Lewis v Infosys
[2015] VMC 17
•11 JUNE 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No.E12319780
| SHANNON LEWIS | Plaintiff |
| v | |
| INFOSYS TECHNOLOGIES LIMITED | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 1,2 & 5 JUNE 2015 |
DATE OF DECISION: | 11 JUNE 2015 |
CASE MAY BE CITED AS: | LEWIS v INFOSYS |
REASONS FOR DECISION
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Catchwords: S 109 Rejection of claim for major depressive disorder, panic disorder and agoraphobia – causation - S 82 (2A) – S102 – S 103 (5) relied on by defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Dimsey | Hounslow & Associates |
| For the Defendant | Ms Tueno | Russell Kennedy |
HER/HIS HONOUR:
1 Mr Lewis by way of an Amended Statement of Claim alleges that he sustained a major depressive disorder, panic disorder with agoraphobia and anxiety arising out of or in the course of his employment with the defendant from 1 April 2002 until 23 September 2013 during which period he was employed as a Systems Analyst.
2 Mr Lewis claims weekly payments of compensation in accordance with the Act from 20 September 2013 and payment of reasonable medical and like expenses from 10 July 2002. He lodged a claim for compensation dated 18 November 2013, alleging that he sustained psychological injury as a result of the stress and pressure of work, including inordinate hours and a failure to adequately respond to his complaints and concerns. His claim was rejected by QBE on the basis that he was not a worker within the meaning of the Act and secondly that he had not sustained an injury which arose out of or in the course of his employment. Furthermore, QBE asserted that if he did sustain an injury it was a mental injury of a type which does not create any entitlement to compensation pursuant to s 82 (2A) of the Act.
3 The defendant by way of a Further Amended Notice of Defence alleges that Mr Lewis was employed by the defendant (formerly known as Expert Information Services Pty Ltd) on a 12 month contract from 1 April 2002 until he ceased work on 31 July 2002 and was then employed by the defendant from 28 May 2004 to 23 September 2013. It alleges that Mr Lewis was not a worker for the purposes of this proceeding for the period 31 July 2002 to 27 May 2004 being the period he was off work until his new contract of employment commenced. The defendant also alleges that Mr Lewis did not sustain an injury which arose out of or in the course of his employment, that employment was not a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, that any incapacity did not result from and is not materially contributed to by an injury entitling him to compensation and furthermore the claimed injury is a mental injury which is not compensable under the Act due to the operation of s 82 (2A). The defendant also seeks to rely on s 102 and s 103 (5).
4 Mr Lewis gave evidence as did his general practitioner, Dr Hore, his former Counsellor, Dr Ball and Dr Blair-West, his treating Psychiatrist. The defendant called evidence from Mr Harper, private investigator regarding his attempts to locate former work colleagues of Mr Lewis, Mr Hart, who is employed by the defendant as its current Senior Manager in Human Resources and Ms Newton, the defendant’s former Human Relations Director who gave her evidence via video link from China. The parties tendered various other documents, medical records and reports.
5 Mr Lewis is currently aged 45 years and signed an employment contract with Expert Information Services Pty Ltd to commence employment on 1 April 2002 for a period of 12 months as a Systems Analyst. He told the court that he had previously obtained a Bachelor of Science Degree and a Master of Computer Science Degree. He gave evidence that he was a specialist in certain languages in the information technology world known as “unified modified language” or UML’s. He said that he worked as part of a team working on a Telstra project located within Telstra with contracted hours being from 9 a.m. to 5 p.m. Monday to Friday and his role was to help the team members to use the language to empower their project work. He said that he worked with Stephen Schilders, the Head Architect on the project, System Analysts, Tarquine and Andrew Cindoss and had dealings with Tracey Newton who was the Human Resources Manager.
