dated 1 June 2018, p 2.

The appellant’s submissions in reply

In submissions in reply, the appellant nominates Niraj Sakiya, an Assistant Manager, as being a witness to the incident on 6 November 2019 and who also partially witnessed the incident on 14 January 2020. The appellant says a statement from that witness was not taken. The appellant adds that Mr Ahnaf Tahmid and a Mr Ashish were also not interviewed even though one of them was told by Mr Kaparthi that Mr Kaparthi was “waiting for the right time to deal with” the appellant.[74]
[74] Appellant’s submissions in reply, [6].
The appellant comments that the Member insinuated that he was not being truthful in his evidence about his injury in 2015. He disputes the Member’s observation that he did not disclose the bin lifting incident for over four years. The appellant points to the evidence of Dr Drummond in his report dated 19 November 2015 in which Dr Drummond recorded pain associated with lifting the bin. The appellant points to the report of Dr Bentivoglio dated 1 June 2018 which did not record a history of any psychological symptoms at that time. He also points to an email from him to Mr Bakht dated 14 January 2020 enquiring how to lodge a bullying complaint and his diary note recorded on the same day as to his concerns about keeping his job, both of which were annexed to the ARD at p 468 and p 477 respectively. The appellant submits that the Member indicated that he could not find such evidence.
The appellant refers to the Member’s comment that expert evidence is required in order to reach a determination in the complex area of psychology. The appellant points to the evidence of Dr Sazhin, Dr Canaris and the clinical psychologist, Ms Saunders, as well as the clinical notes from Ms Vergara, which the appellant lodged with the Commission on 12 December 2023 and recorded complaints of bullying.

Consideration

The Member provided a detailed summary of the medical evidence as to the causation of the appellant’s psychological condition. The Member’s reasons for determining that the appellant’s psychological condition was secondary to his physical injury included that there were a number of inconsistencies in the appellant’s evidence about his back injury, which were spelt out by the Member, and which led the Member to conclude that the appellant’s evidence was unreliable.
The Member noted that the most detailed account of the appellant’s allegations was in the complaint made to Safework on about 18 December 2020, which was some years after the appellant’s back injury. The Member discussed each allegation and reasoned as follows:
(a)    The Member referred to the incident involving Mr Kaparthi interrupting the appellant’s break to meet with him and discuss the reduction in work hours, without the Union representative being present, which was witnessed by Mr Iqbal. The Member noted that Mr Iqbal’s version was that the appellant had seen Mr Kaparthi approaching and then went on a break. He further noted that Mr Iqbal had avoided the appellant because, according to Mr Iqbal, the appellant frequently complained about Mr Kaparthi. The Member inferred that the appellant had taken a break to avoid meeting with Mr Kaparthi. The Member preferred the evidence of Mr Iqbal.
(b)    The Member took the view that Mr Kaparthi’s account caused him to doubt the appellant’s account of what occurred. He noted that Mr Kaparthi’s evidence was that a recalibration of the roster had occurred in June 2018, which affected the appellant and that the appellant had lodged objections with Human Resources and sought Union assistance, but the appellant’s protests were unsuccessful. The Member observed that Mr Kaparthi’s evidence that the roster was fair and reasonable was not contradicted by other evidence.
(c)    The Member noted that Mr Kaparthi indicated that he would not have spoken to the appellant if the Union had become involved. The Member accepted that evidence and concluded that the conversation complained of by the appellant did not occur.
(d)    The Member indicated that Mr Kaparthi could not recall a discussion about an expired pie, but said it was standard procedure to have a conversation about such a matter. The Member described the incident as “trivial” and added that the appellant did not appear to have been upset about the incident. The Member concluded that the appellant’s asserted response to Mr Kaparthi did not suggest that the appellant was bullied.
(e)    The Member also concluded that there was no support for the allegations relating to a worker not wearing a safety vest, but in any event such a conversation would be to reinforce safety procedures.
(f)    The Member said that he was not satisfied that the conversation in relation to the pie incident and the vest incident occurred. He said there was no support for the appellant’s allegations or corroborative material, and in the light of the numerous inconsistencies in the appellant’s evidence, in those circumstances he could not accept the appellant’s evidence.
All of the above matters were factual matters, as were the allegations about the temperature checks and the allegation that Mr Bakht called the appellant “mentally mad” (which Mr Bakht denied). After dealing with each incident in turn, the Member concluded that he was not satisfied that the events complained of by the appellant were real events. He provided reasons, based upon the evidence, for reaching his conclusion.
The Member also took into account the medical opinions on causation, noting that:
(a)    Dr Canaris’s opinion was expressed as being contingent upon the factual basis of the appellant’s complaints being established and his final opinion was that the appellant’s “levels of anxiety and depression would amplify his perceptions of his physical problems while his physical problems would in turn serve as a focus for anxiety and depression”;[75]
(b)    Ms Zamboni did not record any complaints of bullying in her report dated 30 December 2019 and it was difficult to accept that a qualified psychologist would fail to note such complaints;
(c)    Ms Zamboni’s opinion was that the appellant’s symptoms were related to the appellant’s difficulties in managing his back pain;
(d)    Dr Sazhin was of the view that the appellant suffered a severe and complex mental illness and only briefly referred to the appellant’s “alleged” complaint of being bullied and harassed, without giving any details of those complaints;
(e)    Dr Nadanachandran considered that there was no other cause for his catastrophic presentation but his own misperception of his medical advice, which convinced him that he was seriously disabled;
(f)    Dr Koumoulas observed that the appellant suffered worsening anxiety symptoms because of his back injury, and
(g)    Dr George diagnosed the appellant as suffering from a mild to moderate persistent depressive disorder secondary to the appellant’s chronic pain.
[75] Reasons, [299].
The appellant complains that the Member took into account Dr Diwan’s observation that there were psychological issues in 2018, which was not correct. Even though that history appears to be incorrect, I am not satisfied that such an error has tainted the Member’s ultimate conclusions. I am also of the view that, even if there was error on the part of the Member in determining the factual matters relied upon were not made out, there is sufficient medical evidence to support the Member’s conclusion on causation of the appellant’s psychological condition.
It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[76] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[77]
[76] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, Shellharbour City Council v Rigby [2006] NSWCA 308.
[77] Fox v Percy [2003] HCA 22, 125–6.
For the appellant to succeed in establishing an error of fact, he must establish that in arriving at his conclusion, the Member overlooked material facts, or gave undue or too little weight to material facts in deciding the inference to be drawn, or the available inference in the opposite sense is so preponderant that the decision is wrong.[78] While the appellant points to some factual evidence that was available to the Member but the Member overlooked, I am not satisfied that there was material evidence overlooked by the Member that shows that the Member’s conclusion was wrong. As I have already identified, even if the Member’s reasons for rejecting the claim by the appellant that he was bullied and harassed were wrong (which on the available evidence they were not), the Member’s conclusion that the psychological condition was secondary to the physical injury was well supported by the medical evidence available to and accepted by the Member.
[78] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, per Heydon JA (as his Honour then was) (Sheller JA and Studdert AJA agreeing), [45].
The appellant has failed to establish the requisite error on the part of the Member and this ground of appeal fails. The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed.

DECISION

The Member’s order that the respondent is to pay the appellant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or current Notice of Charge is confirmed.
The Member’s determination that the appellant’s psychological condition was secondary to his physical conditions is confirmed.
The Member’s determination of the appellant’s pre-injury average weekly earnings is revoked.
The matter is remitted to a different member for the calculation of the appellant’s entitlement to weekly payments of compensation in accordance with these reasons.

Elizabeth Wood
DEPUTY PRESIDENT

10 December 2024