Manousso v Boral Transport

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Manousso v Boral Transport [2023] NSWPIC 529
APPLICANT:	Blake Manousso
RESPONDENT:	Boral Transport Limited
MEMBER:	Paul Sweeney
DATE OF DECISION:	6 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; worker alleges psychological injury as a result of meeting with supervisors at which he was stood down from driving after disclosing a diagnosis of bipolar disorder respondent denies injury; that employment the main contributing factor to injury; and, in the alternative, relies on section 11A(1); Held – worker suffers from an inadequately disclosed pre-existing psychological condition; experienced an exacerbation of that condition by a physical illness; and experienced further exacerbation by the circumstances surrounding meeting; leave to the parties to put on further submissions within 21 days as to whether the applicant’s employment was the main contributing factor to the exacerbation.
DETERMINATIONS MADE:	The Commission determines that: 1. the applicant suffered a pre-existing psychological condition unrelated to his employment; 2. the applicant suffered an exacerbation or aggravation of this condition caused by concerns about his physical health before 1 August 2022; 3. the applicant suffered a further exacerbation or aggravation of this condition as a result of the meeting of 1 August 2022 with Mr Barrie and Mr Race which was a contributing factor to a psychological injury; 4. that the latter injury was not wholly or predominantly caused by the actions of the respondent with respect to discipline, transfer or the provision of employment benefits within s 11 A(1) of the Workers Compensation Act 1987, and 5. the parties have 21 days to lodge a further submission addressing the issue of whether the applicant’s employment was the main contributing factor to the psychological injury in [3] above.

STATEMENT OF REASONS

BACKGROUND

From 2017, Blake Manousso (the applicant) was employed by various entities within the Boral Group. On 31 January 2022, he commenced employment as a driver on night shift with Boral Supply Chain & Logistics Pty Ltd (the respondent) at their premises at Preston, NSW.
The applicant’s duties were to load, drive, and deliver various grades of cement powder from Boral depots to building sites.
Between 31 January 2022 and 14 June 2022, the applicant took paid leave on 23 nights. He also complained to his supervisor, on occasions, of sinusitis which he associated with exposure to cement dust during the loading process at the respondent’s depots.
On 27 July 2022, the applicant finished his night shift early. Later that day he sent a text message to the respondent’s night shift supervisor, Jack Race, requesting a transfer to day shift.
On 1 August 2022, the applicant sent a text message to Mr Race. Relevantly, it stated:
“These night shifts are really not working for me. I’ve given it a crack but it is starting to take a serious toll on my mental health & my family life. I really need to go back to days asap. I think for the sake of my mental comfort and that of those around me I’m best to stay home tonight. If you could make it a priority to get me back on to days it would be much appreciated. I am happy to use up my annual leave & RDO’s if necessary until we secure a transition to days.”
On the evening of 1 August 2022, the applicant met with Jack Race and Alan Barrie, the respondent’s operations manager. The applicant’s health, his attendance record and his request to move to day shift work were discussed during the meeting. He was told that he was not to start work the following day and should take leave pending further notice.
On 4 August 2022, Mr Barrie had a telephone discussion with the applicant. He told him that he would be receiving a letter from the respondent requesting permission to communicate with his doctors to ascertain information relating to his health. He informed him that he would be able to commence day shift in the following week but would not be able to drive. The applicant did not return to work.
On 6 August 2022, the applicant furnished a certificate from Dr Khan, a general practitioner (GP), certifying that he was unfit for his usual occupation between 8 August 2022 and 12 August 2022 as he was receiving “medical treatment””. The applicant has not returned to work. On 14 August 2022, he was certified unfit for work for a period of one week by reason of a “medical condition” by Dr Metti, a respiratory specialist.
On 16 August 2022, the applicant saw Dr Lim of Workers Doctors. He was diagnosed with a psychological injury and referred to a psychologist and a psychiatrist for treatment. He has continued to be certified as having no current capacity for work to the present time.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

By these proceedings, the applicant claims weekly payments of compensation from 29 November 2022 and an indemnity in respect of the cost of his medical treatment pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The injury description in the Application is as follows:
“During the course of employment, the Applicant developed respiratory issues, including difficulties breathing as well as constant sneezing due to dust exposure. As a result the applicant underwent extensive medical assessments and treatments over a period of approximately 6 months. Despite his physical condition, the respondent did not have any regard for the applicant’s physical health issues and management continued to pressure him to ‘push the product out.’ The Applicant was bullied, harassed and despite repeated requests he was not provided with any appropriate personal protective equipment.
On 1 August 2022, the Applicant was instructed by his supervisors to attend an unplanned meeting. The Applicant was not provided with sufficient notice nor was he aware of the agenda of the meeting. Additionally, the Applicant was not offered the opportunity to have a support person attend the meeting. During the meeting, the Applicant was unfairly questioned about his physical health issues and sick leave. The Applicant informed his managers of his health concerns and instead of being supported, the Applicant was advised he required a Specialist to sign him off as being fit to work given his unrelated health matters. As a result, the Applicant felt unsupported, threatened and bullied by management.”
By a s 78 Notice dated 15 November 2022, the respondent denied that the applicant suffered a psychological injury. It also denied that the applicant’s employment was a substantial contributing factor or, alternatively, the main contributing factor to the alleged injury. Finally, it asserted that, if the applicant did suffer an injury, it was wholly or predominantly caused by discipline, transfer, performance appraisal, and/or the provision of employment benefits as those terms are used in s 11A(1) of the 1987 Act.
When the matter came on for a conciliation conference and arbitration hearing in the Commission on 11 September 2023, Mr McManamey of counsel appeared for the applicant and Mr Saul, of counsel, appeared for the respondent.
I was informed that the parties were unable to resolve the threshold issue of whether the applicant had an entitlement to compensation. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the matter during the conciliation conference.
While the Application particularised that the applicant developed “respiratory issues” as a result of exposure to cement dust in the course of his employment, I was informed that he did not intend to rely on or prove a physical injury caused by exposure to dust in these proceedings.
Accordingly, is unnecessary to consider the medical reports of those doctors who addressed this issue in determining the dispute.