6 Mr Lewis gave evidence that the project on which they were working involved bundling discounts for all Telstra products which included; landlines, mobile phones and Foxtel. He said the team had to calculate the appropriate discounts which would apply to customers. He said that although his working hours were 9 a.m. to 5 p.m. he would normally arrive at work by 7 a.m. at the request of Stephen Schilders due to his workload and work until late as team meetings would generally not occur until 6 p.m. or 7 p.m.. He told the court that often Mr Schilders would not arrive until 11 a.m. or 12 midday which meant he had limited access to him to discuss issues. He said that often the evening work involved a review of the work that he had performed during the day and issues that needed solving and it was Mr Schilder’s role to prioritise the issues that required solutions. He said that this caused difficulty for him because of his limited access to Mr Schilders and as a consequence he raised his concerns with Brent McAlpine who was the Project Manager. Mr Lewis told the court that often Mr McAlpine would blame him if the project was running behind schedule. He told the court that he raised his concerns with Ms Newton but they were left unresolved. Mr Lewis described the work as highly complex and mathematically complex and said that the Telstra people were having difficulty understanding the computer language that was necessary for the system to work. He told the court that the evening meetings involved trying to find solutions in order to translate what needed to happen in the business world via the computer world. He told the court that often the meetings would last until midnight. He said that he was under immense pressure each day not only in his meetings with Telstra employees but also in the team meetings during the evenings.
7 Mr Lewis described his work as compelling, leading edge technology and unique. However he said the work schedule and resources allocated to it left the project in disarray. Mr Lewis gave evidence that prior to 10 July 2002 he experienced severe migraines for which he attended Dr Hore and which also necessitated him going to hospital for treatment. He told the court that he also experienced what he referred to as a “freeze incident” on 10 July 2002 at work, where he was “frozen” at his desk and could not move for 45 minutes. He said that he just sat there and could not work out how to use his computer or the telephone. He told the court that he eventually managed to ring his wife, went home and consulted Dr Hore who prescribed medication. He said that he was referred to Dr Harry Ball, Counsellor who used cognitive behavioural therapy to help him.
8 Mr Lewis gave evidence that he ceased work and sent a letter to his employer dated 23 July 2002 informing them that he was in poor health and unfit for work due to a serious illness. He also sent his employer an email he had received from Dr Harry Ball, confirming that he was receiving treatment for significant anxiety with episodes of panic and recommending that he have a 2 week break from work.
9 Mr Lewis told the court that he spoke to Ms Newton about his work issues and his medical condition. He said that he told her that he had “obsessive compulsive thinking” and was finding it difficult coping with the criticism he was receiving from Mr Schilders. He said that he also told Miss Newton that he suffered from agoraphobia and panic disorders which he attributed to the quantity and complexity of his work and the lack of compliance from Mr Schilders and others in using and adopting the UML’s. Mr Lewis told the court that he was often at loggerheads with Mr Schilders because Mr Schilders could not understand the UML’s which required him to read-do his work in order for Mr Schilders to understand it.
10 Mr Lewis gave evidence that after he ceased work in July 2002 he had a discussion with Ms Newton about his options. He said at that stage he only had 3 days sick leave accrued so he had a discussion with her about utilising his private personal income protection policy or claiming WorkCover. Mr Lewis said that she recommended he lodge a claim through his personal income protection policy rather than WorkCover which she described as a “conflict ripe environment”. Mr Lewis told the court that he chose to pursue a claim under his personal income protection policy because he wanted to avoid conflict. He said that his claim was successful and he was paid for his period off work.
11 Mr Lewis told the court that he was referred by Dr Ball to Dr Blair-West, Psychiatrist, for treatment which has continued to the present time. He said that after he ceased work in July 2002 he maintained regular contact with Ms Newton and Mr Fernando who was the new Human Resources Director. He said that Miss Newton approached him to return to work provided he first underwent and passed medical tests. He said he was able to return to work in consultation with Dr Blair-West on a new employment contract and on a graduated basis up to 3 days a week from 24 May 2004. Mr Lewis confirmed that he was still experiencing anxiety symptoms when he returned to work and initially commenced at half a day, increasing to one, two and then 3 days a week. He told the court that his medical condition fluctuated but eventually he managed to increase his working hours to 4 days per week on a NAB project. He said that unfortunately this involved working with Mr McAlpine and he found that it once again involved a lack of appropriate supports in place for which he complained to Miss Newton. Mr Lewis also gave evidence that he then worked on what he referred to as a BACOE Tool Kit which was an in-house, online I cloud repository which involved him transferring his toolkit into the defendant’s toolkit. He said he then started working 2 days on, 2 days off which continued until September 2013 when he finally ceased work.
12 Mr Lewis told the court that in September 2013 he heard rumours that the defendant was restructuring which would involve redundancies. He said that this caused him stress because of the “office activity” so he approached Sonia Edwards in the Human Resources Department to tell her that he was experiencing higher levels of anxiety and that his condition was being exacerbated. He said that she then rang him on 19 September to confirm that his position was at risk which resulted in his anxiety levels and his agoraphobia worsening so much so that he ceased work and has not returned to work since.
