McCormick v Woolstar Pty Ltd
[2024] NSWPIC 116
•11 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McCormick v Woolstar Pty Ltd [2024] NSWPIC 116 |
| APPLICANT: | Brian McCormick |
| RESPONDENT: | Woolstar Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 11 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly benefits, medical and related treatment expenses and permanent impairment resulting from primary psychological injury sustained in the course of his employment with the respondent; the claim is declined with injury in issue and in the alternative, defence raised under section 11A(1) with respect to transfer and/or the provision of employment benefits to workers; Held – the applicant sustained primary psychological injury the course of his employment with the respondent, with his employment being the main contributing factor to injury; the applicant’s injury was not wholly or predominantly caused by reasonable action taken by the respondent with respect to transfer and/or discipline, the applicant has entitlement to weekly compensation payable under section 36 and 37 on the basis he has no current capacity for work; the applicant’s claim for permanent impairment compensation resulting from primary psychological injury with deemed date of 25 September 2019 is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from the injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained primary psychological injury arising out of or in the course of his employment with the respondent, with deemed date of injury of 25 September 2019. The applicant’s employment with the respondent was the main contributing factor to injury. 2. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer and/or the provision of employment benefits to workers. 3. The parties agree the applicant’s pre-injury average weekly earnings are $1,211. The respondent agrees the applicant has no current capacity for work. The applicant has entitlement to weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 from 8 January 2020 (indexed) ongoing in accordance with the Workers Compensation Act 1987. 4. I remit the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 to the President for referral to a Medical Assessor for assessment as follows: a. Date of injury: 25 September 2019 (deemed); b. Body system/parts: psychological/psychiatric disorder, and c. Method of assessment: whole person impairment. 5. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents dated 12 January 2024 and attached documents lodged on behalf of the applicant, and d. Application to Admit Late Documents dated 24 January 2024 and attached documents lodged on behalf of the respondent. |
STATEMENT OF REASONS
BACKGROUND
Brian McCormick (Mr McCormick), the applicant, is currently 39 years of age. Mr McCormick was previously employed by Woolstar Pty Ltd (Woolstar), the respondent, working as a product picker/storeman at the Woolworths Wyong Distribution Centre at Warnervale.
Mr McCormick has brought previous proceedings relevant to bilateral hernia injury sustained in the course of his employment with Woolstar, being matter number W4185/22. A Medical Assessment Certificate was issued on 1 February 2023 with determination that
Mr McCormick had sustained 2% whole person impairment (WPI) resulting from his bilateral hernia injury, with deemed date of injury of 5 September 2014.In these proceedings Mr McCormick alleges he has sustained primary psychological injury, with deemed date of injury of 25 September 2019, with the circumstances of injury described in the following terms:
“harassment and bullying with return to work process and allocation of light duties by HR persons.”
Mr McCormick claims weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 8 January 2020 ongoing resulting from his alleged primary psychological injury. Mr McCormick also claims permanent impairment compensation payable under s 66 of the 1987 Act for 17% WPI resulting from his alleged primary psychological injury.
Mr McCormick’s claim is declined, and he has been issued with notices dated
15 November 2019, 31 January 2020 and 23 May 2023 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. In essence, Woolstar disputes (a) Mr McCormick has sustained primary psychological injury arising out of or in the course of his employment with Woolstar, with deemed date of injury of 25 September 2019, and (b) in the alternative, Woolstar raises defence available under s 11A(1) of the 1987 Act in that no compensation is payable under the Act in respect of the injury as the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer and/or the provision of employment benefits to workers.
ISSUES FOR DETERMINATION
The parties agree Mr McCormick’s pre-injury average weekly earnings are $1,211.
Woolstar does not dispute Mr McCormick suffers secondary psychological injury resulting from his bilateral hernia injury, with deemed date of injury of 5 September 2014.
Woolstar agrees Mr McCormick has no current capacity for work.
The parties agree that the following issues remain in dispute:
(a) whether Mr McCormick sustained primary psychological injury arising out of or in the course of his employment with Woolstar, with deemed date of injury
25 September 2019, and if so,(b) whether Mr McCormick’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Woolstar with respect to transfer and/or the provision of employment benefits, and if not,
(c) percentage permanent impairment suffered by Mr McCormick resulting from the injury.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
These proceedings came before me for preliminary conference on 22 November 2023 and with Mr McCormick’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 23 January 2024. Ms Grotte of counsel appeared on behalf of Mr McCormick and Mr Jones of counsel appeared on behalf of Woolstar. Mr McCormick was present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 12 January 2024 and attached documents lodged on behalf of Mr McCormick, and
(d) Application to Admit Late Documents dated 24 January 2024 and attached documents lodged on behalf of Woolstar.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Mr McCormick
Mr McCormick provided statements dated 22 June 2020, 31 October 2020 and
10 January 2024.In essence, Mr McCormick explained in his statements that he sustained bilateral hernia injury on 5 September 2014 in the course of his employment, coming to surgical repair in November 2014 and returning to work on suitable duties and reduced hours. Mr McCormick explained that in April 2015 “after dealing with my increased pain levels and the harassment of both workers and management to my failing health, I wasn’t feeling my normal self.” In the company of his union delegate Bob Quigg, Mr McCormick met with the return to work co-ordinator Pam Speers (Ms Speers). Mr McCormick was ultimately referred for psychological review with Gaye Colwell. Mr McCormick subsequently came under the psychiatric care of
Dr Rastogi.Relevant to his returning to work following bilateral hernia injury, Mr McCormick said in his initial statement, which is closest in time to when he ceased working with Woolstar:
“Through all my medical issues Pam Spears has constantly pushed me to return to normal duties without considering my state of mind and chronic pain that often left me feeling highly panicky.
…
I asked her to reduce my days of work as I was not coping with the workload. They never got back to me even though they agreed this was a good idea in earlier meetings… Ms Speers kept contacting me to try to increase my days of work regardless that I had sought to have changes made to my work conditions.
On 25 September 2019, Shane Hagget came and got me from my work area in the Produce Area and said to me that we have a meeting with Pam Speers. I asked what is about as I do not wish to meet with her without a support person. He said he didn’t know. We got to her office and saw another team leader Everton Rose and I asked him to come to the meeting as I thought it was about changing my shifts.
Ms Speers then proceeded to tell me my claim for workers compensation was at an end and that I make a final claim for expenses. I responded that is the least of my problems as I have been steadily declining with my mental health as she was aware.
Pam insisted on the fact that she wanted a clearance or final medical certificate clearing me for full duties. I responded with I am still struggling and want to drop my shifts to 2 days a week. At this point Everton Rose (who is my team leader) said this is correct. Pam then responded, ‘you cannot do that.’
…
Through my whole time as an injured worker I have felt belittled by both management, particularly Pam Speers as though I am worthless and a hindrance to the work place.
