Islam v Eureka Operations Pty Ltd t/as Coles Express

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Islam v Eureka Operations Pty Ltd t/as Coles Express [2023] NSWPIC 515
APPLICANT:	Tawfiqul Islam
RESPONDENT:	Eureka Operations Pty Ltd t/as Coles Express
MEMBER:	John Wynyard
DATE OF DECISION:	28 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and section 60 expenses for psychological injury; whether applicant bullied after back injury; Held – central issue of whether psychiatric injury primary or secondary not relevant to issues, as no claim made for non-economic loss; issue dominant in submissions and decision given even though obiter; Attorney General v K, Papa v RP Bricklaying, and Strinic v Singh considered; applicant’s accounts of bullying not based on real events; applicant’s credit impugned; psychiatric injury secondary to misperception of medical advice.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent will pay the amount of $586.70 per week pursuant to s 37 and s 38 of the Workers Compensation Act 1987 from 22 September 2021 to date and continuing. 2. The respondent will pay the applicant’s s 60 expenses on production of account, receipts and/or a current Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Tawfiqul Islam, the applicant, brings an action against Eureka Operations Pty Ltd t/as Coles Express, the respondent, for weekly payments of compensation and payment of s 60 expenses.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Is Mr Islam’s incapacity caused by his back injury, his psychological injury, or a combination of both?
(b) Is Mr Islam’s psychiatric condition primary or secondary?
(c) If primary, do the provisions of s 11A of the Workers Compensation Act 1987 (1987 Act) apply?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

This matter was heard in person over three days - 29 March 2023, 9 May 2023 and
28 June 2023. The applicant was represented by Mr Stephen Hickey (who was in absentia on 28 June 2023) instructed by Mr Paul Curtis. The respondent was represented by
Mr Tom Grimes instructed by Ms Belinda Walsh. Ms Monica Nguyen attended for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Applicant’s further statement;
(c)    Reply and attached documents, and
(d)    Application to Admit Late Documents and attached documents dated
24 March 2023.

Preliminary

On 8 February 2023 following teleconference I made orders:
(a) amending the ARD form to add in the alternative a disease injury with a deemed date regarding the claim for psychiatric injury. Counsel agreed that the deemed date was 26 August 2020, and
(b) pursuant to s 289A(4) of the 1987 Act leave granted to the respondent to rely on the issues raised in its Reply form. There were 13 s 78 notices. The particulars in the reply form both clarify the issues raised in those notices and also raise some issues afresh pursuant to s 289A(4). It is in the interest of justice that these issues be determined.
A further amendment was made by consent to the ARD form regarding the injury claimed on 6 November 2019 by deleting from the “injury description” box the date “January 2020” and substituting therefore “August 2020.”

Oral evidence

On the first day, Mr Grimes sought to cross-examine Mr Islam as to some discrepancies regarding the incident in 2015. He agreed that a back injury had occurred on that date but submitted if circumstances were relevant to any possible future common law proceedings.
I rejected the application on the basis that it was accepted that an injury had occurred, and any inconsistencies could be dealt with by reference to the evidence.

FINDINGS AND REASONS

The Injuries

The injury of 11 July 2015

With regard to Mr Islam’s back condition, the first pleaded injury occurred on 11 July 2015, there was no report lodged from Dr Antoun, whom Mr Islam consulted after the respondent recommended him. A report of a lumbar spine MRI was lodged from radiologist
Dr Craig Harris dated 4 August 2015. The clinical history was recorded as “Lower back pain radiating to the left buttock. ? sacroiliac joints ? discogenic.”
In his 10 November 2022 statement Mr Islam described that he injured his back on
11 July 2015. (He repeated the same paragraphs in his 13 February 2023 statement). He said:
“31.   On 11 July 2015, prior to changing the vacuum waste bin I opened the lid of the waste bin to assess how full it was. On doing so I could see that the bin was only half full.
32.    I picked up the bin liner before realising that it was heavier than I had expected. I immediately experienced an electric shock-like sensation in my back and let the bin bag go.
33.     There was not an immediate onset of low back pain as such, and continued to change the waste bin liner.” ( Mr Islam went on to state that he found that there were 3 sandbags in the bin of some weight ).
……..
38.    As I was not suffering any pain I continued to work
39.   Later that day and whilst moving a box of engine oil I felt another electric shock like sensation in my back, but again as there was no pain I continued to work and finished my shift.
40.   Whilst driving home I started to feel low back and left leg pain….”
Mr Islam said that in November 2015 he returned to his usual duties, but performed them slowly and with some difficulty “as I was still in severe pain.” He underwent physiotherapy and a gym membership was approved for 3 months, when treatment ceased following a report from the respondent’s medicolegal specialist, Dr Drummond.
The Respondent lodged a report of injury form entitled “InjuryNet Referral Form” which indicated that the injury had been reported on 13 July 2015. The injury description was:[1]
“Lifting engine oil bending felt burning pain lower back.”
[1] Respondent ALD 24.3.23 page 33.
Dr Robert Drummond, Orthopaedic Surgeon, reported to the respondent on
19 November 2015. He took a history that Mr Islam felt an electric shock in the lumbar region whilst lifting 5 litre containers of oil on 11 July 2015, and that he felt sharp lumbosacral pain whilst driving home.
Dr Drummond diagnosed a lumbosacral intervertebral disc protrusion. He said:
“The lifting and twisting activity at work lifting 5 litre containers of oil is compatible with producing a lumbosacral intervertebral disc protrusion.
It is probable that the intervertebral disc is degenerative with dehydration and loss of disc height altering the mechanics of the lumbosacral intervertebral disc and facet joint. No direct nerve root impingement is present on the MRI.
The subjective symptoms have become widespread extending to the scalp and thoracic region and do not suggest true sciatic symptoms and are not compatible with nerve root compression.”
When asked whether there were any other issues, Dr Drummond said:
“The only other issues are the widespread subjective symptoms which do not appear to have a pathological basis.”
Dr Drummond noted later in his report that there were no barriers to a return to work apart from what he described as “minor degree of anxiety about symptoms and associated presence of widespread subjective symptoms.” Dr Drummond expected that those symptoms would resolve as Mr Islam’s comfort improved.
Dr Ashish Diwan, Spinal Surgeon, reported on 29 March 2018 – over 2 years later - to
Mr Islam’s GP, Dr Koumoulanas, it would seem for the first time.[2] He took a history that
[2] ARD page 45.
Mr Islam initially became symptomatic in 2015, and that since November and December 2017 Mr Islam had been having chronic, intermittent low back pain, which had significantly increased since November and December 2017.
Dr Diwan also reported complaints of symptoms in Mr Islam’s left leg, and some numbness in the C7 – C8 dermatomal distribution of his right hand. Complaints of pins and needles and numbness in the left foot were also noted, and Dr Diwan was told by Mr Islam that he now had an antalgic gait to avoid putting weight on his left lower extremity. Dr Diwan noted that a review of Mr Islam’s medical history showed that he had been diagnosed with depression.
Dr Diwan diagnosed a chronic contained herniation of nucleus pulposus at L5 – S1 with chronic pain.
On 1 June 2018, Mr Islam was also assessed by Dr John Bentivoglio, orthopaedic surgeon, for the respondent.[3] He took a history that Mr Islam was lifting an object that was unexpectedly heavy in ‘late June 2015”. Dr Bentivoglio noted that Mr Islam had been seen by Dr Diwan. Mr Islam had been working at the time of the assessment, doing 32 hours per week with a 5kg lifting restriction.
[3] Reply page 59.
Dr Bentivoglio considered that Mr Islam had sustained discal damage as a result of the specific incident in “June 2015”.

The injury of 10 January 2018.

In his first statement of 29 January 2021 Mr Islam said:[4]
“8.     In July 2015 I had a back injury. I lodged a claim and eventually obtained a certificate to return to work. I had the odd day off work because of back pain but I claimed sick leave for these days. I was told I would recover. I accepted that and returned to work on normal duties. However, I had ongoing problems and the situation deteriorated over the next 1 ½ to 2 years.
9      I reported these ongoing problems to the then [redacted], CIS and the [redacted] CAP in mid-2017. They reported to the [redacted] CDC. When the [redacted] got back to me in January 2018 they asked me to call the Coles nurse. I did that. I notified her that my back pain had not gone and it had worsened. I asked what should I do. She said to wait for a doctor.
10.    I was sent to a doctor - Dr Evangelos Koumoulas. I did not know if this was an old claim or a new claim. I had been told that the previous claim would be open for two years. I trusted them on this.
11.    The first injury management plan was given to me in December 2019 and I noticed there was a different claim number. I asked why the injury date was different and the claim number was different and I was told it was because it was reported like that by the Coles Express [redacted]. I had told the nurse it was a pre-existing injury, but they did not listen to me.”
[4] ARD page 498.
In his statement of 10 November 2022, Mr Islam said:[5]
“54. On 10 January 2018 whilst cleaning and reorganising the stock room at the rear of the Coles store, I suffered a significant increase in my lower back pain and some right leg pain.
55. I reported the increase in symptoms to my [redacted] CIS and on CIS’s advice reported the incident to the Coles Injury Nurse.”
(As written).
[5] ARD page 7.
Dr Bentivoglio reported again to the insurer on 5 July 2018.[6] He did not take any history of a further injury, but repeated the June 2015 history of injury. He noted a further MRI scan had been taken in February 2018 which gave the same findings as that of August 2015. He thought that “the amount of discal abnormality is not gross” and did not anticipate more aggressive treatment.
[6] Reply page 66.
Dr Bentivoglio advised that the 32 hours per week selected duties was reasonable, accepting that Mr Islam had a “permanent weakness at the L5/S1 level,” and that he needed to avoid various activities as a result. He had been performing those duties for the past three years, Dr Bentivoglio observed, and no alteration in them was foreseeable.
Dr Diwan issued a further report on 19 July 2018.[7] He noted Mr Islam was doing “reasonably well” with rehabilitation but:
“… He had a significant recurrence with a simple activity like bending forward when he was crouching on his knees. He had a radiating pain to his left posterior thigh and still has a point where he presses posteriorly which causes him anterior knee pain.”
[7] ARD page 48.
Dr Diwan said:
“I explained to Tawfiqul that there is no radiological change expected. This is the nature of the problem, as I had explained to him previously. Internal disc disruptions do cause good days, bad days and ugly days. I explained to him the principles of managing them again one of which is a physiotherapy, which he has tried, the other one being facet injections, and the final option being undergoing L5 – S1 spinal fusion. I do not think he is a candidate for surgery yet. I think it reasonable for him to try a spinal injection program…”
Dr Diwan reported back on 15 November 2018, six weeks after Mr Islam had undergone a spinal injection. Dr Diwan said that in many ways Mr Islam was much better, as he had no pins and needles and there was an improvement at a personal level in his day-to-day living. Occasional left toe pain was noted. He could walk up to 10 minutes and could lift to about 10 or 12 kg after which he developed pain, Dr Diwan said. Mr Islam was “10 months status post injury with current claim, but over all his symptoms have been persistent for nearly 3 years.” He suggested that Mr Islam should consider permanent modification of his job with a view to obtaining extra training in order to find employment in an administrative role, ideally with the respondent. Dr Diwan was then happy to discharge Mr Islam from his care.
On 13 December 2018 Dr Bentivoglio reported again. He noted that Mr Islam had lost little time off work doing his restricted duties, although Mr Islam was having ongoing symptoms and “multiple flare-ups” which he experienced every week. These disabled him, and his symptoms were slowly worsening. He had pain radiating down his left lower limb extending to involve all toes of the left foot, and experienced an “itchy sensation” in the foot. His back and lower limb symptoms were of equal severity, and walking for ten minutes made his symptoms worse.

