Kanajenahalli v State of New South Wales (Western NSW Local Health District)
[2022] NSWPIC 8
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kanajenahalli v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 8 |
| APPLICANT: | Mohan Kanajenahalli |
| RESPONDENT: | State of New South Wales (Western NSW Local Health District) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation with respect to psychological injury; dispute as to whether applicant’s injury was wholly or predominantly caused by the reasonable actions of the respondent with regards to performance appraisal and/or discipline; the applicant was employed as a trainee paediatrician in late April 2019; his employment terminated on 12 June 2019 after he had been placed on a performance improvement plan; the respondent raised a defence pursuant to section 11A of the Workers Compensation Act 1987 (1987 Act); there is no issue as to the applicant’s pre-injury earnings or his incapacity for employment for the period of weekly compensation claimed; the main dispute in the case was whether the conduct of the respondent was reasonable in the circumstances, keeping in mind the need to balance the rights of the applicant with the object of the employment; Irwin v Director General of Education followed; a consideration of reasonableness involves an objective weighing of the consequences of the respondent’s conduct against the reasons given for it; Ritchie v Department of Community Services followed; as a hospital, the ramifications of substandard performance by health professionals are serious, and must be taken into account when considering whether the conduct relied on is reasonable; Held - in this instance, the applicant was given an ultimatum to resign or have his employment terminated shortly afterwards following a risk assessment, which he was told would lead to finding his employment was untenable; the conduct of the respondent was not reasonable in the circumstances, as the applicant was only employed as a trainee for six weeks, was placed on a performance improvement plan on 28 May 2019 then told he was not meeting that plan as early as 11 June 2019; as a result of this lack of reasonableness, the defence under section 11A of the 1987 Act must fail; the applicant alleges conduct other than that relied on by the respondent caused his injury; given the findings in relation to the reasonableness element of the defence under section 11A of the 1987 Act, it is not necessary to consider in detail whether this is the case; the respondent is to pay the applicant weekly compensation as claimed; the claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the applicant’s level of permanent impairment arising from the injury; respondent ordered to pay the applicant’s reasonably necessary medical and treatment expenses. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 11 June 2019. 2. At the date of injury, the applicant's pre-injury average weekly earnings exceeded the statutory maximum amount pursuant to section 34 of the Workers Compensation Act 1987. 3. The injury referred to (1) above was not caused by the reasonable conduct of the respondent with respect to performance appraisal and/or discipline. 4. As a result of the injury referred to (1) above, the applicant was totally incapacitated for employment from 25 July 2019 to 6 September 2021. 5. The respondent is to pay the applicant weekly compensation at the maximum weekly entitlement pursuant to section 34 of the Workers Compensation Act 1987 as follows: (a) 25 July 2019 to 30 September 2019 at $2,177.40 per week; (b) from 1 October 2019 to 31 March 2020 at the rate of $2,195.70 per week; (c) from 1 April 2020 to 30 September 2020 at the rate of $2,224 per week; (d) from 1 October 2020 to 31 March 2021 at the rate of $2,242.40 per week, and (e) from 1 April 2021 to 6 September 2021 at the rate of $2,282.90 per week. 6. The respondent has to pay the applicant's reasonably necessary medical and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987. 7. The claim for permanent impairment is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 11 June 2019 (deemed) 8. The documents to be referred to the Medical Assessor to assist with their determination 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 28 October 2021 and attached documents, and (e) applicant's Application to Admit Late Documents dated 18 November 2021 and attach documents; respondent's Application to Admit Late Documents dated 23 November 2021. |
STATEMENT OF REASONS
BACKGROUND
Dr Mohan Kanajenahalli (the applicant) was employed with the Western New South Wales Local Health District (the respondent) at Dubbo Hospital as a trainee paediatrician between 28 April 2019 and 12 June 2019, at which point he resigned his employment against a background of a psychological injury suffered in the course of that employment.
The respondent initially disputed the fact of the applicant's injury; however, at the hearing of this matter, the only issue in dispute was whether the applicant’s (now admitted) injury was caused by the reasonable conduct of the respondent with regards to either performance appraisal and/or discipline (s 11A of the Workers Compensation Act 1987 (the 1987 Act)).
The conduct relied upon by the respondent in support of its s 11A defence is that of senior staff specialist in paediatrics, Dr Duncan Fitzgerald. There is no issue the applicant resigned from his employment on 12 June 2019, having only commenced on 29 April 2019. There is also no issue the applicant suffered from previous psychological conditions in about 2015 and 2018.