…
I was most upset about the meeting that I had with Pam on 25 September where she had brought in Everton Rose without my consent to act as a witness to that meeting. So I made a complaint about Pam to management and on 4 January 2020 I received a letter back from Woolworths telling me that my complaint about Pam’s handling of my claim had been investigated by Woolworths and dismissed having no basis.”
Statement of Ms Speers
Ms Speers provided a statement dated 3 January 2020. Ms Speers is the Injury and Wellbeing Lead.
Ms Speers said she met with Mr McCormick on 31 July 2019 at his request after he had received a call from EML regarding his entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act for his bilateral hernia injury. Ms Speers said that at this meeting she clarified with Mr McCormick the limit on payment of medical and related treatment expenses prescribed by s 59A of the 1987 Act.
Ms Speers said she met again with Mr McCormick on 25 September 2019, with Mr Haggett and Mr Rose present at the meeting. Ms Speers said that during this meeting there was discussion around the fact that as Mr McCormick had not yet provided a final medical certificate, he would require review by his general practitioner in order to obtain one and he would be required to meet the cost of that review as he was no longer entitled to medical and related treatment expenses payable under s 60 of the 1987 Act. Ms Speers said Mr McCormick said he would not be obtaining a final medical certificate “because he was struggling medically and physically”. Ms Speers said that Mr McCormick also requested at that time that “he would like to go to two days a week to help himself get better”, which was ultimately accommodated. Ms Speers said she told Mr McCormick to consult with his general practitioner regarding treatment options available to him which were not payable under the workers compensation scheme.
Statement of Mr Rose
Mr Rose provided a statement dated 3 January 2020. Mr Rose is a Team Leader and Manager. Mr Rose attended the meeting on 25 September 2019 as a support person.
Mr Rose reportedly experienced trouble recalling the facts of the meeting as he sat in the corner of the room while Mr McCormick discussed his disinclination to obtain a final medical certificate from his general practitioner.
Statement of Mr Haggett
Mr Haggett provided a statement dated 3 January 2020. Mr Haggett is a Team Leader.
Mr Haggett attended the meeting on 25 September 2019 but due to the passage of time,
Mr Haggett could not recall what the meeting was about or what was discussed at the meeting.
Statement of Mr Quigg
Mr Quigg provided a statement dated 19 October 2020. Mr Quigg is a union delegate at Woolworths Wyong Regional Centre. Mr Quigg relevantly said he was contacted by
Mr McCormick on 26 September 2019 after Mr McCormick met with Ms Speers on
25 September 2019. Mr Quigg understood Mr McCormick had made a complaint about the comments Ms Speers had made during that meeting. Mr Quigg said:“I was already aware that Brian had a psych injury as he has been complaining as to the pressure he was under from Woolworths and in particular from the Return to Work officer, Pam Speers.”
Statement of Mr Smedes
Mr Smedes provided a statement dated 24 March 2023. Mr Smedes was employed at Woolworths Wyong Distribution Centre between 2006 – 2019. He was a union delegate.
Mr Smedes said he was aware Mr McCormick had sustained “several injuries” in the course of his employment with Woolstar, including his bilateral hernia injury, an alleged neck injury and “a psychological condition”. Mr Smedes said he had attended meetings between Mr McCormick and Ms Speers in her capacity as return to work co-ordinator.
Mr Smedes relevantly said:“On one occasion of these meetings I heard her treat Brian in a manner that was degrading of Brian and his lack of understanding and how he would often get upset at the meeting.
On one meeting I heard her say words to the effect ‘I have told you over and over that you (Brian) need to take responsibility for his obligations under the workers compensation act’. Ms Speers said this without offering any assistance to Brian in relation to informing him what his obligations were. I needed to step in and seek to explain to Brian what Ms Speers was seeking which was mainly for him to provide medical certificates which I was able to assist with.
It was clear to anyone attending the meetings that Brian was upset and did not understand his responsibilities however in almost all meetings that I attended I heard Pam Speers kept asking Brian ‘When your certificates would be upgraded.’ Brian had had surgery for his hernia and needed to be undertaking light duties, but it was clear from the meetings that Ms Speers was pressuring him to update with his Dr to return to full duties and not stay on light duties.
…
There was never any clear explanations to Brian around the workers compensation system after seeing the treatment he received I can fully understand why he would feel bullied and harassed as his mental health issues were never taken into account when Pam or any of the other managers would question him around his physical injury or any other areas of concern like absenteeism for both his mental health and his neck injury.
I am aware that after some of these meetings that Brian ended up leaving site early due to his anxiety and panic attacks. I am also aware that Brian asked another Union delegate to attend meetings with him as I was not always available to go with him to these meetings.”
Statement of Ms McCaffrey
Ms McCaffrey provided a statement dated 24 November 2020. Ms McCaffrey was employed at Woolworths Distribution Centre between 2014 and 2015, working as a team leader. It is not apparent from Ms McCaffrey’s statement that she knew of Mr McCormick or of any of his alleged difficulties with Woolstar.
Investigation report
An investigation report dated 7 January 2019 was prepared by AB Investigations. The investigation report provides the following background:
“The worker is employed as a store person at the Warnervale Distribution Centre. In 2014 the worker sustained bilateral hernias while lifting. With treatment he was able to return to pre-injury duties. In October 2019 the worker submitted a certificate for reduced hours citing depression and anxiety, specifically harassment by the return-to-work specialist (we believe this is Pam Speers) on 25 September 2019. We are instructed that on 25 September 2019 the worker was brought into a meeting and advised that his medical expenses in relation to his hernias would cease because it had been 2 years since he last received weekly payments. We understand he made a complaint after that meeting which is currently the subject of an internal investigation.”
It is evident from his report the investigator requested the letter pertaining to the outcome of the internal investigation and Ms Speers reportedly advised that the outcome of the investigation was to be passed on to Mr McCormick during his shift on 4 January 2020.
Ms Speers reportedly said that the outcome of the investigation was to be passed on to
Mr McCormick both in person and in correspondence.
Correspondence dated 4 January 2020
Under cover of correspondence dated 4 January 2020, Mr McCormick was advised of the outcome of the concerns he had raised at a meeting on 9 November 2019 with Jonathan Parsons and Jessica Bowmaker about his meeting with Ms Speers on 25 September 2019 during which both Mr Rose and Mr Haggett were present.
The correspondence relevantly read:
“As discussed in today’s meeting, an investigation has been conducted into the matters raised. I am satisfied that a thorough and impartial investigation was carried out which included interviews with relevant team members and review and consideration of any relevant documentary evidence.
Woolworths’ process:
Upon receipt of your complaint, an investigation then commenced, which included meeting with relevant witnesses, whom you identified in your complaint, as well as other relevant parties. The allegations and concerns raised were then discussed with the respondent, and they were accordingly provided an opportunity to respond to the matters you raised.
The findings in respect of each allegation can be summarized as follows:
Allegations and Potential Breaches
Findings (on balance)
You alleged that on Wednesday 25th September Pam Speers spoke and acted in a manner that was unacceptable that resulted in your feeling harassed.
