Jones v Cushman and Wakefield Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Cushman and Wakefield Pty Ltd [2024] NSWPIC 84
APPLICANT:	Daryn Jones
RESPONDENT:	Cushman & Wakefield Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	26 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment claim in respect of psychological injury; respondent relies on section 11A in respect of discipline, transfer, retrenchment and dismissal; whether conduct relied on was the whole or predominant cause of the applicant’s condition; Held – the applicant suffered a psychological injury in the course of his employment with the respondent; the injury was not wholly or predominantly caused by the reasonable actions of the respondent relied on; rather, the cause of the condition was multi-factorial; matter remitted to the President for referral to a Medical Assessor to determine whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. Leave is granted to the applicant to amend the deemed date of injury to 11 January 2022. 2. Leave is granted to the respondent pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 to raise a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 in relation to discipline, retrenchment, dismissal and transfer. 3. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 11 January 2022. 4. The applicant's injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline, retrenchment, dismissal and/or transfer. 5. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 11 January 2022 (deemed). Body systems referred: psychological injury. Method of Assessment: whole person impairment. 6. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this certificate of determination and statement of reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments; (d) applicant’s Application to Admit Late Documents dated 4 December 2023 and attachments, and (f) Respondents to Application to Admit Late Documents dated 15 February 2024 and attachments.

STATEMENT OF REASONS

BACKGROUND

Daryn Jones (the applicant) was employed by the respondent, Cushman and Wakefield Pty Ltd from approximately July 2011. He alleges he suffered a psychological injury in the course of his employment with the respondent due to exposure to noise in the workplace while contracted to National Australia Bank for approximately 12 months up to May 2018, and additionally as a result of work-related stressors in the lead up to his last day of employment on 11 January 2022.
The respondent denies liability for the alleged injury, and at the hearing raised without objection a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act), namely that the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with respect to discipline, retrenchment, dismissal and/or transfer.

ISSUES FOR DETERMINATION

The respondent had raised a question of work-related injury in its dispute notice together with a breach of the notice provisions in s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
At the hearing, the applicant was granted leave to amend the deemed date of injury from the originally pleaded 1 May 2018 to 11 January 2022. The respondent sought and was granted leave pursuant to s 289A of the 1998 Act to amend its reply to plead a defence pursuant to
s 11A (1) of the 1987 Act with respect to discipline, retrenchment, dismissal and/or transfer. The applicant did not oppose that amendment, and it was on this issue that the matter proceeded.
Given the amendment to the date of injury, the respondent made no submissions in relation to the previously pleaded notice provisions under ss 254 and 261 of the 1998 Act, nor in relation to the presence of a workplace injury.

PROCEDURE BEFORE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 20 February 2024. At the hearing, the applicant was represented by Mr Stockley of counsel instructed by Ms Comans. The respondent was represented by Mr Grant of counsel instructed by Ms Liu. The amendments set out under the heading “Issues for determination” were made at the outset of the hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachements;
(b)    Reply and attachments;
(c)    applicant’s Application to Admit Late Documents (AALD) dated 4 December 2023 and attachments, and
(d)    respondent’s AALD dated 15 February 2024 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a work-related injury