13 In cross examination, Mr Lewis confirmed that in 2002 he was under stress due to a combination of factors including; he started a new job; he and his wife had a young baby who was having difficulty sleeping which caused him to experience sleep deprivation; and, work pressures. He also agreed that during the period from May 2004 until September 2013 he did look at securing other employment but was happy in the work he was performing with the defendant. He told the court that in September 2013 he had a meeting with Sonia Edwards and Kate Vickers and told them that he could not work 5 days per week because of his condition which he said was an issue as his Manager, Shane Morris had told him that he would be able to be better placed if he was working 5 days per week and “off the bench”, meaning he would be placed in the resource pool. He also agreed that prior to September 2013 he had sustained a back injury for which it was recommended he underwent surgery.
14 Ms Newton, former Human Relations Director of the defendant gave evidence via video link from Shanghai, China and a statement made by her and dated 13 January 2015 was tendered. Ms Newton told the court that she was originally employed by Expert Information Services Pty Ltd from 2000 and then Infosys until July 2011. She gave evidence that Mr Lewis worked on the STS program – CR104 projects and others and that at its peak, the account had close to 200 expert staff working on it across a range of IT projects. She said the projects were complex and cutting-edge and that only the most talented employees were allocated to the program due to its technical sophistication. She told the court that during the recruitment drive in 2002 approximately 80 people were employed. Her evidence was that Mr Lewis arrived at work at 730 a.m. or earlier and that he was generally the first person on the floor with the others arriving around 8.30 a.m. to 9.30 a.m.. She stated that Mr Lewis appeared to be a perfectionist, detailed oriented and keen to earn his stripes. She stated that Stephen Schilders was employed as a Senior Technical Architect and she considered him to be technically brilliant and he challenged people around him to be creative but with attention to detail and set very high standards of himself and worked long hours. She also stated that the entire team was incredibly focused on delivering the project and many team members would work additional hours to complete the work. She recalled having a discussion with Mr Lewis after he had ceased work in July 2002 and he informed her that he had been diagnosed as having an obsessive compulsive disorder and was suffering from agoraphobia. She recalled he also told her that he had struggled to have his work criticised by others and in particular, Stephen Schilders who would return his work to him with “red marks” scribbled over it as corrections. Ms Newton gave evidence that Mr Lewis did not complain to her about the hours that he worked or about working with Mr McAlpine and Mr Schilders apart from the “red marks” on his work. She said that during his time off she had regular contact with Mr Lewis via his wife, Lucy, whether it be by phone conversations or email. Ms Newton could not recall if she had an in person meeting with Mr Lewis after he ceased work in 2002 or whether they communicated at that time over the phone or via email regarding his cessation of work and the termination of his contract but confirmed that all details would have been documented. She recalled that Mr Lewis continued to receive treatment and medication and that he would discuss with her the symptoms from which he was suffering but she could not recall him telling her anything in particular that caused his anxiety. Ms Newton recalled that Mr Lewis returned to work on reduced hours and days which gradually increased in a phased in manner. She said that she worked closely with him during his return to work as she was proud that he managed to return to work and that she had enabled it to occur. She also recalled that when he was allocated to the NAB account he began to have more time off work so he was transferred to other work involving external and internal projects. She also stated that his “good and bad days” fluctuated and could not be anticipated. Ms Newton recalled that Mr Lewis would become frustrated at times when clients would not accept his proposals for their business.
15 Ms Newton gave evidence that she never discussed with Mr Lewis the options of either claiming income protection benefits or workcover when he originally ceased work in 2002. She recalled that he did contact her in September 2013 to express his anger and disappointment at being considered for redundancy. She told the court that she was surprised by the contact having regards to the fact that she had left the employ of the defendant two years earlier.
16 Mr Hart, Senior Manager & Business Partner of the Defendant’s Human Resources Department gave evidence that he has been employed in this role from April 2006, initially in India and then he transferred to Australia in August 2009. He told the court that he has had no personal contact with Mr Lewis but confirmed that in September 2013 the company was involved in a restructure which involved 16 to 18 staff being eligible for redeployment including Mr Lewis. He gave evidence that he could not find any recorded complaints made by Mr Lewis concerning work issues dating back to 2002. He also gave evidence that Expert Information Services Pty Ltd was acquired by Infosys Technologies Australia Pty Ltd in January 2004 which in turn was acquired by Infosys Technologies Limited in April 2012.