This allegation is not substantiated.
You alleged that you were not provided with any explanation in regard to a request to change to two-day roster.
This allegation is not substantiated.
Our assessment and outcomes:
The findings were assessed against the Code of Conduct, the Woolworths Respectful Behaviour Policy and other applicable policies. In undertaking the assessment, we have formed the view that the matters you have raised have not been substantiated.”
Woolstar employment file documents
Mr McCormick’s employment file contains a number of unscheduled leave forms, and it is apparent Mr McCormick has from time to time taken unscheduled leave due to mental health fragility. Mr McCormick was absent from work as early as 18 April 2016 due to “anxiety/panic attacks”. Mr McCormick was absent from work on 12 December 2017 due to anxiety. Mr McCormick was absent from work on 16 March 2018 due to anxiety.
Mr McCormick was absent from work on 21 March 2018 with complaint, which included anxiety. Mr McCormick was absent from work on 18 April 2018 due to “anxiety attack” and he was absent from work again on 19 April 2018 due to anxiety. Mr McCormick was absent from work again on 26 July 2019 with complaint “anxiety stirred up”.
Of particular relevance in the circumstances of this matter is that Mr McCormick was absent from work on 4 January 2020 with the reason for his absence noted as “anxiety attack brought on by lies”.
Mr McCormick’s employment file also contains a number of medical certificates issued by his treating general practitioners at Bay Village Medical Centre relevant to Mr McCormick taking time off work due to mental health fragility. Dr Smyth certified Mr McCormick unfit for work between 2 May 2016 and 3 May 2016 due to a “panic attack” and of particular relevance in the circumstances of this matter is that on 5 January 2020 Dr Usham certified Mr McCormick unfit for work on date/s I am unable to read due to an “anxiety attack” . On 8 January 2020 Mr Usham certified Mr McCormick unfit for work on 4 January 2020 due to an “anxiety attack”, on 13 January 2020 Dr Usham certified Mr McCormick unfit for work on
11 January 2020 due to a “panic attack on the way to work”.
Medical evidence
Treating medical evidence
Dr Harris
Mr McCormick came under the specialist care of Dr Harris, consultant surgeon, relevant to his bilateral hernia injury. In his report dated 27 March 2015 Dr Harris relevantly said of
Mr McCormick:“His usual anxious stage is extending into a more obsessive-compulsive agoraphobic activity. He may have to consider seeing a Psychiatrist or Psychologist as I feel it is starting to interfere with his life.”
Workers Doctors
Mr McCormick has been under the general medical care of Dr Lim who practises out of Workers Doctors.
In response to a questionnaire, on 20 September 2016 Dr Lim provided diagnosis of bilateral hernia repairs and “chronic pain with adjustment to injury”. Dr Lim recommended a change in Mr McCormick’s treating psychologist from Ms Colwell and recommended Mr McCormick be reviewed by a psychiatrist. Interestingly perhaps, Dr Lim responded in part to a query regarding Mr McCormick’s downgrade in capacity for work from pre-injury duties to “picking up to 4 hours per day” following consultation with Dr Lim on 9 August 2016:
“clearly you would prefer a certificate of PIDS even if the patient was not coping.”
Under cover of letter dated 20 September 2016 Dr Lim referred Mr McCormick for psychological review with Erin Carmody. In his letter of referral Dr Lim wrote:
“Herewith Mr Brian Neil James McCormick who requires assistance with managing his psychological barriers of his injury.”
Clinical records from the medical practice demonstrate that Mr McCormick consulted with Erin Carmody, psychologist, on 7 March 2017 at which time Mr Carmody relevantly noted:
“these days having good weeks and bad weeks
almost had panic attack lasted 2 weeks
kept working
but then left
…
still feeling anxious.”
The clinical records also demonstrate that when Mr McCormick consulted with Dr Lim on
23 March 2017 his complaints included “anxiety” and in a WorkCover Certificate of Capacity dated 9 May 2017 Dr Lim’s medical plan included review a psychologist and a psychiatrist.
Dr Rastogi
Mr McCormick has been under the long-time psychiatric care of Dr Rastogi following referral by Dr Lim under cover of letter dated 20 September 2016 in which Dr Lim wrote:
“Herewith Mr Brian Neil James McCormick who requires assistance with managing his chronic pain and the adjustment to injury, its incapacity, and his fear of re-injury when picking. I have recently increased his Cymbalta, and he reports to be coping much better.”
Dr Rastogi is a psychiatrist. Dr Rastogi has provided a number of reports. In her first report dated 28 November 2016 Dr Rastogi noted Mr McCormick was working with Woolstar “full time with some restrictions”. Dr Rastogi reported a history of Mr McCormick having sustained physical injury on 5 September 2014 and coming to bilateral hernia repair, without improvement. Dr Rastogi noted McCormick was receiving pain management treatment with multiple injections and temporary relief of symptoms. Dr Rastogi said of Mr McCormick:
“He feels hopeless and worthless and is worried about the future. He feels in despair and not coping. He has developed adjustment disorder secondary to pain and functional decline.”
At that time Dr Rastogi provided opinion Mr McCormick suffered adjustment disorder with chronic nerve pain disorder. Dr Rastogi considered Mr McCormick required further psychiatric review. Dr Rastogi noted Mr McCormick’s current prescription of Cymbalta but recommended a trial of Avanza and cognitive behaviour therapy also.
In a subsequent report dated 3 April 2017 Dr Rastogi described Mr McCormick as “still experiencing anxiety and working with adaptation … finds functioning at work difficult and adjusting to processing difficulties however maintaining his full time work.” It is not evident to me that Dr Rastogi’s complete report of 3 April 2017 is in evidence as the purported second page of that report is identical to that of his report dated 28 November 2016.
In her most recent report dated 8 May 2023 Dr Rastogi confirmed she had been treating Mr McCormick since 28 November 2016 and had reviewed him on several occasions.
Dr Rastogi recorded Mr McCormick had sustained physical injury in 2014 and while he had returned to work on restricted duties, both his physical and psychological condition deteriorated, and he ceased working in late 2019 and had not returned to work since that time. Dr Rastogi described the circumstances of Mr McCormick bilateral hernia injury and surgical treatment without improvement. Dr Rastogi described Mr McCormick as having developed “adjustment disorder secondary to pain and functional decline”.
Dr Rastogi described in some detail Mr McCormick’s complaints about being bullied and harassed by his management and return to work (RTW) specialist. Dr Rastogi recorded:
“He stated that the rehabilitation specialist continually harassed him and micromanaged him causing him further distress and anxiety. He was having contact with her, and he was called for a meeting with RTW specialist, Shane Haggett and Mr McCormick invited the team leader. He was advised that his compensation was about to end, and he was being coerced to pursue full preinjury duties and felt under pressure. He felt threatened and intimidated and he voiced that he was struggling to live. The RTW specialist continued to wind him up and threatened to call ambulance. Mr McCormick stated he was not fit to do preinjury duties and he agreed to work parttime and HR and management had agreed to, but RTW did not agree to that. He felt extremely vulnerable and cornered as well as ostracised for his physical injury and a liability. He downgraded to working two days a week and struggled coping emotionally and had poor stress coping. He was isolated and continued to be tormented by the managers.