The psychological injury of 6.11.19 (deemed)

It is convenient to consider the medical evidence before turning to the extensive statement evidence.
As indicated, Dr Diwan noted on 23 March 2018 that Mr Islam had been treated for depression. The evidence lodged did not reveal what that treatment was. The first evidence lodged by Mr Islam was a referral from his GP, Dr Koumoulas to Psychologist Linda Manukian of Good Thinking Clinical Psychology dated 29 August 2019. Dr Koumoulas said:[8]
“Needs psychological counselling. Worsening anxiety sx as a result of a chronic back injury that is under WC scheme.” (As written).
[8] ARD email chain from page 59.
On 6 November 2019 Mr Islam emailed CAI, the [redacted]:[9]
“Dear sir,
As you know I am seeing a psychologist which was provided by coles work cover. I just notified you about my first visit on Monday the 4^th October. Yesterday while we were working you stated me “mentally sick” in front of CBJ and I heard it. It hurt my emotions as I am going through a lot of things with the physical mental and financial things. This sorupset, [sic] upon hearing what you said about me, but unable to express it to you on that time.
[9] ARD page 466.
As you required all my communication as a written one I am writing this email to you with a request that, I have to notify you about the psychologist as it’s work related and notified none other than2you. I haven’t disclose it to any other team member or CBJ. Please my kind request will be to you is not to make any joke about my mental or physical condition. As I have discussed my situations with you many times hope you understand my mental condition. Thanks for your support.”
CAI responded:
“Hi Tawfiq
In reply to your email I hereby denied your comments that I called you the words you stating In your email.”
Mr Islam then emailed CCK, who was a [redacted] at the time:
“Good afternoon CCK,
Don’t know what to do. Just wanted to notify you about this incident. Lf you want you can check store cctv and I can point you about the time when this incident I. He was really supportiIe and i was supporting him as much as I Can.’But don't know the reason behind such comments. ( please see forwarded email)”
CCK responded:
“Hi Twafiqul
Thank you for your email
As you are aware Coles Express and your Line Manager/s are there to support you with your recovery of the back injury. This includes providing you with ongoing suitable duties which accommodate your medical restrictions as stated on the certificate issued by your doctor.
You and your line manager also need to work together in the normal terms of TM/ Manager relationship, this requires both parties to act and behave appropriately. It is positive that you have advised your line manager if you have any concerns with the words he has used when talking with you about your injury and related [sic], so that if language was used that you found insensitive then CAI can take this on board for future discussions.
I will contact you soon to arrange another workplace visit so we can again check in on how you are managing and progress.”
A report dated 30 December 2019 was issued from the clinic by Ms Federica Zamboni, General Psychologist.[10] She noted that Mr Islam had completed 8 sessions of therapy for symptoms that “related to difficulties he was experiencing with the management of pain related to an injury to his back sustained at work.” The treatment had limited success as Mr Islam advised Ms Zamboni that “his pain continued to change, would get worse, moved, etc, and limited our effectiveness.”
[10] ARD page 60.
Dr Sikander Khan, Surgeon, issued a medicolegal report on 22 January 2020, which was concerned with Mr Islam’s back condition.[11] He noted:
“[Mr Islam] He has become stressed, anxious, irritable, and short tempered because of his injuries for which he has been referred to a psychologist.”
[11] ARD page 65.
By 31 July 2020 Mr Islam was being investigated by Katherine Saunders, Clinical Psychologist, from St George Hospital Pain Management.[12] She advised:
“Mr Tawfiqul Islam attended a telehealth psychological assessment with myself on
[12] ARD page 88.
27 July 2020 at the Pain Management Unit, St George Hospital. During this consult Mr Islam reported wanting to learn how to better cope with his pain and to understand the associated concomitants of living with persistent pain.”
Ms Saunders wrote:
“Mr Islam described pronounced anxiety and depression symptoms which are present on most days. He scored on the extremely severe range on the DASS – 21 psychometric for both anxiety and depression; his stress symptoms were in the severe range. These symptoms appear to be exacerbated by his persistent pain and his stated, repeated incidents of workplace bullying….”
Mr Islam’s psychological condition led to his being referred to Dr Vladimir Sazhin, Consultant Psychiatrist for treatment on 2 September 2020.[13] Dr Koumoulas wrote:
“Thank you for seeing [Mr Islam] for management and opinion. Worsening psychological symptoms post a work cover injury from five years ago. A back injury. The processes caused him significant psychological distress…”
[13] ARD page 469.
Dr Sazhin’s first report was dated 27 October 2020.[14] He first saw Mr Islam in his private rooms at Wesley Hospital Ashfield on 6 October 2020. He said:
“Following his initial injury, [Mr Islam] develop more problems with his back and had little relief from cortisone injections. He was trialed on Pregabalin and antidepressant Duloxetine up to 60 mg that was prescribed to him for his distress and pain. He was seeing a psychologist who diagnosed him with Adjustment Disorder.
I understand that his injury case was closed in 2015 and then was reopened in 2018 as the patient developed radiculopathy. [Mr Islam] stated that he was quite motivated to work and continued working until last July, however, he was not able to tolerate his back pain.
Over the last three months, [Mr Islam] reported low mood, loneliness, even though he was seeing two psychologists – one for pain and the second for his anxiety and low mood. His sleep is very poor and he complains of poor concentration and non-specific suicidal ideation. He feels useless. He lacks motivation and energy and suffers from physical symptoms of constipation alternating with diarrhoea. In addition, he has a high level of anxiety in relation to his future.
…. In the past, [Mr Islam] has not had any problems with his mental health until October last year [i.e. 2019] when he felt himself under stress and pressure from his manager….”
[14] ARD page 148.

On 24 August 2022 Dr Sazhin advised:[15]
“Undoubtedly, Mr Tawfiqul Islam has been suffering and is suffering from severe and complex mental illness along with his chronic back pain. In my opinion he has reached the maximum level in his recovery and is likely to remain at this low level of functioning for a long period of time. He is quite disabled and requires a lot of assistance from his wife.”
[15] ARD page 578.
Dr Christopher Canaris, consultant psychiatrist, was retained as Mr Islam’s medicolegal expert. On 12 August 2021 he took a history that Mr Islam’s problems began with the workplace back injury in 2015, from which he recovered sufficiently to work “normal duties” but suffering periodic exacerbations, for which he took sick leave. He was taking more sick leave and his claim was reopened in January 2018. Mr Islam said he was not able to access suitable duties and the respondent ceased paying for his treatment. Dr Canaris said:
“[Mr Islam] became more anxious in this setting. He had difficulties with accessing an injury management and return to work plan. He contacted his solicitor for assistance.”
Dr Canaris then took a history that a new [redacted] had described Mr Islam as “mentally sick” within Mr Islam’s hearing. This upset Mr Islam, who wrote an email to management, which responded by denying that the comment had been made. Dr Canaris reported:
“Another [redacted] came along “and started to bully me”. He went on to describe a number of unpleasant interactions. He felt “very vulnerable – I was afraid for my job”.
Mr Islam then developed symptoms of shaking behind the console and was referred to a pain clinic at St George Hospital, where he spoke with a psychologist about the bullying.
Dr Canaris noted treatment by Dr Sazhin and that Mr Islam alleged that his supervisors manager was “micromanaging me.” Mr Islam was asked to stay back because someone else was going to be late but his overtime claim was questioned, Dr Canaris recorded. “He spoke of being “scared “and of the lack of any return-to-work plan and injury management plan.”
In summarising Mr Islam’s case, Dr Canaris said:
“[Mr Islam’s] overall presentation is consistent with a diagnosis of Major depressive disorder with anxious distress.
His major depression has arisen in the setting of his employment. Assuming the broad accuracy of the history of an offer (sic - on offer), his depression arises predominantly as a result of poor treatment meted out to him at work.
In so saying, I note that the employer provides a different account of what took place at work. I note also that the employer claims reasonable action with respect to discipline. It is of course not my place as a psychiatrist to make any judgement on this score.
In his current condition, he is not well enough to work because of the combination of anxiety and depressive symptoms. I note in this context the reports of Associate Professor Tse and Dr Syeda which highlights his levels of anxiety with associated somatic concerns.
His physical symptoms may pose limitations in their own right. His 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.”
The respondent retained the services of Dr Graham George, consultant psychiatrist, who reported on 9 July 2020.[16] He took a concise history of the 2015 back injury but took no history of any bullying by the respondent’s employees or managers. The history he took regarding psychological treatment was that it began in November 2018 and that the medication prescribed had been initiated by Mr Islam’s pain specialist. Mr Islam indicated to Dr George a certain degree of anxiety related to his pain, and that he worried about his future. Dr George advised that Mr Islam’s depressive disorder had been a function of his injury, and was a secondary condition.
[16] Reply page 102.
Dr Koumoulas referred Mr Islam for a neurosurgical opinion to Dr Kathiravel Nadanachandran, neurosurgeon, who reported on 12 November 2020.[17] Dr Nadanachandran advised:
“My examination showed extensive sensory impairment in a patchy manner from head to foot not fitting any dermatomal pattern. Joint sense was normal. He has no weakness on my examination despite his claim of weakness. Reflexes are all brisk and the plantar response was flexor. He has got bizarre gait. He walked in with a limp, with the left foot inverted. He was later noticed to walk normally. His coordination was normal.
None of the scans helped me to localise the source of his pain. The neurologist has found some minor evidence of radiculopathy, which is imprinted on the patient’s mind as evidence of serious abnormality. Minor L5 radiculopathy is reported and possible minor left C6 - 7 radiculopathy. None of these or the scans and appearance of his gait add to possible organic condition. I feel that he should continue his management with the psychiatrist and pain management clinic and not referred to too many doctors. I have told him that I very much regret that I cannot help him. There is nothing surgical nor can I give an explanation for his pain on the basis of the clinical examination, the investigations he has had so far and the scans.
Thus I feel he is best managed by his pain management specialist and psychiatrist.”
[17] ARD page 158.
Associate Professor Vincent Tse’s specialty was urology and his involvement in Mr Islam’s case concerned urinary difficulties. Dr Tse’s report of 29 April 2021 is of little relevance, save that Mr Islam was noted to have “almost uncontrollable shaking and discomfort” during the catheterisation.
Dr Sultana Syeda was a Consultant Physician who reported on 5 July 2021 concerning her investigations into Mr Islam is complaints of atypical chest pain.[18] Dr Syeda said:
“My impression is his atypical chest pain is significantly contributed by his generalised anxiety disorder and obviously all the other mental health issues for the last few years.”
[18] ARD page 291.
On 2 March 2022, Dr Koumoulas reported to Mr Islam’s solicitors, who requested an “up-to-date medical report.” [19]
[19] ARD page 391.
Dr Koumoulas stated that Mr Islam had two injuries, physical and psychological. He explained that the physical injuries were concerned with the L5/S1 disc lesion. He said that Mr Islam had radiculopathy, myofascial pain involving upper and lower limbs, was overweight, suffered from type II diabetes (NIDDM), pelvic floor myalgia with lower urinary tract symptoms and recurrent diarrhoea with fecal leakage. Mr Islam also complained of whole-body pain and cervical pain with spondylosis.
The second injury was psychological, about which Dr Koumoulas said:
“Specifically he suffers from major depression and generalised anxiety. This in no doubt is related to his work.”