17 Mr Harper, Circumstance Investigator who is contracted to Higgins Shaw gave evidence on behalf of the defendant. He told the court that he was contracted to locate witnesses involved in this case on the basis that it dated back to 2002. He told the court that he located Stephen Schilders who now resides in the United States via email but he did not receive a response and did not make any further attempt to contact him. He gave evidence that he could not locate Brett McAlpine, a former Project Manager despite his searches on social media and the White Pages. He confirmed that he obtained a statement from Ms Newton via email on 8 January 2015 but other former employees he contacted either did not work with Mr Lewis or could not recall him.
18
The defendant tendered a copy of the Minutes of a meeting held between Mr Lewis, Ms Vickers and Ms Edwards concerning redundancies and/or redeployment in September 2013. It is clear from the Minutes that Mr Lewis was concerned that the defendant was not doing all within its power to find alternative roles for him within the organisation on a part time basis and he felt pressured to work on a full time basis. Mr Lewis also made it clear during the meeting that he considered his medical condition was caused as a consequence of his work at Expert Information Services on the Telstra Project – CR104, which involved long hours and his dealings with
Mr Schilders.
19 Dr Hore, General Practitioner gave evidence and an undated report prepared by him in September or October 2002 was tendered. Dr Hore testified that he first saw Mr Lewis on 24 April 2002. The records indicate that he saw Mr Lewis on 31 August 2002 complaining of a severe anxiety-panic disorder that had been developing over a period of 5 weeks. On 30 September 2002, he recorded that Mr Lewis had seen Dr Harry Ball and was on medication. The causative factors were noted to be; work stress, new baby, bought new house, financial stress and a combination of these factors. He diagnosed that Mr Lewis suffered from a panic anxiety disorder with depression and agoraphobia. An Income Continuation Medical Report Form completed by him and dated 9 September 2002 indicated his condition commenced on 10 July 2002. When giving evidence Dr Hore told the court that in his opinion there are a number of causes of the condition suffered by Mr Lewis.
20 Dr Ball, Dentist and qualified Counsellor gave evidence on behalf of Mr Lewis. He told the court that he practised as a Counsellor for people suffering from anxiety disorders for a period of 4 to 5 years until 2004 and since then he has been involved in treating people with sleep apnoea and snoring difficulties. Dr Ball did not bring his records to court and when asked where they were said that they may be in a garage and he might be able to find them. He told the court that he did not bring his records to court as he was only advised on the morning of the hearing that he was required to come to court. When I questioned the parties regarding this issue I was informed that a subpoena to attend and produce records was not issued because Dr Ball was only recently located and he had informed the parties that he did not have any records relating to Mr Lewis. Needless to say, Dr Ball could not recall treating Mr Lewis or the reason for Mr Lewis attending his clinic apart from stating that 90% of his clients were seen for anxiety disorders.
21 Dr Blair-West, treating Psychiatrist gave evidence and a comprehensive and detailed medical report prepared by him dated 11 October 2014 was tendered. Dr Blair-West told the court that he first saw Mr Lewis on referral from Dr Hore on 1 April 2003. He obtained a history from Mr Lewis that there was no significant past history of anxiety symptoms although he acknowledged his father had a history of alcohol abuse and died as a result of suicide in the late 1990s as a result of the failure of his business. Mr Lewis told him that his onset of symptoms occurred in June 2002 shortly after commencing employment. Mr Lewis told him that there were difficulties with the job as he was asked to perform duties different to what was originally portrayed to him. He told Dr Blair-West that he felt isolated and discouraged by the difficulties he had in developing a rapport and working successfully with Mr Schilders whom he described as being cold, dispassionate and robotic. He said that he worked very long hours and that any meetings with Mr Schilders had to be scheduled early in the day or very late in the day, either before 7 a.m. or after 7 p.m. which contributed to his extremely long working days, which were frequently from 7 a.m. to 11 p.m.