This culminated in inability to work and being permanently unfit to work since 2019.”
Following mental state examination on this occasion, Dr Rastogi provided diagnosis of major depressive disorder persistent and single episode. Dr Rastogi explained:
“Mr McCormick developed hernia with chronic pain that persisted despite surgery causing significant limitations. He continued working with physical limitations, however he was subjected to bullying, intimidation and coercion to resume full duties and felt cornered and isolated. Given the severity of pain and functional limitations with poor outcomes, he has developed poor adaption, grief and loss of his vocational career and loss of identity. He was emotionally fragile. This further was triggered by negative and hostile interaction by his employer that led to his breakdown.
This has resulted in a depressive episode with feeling of hopelessness, worthlessness, social avoidance and lack of adaptation as well as vocational uncertainty. He does hold a guarded prognosis, lack of ability to do premorbid functioning, vocational losses and functional impairment.
His work is a major substantial contributing factor to his persistent psychological injury, and he has sustained a primary psychological injury in context of bullying, harassment and being unsupported with hostile environment that led to his loss of functioning resulting in persistent psychological decline. He had adjustment symptoms from pain, but he continued working in full time hours with physical restrictions. The bullying and harassment led to rapid psychological decline and onset of more persistent depressive disorder and poor prognosis.”
Dr Rastogi provides assessment of 17% WPI resulting from primary psychological injury, which included one tenth deduction for “pain and adjustment symptoms”.
Dr Nazah
Mr McCormick has come under the specialist pain management care of Dr Nazah. In his report dated 14 June 2017 Dr Nazah provided a consistent history of Mr McCormick sustaining bilateral hernia injury for which he received surgical repair with subsequent persistent pain. While on psychometric testing Mr McCormick scored “severe for anxiety and depression and extremely severe for stress” and Mr McCormick relevantly described his mood as being depressive with some passive suicidal ideation, the treatment plan recommended by Dr Nazah at that time did not include review by a psychologist or psychiatrist. However, Mr McCormick was already under the care of Dr Rastogi at that time.
Reg Davis
Mr McCormick has come under the psychological care of Mr Davis, clinical psychologist, following referral from Dr Usham. In his report dated 3 January 2018 Mr Davis referred to the bilateral hernia injury Mr McCormick sustained in the course of his employment, and provided opinion he was “currently manifesting a wide range of Major Depressive symptomatology”. Dr Davis said of Mr McCormick:
“His injury it would appear to have exacerbated his depression and his apprehensive anxiety, but I also wonder how much his depressive/anxious vulnerability predates the injury… At this stage it is difficult to determine how his anxiety and depression are interacting, though his depression seems to be currently the major debilitating condition.”
Berkely Vale Private Hospital
Mr McCormick came under the psychiatric care of Dr Pothala who practices out of the hospital. In his report dated 1 July 2019 Dr Pothala noted it had been a long period of time since he had reviewed Mr McCormick with Mr McCormick reporting “he had been better and attending work etc. until recently”. Dr Pothala described Mr McCormick as deteriorating in the last few weeks, with his worsening symptoms affecting his work “and he had a few absent days”. Dr Pothala described Mr McCormick as “currently experiencing stress secondary to work stress and this has contributed to increased anxiety”. Dr Pothala prescribed Propranolol with comment “I feel this may be the better choice for his anxiety”.
Bay Village Medical Centre
Mr McCormick has been under the general medical care of Dr Usham who practises out of Bay Village Medical Centre. Dr Usham issued Mr McCormick with a WorkCover NSW-certificate of capacity on 27 September 2019 in which he provided diagnosis of anxiety and depression and opinion Mr McCormick had developed “chronic pain and anxiety/depression following surgery”, such surgery being treatment in the nature of hernia repair on
26 November 2014. Dr Usham subsequently issued Mr McCormick with a WorkCover NSW- certificate of capacity on 21 October 2019 in which he provided diagnosis of anxiety and depression “which got worse since start working and meeting with employer”. Dr Usham also issued Mr McCormick with a second WorkCover NSW – certificate of capacity on
21 October 2019 in which he confirmed diagnosis of depression and anxiety, but on this occasion said that the date of injury was 25 September 2019 rather than 5 September 2014, being the date relevant to Mr McCormick’s bilateral hernia injury, and confirmed that
21 October 2019 was the date Mr McCormick had been seen at the practice for this particular psychological injury. Dr Usham accepted Mr McCormick suffered pre-existing “depression and anxiety” but described the psychological injury the subject of his current certification as being related to work in the following terms:“According to patient he has been harassed by return to work specialist at work.”
In a report dated 12 November 2019 addressed to Mr McCormick’s employer relevant to psychological injury the subject of these proceedings, in response to specific questioning,
Dr Usham provided diagnosis of “depression anxiety” which was related to Mr McCormick’s “ongoing Workcover injury”. In response to the specific question “Do you believe that employment and duties involved, or subject incident were a substantial contributing factor in relation to the injury reported” Dr Usham responded “yes”. It is evident from the context of Dr Usham’s letter that the subject incident referred to injury allegedly sustained on 25 September 2019.
The Hill Private Hospital
Mr McCormick came under the psychiatric care of Dr Manambrakkat who practises out of the hospital. In his report dated 12 July 2022 Dr Manambrakkat provided a consistent history of Mr McCormick sustaining bilateral hernia injury, for which he received surgical repair with subsequent persistent pain. Dr Manambrakkat said of Mr McCormick:
“He has had to live with pain and continue to work for 5 years thereafter and putting up with his bosses and colleagues talking about his ‘compo’.”
Dr Manambrakkat reported McCormick told him that Woolstar “had treated him badly”.
Dr Manambrakkat reported Mr McCormick told him a return work co-ordinator who he identified as Ms Speers “has harassed him to return to work” and there was an internal investigation into his complaint about Ms Speers following which “his bosses said that what he said didn’t happen though there were 2 witnesses when Pam was harassing him to return to work”.Dr Manambrakkat provided diagnosis of major depression and panic attacks and was sufficiently concerned about Mr McCormick’s presentation that medical management included psychiatric admission into the hospital within a month with a view to stabilizing his condition.
Independent medical evidence
Dr Murphy
Mr McCormick was assessed by Dr Murphy in his capacity as independent medical examiner. Dr Murphy is a psychiatrist. Dr Murphy provided a report dated 17 January 2017 following his assessment of Mr McCormick the same day. At the time of reporting Dr Murphy did not have available to him any reporting from Dr Rastogi. Dr Murphy reported what he described as a “dramatic entrance” to assessment in that while in the waiting room
Mr McCormick experienced a moderately severe panic attack but was able to regain control of his breathing and participate in the assessment following the first aid given to him by
Dr Murphy.Dr Murphy recorded a history of Mr McCormick sustaining bilateral hernia injury in 2014 in the course of his employment, coming to surgical treatment on 26 November 2014.