STATEMENTS
Mr Islam

The applicant made three statements dated 29 January 2021[20], 10 November 2022[21] and, at my direction,13 February 2023[22]. The content of the first two statements was discursive and at times difficult to follow. The third statement was simply an edited copy of the second statement.
[20] Reply page 8.
[21] ARD page 11.
[22] Applicant’s further statement lodged as a late document.
The 29 January 2021 statement appears to have been taken by the investigator, as its form is the same as other statements lodged by the respondent. It was 53 paragraphs in length. The statement of 10 November 2022 was 166 paragraphs long and accompanied by 15 photographs. The statement of 13 February 2023 was 108 paragraphs long. I have already referred to Mr Islam’s statements with regard to the physical injuries.

29 January 2021[23]

[23] ARD page 497.

At [10] and [11] Mr Islam described his confusion when he was told that his case had been given a new claim number after (in this version of events) he had reported his ongoing problems in mid 2017 and not been contacted until January 2018. He said that the first injury management plan was given to him in December 2019, and he enquired as to why there was a different injury date and different claim number (presumably for a renewed injury management plan). He said:
“…I was told it was because it was reported like that by the Coles Express [redacted]. I had told the nurse it was a pre-existing injury, but they did not listen to me.”
At [14], Mr Islam said:
“After I went to the IME doctor for assessments, based on his reports my
employer and their representatives changed their attitude to me at work. The Acting [redacted] CDL came inside. I was serving a customer and one of the team members went outside while he was in the car park. He came in and asked me, "How come team members are going outside without a safety vest while you working the shift." I was not this person's supervisor. This was September/October 2018….”
Mr Islam said at [15] that whilst he was doing his light duties, CDL enquired as to why an expired pie had not been removed from the other. Mr Islam said:
“… The pie had expired the day before but CKU [a fellow worker] and I were not responsible for this – it should have been removed from display the day before by the guy who cooked it.”
This episode, Mr Islam maintained, made him a target for CDL. He said that CDL announced a new company policy at the end of 2018 concerning weekend employment, which Mr Islam had hitherto been working.
Mr Islam digressed to say that he had called in the union over the reduction in his hours since his “primary injury.” He then said that CDL saw him when he was on a 10 minute break but Mr Islam told CDL that he should not be talking about union actions in his break or without the union being present. Mr Islam reported this to the [redacted], CAP, who did not do anything. Mr Islam said that CDL then said he was not aware that Mr Islam had been on his break, and a short time later CDC, who had been contacted by CDL, arrived. Mr Islam said at [21]:
“…We went outside and I asked if the company had any issues because of my injury. [CDC] said, “not that I know of….”
Mr Islam asked why he was being targeted for some other people’s faults. This resulted in a complaint from CDL to the union that “I was impolite with him.”
At [23] Mr Islam related that the [redacted] CEN visited in January 2019 about CDL’s complaint of impoliteness. Mr Islam explained that he had been interrupted during his break about a matter that he should not have been discussing with him.
The new roster was implemented, and after a couple of months, Mr Islam said at [25], he found out that one of the team members was working both days on the weekend. Mr Islam thought that should not be happening. He spoke to the union but could not send a roster because CDL said other team members’ details were on it.
Mr Islam said at [26], “I felt disadvantaged that due to my injury I could not do some tasks.”
Mr Islam then recounted that the new [redacted], who started in “June/July/August 2019,” said that he been told by CDL to be aware of Mr Islam, as he was controlling all the team members. Mr Islam denied that.
Mr Islam said that in early 2020 the new [redacted], CFP said to “the [redacted]” that he did not want to visit the store whilst Mr Islam was there as he had been told by CDL that Mr Islam recorded conversations.
At [29] Mr Islam alleged that another employee, CGQ in early 2020 told Mr Islam that CDL, who had come in when Mr Islam was not at work, was waiting for the right time for Mr Islam.
Mr Islam recounted another occasion “last year” CDL said that out of 19 temperature checks, “we had done three.” Mr Islam said at [19]:
“I explained that I had done the temperature checks I had been required to do, and that I was not to be blamed for the work of others. I showed him I was doing my job..”
At [34] Mr Islam thought that Mr Davis and CAI had conducted a “secret meeting” as another store sometime “before 6 January 2020.”
An episode on 14 January 2020 there was an argument about the console door policy, in which it was alleged that CDL slammed the open door twice whilst Mr Islam was serving a customer.
At [36] Mr Islam said that after the customer left CDL asked “are you OK?”
Mr Islam said that he was but then said that he was asked two more times by CDL when Mr Islam asked CDL why he did that, CDL said it was to see if he was OK. Mr Islam said “No, to ask me three times is bullying.” CAI came in and Mr Islam said that the employer had a strict policy on bullying and harassment “and not to bully me.”
Then a customer came in and asked the price of a car wash. Mr Islam explained what the prices were and as he was doing so CDL asked Mr Islam if the car wash was working. When Mr Islam told him that it was not, CDL asked Mr Islam why he was telling the customer this when it was broken. Mr Islam said “he was only telling them the prices”.
Mr Islam then said at [38]:
38. At one point CDL said, "Why are you talking with me in a higher voice?" When I asked what he meant he said I had raised my voice. I said that he had asked me the same question three times and I had answered him. A technician was on a call in the console and I initially thought CDL may not have heard me. CDL asked me, "Do you want to work here?" He was standing up and physically shaking when he said this. I said, "Yes, I want to work here, and I was working until you interrupted me." He said, "I'm your [redacted]." I said, "You're not my [redacted], my [redacted] is CAI."
Mr Islam said that CAI told him that he did a good thing telling CDL about the harassment and bullying and that CDL “burned footage of the incident and offered to make me a copy”.
Mr Islam contacted CAI later that day from home and asked what the process was for reporting bullying. CAI said that he had to notify himself, CAI, and that he observed “the whole thing.”
At [31] as he was exiting the store on 6 November 2019 going for his 10 minute break, Mr Islam noticed one of the bottles in the refrigerator display was not faced properly. He came back in the store and heard [redacted] CAI pointing outside to Mr Islam and telling the new [redacted] CBJ that Mr Islam was “mentally mad”. He said this in Punjabi and Mr Islam said to them “Yeah, I know I am the mentally mad guy”. Mr Islam said he had told the [redacted] that morning that he was seeing a psychologist.
Mr Islam thought that the comment about his being mentally mad was not said as a joke and he tried to treat it as a joke by answering the way he did. Nonetheless he sent an email to
CAI, who replied denying that he said anything like that.
Mr Islam then saw the [redacted] CCK. She “replied” but did not do anything.
He reported this incident to Dr Koumoulos and to his psychologist Ms Zambroni.
Mr Islam then spoke of his getting “scared of how they were treating me because they stopped providing me with a return to work plan” in July 2020.
He was scared of losing his job and getting impacted financially and psychologically and emotionally he said at [42].
He said that after his back injury his hours were reduced to 24 hour per week and then increased to 34 hours per week in May 2016. Then they went up to 32.5 hours per week and then to 28.5 hours per week which is what he was working when he ceased working in August 2020.
He said that he had no prior medical condition prior to the 2015 injury and he said that he attached to his statement a typed report which he had previously provided to CCK through his [redacted] CHR on 22 September 2020. No such statement was lodged, unless it was that made to SafeWork Australia, to which we will come in due course.

Applicant’s second statement 10 November 2022

Mr Islam’s second statement by and large repeated the allegations contained in the
29 January 2021 statement. He described in detail the original injury of 11 July 2015, and the second injury of 10 January 2018, which I have described above.
At [79] he stated that on 16 September 2019 he was told that if he did not provide a medical certificate no further treatment would be approved and that if he did, he would be provided “with three months’ hydrotherapy as a good gesture.”
Mr Islam said that he understood his solicitors had written to the respondent in October 2019 regarding his treatment. He said that on 28 October 2020 his complaint to WIRO had resulted in an investigation by SafeWork NSW and that safe work had issued improvement notices as a result. The letter from the Workers Compensation Independent Review Office in fact revealed that Mr Islam had himself written directly to The Hon Victor Dominello, then Minister for Customer Service.[24]
[24] The letter from WIRO of 28 October 2020 was lodged at page 150.
Mr Islam said at [83] that Dr Koumoulas referred him to psychologist Ms “Zambroni” on
4 November 2019. She advised him to take care of himself because his back pain was so intense, and he underwent eight sessions for pain management with her. He said:
“I informed Ms Zambroni during my sessions with her that I had been bullied at Coles on 6 November 2009.
Ms Zambroni informed me that she was seeing me for pain management and was not seeing me for my complaints of bullying or threats.”
Mr Islam said he reported the bullying to another [redacted], but that neither CCK nor anyone else from Human Resources came to talk with him. He said at [126] that on 10 August 2020 and on 22 September 2020 Mr Davis requested information about the bullying incidents “through my [redacted] CHR.”
Mr Islam then recounted that he had seen Dr Bentivoglio on a number of occasions, and referred to the s 78 notices that had issued.
With regard to his psychological injury, Mr Islam referred to his statement of
29 January 2021, which he had signed on 5 February 2021. At [122] he repeated that he had “reported the bullying” by email to CCK. He supplied some commentary on this occasion.
Mr Islam then referred to the events of 14 January 2020, which he described in his earlier statement regarding the console door policy and being asked by CDL whether he was “okay.” Mr Islam described that interchange at [124] as conduct that “bullied, intimidated, harassed and threatened me.”
Mr Islam then discussed the work capacity report of 9 June 2021. At [139] he discussed the Vocational Assessment Report of Clinical Rehab Pty Ltd of 12 August 2020 and made some critical remarks about it. At [143] Mr Islam said:
“I am however informed that CFP… My [redacted] at Coles refused to discuss my placement within Coles with Dr Koumoulas.”
Mr Islam concluded this statement by discussing his receipt of a disability support pension from Centrelink, and his superannuation situation.