22 Dr Blair-West also obtained a history that in 2002, Mr Lewis and his wife had recently bought a new home which they moved into in late 2001 and that their son, who was born in February 2002, caused him some stress and sleep deprivation but did not cause any psychiatric symptoms. Mr Lewis told Dr Blair-West that from then on the combination of the work atmosphere, the lost opportunity to work in an area that he enjoyed and the extremely long hours (usually at least 70 hours per week) led to the development of severe symptoms of anxiety from June 2002. Mr Lewis told Dr Blair-West that he began to experience panic attacks which culminated in a panic attack in August 2002 that led him to cease work. Mr Lewis told him that he experienced a period of “feeling frozen and paralysed” in front of his computer screen at work which resulted in him having difficulty in breathing, experiencing palpitations, dizziness, paraesthesia, depersonalisation and derealisation symptoms. He also told him that over subsequent months he experienced regular panic attacks, anxiety, was fearful of further panic attacks and found it difficult to leave his home. Mr Lewis also told him that he developed depression, had thoughts of hopelessness and helplessness together with occasional suicidal thoughts.
23 Dr Blair-West reported that although Mr Lewis sought assistance from Dr Ball involving cognitive behavioural interventions, he continued to experience higher levels of anxiety, panic attacks and some symptoms of depression. He also reported that when he first saw Mr Lewis he was continuing to experience anxiety, panic attacks and associated agoraphobia. Dr Blair West noted that Mr Lewis has personality traits which include; obsessionality, perfectionism and a tendency to define his worth on the basis of his performance at work. He initially diagnosed Mr Lewis as suffering from a panic disorder with agoraphobia together with associated symptoms of depression. He noted that by August 2003 there was a reduction in his panic attacks and anticipatory anxiety and that by February 2004, Mr Lewis was able to have discussions with his employer and a rehabilitation organisation enabling him to return to work in May 2004 on a graduated return to work basis. He reported that by October 2004 Mr Lewis was able to return to work 30 hours per week despite continuing to suffer from symptoms, particularly when dealing with human resources, his superiors and some of his peers. He noted that Mr Lewis was able to work up to 4 days per week but continued to experience significant increases in anxiety when asked to travel, with major presentations and when questioned by superiors. He also noted that during this period Mr Lewis would isolate himself, be generally non-functional and experience marital difficulties and told Dr Blair-West that he was “only just getting through” at work. Dr Blair- West reported that Mr Lewis remained at work despite being asked to perform more difficult and challenging tasks and despite experiencing continuing symptoms and that by 2010 he only required four consultations during the year. He also reported that between 2010 and September 2013, Mr Lewis continued to suffer from similar anxiety symptoms that worsened with stressors associated with work.
24 Dr Blair-West reported that in mid September 2013 Mr Lewis was advised that he would be redeployed in the near future and that his role as a principal consultant was at risk although no options for future work were given. Mr Lewis told him that he experienced a rapid increase in his anxiety symptoms, a return of panic attacks, fear of further panic and resorted to isolating himself at home, having difficulty getting to work, attending meetings, talking with work representatives and even leaving his home for social or leisure activities. He told Dr Blair-West that he became preoccupied and worried about his working future, financial security and his family relationships. He described symptoms of insomnia, distressing and upsetting dreams, feeling tired, lethargic and being uninterested. Dr Blair West reported that he increased the dose of antidepressant medication and added anti-anxiety medication. He stated that Mr Lewis’s condition has remained essentially unchanged and that he continues to experience significant symptoms associated with panic attacks, agoraphobia and generalised anxiety. He diagnosed him as suffering from panic disorder with agoraphobia together with a major depressive disorder in partial remission. He opined that his condition relates directly to the demanding and unsupportive work environment to which he was exposed in 2002 and that with careful, specific and lengthy treatment led to a partial response allowing him to return to work in 2004. Dr Blair-West noted that Mr Lewis was able to remain at work for a period of 9 ½ years but that his symptoms of anxiety and depression returned in September 2013 when he was threatened with redeployment. Dr Blair-West opined that this caused him to develop a rapid recurrence of the symptoms he first experienced in 2002, which in turn causes him to be unable to work.
25 When giving evidence, Dr Blair-West told the court that despite being able to work between 2004 and 2013, Mr Lewis never fully recovered from his original injury. He said that he was always fearful of experiencing further panic attacks and throughout the period that he returned to work he remained mildly symptomatic but is now much worse. In cross examination, he conceded that in 2002 there were external factors affecting Mr Lewis but work issues were a more important factor leading to his condition. He also noted that during the period of his return to work between 2004 and 2013, whilst he was coping, he was often very unhappy with the work that he was given because he considered it to be beneath him and stressful. He agreed that as at 12 September 2013, Mr Lewis was in a good state and did not complain to him of work issues but his condition deteriorated when he was informed of the possibility of him being made redundant which exacerbated his existing and original problem. He agreed that this issue caused his condition to worsen together with the possibility that he would be asked to work in an area which was not suitable for his skill set. Dr Blair-West agreed that the combination of factors that existed in 2002 resulted in a “perfect storm” being created having regards to his personality traits.