EVIDENCE

The documents before the Commission are as follows:
(a)    Application to Resolve a Dispute and the documents attached;
(b)    The Reply and the documents attached;
(c)    An Application to Admit Late Documents (AALD) dated 5 September 2023 lodged by the respondent, and
(d)    An Application to Admit late Documents dated 7 September 2023 lodged by the applicant.
There was no objection to any of the evidence referred to above save for the report of Professor Bryant dated 5 April 2023 which is attached to the applicant’s AALD. As that report only concerned the physical injuries allegedly suffered by the applicant, it was not pressed and was not received into evidence in these proceedings.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of the arguments of counsel in these short reasons.
Mr Saul addressed each of the issues raised in the respondent’s s 78 Notice, although his address in respect of s 11A was limited to “transfer” and “performance appraisal”. He submitted that the evidence of the applicant was not reliable. There were inconsistencies between his statement evidence and his histories to medical practitioners after his cessation of employment and, on the other hand, the medical records of his GPs and the report of a treating psychiatrist Dr Williams. He argued that the fact that the applicant had sought treatment from medical practitioners some distance from his home was suspicious.
Mr Saul submitted that there was no reason to disbelieve the evidence of the respondents witnesses, Mr Race and Mr Barrie and that I would prefer their evidence to that of the applicant. Similarly, as the applicant’s doctors did not adequately address his prior psychiatric condition, I would prefer the opinion of Dr Roberts that the applicant suffered bipolar disorder and attention deficit hyperactivity disorder (ADHD).
Mr Saul also submitted that, should the applicant succeed in proving injury, I would not accept that he was totally incapacitated for work.
Mr McManamey submitted that there was no basis in the evidence to conclude that the applicant was unreliable. He had conceded prior psychological problems to his treating and qualified medical practitioners. It was the medical practitioners who discounted the applicant’s psychological history and concluded that it was unlikely that he suffered a bipolar disorder prior to the injury. Each of the medical practitioners and psychologists who had seen the applicant for treatment, or for the purpose of providing medico-legal reports, had concluded that the applicant suffered a psychological injury. Only Dr Roberts qualified by the respondent, reached a contrary conclusion.
In respect of the issues arising under s 11A, Mr McManamey submitted that the respondent’s witnesses had stated that the meeting of 1 August 2022 was not a disciplinary meeting. It was also evident that the meeting was not wholly or predominantly concerned with either “transfer” or “performance appraisal.” He also relied on the principles enunciated by Snell DP in Hamad v. Q Catering Limited[1]. The respondent had not adduced medical evidence to show that its actions which might relate to “transfer” or “performance appraisal” were the whole or predominant cause of injury.
[1] [2017] NSWWCCPD 6.
I will return to the submissions of counsel in resolving the issues in dispute in the matter. It is necessary, however, to first set out the salient aspects of the evidence. Accordingly, I record below in summary form the evidence of the applicant and of the respondent’s employees Alan Barrie and Jack Race. I also set out compendiously the evidence of the applicant’s treating psychiatrist, Dr Louis Ereve, his qualified psychiatrist Dr Abdal Khan, and of the psychiatrist qualified by the respondent, Dr John Albert Roberts. What follows is not intended to be a comprehensive survey of this evidence. Rather, I set out the important aspects of their evidence so that the parties may understand the way in which the Commission has resolved their dispute.

The Applicant

The only signed and dated statement relied on by the applicant is his supplementary statement of 7 June 2023. By that statement, he says:
“I was subjected to unfair treatment during the course of my employment. I was subjected to ongoing bullying, harassment, and unfair treatment by colleagues and management. I was also threatened and unsupported when I raised concerns to management about my symptoms and unfair treatment during the course of my employment. My job security was threatened and I felt humiliated and under-valued. My health was being used against me. Please refer to my earlier undated statement for further details regarding my treatment during the course of my employment.”
The applicant then deals with pre-existing medical conditions as follows:
“I do not suffer from any pre-existing conditions such as bipolar disorder, ADHD and Alcohol Use Disorder. I first engaged in mental health treatment in about 2020 as my fiancée believed I had ‘anger issues’ and requested I undergo a psychiatric assessment for possible bipolar disorder. At the time, I was prompted by my partner to undergo same as I recall being stressed and over-worked at work and I was struggling to cope with young children at home.
I did not undergo any significant treatment for bipolar disorder. I was only prescribed medication following the completion of a short questionnaire. The diagnosis was not convincing, and this is supported by my doctors. The psychiatrist made the diagnosis of bipolar disorder on the presumption from my partner as well as a questionnaire. The psychiatrist did not conduct a complex or comprehensive psychiatric assessment. I did not experience any ongoing symptoms, restriction, or episodes. Furthermore, I never took off work (sic) due to any psychological symptoms prior to my injury surfacing. The suggested condition never prevented me from work, social activities, relationship or anything else of relevance.”
The applicant goes on to say that he does not drink alcohol regularly and has not been diagnosed with alcohol use disorder. He notes that he could not have worked as a truck driver for Boral if he drank “regularly or excessively.”
The applicant sets out in a document headed Psychological Health a list of symptoms which he is or was suffering from. The list includes alcohol abuse, irritability, depression and tiredness. The document is undated. The balance of the applicant’s evidence consists of summaries and comment on the evidence of Mr Race and Mr Barrie. It is convenient to return to that document after dealing with their evidence.