SafeWork complaint

Also of relevance was a Workplace Bullying form lodged by Mr Islam with SafeWork by email on 18 December 2020.[25] it nominated three examples. The first was the event that occurred on 14 January 2020. Mr Islam said:
“I was bullied and harassed, intimidating threat by saying whether I want to continue working there when I have told CDL that he bullying with me, and informed Coles has strict policy against bullying. [Redacted] CAI heard these conversations.”
[25] ARD page 489.
The second example was that of 6 November 2019. Mr Islam said:
“I was going out from the store for my break, but suddenly I came inside store and heard [redacted] saying pointing towards outside, and saying in Urdu which means “Tawfig is a mentally sick person.”
The third example related to the date 24 December 2018. Mr Islam said:
“I was enjoying my break when CDL told me to have a meeting in the office. I said no, I want to wait as I am on my break. He said the meeting needed to go ahead. I felt pressured to have a meeting with him even though I was on my break. We entered the store and had a meeting without UNION.” (As written).
The form was templated and asked whether Mr Islam had reported the alleged bullying. When asked if he told us, health and safety or [redacted], Mr Islam said:
“[redacted] CDC, [redacted] CCK, [redacted] CFP”
In answer to a similar question about Mr Islam supervisor, he said:
“CAI (current [redacted]), CAP (previous [redacted]) CIS (previous [redacted])”

Mr Islam, in answering the templated questions, said that the workplace made enquiries into his allegations and he had been told the outcome which was, he said:
“Previous notifications has no outcome or enquiries were made. Since November 2019 I have notified them through email. No enquiries were made. Currently they said this “I write to advise you that the investigation is now complete. I have found that the complaints were unable to be substantiated.”

Email communication

Also lodged with the ARD were a number of emails from Mr Islam or concerning Mr Islam giving further versions of the matters he has raised in his statements.
The above Safework bullying form also appeared to contain a copy of an email prepared on Mr Islam’s instructions by CHR from the Union dated 22 September 2020.
The email began with the words:
“I was bullied and harassed a number of times.”
The content of this document will be considered in the discussion of this dispute.
Email correspondence was also lodged between Mr Islam and CCK, which did not advance any further relevant issue.

Respondent evidence

CDL

CDL made a statement on 7 February 2021[26]. He said he was the [redacted] of the respondent looking after the Sydney Metro area which included the Waterloo store.
[26] Reply page 33.
He did not know the applicant until the last two to two and a half years when he became [redacted] of the Sydney metro area, but he stated that Mr Islam started with the company on 13 May 2014.
CDL was aware that Mr Islam had a back injury although he had no detail as he was not [redacted] at the time.
He had never spoken to Mr Islam about the back injury.
Mr Islam was working at Waterloo when he took over the [redacted] position and Mr Islam was working 24 hours a week at that time, working various days.
He was briefed on the return to work program by CCK.
CDL found Mr Islam to be like any team member when he first met him. He thought he was an average worker as he had not heard about him as either being really good or being really bad.
He did not remember the alleged incident about wearing a safety vest which happened in September/October 2018.
He said that if he did raise it with Mr Islam it would be only to reinforce the safety culture of the respondent’s workplaces.
Neither did CDL recall any conversation about an expired pie in an oven. If he did bring it up as Mr Islam claimed, it would have been part of the standard procedure which team members were expected to follow.
CDL said that in 2018 there was a roster re-set across the whole business which gave guidelines for what date and times team members could work. These guidelines had to be rolled out with every store. The policy involved a change to weekly rostering for the purposes ensuring that the manager/assistant manager worked the weekend rosters to have a seven-day management coverage of the store. The rostering was released by the business nationally in June 2018 and team members were given time to recalibrate the rosters which is why Mr Islam was given until September 2018 to recalibrate his.
At [15] however CDL said that Mr Islam declined the offer and took the issue to Human Resources. The union also became involved, the outcome of which was that it was determined that what Mr Islam had been asked to do was fair and reasonable. He then started working the new roster.
CDL denied that Mr Islam had been targeted by him with the roster change. He said there were about 100 part time team members and they were all affected.
CDL did not recall the incident in December 2018 when he spoke to him at Waterloo.
He said he would not have spoken to him about the matter where it involved the union. He said “Tawfiqul is not someone you can talk to casually to – it has to be arranged beforehand and be in the calendar.” He said that it was too long ago for him to remember whether CDC called him on that day as Mr Islam claimed.
As to the suggestion that CDL had lodged a complaint with the SDA (the union) representative known as CEN or anyone else, he said that the SDA is not part of management as they were there to support the members. There was no system for a complaint by a manager to SDA.
As to a fellow worker CJT doing both days on the weekend, CDL said that CJT was a [redacted], that is to say he was a casual and not a part time member and other casuals had also been given both weekend shifts.
CDL said that the new [redacted] CAI started in mid 2019 but that the previous manager found Mr Islam a very difficult person to deal with and accommodate and he had difficulties. CDL said that he would have told CAI when dealing with Mr Islam to “do it by the book”.
At [22] CDL said [27]:
“22. I don’t know why it is, but Tawfiqul appears to be a person who is naturally suspicious of a manager’s actions. If for example, I was to ask him would he like to join me for a cup of coffee, he would be immediately suspicious that there was something sinister behind it.”
[27] Reply page 35.
CDL denied telling CGQ that he was waiting for the right time for Mr Islam. He said:
“Considering how difficult Tawfiqul was to deal with, I would not be making any comments about him to other team members.”
He said that Mr Islam never kept him in the loop on any matters. He said that he had never been spoken to by Mr Islam about allegations that Mr Islam was “mentally mad”.
With regard to the occasion when the console door slammed, CDL agreed it was his practise when he visited stores to ask to each and every team member about their welfare. This was done because of the health and safety culture. CDL said he would not have asked this question three time of Mr Islam.
Similarly, CDL did not recall the incident where Mr Islam was giving a customer a price of a car wash when it was not working. He observed however that in such a situation the team member should inform the customer that the service was not available.
CDL said he had not had any extended conversations with Mr Islam at all. He said he avoided this. He certainly did not ask “do you want work here” and neither did he say that he should respond.
CDL was not involved in the return-to-work plan but noted that he had gone to the Enfield store working 10 – 12 hours a week doing admin work. CDL said that he was by nature a quiet person and that one criticism that was being made of him was that he needs to speak a bit louder. He said that he would never go around threatening and bullying people. He said that Mr Islam never mentioned to him either formally or informally that he was being bullied by CDL or by anyone else.

CFP

CFP made a statement on 3 March 2021.[28] CFP was the [redacted] for the respondent. He had been working for the respondent for 19 years and in that position for 13 months. He had never met Mr Islam in person, but had spoken with him on the phone, exchanged emails and had case conferences with him and his doctor (presumably by telephone).
[28] Reply page 39.
CFP described himself as acting in a “middle-man” role. He started that position in February 2020 and had his first contact he thought with Mr Islam in about March 2020. He said some concerns had been raised about his non-compliance around his duties and his breaks.
CFP phoned Mr Islam, wanting to meet him on site to discuss Mr Islam’s duties, however Mr Islam said that he could not visit the site without giving Mr Islam two weeks’ notice, and that there would need to be present a support person for him. CFP said his purpose was not disciplinary in nature and he had in mind an informal meeting to discuss what the situation was. There was no obligation to give two weeks’ notice, and there was no obligation to have a support person present, but one would be permitted if the team member requested it.
CFP explained that he wished to discuss Mr Islam’s current return to work situation and that it was not a formal meeting. Mr Islam did not feel comfortable about that and said that CFP would have to organise a time to meet as well as a support person.
CFP said he would have to come back to him to see whether this was an appropriate thing to do.
CFP said that when he was in the area of the Waterloo site he spoke to the [redacted] CAI, who told him that he was having difficulties dealing with Mr Islam.
CFP was given examples of his not performing tasks he was asked to do, and capable of doing, and he was told that Mr Islam’s attitude was poor. CAI felt that
Mr Islam was deliberately doing things to make life difficult for the store, and he gave some examples.
CFP gave some advice to CAI that he should have a conversation with
Mr Islam and adopt some strategies as to how to cope with Mr Islam’s attitude and manner.
CFP said that he had participated in at least four or five case conferences through Clinical Rehabilitation where he would be dialled in and put on speaker. Later in 2020
CFP said at [18] that Mr Islam was extremely argumentative and made derogatory comments about the rehab providers and the respondent in general. Mr Islam was aggressive in his behaviour and the tone and volume of his voice was excessive. He was asked on at least one occasion by the doctor to moderate his behaviour, but Mr Islam would continue to speak at length about “what he perceived as the mismanagement of his case.”
CFP said that Mr Islam would “derail the case conferences.” He said a 30 to 45 minute time slot would overrun to about an hour and ½ because Mr Islam continued to raise matters which were not relevant to his rehabilitation. Mr Islam claimed that various individuals with responsibility for his case were lying.
CFP remembered that Mr Islam claimed he had been bullied by CDL over the discovery of a cooked pie in an oven but that was all that CFP could recall.
He said that when he met CAI on site CAI said he was trying his best to appease Mr Islam, going out of his way to help him so that he would be easier to deal with if he were “on side.” CFP said that he discussed with CAI the danger of being too lenient, and enabling Mr Islam to become more demanding and unreasonable.
As to CFP city continued to get emails from Mr Islam, a lot of them being quite berating and claiming that “his matter being mismanaged.”
Mr Islam had never mentioned to CFP that he felt CFP had bullied threatened harassed intimidated or abused him.

CCK

CCK made a statement dated 15 March 2021.[29] as indicated earlier, CCK was a [redacted] for the respondent since August 2020, and before that a [redacted] for about four years.
[29] Reply page 45.
CCK had dealings with Mr Islam over a period of about 2 ½ years. She met him three or four times face-to-face over a 2 ½ year period. She said at [8]:
“When I first met [Mr Islam] he presented as being guarded, suspicious and defensive. Also, I found to be uncooperative. He had a back injury with pain radiating down one leg and this caused him to have problems with prolonged standing, squatting and lifting.”
During the first meeting she had with Mr Islam, a [redacted] was present also. The meeting went for about an hour and ½ and throughout the process Mr Islam would consistently disagree with the tasks suggested for him even after they had been thoroughly discussed with him. CCK said that “we did not want him to do anything he was not able to do so that there was no aggravation of injury and we would develop a plan on what he told us.” Nonetheless Mr Islam remained resistant to what was suggested, CCK said.
Mr Islam kept changing his claim as to the restrictions his condition caused on his various physical activities. CCK, to summarise, found Mr Islam inconsistent in his presentation and she often suggested that he go back to see his Dr because the restrictions he was now complaining of had not been certified.
At [15] CCK enquired as to why Mr Islam told her that he did not want anything to do with the [redacted], and was told that the [redacted] had asked Mr Islam questions when he came in, and that Mr Islam didn’t like it. At [20] CCK said that Mr Islam refused to give any specific examples. She said she received a complaint on behalf of Mr Islam from the union regarding CDL, but she left the role at that point in heard nothing further. She did not recall Mr Islam using the word “bullying” but rather that he did not like the way he was spoken to.
She said that Mr Islam was quite resistant to the process of his recovery. At one stage Mr Islam wanted everything in writing no matter what the topic, and instructions were to be given to him by email if they came from CDL.
CCK said that Mr Islam had never spoken about being bullied by anyone.