26 The defendant tendered medical reports prepared by Dr White, Consultant Psychiatrist, who assessed Mr Lewis on 9 December 2013 and 21 October 2014. Dr White obtained a history from Mr Lewis of his work activities since 2002 and his medical treatment and he acknowledged that he was known for tendencies towards perfectionism and orderliness. Dr White opined that Mr Lewis appeared to have suffered from a panic disorder with agoraphobia and a major depressive disorder since 2002 as a result of a prolonged period of work stressors in addition to multiple personal stressors. He reported in October 2014 that despite robust psychiatric treatments he had developed a degree of treatment resistant depression, managed by a marked alteration in his lifestyle as well as significant workplace adjustments and intermittent absenteeism. Dr White considered that he has a permanent incapacity for employment and that the workplace events in 2002 and 2013 have materially contributed to his psychiatric conditions. He also reported that there is no evidence of a pre-existing psychiatric disorder before 2002, notwithstanding some obsessive compulsive personality traits which he considered should not be regarded as psychiatric disorders but rather personality traits which are frequently found in the normal population. He opined that Mr Lewis does not have a capacity for preinjury employment or suitable employment but there was a theoretical possibility that in the future he may regain some capacity for voluntary or part-time, low stress employment.
Conclusion
27 I found Mr Lewis to be a credible and honest witness and it was quite obvious that he gave his evidence under extreme distress.
28 The medical evidence is not in dispute. Mr Lewis has a major depressive disorder accompanied by a panic disorder and agoraphobia. I find that prior to commencing employment with the defendant’s predecessor he did not have a pre-existing mental illness or disease. I accept as valid the opinion of Dr White that Mr Lewis’s personality traits on the commencement of employment cannot be regarded as psychiatric disorders.
29 I find that the nature of his work duties, in a highly technical, complex and specialised field, coupled with long work hours and interpersonal issues with his superiors and work colleagues contributed to him sustaining injury in 2002 arising out of and in the course of his employment.
30 Whilst I accept that there were other stressors in his life at the time, it is not necessary for him to prove that his employment was the sole or dominant cause of his injury. It is also not relevant that his personality traits led him to be more susceptible or vulnerable to sustaining injury.
31 I am satisfied that his employment was a cause of his injury. This finding is supported by the medical opinions of Dr Blair-West and Dr White. Even if it were necessary for him to establish that his employment was a significant contributing factor, I am satisfied that he has done so for the following reasons;
· he did not suffer from prior psychiatric symptoms before commencing employment on 1 April 2002 notwithstanding experiencing other stressors in his life which included; commencing new employment, financial issues and having a young child who was experiencing sleeping difficulties which in turn led to Mr Lewis suffering sleep deprivation;
· he was able to commence employment and perform his employment duties between one April 2002 and July 2002 without requiring medical treatment or having periods off work;
· his job was highly specialised and technical and he had the onerous responsibility of ensuring that others understood the highly complex “language” known as UML’s;
· I accept his evidence that he found it frustrating trying to teach others in the team, including Mr Schilders, the specialised language;
· I accept his evidence that he worked long hours;
· I accept his evidence as confirmed by Ms Newton that he found it difficult to cope with the criticism he received from Mr Schilders; and
· I also accept his evidence as confirmed by Ms Newton that there was a high expectation placed on team members which led to a highly pressurised and stressful work environment.
32 I accept the evidence of Mr Lewis and the medical opinion of Dr Blair-West that Mr Lewis never recovered from the injury he sustained in 2002 notwithstanding his ability to return to employment from May 2004. I find that Mr Lewis continued to experience ongoing symptoms which required treatment between May 2004 and September 2013. As a result of the injury sustained by him in 2002 he was not able to return to full preinjury hours and required ongoing treatment and medication to be able to remain at work. Ms Newton also confirmed that between May 2004 and July 2011 when she ceased employment with the defendant, Mr Lewis continued to have “good and bad days” and was frustrated at times when performing his duties.