The applicant was contracted to work at a National Australia Bank address at 50 Miller Street, North Sydney. The premises were primarily a training and meetings floor, with the facility using both face-to-face and virtual facilities. The applicant was employed as a concierge and facility coordinator, which involved taking bookings and answering questions about the premises via email, over the phone and face-to-face. The applicant would also set up meeting rooms as required for bookings, meet and greet facilitators and participants and provide any ad hoc help they required while on site.
In or about 2014, the applicant had reduced his hours to part-time. However, in his statement he indicated he was effectively managing a full-time role on part-time hours due to lack of staff to cover his position.
In relation to the onset of any work-related symptoms, the applicant stated:
“14. Exposure to building construction noise inside 50 Miller Street began in approximately July or August of 2017.
15.    The initial source of the noise within the building was from major building refurbishments by Enfold projects on behalf of the building management and owners.
16.    The construction noise included drilling, jackhammering, grinding and hammering on a weekly occurrence and often daily.
17.    As a result of this, emails, phone calls and face-to-face verbal communication with my manager, the facility manager and direct contact with an Enfold projects representative were ongoing.
18.    At times the noise would reach very high levels and a curfew had to be implemented.
19.    While Enfold projects mostly respected the curfew in relation to noisier works, there would still quite often be loud noise.
20.    The milder noise was ongoing and continued.
21.    The constant annoyance and stress of the ongoing noise and me being the first point of contact for facilitators, participants, and meeting attendees who had complaints about the noise started to impact me in a negative way.
22.    I would often go home feeling stressed, burnt out, and tense, physically as well as mentally.
23.    In early May 2018, I first noticed apprehension and anxiety about going to and being at work, which led to depression about the ongoing situation as I was feeling powerless to stop it.
24.    Additionally, the US consulate was conducting major modifications on levels five to 10 within the building. There was now additional sustained drilling, jackhammering, grinding and hammering, as well as large slabs of concrete being dropped, which would create loud noises and shake the building.
25.    Sound monitors were organised by building management and were installed on 16 January 2019 and removed on 7 May 2019.
26.    The noises and reverberation were so bad that many training sessions and courses were relocated and many people cancelled and walked out of meetings.
27.    I had to deal with many complaints about the noise from clients…
30.    With the onset of the COVID-19 pandemic lockdowns, I worked from home from approximately 19 May 2020 to 29 June 2020.
31.    Whilst working from home, I was asked to take on another substantial project for another team with a tight timeframe. My anxiety and depression were triggered leading to my second attempted suicide. That evening, I went into my garage and got an electrical extension cord and hung it from the hook of a punching bag frame. I put my head through it and went forward so that I could start strangling myself with the cord. After some time, I took my head out of the cord.
32.    From 29 June 2020 to 22 January 2021, I took a mixture of annual and personal leave and leave without pay as I was not well enough to work due to my pre-existing anxiety from the chronic noise exposure and the ongoing stresses of the pandemic.
33.    I sought psychological assistance from Rowena Tai.”
The applicant attempted to return to work owing to financial reasons. He stated his anxiety and depression worsened and he would experience suicidal thoughts frequently at work.
The applicant states he corresponded with the HR manager and regional manager of the respondent about the noise issues and their impact upon him. He continued to exchange emails, including asking for a mutual separation from the respondent, which was denied. The applicant states he was advised that his resignation would be accepted, however, he was not in a financial position to resign.
The applicant states he had provided proof of the ongoing extent of the noise within the building by attaching sound recordings to his emails, however, he states his complaints were not responded to and were ignored.
The applicant states he attempted to commit suicide whilst at work.
The applicant continued to work with the respondent, and discussions were held as to whether he would be prepared to move to a full-time role or to work closing shifts. Those were not suitable to the applicant, owing to commitments in relation to his wife's employment and also with his elderly parents.
In or about late 2020, the applicant's work location moved from Miller Street to 2 Carrington Street, Wynyard. He states he made efforts to ask for more active jobs aside from concierge work to try to help with his anxiety, depression, and suicidal thoughts. The applicant was stood down without pay for a period, before deciding, in his words, “resignation was my only option”, as the applicant did not want to be vaccinated for COVID-19 despite his employer's wishes.
The applicant relies on the report of Dr Chow, Independent Medical Examiner (IME) in support of his claim. For its part, the respondent relies on the report of Dr Kumar, IME and submits the cause of the applicant's issues was not the noise in 2018, at which time he sought little or no medical treatment and for which there is no contemporaneous diagnosis of a psychological condition, but rather the respondent's reasonable actions in transferring, disciplining and/or dismissing the applicant from its employee owing to his refusal to be vaccinated for COVID-19.
For the applicant, Mr Stockley readily admitted the applicant chose to resign in the face of the dispute over his undergoing a COVID-19 vaccine, but submitted the genesis of the problem was clearly the work-related noise which he had suffered through in 2018. Mr Stockley referred in particular to the email correspondence by the applicant to building management concerning the excessive noise in the building. He also noted the noise concerns were raised by people independent of the applicant, such as Ms Gonzales, an employee of the National Australia Bank.
Although Mr Stockley admitted those emails are not evidence of injury per se, he submitted they plainly demonstrate the question of noise was a real one in the workplace.
Mr Stockley next took the Commission to a DASS 21 form completed by the applicant on 26 October 2020 which forms part of the clinical records of Ms Tai, treating clinical psychologist. He submitted that document indicated a moderate level of psychological impairment at that time on the part of the applicant.
In a report dated 4 November 2020 to the applicant's general practitioner (GP) Dr Harris,
Ms Tai noted she had consulted the applicant on 26 October 2020 and that:
“During the session, Daryn reported difficulties including low mood and anxiety as a result from exposure to the construction noise at his work for more than a year. He reported that this has significantly interfered with his normal functioning and relationships with his family.”
In that report, Ms Tai noted the applicant would seek to pursue a WorkCover claim, however, she was not a SIRA Accredited Allied Health professional and she would therefore not assist the applicant in relation to any workers' compensation claim.
Mr Stockley submitted the matters of which the applicant complained plainly predated any of the behaviour relied upon by the respondent concerning its s 11A defence. However, Mr Grant noted Ms Tai's clinical notes made reference to the applicant being transferred to a different building and a requirement to now return to work full-time. He noted the applicant having been recorded as saying he “felt coerced” and reference was also made as to the applicant suffering from the effects of COVID-19 on his work.
Mr Grant submitted that entry pointed two issues of transfer and returning to full-time work as being a predominant cause of the applicant's condition.