CAI

CAI made a statement dated 17 February 2021.[30] CAI was [redacted] for the respondent since July 2019. He took over from CAP, who told him that Mr Islam was injured and on light duties. CAI had to ensure that someone was working with them because he was unable to do the full range of duties. CAI said that Mr Islam was then working four days a week, 28.5 hours. Mr Islam would do whatever he was asked and could not do lifting work.
[30] Reply page 51.
Nonetheless, CAI said that he had “serious problems” with Mr Islam, who complained a lot, “said bad words about other people” and very negative things about the company. He spent a lot of time talking to other team members and complaining about his situation.
CAI found that Mr Islam “deliberately made things worse than they were. “He gave as an example the temperature checks which CAI told Mr Islam to do, but would find 10 customers waiting to be served because Mr Islam was out taking the temperatures. When spoken to, Mr Islam would say he was “just doing his duties.” Eight out of the 10 team members were from his country, Bangladesh. CAI said that he was from Pakistan and, after trying to work with the team, found a change in Mr Islam’s attitude to one of helping him.
CAI said that Mr Islam had mental issues, but he could not remember when he found that out. Mr Islam used to bypass him by sending emails directly to the State Manager. Mr Islam’s doctor said that he had some mental issues and as a result, CAI treated him sensitively and did not push him too hard.
Mr Islam “always complained” to CAI about issues he had with CDL. When CDL was present CAI could see that they had a “difficult relationship.” He said:
“CDL was very professional and would ask [Mr Islam] how he was, but the way [Mr Islam] responded to him was not good. I felt that CDL deserved respect, but [Mr Islam] would not respond to him in a proper way…”
CAI referred to Mr Islam’s allegation that he had said to the [redacted] that Mr Islam was “mentally sick” or “mentally mad.” CAI said that Mr Islam did not report it on that day, but four – five days later, which made CAI uncomfortable and annoyed. CAI denied telling anyone, and asserted that the [redacted], CBJ, also denied that such a statement was made, although he was no longer with the company.
CAI denied that there had been any secret meeting with CCK. He was simply enquiring how he should deal with Mr Islam. CAI said that he had behaved in a fair and reasonable manner towards Mr Islam and that he had never been accused by Mr Islam either formally or informally of bullying or otherwise affecting his mental health.

CAP

CAP had been [redacted] where Mr Islam was working two years before he made a statement on 17 February 2021.[31] He knew Mr Islam for 5 to 6 years when he was working at the same store. He remembered that Mr Islam was working light duties after hurting his back. When he moved to another store in 2019 Mr Islam was serving customers and had no other duties.
[31] Reply page 56.
CAP related that on one occasion when CDL was [redacted], Mr Islam saw that CDL had arrived and told CAP that he was going on a break. CDL asked CAP when Mr Islam had gone his break, and CAP said “just now.” CDL went outside after a few minutes and came back in with Mr Islam. A conversation ensued which CAP did not hear. Shortly after the [redacted] arrived and spoke to CDL. After they had all left, Mr Islam tried to complain to CAP about CDL but, as Mr Islam was always saying bad things about CDL, CAP tried to avoid him.
At [15] CAP said:
“My experience with [CAP] was that if anyone said anything to him to (sic – he) will see it as bullying. [CDL] would tell him that he was a senior team member and should look after the junior team members. He would say this was not part of his duties. He argued with everyone and disputed everything and to him the company was always at fault.”

Dispute notices

As indicated. thirteen dispute notices were lodged. The first was dated 12 March 2020[32]. It related to the claim regarding the lumbar spine injury of 10 January 2018, claim 2018210614. Each dispute notice related to this claim number.
[32] Reply page 1.
It disputed that proposed thoracic MRI scan was reasonably necessary.
The second was dated 7 July 2020. It rejected an application to have a CT scan of the brain taken[33].
[33] ARD page 90.
A further s 78 notice issued on 25 August 2020[34]. This was a denial of a request for a consultation with a gastroenterologist.
[34] ARD page 103.
On 31 August 2020 a further dispute notice was issued declining nerve conduction studies/EMG of the left shoulder/neck[35].
[35] ARD page 109.
On 14 October 2020 a further dispute notice issued declining a request for a consultation with a urologist. [36]
[36] ARD page 134
On 26 October 2020 a further dispute notice was issued declining a request for a rheumatologist consultation, a fertility specialist consultation, blood tests and a scrotal ultrasound[37].
[37] ARD page 141.
On 25 November 2020 a further dispute notice was issued denying a request for a cardiologist consultation, blood tests, a mattress and domestic assistance.[38]
[38] Reply page 9.
A further dispute notice issued on 10 February 2021 denying a request for an optometrist.[39]
[39] ARD page 255.
On 9 June 2021 a further dispute notice was issued in the form of a work capacity decision.[40]
[40] ARD page 278.
On 25 June 2021 a further dispute notice was issued denying the request for a consultation with a pelvic floor physiotherapist and a referral to a dietician.[41]
[41] Reply page 16.
On 27 September 2021 a dispute notice issued denying a request for a left elbow xray and a pathology test for widespread arthralgia.[42]
[42] ARD page 318.
On 22 October 2021 a dispute notice issued declining further payment of compensation[43]. Liability was declined on the opinion of Dr John Bentivoglio, orthopaedic surgeon, a medico-legal expert retained by the respondent and Dr John Sheehy, neurosurgeon. It was alleged by the insurer that the work-related injury had resolved.
[43] ARD page 366.
On 6 April 2021 a further dispute notice issued in respect of a new claim number, 2021215470, denying liability for the subject alleged psychological injury sustained on
[44] ARD page 508.
6 November 2019[44].

SIRA work capacity certificates

The SIRA work capacity certificates issued by Dr Koumoulas were lodged.[45] The certificates covering the dates 8 August 2022 14 October 2020 certified that Mr Islam had been fit for suitable duties on account of his having lifted a heavy weight at work and suffered an exacerbation of his pre-existing lower back pain, a L5 – S1 disc protrusion, and an adjustment disorder with depressed and anxiety injury. [46] None of those certificates made any mention of bullying or harassment.
[45] ARD pages 656 – 966.
[46] ARD pages 741 – 762.
The first such certificate was dated 23 August 2021 which diagnosed an injury on 6 November 2019, in the form of an adjustment order secondary to the physical injury and a major depression and generalised anxiety disorder with some post-traumatic stress disorder related to that diagnosis. The certificate also recorded some “repetitive alleged bullying at workplace, harassment, threats and intimidation.”

SUBMISSIONS

Mr Hickey

Mr Hickey submitted that on a review of the evidence, Mr Islam was totally incapacitated.
Mr Hickey referred to the various opinions in the evidence but there is no contest from the respondent that the combination of the orthopaedic and psychiatric injury has resulted in
Mr Islam having no current work capacity.

Mr Hickey relied on the evidence of both Dr Canaris and Dr George that Mr Islam is suffering from a psychiatric condition. Mr Hickey however submitted that Dr George did not get any history of the bullying alleged by Mr Islam, and therefore his opinion that the psychiatric injury was secondary could not be said to have been made in a “fair climate.” On the other hand, Dr Canaris did take the relevant history, which demonstrated that the psychiatric injury was in fact a primary injury.
When the hearing resumed on 9 May 2023 Mr Hickey made a further amendment to the ARD form regarding the first injury, by adding under the “injury description” the words “and lifting 5 litre oil containers.” Mr Hickey submitted that Mr Islam had made both claims in his statement. He submitted that there was no dispute that the second injury occurred of
10 January 2018 as workers compensation certificate had issued and indeed another claim number had been opened.
Mr Hickey referred to the opinions of the orthopaedic specialists Dr Bentivoglio, Dr Diwan and Dr Drummond that were unanimous in finding discal damage had been occasioned to Mr Islam on the first claimed injury of 11 July 2015.
Mr Hickey submitted that there was corroboration for Mr Islam’s complaints about the bullying behaviour of the respondent’s employees. He referred to the emails of 6 and 7 November 2019, which demonstrated that Mr Islam had been directly insulted by CAI. Mr Hickey submitted that the employer could not rely on s 11A to exonerate itself. Although the claim was disputed on the basis that the employer’s actions had been reasonable with regard to discipline, Mr Hickey submitted that Mr Islam had never been disciplined. He referred to a letter from the employer letter of 2 June 2022, saying that it simply showed that he was being let go because the company could no longer hold
Mr Islam’s position open.
Mr Hickey submitted that the employer’s actions had indeed been unreasonable. He referred to the list of complaints Mr Islam had compiled in his statement of 29 January 2021. He referred to Hamad v Q Catering in submitting that the employer could not demonstrate that its actions in relation to any of the conduct listed in s 11A had wholly or predominantly caused the psychological injury suffered by Mr Islam. The employer’s responses in the face of Mr Islam is genuine concerns could not be seen as being reasonable, Mr Hickey submitted. Mr Hickey relied on the opinion of Dr Sazhin that Mr Islam was suffering from a severe and complex mental illness caused in part by bullying and harassment.
Mr Hickey submitted that the appropriate rate was $708 per week as adjusted from the PIAWE as pleaded in the ARD wages schedule. In so far as Mr Islam’s entitlement encroached on the s 38 provisions, Mr Hickey submitted that I had jurisdiction to make an order that Mr Islam was entitled to payments under s 38 of the 1987 Act, referring to Chea v Woolworths.
Mr Hickey sought a general order pursuant to s 60.