The respondent contends the applicant's injury is in the nature of an aggravation of an underlying condition. The applicant's Independent Medical Examiner (IME) Dr Takyar disagrees and diagnosis a new injury of major depressive disorder and comorbid generalized anxiety disorder.
Given the fact that the applicant's injury is now admitted, in my view, nothing of significance turns on that distinction for the purposes of this decision. Both parties agree that the deemed date of the injury as pleaded is appropriate.
In the event the applicant is successful, he seeks referral of the claim for permanent impairment compensation to a Medical Assessor; a general order for the payment of medical expenses and the payment of weekly compensation between 25 July 2019 and 6 September 2021. The parties agree the applicant's pre-injury average weekly earnings (PIAWE) exceeds the maximum amount payable pursuant to s 34 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the applicant's injury was caused by the reasonable actions of the respondent with respect to either performance appraisal and/or discipline.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 28 November 2021. 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 and attempting to bring them 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.
At the hearing, Mr D Baran of counsel appeared for the applicant, instructed by Mr C Clarke, solicitor. Mr P Perry of counsel appeared for the respondent instructed by Mr N Merhaja, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attach documents, and
(c) applicant’s Application to Admit Late Documents (AALD) and attached documents dated 28 October 2021:
(d) applicant’s AALD and attached documents dated 18 November 2021;
(e) respondent’s AALD and attached documents dated 23 November 2021, and
(f) applicant's wages schedule admitted without objection and marked Exhibit A.
Oral evidence
There was no evidence called at the hearing.
FINDINGS AND REASONS
The defence pursuant to s 11A
Section 11A (1) provides:
"No compensation is payable under this Act. In respect of an injury, that is a psychological injury, if the injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline..."
An employer who seeks to make out of defence pursuant to s 11A has the onus of establishing that defence: Department of Education and Training v Sinclair [2005] NSWCA 465.
The concepts quite "wholly" and “predominantly” are separate, and it is incumbent on the Commission to consider whether a finding of one or the other should be made. Smith v Roads and Traffic Authority of NSW [2008] NSWW CCPD [130] (Smith).
In that matter, the Arbitrator made a finding that the subject injury was "wholly or predominantly caused" by the action taken by the respondent employer. Snell ADP (as he then was) said at [62] the concepts of wholly and predominantly are different, and if such findings were to be made, then there needed to be a finding of one or the other.
The authorities make it clear that the phrase "wholly or predominantly caused" means "mainly or principally caused." The test of causation to be applied is that set out in the oft – cited paragraph of his Honour, Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In cases such as the present, where a course of conduct over a period of time is said to give rise to the psychological injury, it is more often than not necessary for the employer to rely upon medical evidence together with lay evidence in order to establish a defence under s 11A(c) Hamad v Q Catering Ltd [2017] NSW WCCPD 6 (Hamad)
In this matter, there seems to be a little dispute that the respondent’s actions with regards to performance appraisal and/or discipline were causative of the applicant's injury. The applicant does, however, raise other aspects of his tenure with the respondent which he says are causative of his injury. For reasons which will become apparent, I do not consider it necessary to make a finding whether this is the case.
In order to successfully raise a defence under s 11A, the respondent must not only show the requisite causal connection between its actions and the applicant's injury; it must also satisfy the Commission that its actions were reasonable.
There is a long line of authorities dealing with the meaning of the term "reasonableness” in the Workers Compensation context.
In Irwin v Director - General of Education NSWCC 14068/97, 18 June 1998 (Irwin) his Honour Geraghty J said:
"...the question of reasonableness is one on fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."
His Honour's comments and those of Truss CCJ in Ivanisevic v Laudet Pty Ltd (Ivanisevic) unreported, 24 November 1998 (was cited with approval by Foster AJA (Sheller and the Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSWCA 239 (Minahan), where his Honour said:
"I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour's judgment. The words 'reasonable action,' in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon a breach of duty of care."
The principles set out in Minahan, Ivanisevic and Irwin were followed in cases such as Ritchie v Department of Community Services [1998] 16 NSWCCR 727, where his Honour Armitage J said:
"It is apparent that protesting this case is an objective one where one must weigh the consequences of the respondent's conduct against the reasons given for it. It follows, of course, from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective, will not be determinative of this issue."