33 I find that the injury sustained in 2002 arising out of and in the course of his employment also contributed and resulted in his incapacity for work from September 2013. Although accepting that the redundancy/redeployment discussions in September 2013 led to an aggravation and exacerbation of his condition, which in part contributed to him ceasing work, the medical opinion supports a finding that his incapacity from that date also resulted from the injury sustained in 2002.
The Defences
34 I do not accept as valid the submission of the defendant that the injury sustained by Mr Lewis in 2002 arose wholly or predominantly from reasonable action taken in a reasonable manner by the defendant to discipline him. Even if I were to accept that the “red mark” corrections made by Mr Schilders was reasonable action taken in a reasonable manner, that action, on its own, would not give rise to a finding that the injuries sustained by Mr Lewis wholly or predominantly arose from it. I have found that his injury was caused by a number of work issues, the “red mark” corrections making up a small part of it. Therefore, S 82 (2A) cannot be relied on to disentitle him to compensation for that injury.
35 I find and Mr Lewis concedes that the aggravation and exacerbation of his condition in September 2013 was as a consequence of discussions being undertaken at that time concerning possible redundancy or redeployment. This falls within the definition of ‘management action’ in s 82 (10). Because of the concession made by Mr Lewis together with the fact that he does not rely on the aggravation or exacerbation of his condition as the sole cause of his incapacity for work from that date, it is not necessary for me to consider and make any finding as to whether this ‘management action’ was taken on reasonable grounds and in a reasonable manner.
36 It is not in dispute that Mr Lewis did not give notice of his injury within 30 days after he became aware of his condition in accordance with s 102 (1) & (2) which therefore results in s 102 (5) becoming operative unless one of the provisions of s 102 (6) applies. If so, the court may waive or extend the time limit. It is also not in dispute that Mr Lewis failed to lodge a claim for compensation in respect to his 2002 injury until November 2013 for which the defendant relies on the defence contained in s 103 (5) of the Act. I am prepared to waive the time limit in respect to the lodgement of his claim and accept as valid his reasons for not lodging a claim in 2002 because:
· Mr Lewis suffered a serious and disabling mental injury which arose out of and in the course of his employment;
· the defendant via its Human Relations Director, Ms Newton was aware in 2002 of the issues Mr Newton was having at work and the nature and extent of his condition as acknowledged by her when giving evidence;
· Mr Lewis notified the defendant of his illness in writing on 23 June 2002 with supporting medical evidence;
· I find that it is more probable than not that Mr Lewis and Ms Newton did have a discussion concerning his “options” when he ceased employment because of his condition in July 2002. Ms Newton appeared to be a very caring and diligent Human Resources Director and she was an impressive witness. It appeared to me that her discussions with and treatment of Mr Lewis went above and beyond what would normally be expected of a person in her position. She not only maintained regular contact with Mr Lewis after his contract of employment was terminated in 2002 but assisted him in returning to work in May 2004 and thereafter until she ceased employment with the defendant in July 2011. Her inability to recall a discussion taking place in 2002 regarding the “options” Mr Lewis had to protect his financial well-being at that time is not surprising given that it is said to have occurred 13 years ago. Although Mr Newton said she did not have a discussion with Mr Lewis concerning the possibility of him claiming personal income protection or WorkCover, I accept and prefer the evidence of Mr Lewis on this issue and his evidence to the court that Ms Newton discouraged him from lodging a WorkCover claim on the basis that it was a “conflict ripe environment” has a ring of truth to it. I also accept his evidence that he followed the advice she gave to him to pursue a personal income protection claim rather than lodge a WorkCover claim.
· I am not persuaded that the failure of Mr Lewis to give formal notice of injury or to lodge a WorkCover claim in 2002 has caused prejudice to the defendant in defending this proceeding. Although I accept that the delay caused difficulty for the defendant in locating witnesses and former work colleagues, ultimately they were able to locate Ms Newton who was able to give evidence not only as to the work duties performed by Mr Lewis but the issues he had in performing them and the medical consequences. In the end, the inability of the court to hear evidence from Mr Schilders and Mr McAlpine was of little consequence. In addition, despite the delay by Mr Lewis in giving formal notice of injury and lodging a WorkCover claim, did not preclude contemporaneous medical records, reports and evidence being presented to the court.
· Finally, to uphold the defences relied on by the defendant would, in my opinion, result in a serious injustice to Mr Lewis.
37 Accordingly, for the reasons given, Mr Lewis is entitled to weekly payments of compensation in accordance with the provisions of the Act from 20 September 2013 together with reasonable medical and the like expenses as claimed.
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