McInerney v Cootamundra-Gundagai Regional Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McInerney v Cootamundra-Gundagai Regional Council [2023] NSWPIC 628
APPLICANT:	Marianne McInerney
RESPONDENT:	Cootamundra-Gundagai Regional Council
MEMBER:	Diana Benk
DATE OF DECISION:	23 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly benefits claim in relation to psychological injury; respondent disputes injury and alleges non work related matters were the main contributing factor to her psychological condition; capacity for employment also in dispute; Held – the applicant suffered a psychological injury in the course of her employment, to which her employment was the main contributing factor under section 4(b)(i); the preponderance of the medical evidence supports a finding of total incapacity for employment for the period claimed; respondent ordered to pay weekly compensation; no medical evidence to support section 11A defence.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent with a deemed date of injury 29 May 2022. 2. The applicant’s employment was the main contributing factor to her injury. 3. The applicant has had no current work capacity since 29 May 2022. 4. The respondent to pay the applicant weekly compensation in accordance with the Workers Compensation Act 1987 as follows: (a) From 29 May 2022 to 28 August 2022 the sum of $1,711 per week pursuant to s 36, and (b) From 29 August 2022 to date and continuing the sum of $1,440.84 per week (as indexed). 5. The respondent is to have credit for any payments paid during that period.

STATEMENT OF REASONS

BACKGROUND

This matter has a long and regrettable history. I appreciate this is not a great way to start a statement of reasons, but it will be apparent from the reasons that follow.
Marianne McInerney (the applicant) claimed compensation from the respondent (Cootamundra-Gundagai Regional Council) maintaining psychological stressors within the workplace (particularly after amalgamation) resulted in ongoing incapacity from 29 May 2022.
The respondent via its insurer (StateCover) denied liability and notified the applicant in writing on 19 August 2022 maintaining (unedited):[1]
“• The claims of bullying, harassment, unfair treatment are partly factually disputed and in any event, those disputed events could not have been the main factor to the alleged psychological injury – s4(b) of the Workers Compensation Act (1987) (the Act) or;
· The alleged psychological injury was wholly or predominantly caused by reasonable actions taken or proposed to be taken by the employer with respect to ‘discipline’, pertaining to a verbal warning from Les McMahon in April 2022 and a performance meeting with Phil McMurray in February 2022 or alternatively a proposed transfer (discussed during the telephone conversation between Les McMahon and you on 14 or 15 June 2022) and the provision of employment benefits to workers (including the request for you to attend the fitness for work assessment to assess whether you are psychologically fit for your existing role)– s11A(1) of the Act. This is a total defence to a psychological injury claim.”
[1] Folio 1 of the Reply.
As is required, internal review was sought. The insurer maintained its position in serial correspondence which I consider was overtly confrontational and inconsistent with proper case management strategy. The point I make is the insurer’s approach in this matter cannot be described as best practice and resulted in considerable delay in finalising the matter, a matter I cannot overlook due to the financial and non-financial costs in terms of resources and objectives of the Personal Injury Commission (Commission), the Scheme and the applicant.
Regrettably there were shortcomings in the dispute notice which did not comply with the statutory requirements in the 1998 Act.
The s 78 notice in this matter extended to over 30 pages, (excluding annexures) far from concise. Despite multiple readings of the statement, I did not find it ‘readily understandable’ and in fact I deemed it to be unintelligible in certain respects. In generating such a notice, the writer seemed to overlook the fact that the applicant was suffering from a psychological injury, and it would have been difficult for her to process such large chunks of information, referred to by the applicant’s solicitor as the ‘novel’.
In support of its denial, the respondent sought to rely on the of statements of Les McMahon, Katrina Smith and Phillip McMurray, however, these statements were not attached to the s 78 notice, a mandatory requirement under regulation 41 of the Workers Compensation Regulations 2016 (the 2016 Regulation), thereby preventing the insurers reliance on the statements. The omission was explained away by administrative misadventure; however, there is no discretionary provision in the 1998 Act or the Regulations that allows for correction of the defect. The denial of liability for a workers compensation claim is significant not only in terms of the impact on the recipient of such a notice, but also time, cost and integrity of the Scheme. All i’s must be dotted and t’s crossed.
Despite seeking to maintain the s 11A defense, the insurer failed to have the applicant medically examined prior to the denial of liability. It then acknowledged that in the absence of such a medical opinion it was difficult to maintain the defence yet refused to abandon it. Force of habit causes me to return to how this matter could have been avoided. It was at this point that the insurer could have reconsidered its case management strategy but instead the denial was maintained.
The applicant then lodged proceedings in the Commission which were commenced with the Application to Resolve a Dispute (ARD) to which a Reply was filed.
The matter was listed for preliminary conference and ultimately proceeded to conciliation and arbitration on 11 October 2023 and 1 November 2023.
The proceedings were protracted and difficult. Despite not being able to rely on key witness statements and failing to have the applicant medically assessed, the insurer maintained its position.
Seeking any port in the storm of its own making, the respondent raised a number of interlocutory matters including the issuing of Directions to unrelated parties; an application to strike the matter out for the applicant’s refusal to attend an independent medical assessment (a request made after the claim was denied); the admissibility of updated statements of Les McMahon, Katrina Smith and Phillip McMurray (which largely regurgitated the original statements with some updates and sought to introduce the previous omitted statements, – a strategy that I found clever yet disingenuous) and finally an application to cross examine the applicant on her interactions with 11 different colleagues, capacity, financial circumstances, social circumstances, and the general allegations pertaining to excessive workload, harassment, lack of support and bullying.
The above interlocutory applications were denied with reasons delivered ex tempore. However, the updated portions of the statements of Les McMahon, Katrina Smith and Phillip McMurray were admitted and I will discuss these further below.
I learned immediately prior to the arbitration hearing on 1 November 2023 that an appeal had been lodged against my refusal to strike the matter out; however, I am not privy to the grounds. The respondent then made an application for the arbitration to be deferred on that basis maintaining that the appeal acted as a stay. The applicant opposed expressing concerns about delay due to the psychological impact on the applicant and as formal leave to appeal had not been granted at that time, petitioned the matter proceed.
The matter did proceed to arbitration on 1 November 2023. The applicant was again present and was represented by Mr Tanner of counsel instructed by Mr Brennan. The respondent was represented by Mr Stockley of counsel instructed by Mr Kemp. A representative from the insurer belatedly connected to the virtual hearing.
Upon inviting the respondent to commence its submissions, I was informed by it the matter could and should not proceed as the applicant had not complied in full with its Notice to Produce. This was surprising, as I understood following the preliminary conference that the notice was subject to discussion and the ambit reduced, for example, the respondent abandoned the request for the applicant to provide her holiday photographs and passports, amongst other matters. As the applicant maintained it did comply several weeks before, I allowed a short adjournment for the respondent to check its records.
The respondent returned to the arbitration maintaining that the applicant had partially complied and failed to provide her credit card statements thereby compromising the arbitration. I enquired as to how such statements would be relevant to my assessment of psychological injury and specifically the s 4 and s 11A issue raised in the s 78 notice. The respondent maintained any pattern of spending in the statements would go to the issue of capacity. I indicated capacity is a medical issue and I understood that the respondent had no medical evidence to rebut such claims. Further, transactions on a bank statement do not assist me with such an assessment and I deemed this yet another ‘smoke and mirrors’ attempt to avoid the real issue. It was at this point, the matter finally commenced.