Mr Grimes

Mr Grimes referred to the pleadings in the ARD form, noting that Mr Islam had not claimed that in the alternative his psychiatric injury was secondary to his back injuries. It followed, he argued, that the applicant was unable to rely on such a claim.
Mr Grimes referred to the complaints made in Mr Islam’s statement of 10 November 2022, and the s 78 notices issued in response. He noted the many claims made therein and the absence of any pleadings in relation to any of them. Additionally, he noted complaints about Mr Islam’s neck and that indeed an MRI scan was taken of it on 17 January 2020, but no claim had been made in respect of that complaint either. Similarly, an MRI of Mr Islam’s thoracic spine had been taken on 19 March 2020 without any claim being made.
Mr Grimes noted the opinion of Dr Khan that Mr Islam’s psychological symptoms had been caused by his physical injuries. Mr Grimes submitted that many of these complaints were mentioned in the SIRA certificates of capacity that were amongst the evidence.
Mr Grimes submitted also that there was an inconsistency in the pleadings in that Mr Islam claimed that he injured his back whilst lifting bin linings when other evidence showed that the injury occurred whilst he was lifting the oil containers. Dr Drummond only took a history of the oil containers lift as causing the back injury. There was no contemporaneous evidence to support Mr Islam’s claim that it was the lifting of the bin liners with the bags of sand alleged to be contained therein and that it was more likely that he was lifting 2 kg oil containers.
As to the issue whether Mr Islam’s psychiatric condition was primary or secondary,
Mr Grimes referred to the problems outlined by Mr Islam in his statement regarding his return-to-work plan. When looked at in conjunction with the opinion of Dr Khan that
Mr Islam’s psychological symptoms were caused because of his injuries the conclusion would have to be that Mr Islam’s psychological condition was secondary to his back injury. This opinion was confirmed by Dr George who was told by Mr Islam that his degree of anxiety related to his pain.
Mr Grimes also referred to the opinion of Dr Sazhin of 27 October 2020 in which Mr Islam made no mention of any bullying or harassment.
With regard to the opinion of Dr Canaris, Mr Grimes submitted that the advice that Mr Islam’s psychiatric condition was primary was necessarily based on the history taken at the consultation on 12 August 2021. Mr Grimes submitted that Dr Canaris fairly set out the conflict between the two versions of events and made it plain that his opinion was subject to the resolution of that dispute.
Mr Grimes also referred to the report of Dr Koumoulas of 2 March 2022, submitting that he too supported the proposition that Mr Islam’s psychiatric condition was secondary to his back injury.
Mr Grimes also submitted that in his later report of 24 August 2022, Dr Sazhin had failed to refer to any history of bullying as the cause of the psychological condition.
Mr Grimes referred to 6 certificates issued by Dr Koumoulas between 4 August 2020 and
14 October 2020, which certified that Mr Islam had been fit for suitable duties on account of his having lifted a heavy weight at work and suffering an exacerbation of his pre-existing lower back pain, and L5 – S1 disc protrusion, and an adjustment disorder with depressed and anxiety injury, as a certificate stated.
None of those certificates made any mention of bullying or harassment, Mr Grimes said. The first such certificate was dated 23 August 2021 he submitted, which diagnosed an injury on
6 November 2019, in the form of an adjustment order secondary to the physical injury and a major depression and generalised anxiety disorder with some post-traumatic stress disorder related to that diagnosis, but that the certificate also recorded some repetitive bullying, harassment, threats and intimidation at the workplace. Mr Grimes noted that
6 November 2019 was the date of the exchange of emails.
The allegations made by Mr Islam against his workmates had been answered by the statements within the reply, Mr Grimes said. He referred to the statements of Messrs CDL, CAI, CFP and CAP and submitted that their responses were reasonable. They comprised a body of objective evidence which would reasonably lead to a conclusion that the allegations made by Mr Islam were caused by his misperception of the events he described.
Mr Grimes referred to the report of Dr Nananachandran of 12 November 2020 in that regard. The opinion of Dr Sheehy in his report of 19 March 2021 was very similar.
Mr Grimes relied on the opinion of Dr Bentivoglio of 6 March 2023 that Mr Islam was fit for restricted duties at work, and therefore, on an orthopaedic basis, was fit to do a range of duties. Mr Grimes referred to Mr Islam’s qualifications and noted that he was clearly “an intelligent man.” Mr Grimes referred to the report of the rehabilitation providers, Medical Rehab, which showed that Mr Islam had achieved a Bachelor of Business Administration (Marketing), at American International University, Bangladesh. Mr Islam is also obtained a Master of Commerce (Professional Accounting) at the University of Ballarat. He had also obtained a Certificate III in Employment, Education and Training. He was fluent in Bengali and could also speak Hindi. He had also worked as a Sales Officer for six years for Salmart Ltd where he became Sales/Team Manager.
Mr Grimes submitted that an investigation from Pinnacle Rehab dated 12 August 2020 had suggested a range of positions that Mr Islam was capable of performing.
Mr Grimes made further submissions that from an orthopaedic standpoint there was available suitable employment within the terms of s 32 A of the 1987 Act.

Mr Hickey in response

Mr Hickey was granted leave to lodge written submissions in response, which were duly received.
Mr Hickey addressed the proposition that, because Mr Grimes psychological condition had not been pleaded as a secondary condition, the applicant could not rely on it if he failed in his claim that he had suffered a primary psychiatric injury. Mr Hickey surveyed the medical evidence and repeated his submission that Mr Islam was suffering from a perception that he was being bullied and abused in the workplace which arose from real events which was sufficient to establish primary psychiatric injury. Mr Hickey referred to State Transit Authority of New South Wales v Fritzi Chemler.[47] It followed, Mr Hickey argued, that the issue of secondary psychiatric injury did not arise, as it was covered by the primary psychiatric injury.
[47] [2007] NSW CA 249.
Mr Hickey submitted that in the event that Mr Islam had been shown to have a capacity to perform suitable employment, the authority of Wollongong Nursing Home Pty Ltd v Dewar[48] would apply, as there was no “real theoretical job” that Mr Islam was able to do.
[48] [2014] NSW WCCPD 55.

DISCUSSION

The dichotomy between a primary and secondary psychological condition is only applicable to claims for non-economic loss. Division 4 of Part 3 of the 1987 Act concerns such claims, and s 65A thereof provides:
“65A SPECIAL PROVISIONS FOR PSYCHOLOGICAL AND PSYCHIATRIC INJURY
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.” (Emphasis added).
There is no restriction that I was referred to that limits other compensation being payable for the consequences of a psychiatric condition.[49] This claim concerns an application for weekly payments and s 60 expenses. Thus, technically speaking, any decision as to whether
[49] “Injury” includes mental disorder: Anderson Meat Packing Co Pty Ltd v Giocomantonio (1973) 47 WCR 3.
Mr Islam has suffered a primary or secondary psychological condition is obiter.
Nonetheless, this issue dominated the submissions of the parties and accordingly a resolution of this dispute is called for.
Mr Islam firstly injured his back on 11 July 2015. The most contemporary records reported the mechanism as his lifting engine oil when he felt a burning pain in his lower back. That was recorded by the employer within two days of the injury and it was also the mechanism described to Dr Drummond on 19 November 2015, which are the most contemporary records of what occurred.
Dr Drummond diagnosed that Mr Islam had suffered an L5/S1 disc protrusion which was probably degenerate. There was no direct nerve impingement, and he expected a resolution. He did however at this early stage, some months following the injury, sound a warning that Mr Islam was displaying widespread subjective symptoms extending to the scalp and thoracic region which had no pathological basis and were not compatible with nerve root compression.
Dr Drummond’s expectation that the subjective symptoms would resolve as Mr Islam improved unfortunately did not occur. Mr Islam was placed on limited duties that he was still doing when he saw Dr Bentivoglio almost 3 years later, on 1 June 2018.
Dr Bentivoglio did not take any history of an increase in symptoms beyond “multiple flareups.” Dr Bentivoglio stated that he had previously seen Mr Islam on 30 May 2018, but that report was not before me.
In the meantime, Mr Islam had seen Dr Diwan on 29 March 2018, to whom Mr Islam complained of an increase in symptoms since November and December 2017.
Dr Diwan noted complaints of symptoms in the left leg, the right hand, and pins and needles and numbness in the left foot. He was told by Mr Islam that Mr Islam now had an antalgic gait to avoid putting weight on his lower extremity.
Significantly, Dr Diwan also recorded that a review of Mr Islam’s medical history showed that he had by then been diagnosed with depression. I was not referred to that material, notwithstanding that the applicant lodged 975 pages of evidence. The index alone was 10 pages long but, puzzlingly, the clinical records from Elwood General Practice, where
Dr Koumoulas practiced, were not produced.
Dr Koumoulas however was asked to report to Mr Islam’s solicitors, which he did on
2 March 2022, as indicated, and he also obtained an opinion from neurosurgeon
Dr Nananachandran two years earlier on 12 November 2020 which tends to explain
Mr Islam’s unfortunate condition.
On 2 March 2022 Dr Koumoulas set out his patient’s present physical state, which is parlous,[50] but unsupported by any of the experts to whom he was referred (save the lumbar spine injury), all of whom noted mental health issues. He noted that Mr Islam’s psychological condition was caused “by work.”
[50] See [53] above.
Dr Koumoulas was unambiguous as to his opinion as to how Mr Islam’s work was responsible for his psychological condition. He said, as indicated, in his 29 August 2019 referral to the Good Thinking Clinical Psychology that Mr Islam had “worsening anxiety sx [symptoms] as a result of a chronic back injury that is under WC scheme.”
Dr Nadanachandran was clearly of the same view on 12 November 2020. Mr Islam’s bizarre presentation was a result of his conviction that he has a serious abnormality, which has been “imprinted on his mind” by the investigations he has undergone.
Dr Nadanachandran noted inconsistency as regards Mr Islam’s gait. Mr Islam told him that he walked with his left foot inverted because he could not “place the sole of his foot on the ground due to abnormal sensation.” However, although Mr Islam walked in with a limp, the left foot inverted, Dr Nadanachandran noted later that Mr Islam walked normally.
There were also inconsistencies in Mr Islam’s evidence.
He gave versions of his injury of 11 July 2015 which differed from the contemporaneous evidence. In his statement of 29 January 2021, he simply said that “in July 2015 I had a back injury.” However, in his statement of 10 November 2022 gave a detailed description of the manner in which he alleged he suffered his injury, as indicated. He maintained that he had been lifting bin liners, one of which, unbeknownst to him, had three sandbags within it which weighed up to 30kg. However, he reported to the employer two days after the event that he had only been lifting engine oil.
The first occasion the bin liner history of the injury was recorded was by Dr Khan on
22 January 2020. It was also recorded by Dr Koumoulas on 11 August 2022.
The inclusion of the bin liner explanation raises a serious question as to Mr Islam’s motives. He explained from [28] that there was no way to assess the weight of the rubbish inside the bin liners “and no instruction was were (sic) provided to me as to how I should estimate the weight..” He gave a detailed account from [31] in his statement dated 10 November 2022 of how he did not feel any “immediate onset of low back pain as such” but only experienced “an electric shock-like sensation in my back and let the bin bag go.”
The lack of pain, as opposed to the electric shock sensation, enabled Mr Islam to discover that “someone had thrown three (3) long sandbags into the bin.” Mr Islam thought the combined weight was 25-30kg.
The first question that arises is as to why Mr Islam kept silent for over four years – and particularly why he did not mention these details as part of his injury report on 13 July 2015. Moreover, he alleged at [37] that he had told a team member “Narayan” that history, so that it would have been easy for the employer to confirm Mr Islam’s version had Mr Islam given this version of the injury when he reported it.
Further, he said that he experienced the same “electric shock like sensation” when he lifted the engine oil later in the day, and that he again felt no pain. One is left to wonder why
Mr Islam only told part of the story when he reported his injury two days after the event. It is clear that the presence of three sandbags weighing up to 30 kg in the one bin liner would be a much more serious allegation, no doubt leading to an investigation due to the implications arising therefrom.
With regard to the second injury of 10 January 2018, Mr Islam did not mention it in his statement of 29 January 2021. He maintained that he was confused by the new claim number and new date of injury, but in his statement of 10 November 2022 he named the date and the circumstances of the injury.
Again, some questions arise from that inconsistency. Mr Islam was clearly attempting to link the injury of 11 July 2015 with his ongoing symptoms. It was his report to two colleagues, CIS and CAP in mid-2017, Mr Islam said, that caused the [redacted] CDC to get back to him in January 2018 and suggest he consult the employer’s nurse.
The histories taken prior to this statement were by Dr Bentivoglio on 5 July 2018, who assumed that the 2015 injury was still being investigated, and Dr Diwan on 18 July 2018, who did take a history that there had been a significant recurrence, although no date of injury was mentioned.
In any event, the respondent accepted that a recurrence had occurred on 10 January 2018, and Mr Islam accordingly altered his version of this event in his statement of
10 November 2022. He alleged that he in fact had suffered his injury on 10 January 2018, repeating that he had reported it to CIS. However, the intercession of the [redacted] was omitted from this version, and Mr Islam said that it was CIS who advised him to see the nurse.
The statement of 29 January 2021 was taken a few weeks after Mr Islam had complained of being bullied on 18 December 2010 to SafeWork. Mr Islam’s comments therefore that he “trusted them”, and that “they would not listen to me” may well have been colored by his attempt to claim that he had been bullied.
Regarding the alleged comment about his being “mentally mad,” Mr Islam said in his statement of 29 January 2021 that CDL made his comment in Punjabi. In his complaint to WorkSafe he said the comment was made in Urdu. His email of 6 November 2019 did not advise that the alleged comment was not in English.
In the light of the above, I approach Mr Islam’s evidence with some caution. I bear in mind, as I have indicated, that Mr Islam, through his misperceived interpretation of the medical advice he had received now considers himself completely disabled as a result of the psychological condition that this unfortunate interpretation has caused. This psychological condition could indeed have led Mr Islam to make some errors in his narrative. However, they also inform the rest of his actions, and I do not therefore think that his conclusion that he had been bullied etc necessarily can be accepted, as Mr Hickie argued, because he misperceived the actions of the respondent. His mental condition was such that some care has to be taken regarding his allegations in deciding whether the actions he described happened at all.
Throughout Mr Islam’s statements he made concluded observations that he had been bullied, intimidated, harassed, threatened, and unsupported at various times. It is trite to say that such subjective claims are of little probative value of themselves. In a matter as complex as psychology, expert evidence is needed to support an applicant’s case.[51]
[51] Papa v RP Bricklaying Pty Ltd [2022] NSWPIC 30 at [81], citing Ly v Jitt Offset Pty Ltd [2021] NSWPICPD. 2: Strinic v Singh [2009] NSWCA 15 from [58].