In my view, the actions of the respondent in this matter were not reasonable. I make that finding having regard to the lay evidence of not only the applicant, but the witnesses for the respondent.
I note the applicant raises in his statement that he was the subject of racist and bigoted abuse by Dr Fitzgerald, and other staff. The respondent’s statement evidence predates those allegations by the applicant, and they are not addressed. For the purposes of these reasons, I do not consider whether those allegations by the applicant are made out to be determinative of the s 11A argument. I note, however, that there is no mention in any of the treating medical evidence or in any medicolegal report of complaints by the applicant of racism and bigotry on the part of Dr Fitzgerald or indeed other staff.
As noted, however, that is not the end of the matter. The applicant also complains of micromanagement, and as his injury is admitted, it is important to examine the relevant factual material and decide on an objective basis whether or not the respondent’s actions on which it seeks to rely can be said to be reasonable.
Mr Perry submitted, and I accept, that the respondent being in charge of a hospital means that it must have stringent standards within which its medical professionals must operate. That is particularly the case in a paediatric setting.
I accept that submission, however, it must be placed within the context of the applicant having been retained at Dubbo Hospital as a trainee who required significant supervision. What is noteworthy about this matter is the applicant’s tenure of employment only lasted approximately six weeks. Dr Fitzgerald referred to two incidents where the applicant's standard of care was found wanting and which may have led to potentially serious consequences. As Mr Baran noted, however, the applicant was a trainee. It is also noteworthy that although the respondent has placed into evidence a plan regarding the applicant’s supervision proffered by AHPRA, it has not placed into evidence its own policies and procedures for dealing with issues relating to the performance of trainee doctors.
In particular, I find the respondent’s conduct was not reasonable given the evidence of Ms Judy Keller, the Medical Administration Manager at Dubbo Base Hospital. In her statement dated 12 September 2019, Ms Keller recounted a number of meetings which were held between various managers, senior doctors, including Dr Fitzgerald and the applicant in the lead up to June 2019. Her evidence is as follows:
"39. The first was between Mohan [the applicant], me and Dominic [Dr Fitzgerald] on 10 May 2019. In this meeting, Mohan was informed that there had been a number of complaints against him made by nursing staff and consultants.
40. Mohan was told of the areas that he needed to improve on. He appeared to accept what he was being told.
41. I have supplied my typed copy of my minutes of meeting notes which were approved by Dominic and Melanie prior to going on record.
42. However, and unfortunately, Mohan did not improve in the areas raised with him in the meeting.
43. On 28 May 2019, a meeting was held between Dominic, Melanie Boyle, HR partner, and me, to discuss a plan of action with Mohan. A decision was made to formally act and to place Mohan on an IPAP.
44. On 3 June 2019, a meeting was held between Dominic, Melanie, Mohan and me. In this meeting, Mohan was informed that he would be placed on an IPAP. [This reference appears to be in error and it should refer to the applicant.] Was offered a support person well in advance of the meeting. [In fact, the applicant] did not have a support person at the meeting. Dominic explained in detail to Mohan what was expected of him. Mohan was asked if he felt fatigued. Dominic told Mohan they had been reports from staff that he looked fatigued. Mohan said he was not fatigued.
45. Dominic asked Mohan if there were any other issues, we needed to be aware of. Mohan said he was stressed over a family death; a close family member had recently passed away. He also said that he felt stressed about this meeting, because he had never encountered anything like this before and did not know why this was happening. Dominic [in fact, the applicant] was also offered the IPAP in this meeting.
46. Mohan was given a copy of the IPAP that Dubbo Base Hospital intended to implement. Mohan did not refute the content of the IPAP however, he produced performance reviews from his previous employer and emphasised that there had never been any previous performance issues. Dominic told Mohan that there would need to be marked improvement in communication, general paediatric practices, his diagnoses, amongst other issues, and if it did not improve, Dubbo Base may have no option but to terminate his employment...
53. There was no set-in date for the IPAP, it was to be closely monitored by Dominic and Mel…
55. There was a meeting held between Dominic, Melanie and Mohan on 7 June 2019. I do not know the content of the meeting or outcome.
56. However, I am aware that further work issues relating to Mohan's work performance were raised in the period 3-9 June 2019, which resulted in Dominic requesting a meeting with Mohan on 11 June 2019. Dominic, Melanie, Mohan and I attended that meeting.