ISSUES FOR DETERMINATION

I must determine whether the applicant suffered a psychological injury to which her employment was the main contributing factor. I must also determine whether any psychological injury can be said to arise from reasonable action taken by the employer (s 11A).
The law relevant to this dispute is found in the Workers Compensation Act (1987) (the Act) and specifically s 4 of the Act which relevantly defines injury as;
“(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Fortunately, the issue of the applicant’s pre injury average weekly earnings (PIAWE) is not disputed with both parties agreeing to a figure of $1,801.06.

EVIDENCE

Documentary evidence

Between 20 July 2023 to 1 November 2023 the parties uploaded in excess of 20 separate bundles of documents and annexures, collectively exceeding 2000 folios. Much of this documentation included several submissions and general correspondence between the parties, primarily relating to interlocutory applications and Applications to Admit Late Documents (AALD). Whilst all documents were considered, in determining the substantive matter, a heavier emphasis was placed on the ARD and its attachments, the Reply and its attachments and the oral submissions of counsel. In hindsight, I should have requested the parties merge the volumes of documents into one amended ARD and Reply, with a direction to remove duplicate statements and irrelevant information, however given that many of these documents were received at the 11^th hour and I sought to avoid further delays, this opportunity was lost. As the respondent has already forecasted an appeal, a direction that the documents be collated may be a sensible way to case manage such a review, but that is an issue that will trouble others.

Oral evidence

The request to cross examine the applicant was refused and ex tempore reasons given.