Alan Barrie

By his statement of 30 September 2022, Mr Barrie says that he met the applicant on three occasions. The first two of these were casual encounters.
Prior to 14 June 2022, he asked Jack Race to “to evaluate” the new drivers including the applicant. He says that a report was provided to him dated 14 June 2022. He continues:
“Jack’s main concern was with his attendance levels, 23 nights off work from February to June. Blake’s annual (sick) leave entitlement was 10 days. He was entitled to one RDO a month and 4 weeks annual leave. Of the 23 nights he took 9 as annual leave, 8 as sick leave and 6 as RDOs.”
Mr Barrie states that by 20 July 2022, the applicant had taken 10 further days off work and that Mr Race had “also consulted HR about this”.
Mr Barrie recounts that the report also addressed the applicant’s “sinus issues” and that Mr Race had spoken to the applicant about his leave and that he had “promised he’d improve.”
Mr Barrie recounts that while he was at a meeting with Mr Race on 29 July 2022, he was shown a text message from the applicant which said that his work was taking a “serious toll” on his “mental health and on my family life”. Mr Barrie states that he then rang Madeline Saad of HR who told him:
“to meet with Blake to clarify the situation about mental health and whether he was getting help and if so what had they suggested and how would day shift make it better.”
Ms Saad also said that she would look at the applicant’s employment history, his attendance record at the other Boral entities and his pre-employment medical.
The witness states that Mr Race arranged a meeting with the applicant at Prestons at 4pm on 1 August 2022. He continues:
“The meeting’s purpose was to address the move to day shift and the mental health reference Blake had made in his text. The mental health issue was the more important for me.
I wanted to understand the issues and extent of it. I wanted to know what constituted the mental health issue so we could deal with it. I wanted to know that Blake was ok. The meeting was not a disciplinary meeting.
I did not consider there was any need to tell Blake to bring a support person.”
Mr Barrie says the meeting lasted for about an hour. During the meeting, Mr Barrie asked the applicant:
“Tell us what’s going on.”
The applicant replied:
“I’ve seen a doctor who diagnosed bi-polar and ADHD.”
When asked if he had been prescribed medication, the applicant stated:
“Yes but I did not want to take the medication because I did not want to put that stuff in my body.”
There followed discussion about the name of the doctor, that Boral had an obligation to act on the information disclosed regarding the applicant’s mental health , that he could access assistance from Boral’s employee’s assistance scheme and how a transfer to day shift might improve his situation. The witness continues:
“I told Blake I would follow up with HR to work out what to do and what to do about RMS[2]. I told him that he was not to start work that night and he would need to take leave. I committed to following up with HR and get back to him.”
[2] Roads and Maritime Services.
He says that he had no impression that the applicant was “upset or distressed by the meeting.” He states that he next spoke to the applicant on 4 or 5 August over the telephone. The applicant told him that he had spoken to a councillor who had suggested that he seek medical assistance. He recounts that:
“I told Blake he would be receiving a letter from Boral for permission to speak to his doctors. I told him to come into day shift next week, not to drive, but we’ll find other duties for you until we have clarity that he was ok to drive.”
Mr Barrie says that he had an obligation to deal with the issue of the applicant’s mental health. He says that:
“At no time did I upset or distress or belittle or harass Blake. I only want to help him and perform my obligations to Boral.”
He states that at no time during the meeting did the applicant appear distressed.

Jack Race

By his statement of 13 October 2022, Mr Race recounts that Blake first raised the subject of ADHD in a telephone conversation relating to a verbal altercation he had with another driver.
On 14 June 2022, during a performance review the witness had raised the subject of the applicant’s absences from work. He records that the applicant said that “he knew his leave levels were not acceptable.” Mr Race told him that he would “need to improve” over the next month. There was also some discussion about the applicant’s ability to cope with night shift. Mr Race records that the applicant told him that he had difficulties at first “but now I feel quite good.”
Mr Race states that the applicant did not “improve with his attendance” after that meeting. He records that the applicant stated that he had a sinus issue which was aggravated by the cement dust. Mr Race recounts that in June 2022 he gave the applicant a box of P2 face masks. He says that by 20 July 2022 he was concerned about the applicant’s leave and “concerned about Blake’s sinus issues with minimal dust and allergy issues.”
Mr Race states that there had been reports from other drivers and SafeWork NSW of dust issues at two of the respondent’s depots. An improvement notice had been received on
5 May 2022.
On 19 July 2022, the applicant reported that his eye was affected, presumably by the dust. His last shift was on Tuesday 26 July when the applicant left work at 2.01am having transported “3 loads and had a good work night”.