The difficulty with that submission is Ms Tai’s contemporaneous notes also record the following:
“Mood - due to work issues
-     Last two years ‘destroyed me in some way’
-     Negative feeling associated with it
-     Feeling agitated
-     Yelling at kids over small things
-     Knows and does meditation but this has not helped PIB and ANX [anxiety]
-     Bottled all these difficult feelings up - was teary at this point”
The applicant’s reference to matters over the previous two years having caused him problems plainly predate the matters relied upon by the respondent. Moreover, the clinical injuries and the report of Ms Tai indicate the applicant's preoccupation with issues relating to the noise in his workplace and problems associated with it rather than a preoccupation with issues relating to COVID-19 vaccinations or transfer or discipline.
Mr Grant submitted there was little evidence which grounded a finding of injury until such time as the conduct relied upon by the respondent began to affect the applicant. He submitted the fact the applicant may have made complaints or felt bad about the noise in the workplace is not of itself sufficient to ground a finding of psychological diagnosis as a result of that noise.
Mr Grant submitted there can be no suggestion the applicant acted in any way other than reasonably in requiring the applicant to undertake a COVID-19 vaccination given his role was customer focused and involved interactions with people on a daily basis.
The respondent also took the Commission to a series of emails contained within the applicant's AALD which referred to personal issues and also problems with his return to work on a full-time basis and undertaking a COVID-19 vaccine.
On balance, I have little difficulty in accepting Mr Grant's submission that this conduct was causative of the applicant's condition, however, I am not satisfied, as required by s 11A, that it was the whole or predominant cause of that condition.
Whilst it may be the case that there is an absence of contemporaneous evidence diagnosing the applicant with a psychological condition at the time of the workplace noise, it is apparent he was referred to Ms Tai by his GP as a result of an accumulation of different matters in the workplace over a period of at least two years, and the issue on which the applicant placed the most emphasis was the work-related noise.
The respondent's IME, Dr Kumar diagnosed the applicant with a persistent depressive disorder. He described the main contributing factor to the applicant's psychological condition as follows:
“The main contributing factor to his condition are the work-related factors Mr Jones described above, namely having to cope with noise at workplace and a perception of a general lack of support and not agreeing to the mandatory requirement of COVID-19 vaccinations.”
When asked whether the applicant's injury had been wholly or predominantly caused by any reasonable action taken or proposed to be taken on behalf of the respondent with respect to potential discipline due to the applicant's refusal to be vaccinated for COVID-19, Dr Kumar replied:
“In my opinion, he may have had some subtherapeutic symptoms around 2017 or 2018 in the context of the noise complaint that he reported. However, the symptoms became more pronounced after he was asked to have a COVID-19 vaccination, failing which he resigned from his position. This appears to be the main contributing factor to the onset of his condition.”
The difficulty with that conclusion of Dr Kumar is the applicant had plainly exhibited symptoms of a psychological condition before any issue in relation to a refusal to take a COVID-19 vaccination. Indeed, the history taken by Dr Kumar includes the applicant referring to having anxiety even as he was working from home, and notes he had taken all his leave including sick leave owing to the anxiety of “struggling with the idea of going back into the building”.
Dr Kumar also had a history of the applicant's attempted suicide in 2021, which he noted the applicant upon his return to work was still fixated on previous issues relating to noise in the workplace and his perceived lack of support from management in relation to it.
With respect to Dr Kumar, given the history taken by him and presumably accepted regarding the applicant's ongoing issues stemming back to the noise in the workplace, it is curious he would describe an attempted suicide as “subtherapeutic”.
The applicant's IME, Dr Chow, also took a history in relation to noise in the workplace, with the worst of it being in 2018 and 2019, but difficulties remaining intermittently until 2020. Dr Chow diagnosed a chronic adjustment disorder and what Dr Chow also described as “a psychiatric injury of depressive and anxiety nature”.
The latter diagnosis was attacked by Mr Grant as an indication that Dr Chow did not clearly provide a diagnosis for the applicant's condition. I did not accept that submission, noting Dr Chow diagnosed a chronic adjustment disorder. Additionally, in any event, Dr Kumar for the respondent accepted the applicant suffered a work-related depressive disorder.
Ms Radcliffe's, psychologist produced clinical records including for a visit on 15 March 2022 in which the applicant reported: “Within the past two years he had experienced suicidal ideation associated with planning, and that he had at least on two occasions wrapped wires around his neck in an attempt to kill himself…”
In terms of the history relevant to development of his above symptoms, Ms Radcliffe recorded the following:
“He had worked for his employer for around 10 years in a variety of roles, mostly part-time but usually in facility management. He stated that he had generally enjoyed his job and performed well for the majority of the time he worked for [the respondent]. He noted that several years ago, he got moved to managing a building which was owned by NAB and from which they ran a training centre where they ran their internal training as well as took bookings from external trainers. He noted that he had really enjoyed running the training facility - taking bookings and setting up the rooms, et cetera.
He identified that things changed when NAB decided to refurbish the building apart from the floor where the training centre was. He reported that there had been a period of at least one year where there had been constant construction ongoing and so he was every day exposed to loud construction noise that was also often random and sudden. He stated that apart from dealing with the noise he also had to cope with trainers constantly asking him to do something about the noise as it made their training impossible and that many of their students were reporting headaches and anxiety as a result of the noise. The client noted that often people would just leave and discontinue meetings because they could not tolerate the noise and disturbance. He identified that after the initial year of refurbishment, some of the building was leased to the US Consulate and so they then did their own renovations for security et cetera, which was in some ways worse as they had no control over them at all in terms of noise restriction.
The client noted that over this time he noticed that he was becoming more fatigued and was irritable more often and it took him a while to recognise that it was his work environment that was impacting him. He stated that initially he thought it was just temporary and the construction would end, or that his employer would move him due to the complaints regarding all the noise from the trainers. The client noted that eventually NAB did move the training centre elsewhere but his employer stated that he was still needed on site, despite there not being anyone on the floor he worked on and not many people in the building. The client reported that when he realised things were not going to get better, he started talking to his manager about it, who pretty much brushed his concerns aside. The client then noted he then spent some time emailing management and then escalated to HR, he provided recordings of the noise and statements on how it has affected him, however, his employer stated that they had recorded the sound level for a one-week period and they had been in acceptable ranges, and they therefore thought it was not an issue and as far as they were concerned that was the end of the matter.”