Dr Murphy recorded a history of Mr McCormick becoming “apprehensive, agitated and anxious” in approximately April/May 2016 and experiencing a panic attack, which became a persistent problem. Dr Murphy reported Mr McCormick became emotional when he told him:“After two years, I’m still in pain. I’m struggling. I don’t know what’s going to happen in my future … I wonder how long my body will last.”
While Dr Murphy accepted Mr McCormick was very agitated on the day of assessment he described Mr McCormick as having benefitted from treatment and being “able to feel calm most of the time.” In response to specific questing, Dr Murphy provided diagnosis of panic disorder with agoraphobia, which he said, “appears to have arisen out of chronic pain and ongoing anxiety around the implications of pain”. Dr Murphy accepted that once
Mr McCormick’s panic disorder had commenced it was perpetuated by his work activities:“Specifically, wearing a belt to support his T5 radio device whilst picking was causing some groin pain and he has the unhelpful belief that pain equals further damage, which then provokes his pain symptoms.”
Dr Murphy accepted Mr McCormick suffered secondary psychological injury. Dr Murphy provided opinion Mr McCormick required review and treatment from a psychologist and was optimistic with treatment “he should do well” as panic disorder is curable. However, he cautioned without treatment “he is likely to deteriorate”. Dr Murphy noted Mr McCormick was not currently “picking” and cautioned that before any return to picking duties Mr McCormick would require psychological rehabilitation to address his inaccurate belief that “discomfort equates to damage”.
Dr Baker
Mr McCormick was assessed by Dr Baker in his capacity as independent medical examiner. Dr Baker is psychiatrist. Dr Baker provided a report dated 14 December 2019. Mr McCormick attended the assessment with Mr Smedes present in his capacity as support person.
Dr Baker recorded a history of Mr McCormick not having been psychologically unwell prior to commencing employment with Woolstar. Dr Baker described Mr McCormick as having commenced working with Woolstar in 2009. Dr Baker noted Mr McCormick was under the psychiatric care of Dr Rastogi. Dr Baker reported the alleged history of psychological injury:
“Mr McCormick reported that he had suffered physical injuries to his neck, back and groin. He reported that he developed severe ongoing pain and that he has not been pain free since the onset of his first injury. He reported that he had attended a pain clinic, however his condition had failed to fully recover. Dr Rastogi stated that he had been commenced on Carbamazepine to treat his pain.
Mr McCormick stated that he had been bullied and harassed by his management. He described having to comply with unreasonable requests in the workplace. He feared losing his employment should he not attempt to work as directed. He continued to experience intrusive depressing thoughts of shame and guilt that he was not able to function as he had prior to commencing work with his employer.”
Following mental state examination which reportedly revealed Mr McCormick required the assistance of Mr Smedes during assessment as he became distressed and tearful, suffered suicidal ideation most days and suffered “intrusive distressing depressive ruminations about being bullied and harassed by his employer and senior managers” Dr Baker provided diagnosis of “Major Depressive Disorder – moderate – single episode – with anxious distress”. Dr Baker provided opinion Mr McCormick’s employment substantially contributed to his “primary psychiatric injury” and considered he had sustained 17% WPI resulting from this injury. Dr Baker did not consider at the time of assessment that Mr McCormick was suffering a pre-existing psychological injury, and relevant to Mr McCormick’s employability at the time of assessment, Dr Baker reported:
“Mr McCormick reported that he was restricted in his work with him working two days per week. He reported working in the same position about 19-20 hours per week. He reported being isolated from his workmates and tormented by his managers. He was no longer happy to work in this role but felt trapped as he was unable to fully recover from his psychiatric impairment.”
Dr Burns
Mr McCormick was assessed by Dr Burns in his capacity as independent medical examiner. Dr Burns is an occupational physician. Dr Burns provided a report dated 30 July 2020 following his assessment of Mr McCormick the same day in which he relevantly reported Mr McCormick had sustained bilateral hernia injury, with surgical repair and a problematic return to work due to ongoing symptoms. Dr Burns reported:
“Mr McCormick reported that he continued to have bilateral groin pain and gradually felt he was unable to cope with his ongoing physical activities. He reported that in 2019 his return to work co-ordinator had told him that he would need to go back to his previous duties. He subsequently stated that he had developed psychological problems and was eventually certified unfit to return to work due to his mental health problems.”
Dr May
Mr McCormick was subsequently assessed by Dr May in his capacity as independent medical examiner. Dr May is a psychiatrist. Dr May provided a report dated 4 May 2023 following his telehealth assessment of Mr McCormick the day before. At the time of reporting Dr May relevantly had available to him the reports of Dr Rastogi dated 12 February 2018 and 26 March 2018, and the independent medical reports of Dr Murphy and Dr Baker.
Mr McCormick attended the telehealth assessment with Mr Smedes as his support person.Dr May described Mr McCormick as not having returned to any employment since ceasing work with Woolstar. Dr May described Mr McCormick as not having received any psychological therapy for approximately three years prior to this assessment.
Dr May recorded a history of Mr McCormick sustaining bilateral hernia injury in September 2014 in the course of his employment, coming to surgical repair and subsequently returning to work “on a reduced schedule, performing light duties”. Dr May noted Mr McCormick’s complaint of persistent pain despite surgical repair, which resulted in physical limitations “preventing him from attaining the same level of workplace efficiency due to persistent pain”. Dr May noted too:
“additionally, he alleged experiencing pressure and harassment from the return to work coordinator and co-workers. M McCormick reported experiencing psychological and physical difficulties however continued working while certified under workcover until 2017. A final certificate was not issued, and he continued to work under this certification until 2019.”
Dr May provided summary in the following terms:
“… Mr McCormick initially developed a physical workplace injury in the form of bilateral inguinal hernias which was later complicated by the development of a chronic pain syndrome. Following this, Mr McCormick was unable to return effectively to his pre-injury duties which resulted in reported conflict and pressure and harassment from managerial staff attempting to have him return to duties he did not feel he could adequately perform.
Mr McCormick describes the development of psychological symptoms from this reported pressure which first manifested as panic attacks as described in 2016. Mr McCormick describes ongoing aggravation of his physical health conditions from the work duties he was required to perform as well as deterioration in his mental state over this time. In September 2019, Mr McCormick attended a meeting where he reported feeling belittled and harassed by the return to work officer. He stated that during this meeting he was requested to sign a form which indicated he was not suffering from either physical or mental injuries and was able to return to his previous duties.