SUBMISSIONS

In summary, the respondent submitted:
(a)    it rejects the allegations of bullying, harassment and unfair treatment;
(b)    the “seminal event” leading to the applicant’s injury and incapacity was the request by the employer to attend a capacity assessment and the conversation between the applicant and her direct report, Les McMahon on 14 June 2022 and also specific events that the respondent characterises in respect of discipline, performance appraisal etc – s 11A;
(c)    it acknowledges that in the absence of a supporting medical opinion that the respondent is put in a difficult position in proving it’s case, but now finds itself in that position as I had “improperly deprived it of an opportunity for the applicant to be medically examined”, however the respondent refuses to abandon its case as to do so would be “convenient to others”;
(d)    whilst it may not be beneficial to the respondent, it maintains the applicant had a vulnerability to mental health issues, that is, a preexisting condition for many years and whilst it concedes that there could be a finding that there had been an aggravation to a disease by virtue of workplace events, it cannot be ignored that the applicant has a significant psychiatric history;
(e)    with regards to the s 11A defence, the conversation between the applicant and her supervisor with regards to a workplace assessment on 14 June 2022 is the cornerstone of the respondent’s defense;
(f)    on 14 June 2022, the applicant claimed she was fit for work but now claims she has been unfit from 29 May 2022. There is a break in the chain of incapacity with no explanation for any incapacity before or after that date;
(g)    the applicant has no evidence of incapacity beyond 17 July 2023 as found in the last medical certificate attached to the application;[2]
(h)    as to causation, the applicant’s medical evidence does not deal with what happened on 14 June 2022 and what caused the condition to regress after that date and how it was that any incapacity beyond that date bears any relationship to the events before that date, a significant defect in the applicant’s medical case;
(i)    the applicant’s medical evidence fails to address the impact of the events on 14 June 2022 and so the opinions cannot be relied on, and
(j)    in conclusion and summary, the submissions were three-fold;
i)that I cannot be persuaded that the applicants account of events before June 2022 demonstrate any contribution to injury prior to 14 June 2022 within the meaning of the Act;
ii)how is it that the applicant presented as being fit for work as at 14 June 2022 and was then certified unfit after that date after the ‘meeting’ with her supervisor?, and
iii)there is no medical evidence of incapacity beyond 17 July 2023.
[2] Folio 294 of the ARD.
In summary, the applicant submitted:
(a)    the respondent has overlooked the most recent certificate of incapacity which has been served in the latest batch of submissions which certify the applicant as having a total incapacity for work from 17 July 2023 to date and continuing;
(b)    the respondent has sought to characterise the applicant’s injury as solely arising from bullying, harassment and unfair treatment. The applicant’s case extends beyond that perception and is pleaded as:
“Psychological injury within the meaning of section 11A (3) due to the Applicant being subject to undue psychological stressors at and in her employment as detailed in the attached statements, documents and reports.”[3];
(c)    the submissions of the respondent have focused solely on the events of 14 June 2022 and failed to take into account the other stressors particularised in not only the statement, but which also align to the contemporaneous general practitioner and treating psychological reports;
(d)    the respondent’s own witnesses corroborate the applicant’s statement in relation to the toxic workplace;
(e)    that I do not need to satisfy myself of the bullying or harassment, but that I only need to show that psychological deterioration is work related. The only way out for the respondent is to show that the psychological injury falls within the ambit of s 11A, however the respondent already has acknowledged its defence on that ground is weak;
(f)    there is no dispute that the applicant suffers psychological injury and even if it could be pinned to events on 14 June 2022, such events do not fall within the definition of s 11A as it does not fall within the category of discipline, transfer or employment benefits;
(g)    the evidence of the applicant, her medical providers and various staff at the respondent will demonstrate that any event on 14 June 2022 was not the predominant cause of the applicant’s condition;
(h)    the respondent has not offered any medical evidence or submission that would allow me to consider that the greater cause of the applicant’s condition was connected to the events that occurred on 14 June 2022 as distinct from the years of pressure that applicant endured in the course of her duties with the respondent;
(i)    as regards incapacity, the applicant is totally unfit and an award should be made on that basis, and
(j)    the applicant does not hide her pre-existing psychological history however this did not prevent her from engaging in her work for many years.
[3] Injury details recorded in Form 2 – Application to Resolve a Dispute page 6 of 9.

Respondent’s submissions in reply

It was submitted:
(a) that the evidence clearly shows that incapacity was linked to the “seminal event” on 14 June 2022 and the discussion with Les McMahon, and
(b) the bulk of the applicant’s medical evidence ignores her pre-existing condition and the significant event of 14 June 2022 and so any underlying assumptions had to be ignored.