On 27 July 2022, Mr Race received a text from the applicant requesting a transfer to day shift. He responded that he would need to speak to Alan Barrie to get authorisation for such a transfer. When the applicant rang him again on 29 July 2022, Mr Race informed him that he “needed to wait to speak to Richard Miller who would return to work on 1 August 2022. Mr Race records that the applicant told him that he would not work night shift again. He said:
“If I have to work night shift, I’ll have to look for something else.”
On 1 August 2022, Mr Race received the text from the applicant by which he stated that night shift was “interfering with his mental health and family life”.
Following Mr Barrie’s discussion with Madeline Saad of HR, Mr Race arranged the meeting with the applicant that took place at 4.30pm and lasted for some 50 minutes. When asked about how night shift was going the applicant responded that:
“I cannot sleep during the day” and “the dust is causing me not to be able to sleep with my partner because the pollen and dust carpet in our room is preventing me from sleeping. My sinuses flair up.”
When asked about his mental health, the applicant said that he was “bi-polar” and that he did not take medication. He was asked whether he had consulted RMS. The applicant says he was speaking to a doctor “but he died, and I cannot get access to the records because they have no records kept.”
Mr Race records that Mr Barrie told the applicant that consulting RMS:
“was a legal requirement if there was any medical issue and compared the situation to someone having diabetes or wearing glasses and how they had to do this and it’s the same for bi-polar.”
The applicant was told that he would get support from Boral’s employee assistance program. The witness records that:
“Blake said his mental health wasn’t 100% because of the night shift and the dust. I do not recall that Blake said his mental state had deteriorated. He just said that it wasn’t the best.”
The witness also records that the applicant agreed that he should inform RMS but he also stated that the P2 masks which Mr Race had given him did not fit. There was also some discussion of the dusty conditions experienced by the applicant when loading his vehicle.
The applicant told Mr Race that he had been using surgical masks which had been provided to drivers during the COVID period. Mr Race responded that these masks were not suitable for protection against dust.
At the end of the meeting, the applicant was told that Mr Barrie:
“needed to speak to P & C around the bipolar and what our next steps should be so that we’re sure you’re being looked after. Take the rest of the week off and we’ll get back to you by the end of the week.”
Then, on 8 August 2022 he received a medical certificate saying that the applicant was unfit for work as a result of a “medical condition”.

Applicant’s response to the evidence of Messrs Race and Barrie

The applicant says that in asking for a move to the day shift he was hoping for “a miracle.” He says that he was “Fighting infections and continuously sick & waking up to illness on a daily basis.“ He states he perceived the direction to take the rest of the week off at the meeting on 1 August 2022 as punishment. He says that:
“By this time I was very unwell physically, mentally.”
In respect of dust and the effect on his health the applicant says that he has been with Boral since 2017 save for a short period in 2020 and had not previously experienced dust or sinus issues. He says he sought a mask from Mr Race on several occasions, but he said that after speaking with Mr Race on 14 July 2023 about his health at the Clyde plant, he had the impression that “he didn’t believe me”.
The applicant says that Mr Race knew that he was “having issues.” On 16 March 2022, he had a Brain Scan. Bloods were taken on 18 May 2022. He says that he was referred to an allergy specialist. He states:
“I tried to keep this between me and my family however the sickness took a massive toll on me.”
He reiterates that Mr Race knew that he was unwell during this period.
The applicant says that prior to the review there were “rumours I was going to be questioned regarding all these days off.” He states that “this guy was leaking information to drivers about the review.” He states he was “being monitored and everyone was questioning my days off.”
While some aspects of the applicant’s statements are not intelligible, he says that included in the days he had off were “rain days” when drivers apparently had to take RDO or annual leave.
He states that when he was asked to attend the meeting with Mr Race on 1 August 2022, he experienced “high anxiety and concern”. He states that he was “not offered a support person or not was I prepared to be ambushed and interrogated.” (sic) He says that he does not agree with Mr Race’s statement that he was affected by “the carpet in his room.” He annexes a number of text exchanges between him and Mr Race, including the text of a pathology report dated 14 July which states that he had been put on medication and now was wearing a face mask at all loading sites and was now “on top of it”.
In respect of the statement of Mr Barrie the applicant says that he “questioned my integrity repetitively”” at the meeting of 1 August 2022. He says that:
“I was frustrated and I mentioned that a old doctor said you had bipolar which is nothing to do with what has taken place since January 2022.” (sic)
The applicant says that he believed that he was stood down during the meeting. He says that a Boral counsellor suggested to him on 4 August 2022 that he:
“take some time off and seek medical treatment for my physical and psychological.”
By contrast, Mr Barrie’s main concern was getting him back to work on Monday
8 August 2022 “doing paperwork and picking up rubbish in the yard”. He also states that
Mr Barrie told him that he should be medicated at all times. He says that as a result of this he:
“felt belittled, ashamed and this impacted my mental health even more. He refused to listen to advice I was given by BEAP. That concludes by stating that it is his view that his employer “started the meeting” about my attendance at Boral.