Mr McCormick reported feeling distressed from the outcome of this investigation of the meeting which compounded his psychological symptoms and contributed to his inability to return to work which he ceased doing three shifts later.”Following mental state examination, Dr May provided diagnosis of major depressive disorder (with moderate severity) and provided opinion Mr McCormack’s psychiatric injury “was likely first manifested as an anxiety or adjustment disorder following workplace physical injuries which was later exacerbated and perpetuated by ongoing physical illness, chronic pain and workplace pressures to return to his usual duties.” In response to specific questioning as to “is there a secondary psychiatric injury arising in connection with the hernias and chronic pain etc”, Dr May responded “yes”. In response to specific questioning as to “is there a primary psychiatric injury in connection with the meeting in September 2019 or any other employment matters”, Dr May responded:
“his current diagnosis is more probable to be a result of ongoing aggravation of the previously existing psychiatric injury following physical injuries rather than the meeting in September 2019 in isolation. As such I do not see his current diagnosis as a primary psychiatric injury.”
In such circumstances Dr May declined to provide assessment of WPI resulting from
Mr McCormick’s psychological injury. Dr May accepted McCormick had no current capacity for work resulting from his psychological injury.
Submissions
Mr Jones and Ms Grotte made oral submissions, which I have carefully considered. As a recording of counsels’ submissions is available to the parties on request, I have not produced them here.
Determination
Injury
While it is not disputed Mr McCormick has sustained secondary psychological injury, it is disputed Mr McCormick has sustained primary psychological injury in the course of his employment with Woolstar, with deemed date of injury of 25 September 2019, with his employment being the main contributing factor to injury.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury where the worker’s employment is the main contributing factor to injury. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[1] with comment that the test of “main contributing factor” is one of causation that involves consideration of the evidence overall.
[1] [2020] NSWWCCPD 9.
Relevant to the issue of causation, in Kooragang v Cement Pty Ltd v Bates[2] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[2] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
In submission, Mr Jones has drawn my attention to Government Insurance Office of NSW v Aboushadi[3] which like Fishlock v Plummer[4] and State Government Insurance Commission v Oakley[5] which it applied, was a case dealing with the recovery of damages at common law. While Abousahdi did not involve application of the statutory test on causation, which is applied in Kooragang, in Megson v Staging Connections Group Ltd[6] Deputy President Snell accepted that in appropriate circumstances Aboushadi can have application to the determination of causation issues under the workers compensation legislation.
[3] [1999] NSWCA 396 (Aboushadi).
[4] [1950]SASR 176.
[5] (1990) 10 MVR 570, Aust Torts Reports 81-003.
[6] [2019] NSWWCCPD 2.
Relevant too, when considering the issue of establishing primary psychological injury in circumstances of a worker’s perception of real events occurring at work, is that in Attorney General’s Department v K[7] Deputy President Roche usefully summarised the principles to be applied at [52]:
[7] [2010] NSWWCCPD 76.
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
Deputy President Roche also said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ …”
Woolstar has placed injury in issue, and Mr McCormick has the onus of proving he sustained primary psychological injury arising out of or during the course of his employment with Woolstar with his employment with Woolstar being the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[8] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[8] [2008] NSWCA 246 (Nguyen).
It is not disputed Mr McCormick sustained secondary psychological injury resulting from his bilateral hernia injury, with deemed date of injury of 5 September 2014 and in submission
Mr Jones argued the psychological injury Mr McCormick suffers is not a primary psychological injury but merely an aggravation of Mr McCormick’s secondary psychological injury. There is no doubt Mr McCormick sustained secondary psychological injury resulting from his bilateral hernia injury. Following his bilateral hernia repair in November 2014 Mr McCormick returned to work on suitable duties and reduced hours.In his report dated 27 March 2015 Dr Harris expressed concern that Mr McCormick’s “usual anxious stage” was morphing and recommended psychological/psychiatric review, and following discussion with Ms Spears, as early as April 2015 Mr McCormick was referred for psychological review.
On 20 September 2016 Dr Lim recommended Mr McCormick transfer his psychological care to an alternate psychologist, Ms Carmody, and also referred Mr McCormick to Dr Rastogi for psychiatric review.
Following review in late November 2016, Dr Rastogi diagnosed Mr McCormick with adjustment disorder with chronic nerve disorder.
Following his independent psychiatric assessment of Mr McCormick, Dr Murphy provided opinion on 17 January 2017 that Mr McCormick suffered panic disorder with agoraphobia which Dr Murphy said, “appears to have arisen out of chronic pain and ongoing anxiety around the implications of pain.” At that time Dr Murphy considered Mr McCormick would benefit from psychological treatment.
In his report dated 14 June 2017, Dr Nazah reported that on psychometric testing Mr McCormick scored “severe for anxiety and depression and extremely severe for stress” but provided no diagnosis of depression.
In his report dated 3 January 2018 Mr Davis described Mr McCormick as “currently manifesting a wide range of Major Depressive symptomatology” but provided no diagnosis of depression.
In his report dated 1 July 2019 Dr Pothala referred to the fact he had not reviewed Mr McCormick from some time, with Mr McCormick reporting he had been better and attending work “until recently”. Dr Pothala described a deterioration in Mr McCormick’s symptoms and described him as “experiencing stress secondary to work stress and this has contributed to increased anxiety”. At that time Dr Pothala suggested a change in medication to manage Mr McCormick’s anxiety.
While Dr Usham issued Mr McCormick with a medical certificate on 27 September 2019 in which he provided diagnosis of what appears to be secondary psychological injury in the nature of anxiety and depression (being only a couple of days of Mr McCormick’s meeting with Ms Speers on 25 September 2019), on 21 October 2019 Dr Usham issued Mr McCormick with two medical certificates in which he provided diagnosis of anxiety and depression, one in which he described Mr McCormick’s pre-existing psychological injury as having “got worse since start working and meeting with employer” and one in which he provided a date of injury of 25 September 2019 (being the date of Mr McCormick’s meeting with Ms Speers) and described Mr McCormick’s psychological as being related to work due to Mr McCormick having reportedly been harassed “by return to work specialist at work”.
Following his independent psychiatric assessment of Mr McCormick, Dr Baker provided opinion on 14 December 2019, being close in time to Mr McCormick’s meeting with
Ms Speers a couple of months’ earlier, that Mr McCormick suffered “Major Depressive Disorder – moderate – single episode – with anxious distress”. Dr Baker noted
Mr McCormick’s complaint of bullying and harassment by management, with what
Mr McCormick described as requirement to comply with “unreasonable requests in the workplace”. Dr Baker described Mr McCormick as becoming distressed and tearful during the assessment and requiring the assistance of Mr Smedes who had attended with him in his capacity as support person. At the time of assessment Dr Baker considered Mr McCormick had sustained a primary psychological injury, with his employment substantially contributing to the injury.In his report dated 12 July 2022, Dr Manambrakkat noted Mr McCormick’s concerns about his being harassed into returning to work and the outcome of the complaint Mr McCormick made against Ms Speers consequent on their meeting on 25 September 2019. Dr Manambrakkat provided diagnosis of major depression and panic attacks, with recommendation for psychiatric admission.