The cause of Mr Islam’s condition was considered by Psychiatrists Drs Sazhin, Canaris and George. General Psychologist Federica Zamboni’s report of 30 December 2019 was also relevant.
A perusal of the report from Ms Zamboni did not mention any complaints about bullying or threats. As a responsible general psychologist it is difficult to accept that she would not record the complaints, as was alleged by Mr Islam, even if she was not retained to treat them. To the contrary, her comments that the effectiveness of the pain management clinics treatment was limited by Mr Islam’s comments that his pain “continued to change, would get worse, moved, et cetera” indicated that she did not regard Mr Islam’s pain management as having much chance of success because of his attitude. Moreover, in her report of
30 December 2019 she stated that Mr Islam’s “main symptoms were related to difficulties he was experiencing with the management of pain related to an injury to his back sustained at work.”
Dr Sazhin first saw Mr Islam on 6 October 2020. As indicated, in his first report of
27 October 2020 Dr Sazhin noted that Mr Islam had been injured in 2015 but that his case reopened in 2018. Although he was quite motivated to work, since July 2020 he was not able to tolerate his back pain. This history is consistent with Mr Islam’s condition being a secondary psychological injury. However, Dr Sazhin also recorded that Mr Islam had no problems with his mental health until October 2019 “when he felt himself under stress and pressure from his manager.”
In his later report of 24 August 2022 Dr Sazhin concluded that “undoubtedly” Mr Islam had been and was suffering from “severe and complex mental illness along with his chronic back pain.” Dr Sazhin noted that Mr Islam was quite disabled and required a lot of assistance from his wife. Dr Sazhin noted that Mr Islam had subsequently been subjected to “the alleged bullying and harassment.”
Dr Sazhin did not give any detail of what constituted the alleged bullying and harassment, and his use of the word “alleged” does not engender any confidence that he accepted whatever it was he had been told by Mr Islam about the bullying claim. As his reports stand, Dr Sazhin’s opinion is an ipse dixit, as there is no attempt to describe the facts and circumstances on which he based his opinion, which in any event has to be considered conditional in the light of the use of the word “alleged.”
Dr Canaris gave a more detailed report in his role as a medicolegal expert. He referred to the allegation that Mr Islam had been called “mentally sick”. Another complaint was that Mr Islam was asked to stay back and worked late, but had his overtime claim questioned. Dr Canaris also noted that Mr Islam was “scared” and was concerned at the lack of any return-to-work plan for injury management plan.”
Dr Canaris, as indicated, diagnosed that Mr Islam had a Major depressive disorder with anxious distress. We shall return to Dr Canaris’ opinion after a survey of the allegations made by Mr Islam.
Mr Hickey submitted that Mr Islam’s psychiatric state had been caused not only by his reaction to his back injury, but also because Mr Islam perceived that he had been bullied by the respondent’s employees. He relied on Fritzi Chemler as authority for the proposition that a perception of bullying which arose from real events was sufficient to establish a primary psychiatric injury.
Fritzi Chemler was one of the cases considered regarding perception by DP Roche in Attorney General’s Department v K.[52] The learned DP, in his customary fashion, distilled the relevant authority into six conclusions at [52]:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand at [31]), and
[52] [2010] NSW WCC PD 76.
(f) it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.”
DP Roche also said at [58]:
“As the above authorities demonstrate, the Arbitrator did not have to consider if the worker’s perception was erroneous or irrational. He had to determine if the events complained of actually occurred and, if they did occur, whether the worker’s injury resulted from them.”
It is convenient at this point to consider each allegation, and the respondent evidence in response. The most detailed assertions were contained in the bullying complaint to Safework dated around 18 December 2020[53], which contained a copy of the letter written on his behalf by the Union’s CHR on 22 September 2020.[54]
[53] ARD page 489.
[54] ARD page 470.
The first two allegations related to events in December 2018. In context, this was over three years since Mr Islam’s first injury of 11 July 2015, and some eleven months since his second back injury of 10 January 2018. The first allegation was expressed as follows:[55]
“This incident relates to CDL bullying me into having a meeting during my ten-minutes break. The incident occurred on 24 December 2018 at Waterloo.
I was outside the store enjoying my break when CDL requested to have a meeting in the office. I said no, I want to wait as I am on my break. He said the meeting needed to go ahead. I felt pressured to have a meeting with him even though I was on my break. We entered the store and had a meeting in the office room.
CDL raised an ongoing disputed matter in relation to reduced hours in which the SDA was involved. CDL knew the SDA was involved and proceeded to have this meeting despite knowing I had no SDA representative present with me. CDL asked me questions in relation to reduced hours and SDA representation. I felt upset and asked why are you asking me these questions instead of contacting my SDA representative. I was agitated, walked out of the room, and approached the acting [redacted] CAP. I told CAP about what had just happen [sic]- how I felt pressured by CDL to have a meeting during my break and how the meeting went ahead without SDA representation. During this conversation CDL appeared and said that I had not notified him about being on a break when he advised he wanted to have a meeting. In front CDL, I requested that CAP lodge a complaint about the harassment that occurred to me that day. CAP remained silent whilst looking at the computer screen.
[55] ARD page 471.
4) CAI witnessed most of the incident on 14 January 2020 and also the temperature check incident in December 2018.”
It can be seen that this account is consistent in the main with Mr Islam’s account in his statement of 29 January 2021.
The respondent relied on the statements of its witnesses that I have considered above.
CAP said that he was working with Mr Islam around the time CDL became [redacted] in about 2019. CAP was [redacted] or [redacted] shortly before he transferred to become [redacted] at the respondent’s Annandale store. Mr Islam’s light duties consisted of his serving customers.
CAP described what he observed on the day of these events. He was working with Mr Islam when Mr Islam saw that CDL had arrived. Mr Islam told CAP he wanted to go for a break and went out. I read CAP’s statement as meaning that Mr Islam left the premises as CDL was entering when he stated “[Mr Islam] went on his break and CDL came in.”
CDL asked CAP when Mr Islam had gone his break, and CAP said “just now.” CDL went outside after a few minutes and came back in with Mr Islam. A conversation ensued which CAP did not hear, as he was serving customers. Shortly after the [redacted] (presumably CDC) arrived and spoke to CDL. CAP did not think Mr Islam spoke to CDC, and he tried to avoid Mr Islam’s complaints about CDL, as “[Mr Islam] was always saying bad things about CDL and I just didn’t want to hear it.”
This account of the incident leaves me in some doubt as to the accuracy of Mr Islam’s accusations. His assertion that he was “enjoying my break” does not accord with CAP’s memory that CAP exited the premises when he saw CDL arrive.
Similarly Mr Islam’s statement that his alleged statement to CDL that he was on his “10 minute full break (not the crib break)” also infers a contrivance on Mr Islam’s part to create a false impression of the circumstances. The clearest inference is that Mr Islam was not enjoying his break, but was trying to avoid CDL, to whom he held some animus. I have no reason to doubt CAP’s account, as he was happy to admit that he could not remember other details such as whether Mr Islam stopped work. It seems that this incident left a strong impression on him.
I was also left in doubt about the truth of Mr Islam’s assertions by CDL’s account.
CDL’s statement addressed this allegation. He had been [redacted] of Coles Express for 2 ½ years as at the date of his statement 7 February 2021. He recalled that there was a national recalibration of the roster which affected Mr Islam, and that
Mr Islam had involved the Union after Mr Islam had referred the matter to Human Resources. This had occurred in June 2018, and Mr Islam’s objections were rejected.
I note Mr Islam’s protestations which appear to be part of a document which the index claimed was a “statement in response to co-workers statements.”[56] The document does not advance the essential question regarding Mr Islam’s credit. He produced emails that established the dispute CDL agreed had occurred, and Mr Islam restated his version that his protests failed because he could not provide the Union with a copy of the roster. Again, CDL’s account that the new roster was “fair and reasonable” is not contradicted.
[56] ARD page 515.
CDL did not recall the incident. However, he said he would not have spoken about the issue when it involved the union. I accept that his statement “[Mr Islam] is not someone you can talk casually to – it has to be arranged beforehand and be in the calendar” accurately reflects not only his attitude, but that of other members of the respondent’s team, as will be seen. Thus, CDL agreed with Mr Islam that it would have been improper to discuss Union matters casually, as Mr Islam said, and I accept that such a conversation never occurred.
Further, Mr Islam’s assertion that he was visited by CEN from the Union in January 2019 following receipt of an email from CDL complaining about Mr Islam’s conduct at this time tends to confirm both the falsity of his account, and its contradictory nature. The email was not produced, and CDL denied he had ever written one, as there was no system in place for that to happen. The Union was not part of management.
Mr Islam’s allegation that such an email was sent was also illogical. CDL would hardly have been been discussing this issue so casually, to then email the Union about Mr Islam’s behaviour (“I was impolite with CDL”) when he should not have been discussing the Union issue at all, as was alleged by Mr Islam. Mr Islam’s allegation did not accord with common sense.
The second allegation was as follows:[57]
“CDL harassed me in relation to the pie expiry time incident. This occurred in December 2018 at Waterloo. CDL asked me why the pie expiry time sticker was not there. I replied I was not the one who placed the pie in the oven. It is the responsibility of the person who puts the puts the pie in the oven to check the pie expiry time sticker.
On the same day a co-worker CKU was outside the store not wearing a vest when he should have. CDL questioned me in relation to CKU not wearing a vest. CDL made suggestions that it was my responsibility to pursue team members not wearing vests whilst store manager is absent.
After this incident and on the same day I complained to CDC in person in relation to CDL harassing me with respect to the pie expiry time issue and CKU not wearing the vest issue.”
[57] ARD page 471.
The first matter to note is that when he made his statement on 29 January 2021, Mr Islam stated that these incidents occurred in September/October 2018. The statement was made some three months after CHR had on 22 September 2020 written that they occurred in December 2018.
As indicated when the statement version was considered above, Mr Islam did not explain why the vest reference had been made. Further, Mr Islam did not allege that the pie incident occurred on the same day as the vest incident in his statement.
In any event, CDL stated he did not recall a conversation with Mr Islam about an expired pie, which is not surprising, given the trivial nature of the incident. CDL stated that there were different timelines for different pies. If he did have a conversation,
CDL stated that it was standard procedure and team members were expected to follow these.
Mr Islam’s remarks that he was not responsible because he did not put the pie in the oven lacked any credibility, and in any event he did not claim that he was upset by CDL’s query. He had no support for his allegation that the pie should have been removed by the person that cooked it the day before, and no support for his allegation that he remonstrated with CDL as he claimed. Indeed, such an attitude to his superior does not suggest that Mr Islam was being bullied.
The allegations regarding the wearing of a vest were also not supported. Again, CDL said he did not recall a conversation as described by Mr Islam, but noted that there was a safety culture in the company where everyone was encouraged to follow the safety rules and procedures, and if he had such a conversation it would have been to reinforce them.
I am not satisfied that such a conversation did in fact occur, either with regard to the pie, or the vest. Mr Islam again had no support for his allegations, but maintained that he had reported to CDC that he had been harassed on both accounts. Whilst he said he reported in person, he has not produced any corroborative material, and in view of the numerous inconsistencies and improbabilities his evidence has raised, I would be reluctant to accept any assertion Mr Islam made without such support.
The next event that Mr Islam claimed caused him to perceive that he was being bullied occurred about a year later, in December 2019. This again involved CDL and the question of temperature checks. CHR wrote:[58]
“Toward the end of December 2019 at Waterloo, CDL and I were located in the fridge area. We were discussing the temperature of goods that were delivered. CDL said the store had only done three temperature checks out of nineteen deliveries. I mentioned that I did the temperature checks when I was rostered on and that he should speak with the [redacted] CAI in relation to temperature checks for deliveries for which I was not responsible. CAI was in the console area and was looking at us. I do not know whether he could hear the discussion.
I walked away only to be summoned back by CDL. He asked me why team members were not doing temperature checks. I replied I do not know. I then walked to the console and informed CAI about the temperature check conversation and queried why CDL was questioning me about temperature for deliveries that occurred when I was not rostered for work. CAI said I do not know.”
[58] ARD page 471.
CDL did not deal with this allegation in his statement. CAI also made a statement dated 17 February 2021, but did not refer to this particular episode. I do not draw any negative conclusion from their failure to do so. CAI did refer to the topic of temperature checks, which is relevant in a general sense when assessing Mr Islam’s credit.
As indicated, CAI did have ‘serious problems” with Mr Islam, who was always complaining and running down other people and the company. He spent a lot of time complaining to other people about his situation. CAI related that when he told Mr Islam to perform temperature checks he would find ten customers waiting to be served whilst he was out taking temperatures. When spoken to by CAI he would say he was “just doing his duties.”
In the end, there is no direct evidence about the allegation made by Mr Islam. As I have indicated, I do not consider that Mr Islam’s account can be accepted without some corroborating evidence, of which there is none. The two witnesses mentioned, Messrs CDL and CAI did not mention the incident and I have strong reservations that it occurred in fact. It was not mentioned to any medical expert as being part of the conduct that caused Mr Islam’s psychiatric condition.
The next matter raised by Mr Islam in CHR’s email was the date of 14 January 2020.[59] According to Mr Islam, there were three matters that he saw as instances of bullying:
“On 14 January 2020, I was working outside the console checking dates of chocolates. The console door was open as no team members were in the console area. This is in line with Coles safety door policy.
CDL came into the store. He approached me and asked why the console door was open and instructed me to close it. I tried to close the console door but the latch didn't take. I said there are no team members inside the console area and that I cannot move fast enough because of my injuries to open the console door in order to serve the customers, so that customer don't have to wait. CDL said I still needed to close the console door. During CDL closed the console door.
A customer then walked into the shop. I served this customer. Then I walked outside the console area to check the chocolate dates and I tried to close the console door, but the latch did not take and the door reopened. CDL then slammed the console door shut. Another customer walked in, so I walked to the console area to serve thecustomer. In doing so, I attempted to close the console door, but did not succeed, so CDL slammed the console door shut. The customer left.
CDL, then approached the counter and asked me if I was OK for the first time. I replied yes. CDL asked me a second time if l was OK. I replied I am OK more loudly. CDL then asked why I raised my voice. I replied there was noise from the pie oven and a car wash technician was talking inside the store.
CDL then asked me a third time if I was OK. I replied yes, I am OK, and asked why are you repeatedly asking me the same question. He said it is common courtesy. I replied it is a form of bullying to repeatedly ask the same question. CDL asked me if I wanted to work here. I nodded and said yes, I do. CDL replied do your work. I responded I was doing my work until you interrupted. A customer approached and enquired about the car wash price. CDL asked me if the car wash was fixed. I replied no. CDL asked me in an agitated tone why I was selling car wash. I replied I was not selling car wash, but I was only answering the customer's query about the price. I asked CDL to calm down also using an arm gesture. CDL replied I am your [redacted], do not talk to me like that. I replied you are not my [redacted] and pointed my finger toward CAI whilst saying CAI was my [redacted]. I said you are bullying me and Coles have a strict policy in relation to bullying.
My [redacted] CAI was in the store to witness most of the above conversation.
[59] ARD page 470.
After my shift finished that day, I sent an email to CAI, requesting information in relation to how to report a bullying incident. CAI replied by email, stating that I needed to report bullying incidents to my line manager or HR. As CAI witnessed the incident on 14 January 2020, I felt that he did not want report the incident which he witnessed to his superior CDL.”