Dr Khan

Dr Khan saw the applicant at the request of his solicitors on 15 January 2023. He recorded that in early 2022, the applicant “started to struggle with somatic concerns, including multiple migraines a day”. He also developed “respiratory issues, including difficulties breathing as well as sneezing.” The doctor records that the applicant thought that the respondent had no regard for his health and was “harassed” by other workers.
Dr Khan records that:
“As a result of the impact on his physical health issues on his day-to-day functioning Mr Manousso experienced gradual deterioration in his mental state characterised by low mood, anxious ruminations, panic, irritability, agitation, reduced motivation and withdrawal.”
Dr Khan also took a history of the meeting on 1 August 2022 at which the applicant was told that “his employment was in jeopardy”. This meeting “further perpetuated Mr Manousso’s mental health difficulties.”
On mental state examination Dr Khan observed evidence of impairment in attention, concentration and memory. He commented that the applicant’s “thought content comprised”’ symptoms of depression and anxiety. He diagnosed major depressive disorder with anxious distress and alcohol use disorder, early remission. He thought the applicant would require ongoing medical support over the next year but expressed the opinion that the applicant had no capacity for work. He stated:
“The impact of his work-related physical injury on his day-to-day functioning caused Mr Manousso’s mental state to gradually deteriorate and led him to develop symptoms of depression and anxiety. This history, as taken from Mr Manousso was consistent with the contemporaneous medical records of his treating team. The temporality of events constitutes a secondary psychiatric/psychological injury.
Mr Manousso experienced further mental health difficulties in the context of his employer’s response to his physical health issues. He felt unsupported, ignored and dismissed by his employer when they became aware that his physical health issues and need for sick leave was due to a work-related hazardous exposure. He was not provided sufficient notice, he was not provided an agenda and he was not offered the opportunity to have a support person present in the meeting. The meeting turned out to be disciplinary in nature and Mr Manousso felt that he was discriminated against and that the security of his employment was threatened. This incident caused his mental state to deteriorate further and led him to stop working.”
The latter event constituted a “primary psychiatric/psychological injury.”

Dr Roberts

Dr Roberts, a psychiatrist saw the applicant at the request of the respondent via Zoom on 24 August 2022 and provided a report of 6 November 2022.
Dr Roberts also took a history of the applicant developing respiratory issues for which he was ultimately referred to Dr Metti, a respiratory specialist, at Fairfield. He reported having migraines and swollen glands in his throat. Dr Roberts recorded that the applicant was also having nightmares, a poor attention span, and loss of memory. In respect of past psychiatric history, Dr Roberts recorded that the applicant had seen Dr Warwick Williams in 2020 as he had “really bad anger issues” and that when he drank, “he would drink excessively”.
Aspects of Dr Roberts’ report are difficult to understand. He concludes as follows:
“I consider that Mr Manousso’s behaviour in the workplace and his attitude could be accounted solely by him being under the influence of alcohol, suffering from a bipolar disorder and ADHD, and that the behaviours and response to the circumstances described by Mr Manousso could be solely accounted for even in the absence of employment with Boral.”
The doctor continues:
“The conditions of attention deficit hyperactivity disorder and bipolar disorder are congenital, life-long disabilities that are managed by medication to modify symptomatology, there is no cure for either condition. Mr Manousso’s condition has not resolved, it pre-existed his employment with Boral and will not resolve since the conditions are life-long.”
In respect of the issue of substantial contributing factor, the doctor negatives the employment as being relevant given the “longstanding and pre-existing” condition. Nonetheless, he thought that the applicant was totally unfit to undertake any duties involving the driving of heavy machinery.
During his discussion of the applicant’s health issues, Dr Roberts “assumes” that the applicant suffers from bipolar disorder, without actually diagnosing that condition at his consultation.

Dr Louis Ereve

Dr Ereve saw the applicant at the request of Dr Dixon and provided a report of 17 November 2022. He recorded a history of the applicant being exposed to “several powders” for which he sought personal protective equipment, which was denied. He reported that he developed a loss of smell, increased migraines and coughing up blood. “These symptoms cause a significant amount of distress, anxiety.”
Dr Ereve also records that the applicant’s co- workers gave him the designation ‘part-time driver’ and there were rumours that he was undergoing a review. “He was constantly afraid of being scrutinised.” He also took a history of the meeting of 1 August 2022 where he was “questioned about the time he was taking off”. Following this meeting, the applicant was stood down from his role.
Dr Ereve states:
“As a result of these workplace incidents, Blake has sustained a primary psychiatric and psychological injury. Symptoms include anxiety, panic episodes, insomnia, low mood, anhedonia, reduced motivation, low self-worth, hopeless thoughts, vague suicidal thoughts, ruminations and lethargy.”
Dr Ereve noted the diagnosis of bipolar disorder in 2020, which was made in the context of uncontrollable anger. He continued:
“However, despite no use of mood stabilising medications since 2020 there has never been evidence of a depressive or manic episode, even with the use of antidepressant. Likely this diagnosis requires review and there is no evidence of a significant bipolar disorder in today’s review.”
Dr Ereve diagnosed an adjustment disorder with low mood and anxiety. He commenced the applicant on quetiapine for early insomnia, increased his dosage of fluoxetine and suggested he continue to see a psychologist.
Both Dr Khan and Dr Roberts provided supplementary reports. By a report of
31 August 2023, Dr Roberts considers the diagnosis of antisocial personality disorder on the basis of the applicant’s history of driving under the influence of alcohol and being placed on a good behaviour bond after an assault. He notes that a major cause of relapse of both bipolar disorder and ADHD is failure to take medication. He reiterated his opinion that the applicant’s condition was substantially congenital and that this condition made it inappropriate for him to work in circumstances where a prompt decision-making was required or in the operation of machinery. He thought that the applicant’s perception of events was probably “misguided/altered” by virtue of “psychiatric conditions and the impact of substance use both alcohol and illicit substances.”
The supplementary report of Dr Khan merely reiterates his previous opinion. It appears more concerned with establishing that the employer’s actions were unreasonable, and, therefore, advancing the applicant’s case, rather than addressing the state of the applicant’s mental health before and after the meeting of 1 August 2022.