Following his independent psychiatric assessment of Mr McCormick, Dr May reported on
4 May 2023 that Mr McCormick suffered major depressive disorder (with moderate severity). Like Dr Baker, Dr May noted Mr McCormick’s complaint of his conflict with management about his return to work, being a return to duties Mr McCormick felt “he could not adequately perform”. Dr May noted the meeting Mr McCormick had with Ms Speers on
25 September 2019 and further noted Mr McCormick’s distress on receipt of the outcome of the investigation into his complaint consequent on that meeting. However, unlike Dr Baker,
Dr May provided opinion Mr McCormick’s psychological injury was not primary in nature, but rather was “more probable to be a result of ongoing aggravation of the previously existing psychiatric injury following physical injury”.In her most recent report dated 8 May 2023 Dr Rastogi confirmed she had had the opportunity to review Mr McCormick on a number of occasions since 28 November 2016 and confirmed her initial diagnosis was that of “adjustment disorder secondary to pain and functional decline”. However, with Dr Rastogi now reporting complaint by Mr McCormick of being subjected to “bullying, intimidation and coercion to return to resume full duties” and complaint he “felt cornered and isolated”, Dr Rastogi provided diagnosis of major depressive disorder persistent and single episode, with explanation Mr McCormick’s already fragile condition “was triggered by negative and hostile interaction by his employer that led to his breakdown”. Dr Rastogi provided opinion “the bullying and harassment led to rapid psychological decline and onset of more persistent depressive disorder and poor prognosis”.
A number of unscheduled leave forms demonstrate Mr McCormick was absent from work on occasion during 2016, 2017, 2018 and 2019 (all being occasions prior to his meeting with Ms Speers on 25 September 2019) with complaint of anxiety. A medical certificate issued by Dr Smyth certified Mr McCormick unfit for work in early May 2016 due to a “panic attack”.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I accept Mr McCormick sustained primary psychological injury arising out of or in the course of his employment with Woolstar, with deemed date of injury of
25 September 2019, and that his employment was the main contributing factor to injury.It is evident that following his bilateral hernia injury and subsequent surgical repair,
Mr McCormick continued to suffer pain and developed secondary psychological injury. It is also evident Mr McCormick’s return to work was significantly problematic and with s 59A of the 1987 Act having limited Mr McCormick’s entitlement to medical and related treatment expenses payable in respect of his bilateral hernia injury, Ms Speers urged Mr McCormick to obtain medical certification that he was fit for his pre-injury duties. It is evident
Mr McCormick suffered significant distress as a consequence of his meeting with Ms Speers on 25 September 2019, which was compounded when he received the outcome of the investigation into his complaint about Ms Speers’ behaviour during the meeting, in which he was advised his complaints were not substantiated.While Mr McCormick may have been noted to be experiencing depressive symptoms prior to 25 September 2019, it is not apparent to me that Mr McCormick was diagnosed with depression until Dr Usher included such diagnosis in the medical certificate he issued on
27 September 2019, being a couple of days after Mr McCormick attended the meeting with Ms Speers on 25 September 2019. A short time later, on 14 December 2019, Dr Baker diagnosed Mr McCormick with “major depressive disorder – moderate – single episode – with anxious distress” against a backdrop of Mr McCormick’s difficulties with management requirements in returning Mr McCormick to his pre-injury duties. On 12 July 2022, Dr Manambrakkat provided Mr McCormick with diagnosis which included major depression against a backdrop of Mr McCormick’s meeting with Ms Speers and subsequent outcome of his complaint about Ms Speers. On 4 May 2023, Dr Baker likewise diagnosed Mr McCormick with major depressive disorder (with moderate severity) against a backdrop of Mr McCormick’s difficulty with management requirements in returning him to his pre-injury duties, his meeting with Ms Speers and subsequent outcome of his complaint about Ms Speers. On 8 May 2023 Dr Rastogi provided Mr McCormick with diagnosis of major depressive disorder and single episode against a backdrop of Mr McCormick’s difficulty with management requirements in returning him to his pre-injury duties leading to “rapid psychological decline and onset of more persistent depressive disorder”.While it is evident Mr McCormick suffered psychological injury for a number of years prior to his meeting with Ms Speers on 25 September 2019 and it is apparent from the reporting of Dr Pothala on 1 July 2019 that Mr McCormick’s mental health was deteriorating, it was not until after Mr McCormick’s meeting with Ms Speers that Mr McCormick was diagnosed with depression, albeit he was reported as manifesting depressive symptomology by Mr Davis in early 2018. With the diagnosis of psychological injury in the nature of depression post-dating
Mr McCormick’s meeting with Ms Speers on 25 September 2019 differing from Mr McCormick’s diagnosis of psychological injury prior to Mr McCormick’s meeting with
Ms Speers on 25 September 2019, I accept Mr McCormick sustained a primary psychological injury in the course of his employment with Woolstar, with deemed date of injury of 25 September 2019, with his employment being the main contributing factor to injury. I prefer the opinion of Dr Baker to that of Dr May, as Dr Baker’s opinion is provided following psychiatric assessment of Mr McCormick within a few months of the injurious incident occurring on 25 September 2019, whereas Dr May’s opinion is provided some years after the incident. Dr Baker’s opinion also accords with that of Dr Rastogi, who is Mr McCormick’s long term treating psychiatrist, who has had the opportunity to review and assess Mr McCormick on a number of occasions.
Defence raised under s 11 (1) of the 1987 Act
While I have determined Mr McCormick sustained primary psychological injury arising out of or in the course of his employment with Woolstar with his employment being the main contributing factor to injury, Woolstar has raised defence under s 11A of the 1987 Act. Woolstar argues that in the event it is established Mr McCormick sustained primary psychological injury, Mr McCormick’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to transfer and/or the provision of employment benefits. In essence, Woolstar says in the event it is accepted Mr McCormick sustained primary psychological injury arising out of or in the course of his employment with Woolstar with his employment being the main contributing factor to injury, Mr McCormick has no entitlement to compensation payable under the 1987 Act as the injury is wholly or predominantly caused by reasonable action taken or proposed to be taken by Woolstar with respect to transfer and/or the provision of employment benefits.
Woolstar has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[9] and Department of Education and Training v Sinclair[10]) and there are two aspects to the defence raised by the Department.
[9] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[10] [2005] NWCA 465 (Sinclair).
Firstly, Mr McCormick’s primary psychological injury must be “wholly or predominantly caused” by the Woolstar’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Mr McCormick’s case, Woolstar essentially relies on “transfer” and/or “the provision of employment benefits to workers.” Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[11] with comment made that medical evidence is required to determine this causation issue. It is also accepted “wholly” and “predominately” are different concepts[12] and the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang,Ponnan v George Weston Foods Ltd[13] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd.[14]
[11] [2017] NSWWCCPD 6.
[12] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[13] [2007] NSWWCCPD 92.