57. In this meeting, Dominic informed Mohan that he was not meeting expectations, and there were two options for him to consider. One was to resign, the other was to not resign, in which case Dubbo Base would stand him down, pending a risk assessment, which would result in Dubbo Base terminating his employment.
58. Mohan was very distressed in this meeting. He said that for Dubbo Base to do this to him was to ruin his life. In this meeting, he said that he had made a simple mistake in Western Australia and another in Townsville, which had been reported to AHPRA. He said this will ruin his career and he cannot take it anymore.”
In his statement, Dr Fitzgerald referred to the meeting on 11 June 2019 in the following terms:
“90. In the meeting of 11 June 2019, I informed Mohan that there appeared to be a mismatch in terms of the expectations of the job, which was for him to work with responsibilities and minimal oversight, as opposed to the job Mohan was performing, which required substantial oversight.
91. The options were put to Mohan, these being: - resignation; semicolon or alternatively, Dubbo Base Hospital would be obliged to conduct even more rigorous monitoring of his abilities. This would mean having a consultant present with Mohan at every patient consultation.
92. How this final proposition would have worked is not clear as we had never had to do this at Dubbo Hospital. Just us how long the hospital could have employed Mohan in this manner is not known. This would have had to be in consultation with HR."
Understandably, there is a slight discrepancy between Dr Fitzgerald's recollection of the meeting on 11 June 2019 and that of Ms Keller. To the extent there is such a discrepancy, I prefer the recollection and the evidence of Ms Keller, given that she took minutes of that meeting and typed them (see [64] of her statement).
In my view, the approach taken by the respondent to the applicant concerning performance appraisal and discipline, particularly with regards to the meeting on 11 June 2019 and the background to it, cannot be said to be reasonable.
The applicant was a trainee. He had only been employed at the end of April 2019, was placed on an improvement plan by 3 June 2019 then essentially told he could either resign or have his employment terminated all of eight days into that plan.
On 11 June 2019, the applicant was subjected to a meeting with his supervisor, a representative of human resources and the Medical Administration Manager in which it was presented as a fait accompli his employment would be terminated, whether by way of resignation or by termination following a risk assessment, the outcome of which had already been predetermined. In other words, the outcome of the risk assessment was presented to the applicant as being unfavourable, before it had even taken place.
Whilst I have some sympathy for the important work carried out by the respondent and the need to ensure standards of patient care are maintained, in my view the treatment of the applicant who was a trainee was unreasonable in that it is apparent from Ms Keller's evidence, based as it is on contemporaneous records of the meeting, that his employment was to be terminated regardless of his performance during any risk assessment undertaken of him. Essentially, the respondent thereby constructively dismissed the applicant at the meeting on 11 June 2019 approximately six weeks into his tenure, and after placing him on a performance plan only eight days earlier. Precisely how the applicant was meant to demonstrate he had reached or exceeded the goals contained within the improvement plan within eight days is not clear, though in my view to deliver a judgment of that plan within so short a timeframe can in no way be said to be reasonable conduct by an employer.
As indicated, there is no evidence before the Commission as to procedures for dealing with performance issues relating to trainee doctors in the public hospital system. It is therefore unclear whether the respondent has followed procedures which are set in place by the Department of Health, and it is the respondent who bears the onus of proof in establishing that it has acted reasonably towards the applicant in the conduct relied upon by it to grounded a defence under s 11A.
For the reasons which I have outlined, I am of the view the conduct of the respondent was not reasonable. And accordingly, the defence under s 11A must fail.
Payment of weekly compensation
There is no issue that the applicant was totally incapacitated during the period claimed. Likewise, there is no issue that his PIAWE exceeded the maximum amount payable pursuant to s 34 of the 1987 Act. This being so, having found in favour of the applicant in relation to the s 11A defence, it follows, there will be an award in his favour for the payment of weekly benefits during the period claimed as set out on page 1 of the Certificate of Determination.
Claim for permanent impairment compensation
Given the findings on liability, the applicant's claim for permanent impairment compensation will be remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment, if any, arising from the injury at issue.
Claim for medical expenses
The applicant seeks a general order for the payment of reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act. As the only dispute in relation to medical expenses was the overarching liability issue surrounding s 11A, my finding in the applicant's favour will lead to the making of such a general order.
SUMMARY
For the above reasons, the Commission will make findings and orders as set out on page 1 of the Certificate of the Determination.
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