DISCUSSION AND FINDINGS

As the respondent’s case largely related to the pre-injury diagnoses of bipolar disorder and ADHD and to the applicant’s failure to frankly disclose the entirety of his medical history, it is necessary to briefly address that history. Unfortunately, it only commences on 4 January 2020, when the applicant saw Dr Han at the Bradbury Medical Centre. The record of the applicant’s prior medical treatment is not in evidence, although the note of 4 January 2020 suggests it may be relevant. At that consultation, the applicant’s prescription of Zoloft 50mg was “changed to Zoloft 100mg”. Zoloft is prescribed for depression and other mental disorders. There is no evidence addressing when the applicant was first prescribed Zoloft and in what circumstances.
On 2 June 2020, the applicant saw Dr Wu, requesting a referral letter to a psychiatrist. He reported that he had:
“self-report – childhood ADHD;
Not on medication
No follow-up
Has noted mood swings/fluctuating over last 3/12
Relationship crisis
Has been using more alcohol and illicit drug over last year
No hallucination
Flights of suicidal thoughts
No plan
No suicidal attempts in the past”
The doctor noted that the applicant was calm without thought disorder during the examination. He referred him to Dr Warwick Williams, a psychiatrist.
On 14 July 2020, Dr Wu recorded that the applicant had suffered cold symptoms for 2 weeks. He recorded frontal headache, a cough with green sputum and a blocked nose. He prescribed Rulide and saline spray to clear nasal discharge.
On 6 October 2020, the applicant saw Dr Han and again requested referral to a psychiatrist. The doctor records the following:
“Bipolar affective disorder
ADHD
Referral to psychiatrist.”
He was also referred to Headspace. Dr Han noted that the prescription of Zoloft had ceased.
At a telephone consultation on 17 November 2020, the doctor provided a prescription for Lithium 450mg tablet.
On 31 January 2021, Dr Nguyen recorded that the applicant requested Zoloft, the “med he took previously”. He recorded that the applicant had not seen Dr Williams for a while as he was busy. The note continues:
“No time to see psych was on dexa for ADHD
and lithium for BPAD
not taking it
???
No explained” (sic)
Dr Nguyen recorded that he:
“Advised the pt should visit dr Williams for review of his condition and medication not able to script for medication was not advised by psychiatrist.”
On 15 March 2022, the applicant complained of headache and nausea for a few weeks. He was referred for a CT scan of the head. On 17 March 2022, a note records that the CT scan demonstrated sinusitis. He was prescribed antibiotics.
On 18 May 2022, the applicant complained to Dr Nguyen of lack of energy and “months and months, of an intermittently runny nose and blockage of noses on an almost daily symptom. It was noted that he had “contact with cement dust daily.” On examination he had severe oedema of the nasal turbinates. He was prescribed antihistamines and Dymista nasal spray. The doctor diagnosed allergic rhinitis.
On 23 May 2022, Dr Nguyen noted that the applicant had a proven allergy to grass and weeds and house dust mite. He referred the applicant to Dr John Quinn.
A note from Dr Williams practice of 3 July 2020, which may be a note of a telephone conversation, records that the applicant stated that he had started taking his ADHD medication on the previous Monday. It continues:
“He is feeling ten times better and sleeping well.
He rang to say thank you.”
It is not entirely clear whether Dr Williams saw the applicant on one or more occasions as his notes are difficult to decipher. By a report of 17 June 2020 to Dr Wu, Dr Williams recorded that the applicant told him he had a “traumatic childhood”, and that he had:
“a very severe mixed inattentive and hyperactive form of ADHD and most of these manifestations had persisted to the present day.”
Dr Williams recorded that using “stimulant medication illegally, it focused him” which he thought confirmed the diagnosis of ADHD. The doctor continued:
“He has a very obvious bipolar disorder as well. His wife independently confirmed hypermanic, or even manic episodes, quite unrelated to any illicit drug use. These can last for up to a week at a time, and tend to be cyclic, on perhaps a monthly basis.
He meets the diagnostic criteria for generalised anxiety disorder, something he apparently learnt from his dad.
He has hundreds of true panic attacks which is an expression of genetically determined vulnerability.”
Dr Williams concluded that the applicant should start on lithium, a drug which is prescribed for manic depression. He stated that once the applicant’s mood was stable, he could prescribe a stimulant medication to address his ADHD.
It is evident from the above brief review of the clinical notes of the applicant’s treating doctors and from his evidence that the applicant experienced troubling physical problems in 2022 which may have a relationship to his employment. It is also evident that Dr Khan thought that the applicant experienced a psychological condition that was caused or materially aggravated by these physical symptoms. However, at the arbitration hearing the applicant abandoned reliance on a physical injury as a cause of his psychological condition. It was not sought to prove that there was a causal connection between the applicant’s allergic rhinitis or respiratory symptoms and his employment. Thus, it was not argued that the secondary psychological condition which Dr Khan attributed to the applicant’s physical condition was compensable.
The pleadings state that the respondent did not have any regard for the applicant’s physical health and that he was bullied and harassed when he complained about it. If the applicant’s physical health was connected with his employment, that argument might have some relevance. However, as acausal connection has not been proven, the applicant cannot succeed on such an allegation in the circumstances of this case. If sinusitis, respiratory problems, and associated psychological problems did not arise out of the employment, the respondent was not obliged to confront them.
Mr McManamey concentrated his argument on the meeting of 1 August 2023 when the applicant was “ambushed” with the questions about his pre-existing psychiatric health and his ability to drive a vehicle. He submitted that it was following the meeting that the applicant suffered psychological symptoms which interfered with his ability to work. He submitted, of course, that the actions of the employer at the meeting did not fall within the s 11A(1). It was not argued that the meeting between the applicant and Mr Race of 14 June 2003, where there was criticism of the applicant taking 23 days of work was a cause of the applicant’s psychological injury.