Ms Radcliffe also noted the applicant's issues in relation to his return to work after lockdown despite the applicant not feeling well enough to return to work having taken six months of leave. She recorded the applicant stating in 2021 he went back to work for a period of time but that was when he had felt “very suicidal and made attempts whilst at work off camera as he had just been so distressed at being back in that environment and recalling the trauma of being there and reminded that his employer had not acknowledged the impact it had on him”.
In a report dated 1 November 2022 to the applicant's GP, Ms Radcliffe, having had the benefit of consulting with the applicant and hearing about the matters which had caused his condition, recorded his symptoms having onset around 2019;
“due to the exposure to very prolonged, loud and random construction noise whilst at work and the stress of managing clients throughout this time. His symptoms were further exacerbated by his employer not providing any assistance in managing his exposure to noise despite his raising the issue with them on several occasions.”
On balance, I am satisfied the applicant suffered a work-related psychological injury in the course of his employment with the respondent, and that the causes of that injury were multifactorial. As has been noted in the authorities, there can only be one whole or predominant cause of an injury. The respondent carries the onus under s 11A of proving its reasonable actions relied on are that cause. In this instance, I do not believe it has done so.
Given the applicant's long running symptoms and the views of his treating clinical psychologist, Ms Tai, together with the clinical notes of Ms Radcliffe, I am of the view the applicant's injury was work-related but was not wholly or predominantly caused by matters relied on by the respondent pursuant to s 11A.
The respondent bears the onus of proving that its reasonable actions as relied on were the whole or predominant cause of the applicant's psychological condition. For the reasons already stated, I find this not to be the case, and accordingly the defence under s 11A must fail, and the matter therefore be remitted to the President for referral to a Medical Assessor to assess the applicant's degree of whole person impairment.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2024] NSWPIC 84

26 February 2024