The applicant’s evidence

Applicant’s statement

The statement exceeds 161 paragraphs and attests the cause of psychological injury was multi factorial including bullying and marginalisation from staff located at the Gundagai Council office; her involvement in not one but two investigations relating to her direct managers (who were ultimately removed from council), the presence of factions (suggestive of mean girl cabals) who isolated the applicant and treated her with suspicion and hostility following a non-voluntary council merger as she was originally a part of the Cootamundra Council.
Further the applicant witnessed several potential code of conduct breaches (financial anomalies) which she felt oblige to report. She remained fearful that she would be subject to further victimisation and hostility and loss of employment and hence financial security (which could not be easily replaced in a rural environment, having been a local government employee between 2005 until the date of her incapacity at both the Cootamundra and Harden Shire Councils and finally the merged council since May 2016 at which time she assumed the role of Executive Assistant to the council’s General Manager since June 2017).
The statement confirms that the applicant raised various issues to her Corporate Manger and was offered access to the employee assistance program (EAP) and had three sessions. A bullying workshop was arranged and attended by a number of staff at which time the applicant was informed “they think you’re a spy and that you take information back to the General Manager. That’s why they treat you this way”.[4]
[4] Folio 48 paragraph 29 of the ARD.
The statement confirms the applicant consulted with her psychologist, Robyn Fowkes in June 2017 as she was feeling suicidal over the work situation.[5]
[5] Folio 48 paragraph 31.

A watershed moment arrived in June 2017 when a new general manager, Allen Dwyer was appointed and the applicant was offered the position of executive assistant at Cootamundra. This gave her some reprieve from day-to-day stressors from interactions with her Gundagai colleagues but the statement continues that she had to attend the Gundagai site for meetings at which time she experienced anxiety due to being ignored and marginalised by staff in that office. The statement continues by stating that Allen Dwyer had observed that the applicant had been treated differently compared to others at the Gundagai site. Mr Dwyer had made arrangements for the applicant to remain at Cootamundra which was a relief.
Relief was short-lived with a new council being elected in September 2017. Two of the new councillors were David Graham and Abb McAlister, the former deputy mayor and mayor of Gundagai respectively. The applicant states David Graham specifically was quick to criticise any work of the applicant and was vocal about errors she had made generally sending bulk emails highlighting such errors. The applicant had contemplated making a code of conduct complaint against these two individuals but was told if she did so “that will be the end of your career in local government”.[6] The applicant elected not to lodge a complaint as she was a single mother supporting a son who had just started high school, mortgaged and would unlikely find comparable work in the region.
[6] Folio 52 paragraph 45 of the ARD.
In 2018, Allen Dwyer, the applicant’s confidant and manager was suspended pending investigation and Phillip McMurray was appointed to the General Manager role in an acting capacity and then in a permanent role once Allen Dwyer had been terminated following conclusions from an investigation. This caused some anxiety as the applicant understood that Mr McMurray was friendly with many of the Gundagai staff.
The statement continues by declaring the applicant was required to work long hours at times finishing at 11.00pm or 1.00am particularly when business papers had to be complied and on average the applicant claims that she worked an extra 15 hours per week over and above her contracted 38 hours.
From about 2020, the applicant felt uncomfortable being involved in witnessing decisions made by Mr McMurray relating to financial matters such as tenders and fee waivers amongst others issues, and felt obliged to report them under the Council’s Code of Conduct to the Deputy Mayor, Dennis Palmer who encouraged the applicant to make a dossier on questionable activity for his review which were ultimately the subject of questions on notice at council meetings and escalated to ICAC. Mr McMurray had made an ‘off the cuff remark’ to the applicant that someone had been feeding information to management. The applicant continued to compile a dossier at the request of management. An extraordinary meeting was called and ultimately Mr McMurray resigned.
From that point, the applicant maintains the treatment of Gundagai councilors was unpleasant with David Graham and Abb McAlister refusing to communicate directly with her instead doing so via another staff member Linda Wiles.
Following a recruitment process, Les McMahon was ultimately appointed as General Manager. A further extraordinary meeting had been scheduled to take place on 31 May 2022 with the dispatch of business papers required no later than 26 May 2022 which was somewhat difficult as the applicant was due to start leave on 28 May 2022 and also had to juggle other demands. This necessitated the applicant to work extra-long hours under pressure which resulted in mistakes being made and difficulties uploading documents due to IT issues, which were ultimately rectified and the task completed.
The applicant logged on to her email on the following Saturday to ensure that all her work had been completed only to be met with a series of emails from David Graham, Abb McAlister and others highlighting mistakes and missing documents stating disappointment and “not good enough”. The applicant was horrified and despite being on official leave tried to set matters straight attempting to contact the above individuals who did not answer their calls. She then continued on pre-arranged leave until 15 June 2022.
It was on 14 June 2022 that Mr McMahon contacted the applicant and informed her that she was put on special leave pending a “fitness to work assessment”. The respondent refers to this as the “seminal event” predominantly or wholly resulting in psychological incapacity and so it is appropriate that this part of the statement be repeated in full (unedited):
“137. At approximately 4.30pm that afternoon, I received a text message from Les McMahon asking me to call him. I did then call Les and apologised for missing his earlier call, saying that I thought this had been a pocket dial. He interrupted me as I was saying this, and we then had a conversation to the following effect:
Les: ‘You're not coming back to work tomorrow. I'm putting you on special leave pending a Fitness for Work Assessment.’
Me: ‘What do you mean?’
Les: ‘I'm referring to your anxiety.’
Me: ‘I'm fine. I've had two weeks off work and am feeling good. I'm ready to come back to work.’
Les: ‘You're not coming back to work. The Fitness for Work Assessment is being arranged. Katrina Smith will forward you the details. You have to attend this.’
Me: ‘I don't understand what's happening. Apart from the Gundagai Councillors, have there been any other complaints?’
Les: ‘I'm not going to tell you anything’"
Me: ‘If you want to get rid of me, just give me a redundancy and I'll leave.’
Les: ‘There'll be no redundancy.’
Me: ‘For the last few weeks before I went on leave you were telling me that I was a competent EA and that you were happy with my work.’
Les: ‘No, no, no.’
Me: ‘You did.’ Les:
‘No. You have to do this assessment. If you come back to work, you won't be working with me. You'll be somewhere else in the organisation.’
Me: ‘You can't do that.
Les: ‘Yes, I can.’
Me: ‘I can't believe this. It's like Phil McMl1rray is still running the organisation.’
Les: ‘Oh!’
138. I felt that Les' last exclamation was said in a way which was intended to discredit what I had just said. Les went on to say that he felt I should speak to someone about this. I said something to the effect of, ‘Don't worry. I will.’ The conversation concluded on this basis.”
The applicant attended her general practitioner on 21 June 2022 and was provided with an initial WorkCover Certificate certifying her with total incapacity.