While it is customary, to deal with the issue of injury prior to considering defences under s 11A(1), in this case I concluded at the arbitration hearing that the respondent’s actions in connection with the meeting were not with respect to discipline, transfer, or the provision of employment benefits. Of course, Mr Barrie said in his statement that the meeting was not intended to be a disciplinary meeting. While he wished to discuss the applicant’s transfer to dayshift, the most important aspect of the meeting was the applicant’s mental health. Plainly, a witnesses’ description of a meeting will not be determinative of whether it falls within the words used in s 11A (1). However, Mr Barrie’s evidence is compelling. It is a consistent with the discussion at the meeting concerning the applicant’s mental health, his treatment, and whether he had approached the RMS. The primary concern of the meeting was not whether the applicant should be transferred to dayshift but whether he should be driving a vehicle at all given his health and his references at the meeting to bipolar disorder. Mr Barrie said in his statement that the more important issue from his perspective was the applicant’s health.
Northern NSW Local Health Network v Heggie[3] is authority for the proposition that a broad view must be taken of the words “action with respect to” which precedes the enumeration of the protected actions of an employer in s 11A (1). But even if one takes a very broad view of the process of discipline, transfer, and the provision of employment benefits, I am unable to find that the respondent has demonstrated that its actions at the meeting were with respect to discipline, transfer, or the provision of employment benefits. If they were, it would be necessary to consider whether those actions were reasonable. If, for example, the meeting was a disciplinary meeting, it may have been appropriate to give him the opportunity to bring a support person.
[3] [2013] NSW CA 255.
The meeting of 1 August 2023 might be contrasted with the meeting of 14 June 2023, which clearly involved an element of discipline as the applicant was informed that his absences were unsatisfactory and needed to improve. As that meeting was not pressed as a cause of the applicant’s psychological injury, it is unnecessary to further analyse the nature of the meeting.
As the respondent fails on its defence under s 11A(1), I return to the issue of injury. In my opinion, there is force in Mr Saul’s criticism of the applicant’s case. While the applicant did not deny previous medical treatment for a psychological condition to medical practitioners or in his statement, his denial of suffering ADHD and his minimising of the impact on his preinjury health is undoubtedly inconsistent with the clinical record that I have adumbrated above. By his statement, the applicant stated:
“I do not suffer from any pre-existing conditions such as bipolar disorder, ADHD and Alcohol Use Disorder.”
In my opinion, it cannot be doubted that the applicant told medical practitioners on several occasions that he did suffer from severe ADHD as a child and that some symptoms persisted. Equally, it cannot be doubted that he was not well psychologically in 2020 when he saw Dr Wu and Dr Williams or that he requested a prescription of Zoloft on 31 January 2021. On that occasion, he was told by his GP to revisit Dr Williams.
At the first consultation recorded at the Bradbury Medical Practice, it was recorded that the applicant had been taking Zoloft. He was provided with a prescription for an increased dosage of that drug. The evidence does not address how long or for what symptoms, the applicant had been taking antidepressant medication. As this is a claim for a psychological injury, his failure to fully address his past history does not assist his case.
There is a debate in the medical evidence as to whether the applicant has bipolar disorder. His present treating psychiatrist, Dr Ereve, and Dr Khan express the opinion that he does not. Dr Roberts accepts the opinion of Dr Williams that he does. I am unable to resolve the issue on the medical evidence before the Commission. I am satisfied, however, as Dr Williams reports that the applicant had a severe form of ADHD as a child and that the manifestations of that condition “persisted” into adulthood and that in 2020, the applicant experienced anger, mood swings, panic attacks and depression as recorded by Dr Williams and the applicant’s GPs.
Dr Roberts maintains that the applicant’s condition is genetic and impervious to external stimulus. At the conclusion of his supplementary report, he says this:
“My opinion remains that the worker has a history of conditions that are substantially congenital and not acquired, that his alcohol use which is characteristically a condition characterised by relapse and his history of drug use would render him on occupational health and safety grounds an inappropriate person to be employed in regard to undertaking operations of machinery and working in environments where decision-making and the ability to promptly respond to circumstances would be required. The information provided which makes reference to non-prescription substance use would on its own independently of all other factors render the claimant unfit for work on grounds that are unrelated to the circumstances and conditions of employment. In regard to my capacity to give an opinion in regard to occupational health and safety matters, I have experience working in a factory in circumstances where occupational health and safety were of primary importance in the context of operating machinery. I do not agree with Dr Abdall Khan’s disregarding of the opinion of Dr Warwick Williams.”