[14] [2008 NSWWCCPD 96.
Secondly, if Woolstar successfully establishes Mr McCormicks’s primary psychological injury was wholly or predominately caused by Woolstar’s actions regarding transfer and/or the provision of employment benefits to worker, Woolstar is required to establish Woolstar’s actions were “reasonable”.
Looking first at whether the primary psychological injury sustained by Mr McCormick was wholly or predominantly caused by actions taken or proposed to be taken by Woolstar with respect to transfer and/or the provision of employment benefits to workers, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[15] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November 2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[15] [2013] NSWWCCPD 64.
In more recent times, in ACR v Graceworld[16] Deputy President Wood noted:
“The cause can be multifactorial, and a predominant cause can consist of numerous events under the umbrella of one of the actions described in s 11A(1) of the 1987 Act.”
[16] [2021] NSWPICPD 44.
There is no expressed medical opinion Mr McCormick’s psychological injury was wholly or predominantly caused by actions taken or proposed to be taken by Woolstar with respect to transfer and/or the provision of employment benefits with Dr May having provided opinion Mr McCormick’s psychological injury is secondary in nature. While I accept Mr McCormick sustained primary psychological injury in the course of his employment with Woolstar with deemed date of injury of 25 September 2019, with his employment being the main contributing factor to injury, in circumstances where there is no expressed medical opinion Mr McCormick’s primary psychological injury was wholly or predominantly caused by actions taken or proposed to be taken by Woolstar with respect to transfer and/or the provision of employment benefits I do not accept Mr McCormick’s injury was wholly or predominantly caused by action taken by the Woolstar with respect to transfer and/or the provision of employment benefits.
Even if I was to accept Mr McCormick’s injury was wholly or predominantly caused by action taken by Woolstar with respect to transfer and/or the provision of employment benefits, Woolstar is required to establish the Woolstar’s action or proposed action to be taken with respect to transfer and/or the provision of employment benefits was “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd;[17] Melder v Ausbowl Pty Ltd)[18] and in Irwin v Director-General of Education[19] Geraghty J said:
“… the question of reasonableness is one of 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 employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[17] [1998] NSWCCR 13.
[18] [1997] NSWCCR 454.
[19] NSWCC 14068/97 18 June 1998.
In Northern New South Wales Local Health Network v Heggie[20] Sackville AJA usefully set out the following statements of principle regarding s 11A(1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[20] [2013] NSWCA 225; 12 DDCR 95.
In the circumstances of this particular matter I do not consider Woolstar’s actions to be “reasonable”. While it may be that certain steps taken by Woolstar with respect to
Mr McCormick’s return to work may have been “reasonable” (particularly noting Woolstar had accommodated Mr McCormick’s certification for suitable duties over a lengthy period of time) of particular concern to me is the manner in which Ms Speers conducted her meeting with Mr McCormick on 25 September 2019 (which was subsequently the subject of complaint by Mr McCormick) and the contents of the correspondence dated 4 January 2020 in which Mr McCormick was advised of the outcome of his complaint.While present at the meeting on 25 September 2019, neither Mr Rose nor Mr Haggett have provided statements which support Ms Speers’ recollection of the meeting occurring on
25 September 2019 and while the correspondence dated 4 January 2020 advises
Mr McCormick that following investigation his alleged complaints are not substantiated, the correspondence does not explain the reasoning behind such determination.Although I am mindful of the frustration Ms Speers may have felt regarding management of Mr McCormick’s return to work, in circumstances where Woolstar were acutely aware of
Mr McCormick’s long standing mental health fragility and his evidenced difficulty in returning to his pre-injury duties I do not think it is “reasonable” for Mr McCormick to have been collected by Mr Hagget to attend a meeting with Ms Speers that same day without prior knowledge as to the reason for the meeting in circumstances where it was Ms Speers’ intention to discuss with Mr McCormick his need to expeditiously obtain pre-injury duties certification. Neither do I think it “reasonable” for Mr McCormick to be provided with notice that his complaint about the manner in which Ms Speers’ conducted that meeting was unsubstantiated following investigation, without adequate reasoning being provided to him for such determination.In all of the circumstances known to Woolstar at the time of Mr McCormick’s meeting with
Ms Speers on 25 September 2019, I do not accept the action taken by Woolstar with respect to transfer and/or provision of employment benefits was “reasonable”.For the reasons discussed above I am not satisfied Woolstar has discharged the onus of proof required of it and Woolstar cannot rely on defence raised under s 11A(1) of the 1987 Act.
Capacity and quantification of entitlement to weekly compensation
Woolstar agrees Mr McCormick has had no current capacity for work during the period of his claim for weekly compensation, being from 8 January 2020 ongoing, and the parties agree that Mr McCormick’s pre-injury average weekly earnings are $1,211.
I have determined Mr McCormick has sustained primary psychological injury in the course of his employment with Woolstar with deemed date of injury of 25 September 2019, with his employment being the main contributing factor to injury. I have determined Mr McCormick’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Woolstar with respect to transfer and/or the provision of employment benefits. It follows then that Mr McCormick has entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act from 8 January 2020 ongoing.
Permanent impairment
I have determined Mr McCormick has sustained primary psychological injury in the course of his employment with Woolstar with deemed date of injury of 25 September 2019, with his employment being the main contributing factor to injury. I have determined Mr McCormick’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Woolstar with respect to transfer and/or the provision of employment benefits. It is appropriate Mr McCormick’s claim for permanent impairment compensation payable under s 66 of 1987 Act be remitted to the President for referral to a Medical Assessor for assessment as follows:
(a) Date of injury: 25 September 2019 (deemed);
(b) Body system/parts: psychological/psychiatric disorder, and
(c) Method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 12 January 2024 and attached documents lodged on behalf of Mr McCormick, and
(d) Application to Admit Late Documents dated 24 January 2024 and attached documents lodged on behalf of Woolstar.
SUMMARY
Mr McCormick sustained primary psychological injury arising out of or in the course of his employment with Woolstar, with deemed date of injury of 25 September 2019.
Mr McCormick’s employment with the Woolstar was the main contributing factor to injury.Mr McCormick’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Woolstar with respect to transfer and/or the provision of employment benefits to workers.
The parties agree Mr McCormick’s pre-injury average weekly earnings are $1,211. Woolstar agrees Mr McCormick has no current capacity for work. Mr McCormick has entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act from 8 January 2020 (indexed) ongoing in accordance with the 1987 Act.
Mr McCormick’s claim for permanent impairment compensation payable under s 66 of the 1987 Act is to be remitted to the President for referral to a Medical Assessor for assessment as follows:
(a) Date of injury: 25 September 2019 (deemed);
(b) Body system/parts: psychological/psychiatric disorder, and
(c) Method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 12 January 2024 and attached documents lodged on behalf of Mr McCormick, and
(d) Application to Admit Late Documents dated 24 January 2024 and attached documents lodged on behalf of Woolstar.
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