CDL could not recall having an argument with Mr Islam over the console door. He accepted that he might have asked Mr Islam how he was, or indeed if he was okay, as that was part of his practice when visiting stores. However, he denied having asked Mr Islam three times.
CDL also did not recall the car wash incident, saying that if a service was not available a team member was expected to say so. As to the suggestion that he had asked
Mr Islam “do you want to work here?” he denied that he had done so, saying that it was not something he would do. As indicated when considering the evidence, CDL explained that he was by nature a quiet man who would never go around threatening or bullying people. A criticism that he knew was made of him was that he needed to speak a bit louder.
CAI noted that there was a difficult relationship between Mr Islam and CDL, but that CDL was “very professional” and would enquire how Mr Islam was, but said that Mr Islam was disrespectful, as I read his statement, and did not respond to CDL “in a proper way,” which I infer is that Mr Islam was rude and offensive in his attitude to
CDL. There is some support for that observation in the general manner Mr Islam has admitted his rudeness over trivial matters, which reflects in his accusations. His dislike of
CDL however has caused him to part company with reality and I have been far from persuaded that his complaints are based on actual events.
Mr Islam’s sending an email to CAI asking about the company’s bullying policy did not without more advance his allegation. I was unable to find such an email in the papers.
Again, Mr Islam’s accusation that he heard CAI call him “mentally mad” is inconsistent. Although he did produce the email he wrote on 6 November 2019, it failed to mention that the alleged comment was in a foreign language, and I have already referred to the inconsistency as to which language was allegedly used - Punjabi or Urdu. Again, CAI immediately denied the accusation by email within the hour, and repeated that denial in his statement, raising factual matters that he said were incompatible with what Mr Islam reported.
To return to the report of Dr Canaris, his opinion was that Mr Islam’s presentation was consistent with a diagnosis of major depressive disorder with anxious distress that had arisen in the setting of his employment, and predominantly as result of poor treatment meted out to him at work. As is always the case, such an opinion is conditional upon his factual assumptions being supported by the evidence. Indeed, Dr Canaris said as much. He quite responsibly said, as indicated above, that the employer provided a different account of what took place at work, and that it was not his place to make any judgement on this score.
Dr Canaris’ final opinion in the light of that reservation was that Mr Islam’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.
This is what has in fact occurred to Mr Islam. The opinion of Dr Nadanachandran I accept as demonstrating that Mr Islam has no other cause for his catastrophic presentation but his own misperception of his medical advice which has imprinted on his mind a conviction that he is seriously disabled. This in turn has amplified his anxiety in a kind of vicious cycle that has seen Mr Islam undergo the many tests and investigations mentioned in the evidence (including the s 78 notices) each of which has focussed his misperception that he is seriously disabled, notwithstanding that the outcome is negative.
I also accept Dr Koumoulas’ opinion that Mr Islam had worsening anxiety symptoms as a result of a chronic back injury that was under the Workers Compensation scheme. Mr Islam’s psychiatric condition is secondary to his physical injury. According to Dr Diwan the medical records showed that he was suffering from depression in March 2018. It may be that Mr Islam was not then referred to a psychologist, but it is apparent that some psychological distress was recorded in some medical record earlier than November 2019. However, his mental state deteriorated when he encountered the difficulties he described after his 2018 back injury, when the insurer did not support his return-to-work expectations and indeed ceased paying for his medical expenses. His conduct at case conferences as described by CFP and CCK I accept as being accurate, and is further evidence that Mr Islam’s psychiatric condition is related to his back injury.
I am satisfied that the applicant has no work capacity. Dr George’s opinion to the contrary I reject as he had a history that did not reflect the relevant history as to capacity, and was outdated. It is clear that Mr Islam has been overwhelmed by his psychiatric condition, which is an extreme and unfortunate example of the power of a mental disorder.
Accordingly, there will be an award in his favour.
Mr Hickey sought a general order for s 60 expenses, which I note was pleaded as amounting to over $33,000. The PIAWE is agreed at $733.38 as announced by Mr Grimes at the beginning of his submissions. Mr Hickey made submissions that I should make a continuing award that encompassed s 38 entitlements, relying on recent authority from my colleagues. The wages schedule lodged by the respondent in its reply form acknowledged that the period was ongoing, and I accordingly intend to make a continuing award from 22 September 2021.

AWARD

305. The respondent will pay the amount of $586.70 per week pursuant to s 37 and s 38 of the 1987 Act from 22 September 2021 to date and continuing.
306. The respondent will pay the applicant’s s 60 expenses on production of account, receipts and/or a current Notice of Charge.

[2023] NSWPIC 515

28 September 2023