Although he has written thousands of reports over several decades, Dr Roberts does not appear to have consulted the 1987 Act, which defines injury to include the aggravation, acceleration, exacerbation or deterioration of a disease. Further, it is absolutely clear from the case law dealing with psychiatric injuries in the Commission over the last decade that even entrenched psychological conditions can be aggravated, exacerbated, or made worse by stressors in a worker’s employment. While I accept Dr Robert’s opinion that the applicant probably had a pre-existing psychiatric condition, it must be borne in mind that he worked consistently driving trucks for the respondent for a period of five years prior to ceasing work. Throughout that period, he says that his blood alcohol content was regularly tested. That does not seem to support a pre-existing alcohol use disorder.
Further, do not accept Dr Roberts’s conclusion, that the applicant’s pre-existing psychological problems per se renders it inappropriate for him to drive vehicles. Experience suggests the contrary. Many workers with well-controlled psychological conditions function very well in a wide range of occupations.
The evidence does not establish that the applicant was bullied or harassed at the meeting of 1 August 2022. I accept the evidence of Mr Race and Mr Barrie on that issue. Indeed it is a difficult to make out any event which the applicant might perceive as bullying and harassment. I accept, however, that the applicant would have found aspects of the meeting 1 August 2022 problematic. He was stood down from driving. His mental health was to be investigated by his employer and he was told to raise the matter with RMS. Notwithstanding my reservations about his evidence, I accept that what was said at the meeting could cause a psychological injury. The opinion has greater force if it is accepted, as it must be in this case, that the applicant had a pre-existing psychological condition of significance. The possibility of an aggravation of the applicant’s psychological condition by these events is not contemplated by Dr Roberts, as he explains that the applicant’s symptomatology solely on the basis of a congenital psychiatric condition.
It is obvious, as Dr Kahn points out, that Dr Roberts’s opinion is “in stark contrast to other medical practitioners and health professionals who have assessed” the applicant. That is generally the end of the matter. But Dr Khan’s opinion is also flawed. It cannot be the case, as he recorded, that the applicant “first experienced mental health difficulties in the context of his deteriorating physical health due to a work-related exposure.” Plainly, the applicant had “mental health difficulties” in the 2020, well before he commenced driving the cement dust carriers. There may well be a case that Dr Williams diagnosis is wrong. But, as I have indicated above, it is not plausible that the applicant did not have mental health difficulties in 2020. “Mood swings” “relationship crisis” and “suicidal thoughts” and the desire to be referred to a psychiatrist are only consistent with mental health difficulties. In denying these facts,
Dr Khan is effectively attempting to rewrite the known medical history.
Although Dr Ereve acknowledges the previous diagnosis of bipolar disorder, his opinion suffers from many of the same flaws as that of Dr Khan. Both doctors assume that the meeting in 2020 was concerned primarily with the applicant’s physical health. On the evidence which I accept, it was related to his psychological health. He was stood down from driving pending investigation of his assertion that he had been diagnosed with bipolar disorder.
On the basis of the above discussion, I am able to find:
(a)    that the applicant suffered a pre-existing psychological condition unrelated to his employment as evidenced by the notes of the Bradbury Medical Practice and the report of Dr Williams;
(b)    that the applicant suffered an exacerbation or aggravation of this condition caused by concerns about his physical health before 1 August 2022;
(c)    that the applicant suffered a further exacerbation or aggravation of this condition as a result of the meeting of 1 August 2022 with Mr Barrie and Mr Race, which was a contributing factor to a psychological injury; and
(d)    that the latter injury was not wholly or predominantly caused by the actions of the respondent with respect to discipline, transfer or the provision of employment benefits.
For the applicant to succeed, it is also necessary for him to prove that the events surrounding the meeting on 1 August 2022 were the main contributing factor to the aggravation of a psychological disease (or, possibly, the main contributing factor to the contraction of the disease). The evidence in respect of this issue was only addressed fleetingly, if at all, at the arbitration hearing. However, given my findings, and my reservations as to the evidence of the applicant, I have had great difficulty in determining whether the contribution caused by the circumstances of the meeting of 1 August 2022 to the applicant’s psychological condition was the main contributing factor to the injury.
The evidence establishes that the applicant was very concerned about his psychological health and his ability to continue driving, at least on nightshift, before the meeting of 1 August 2022. His text message of 1 August 2022 highlights that problem. His evidence that in seeking a transfer to day shift, he was “hoping for a miracle” further emphasises it. The applicant’s medical case posits that (b) and (c) in [115] were both causative of the applicant’s psychological injury. Both Dr Khan and Dr Ereve, emphasise the difficulties which the applicant experienced with his physical health and the respondent’s reaction to it as a significant cause of his psychological condition. Given the way the case was argued at the arbitration hearing, I cannot take that approach.
In the circumstances, I propose to give the parties 21 days to consider these reasons and make further submissions on the issue of main contributing factor or take what other action they consider appropriate.

[2023] NSWPIC 529

6 October 2023