Medical evidence

There is much medical evidence which corroborates the applicant’s history above. One of the main submissions by the respondent was there was a lack of medical evidence to establish the applicant’s symptoms arose from any incidents apart from that encountered on 14 June 2022 above.
The medical evidence is found in the ARD. The respondent has been served with the document and referred to it in submissions both oral and writing. As the respondent contends there is no or little evidence that the mental health symptoms arose or were aggravated from any incident, apart from 14 June 2022 I will now slavishly extract that evidence, which is not a style I usually adopt in such matters, however, find necessary here.
Dr Hinze is the applicant’s long term general practitioner. In a medical report to State Cover on 26 June 2022 he reported (unedited):[7]
“1.     The diagnosis of Adjustment disorder with anxiety and depression is based on the patient presenting with longstanding symptoms of anxiety and depression directly as a consequence of what she has been faced with in her work environment over the last few years.
2.      Marianne was subjected to ongoing workplace bullying and stress since 2016. Not only has she herself been the subject of bullying, but she has also witnessed ongoing unethical behaviours and nastiness of staff and councillors towards each other. At times things were a bit more manageable and again worse at others. At most of her consultations with me, even for other indications, Marianne mentioned the toll her workplace was taking on her. This was not always documented in the clinical notes. Since the General Manager resigned the toxic culture of her work environment and nastiness has escalated. This all built up to an event towards the end of May which finally pushed her over the edge.
3.      Severe anxiety with anxiety attacks, tearfulness, irritability, insomnia, depressed mood, poor memory and concentration, constant worry about her work, fatigue, overwhelmed by everything. Anxiety has been the predominant symptom. Her mood had not been too bad prior to the event towards the end of May. First onset of symptoms had been in 20 I 6, waxing and waning since and then been ve1y severe and constant over the last few months. The only time her symptoms were quite mild was on a recent holiday…
7.      The fact that her workplace situation has been really bad for many years and attempts by her to try and improve the situation have been ignored or not supported is a barrier to her work capacity. I do not know when she will have capacity to work again.
8.      Unfortunately, this injury has been a long time in the making. I believe the prognosis for this patient to return to pre-injury duties to be poor.”
[7] Folio 139 and 140 of the ARD.
The clinical notes start from 2001. There are many attendances for non-work-related depression and insomnia among other general appointments for various ailments.
The applicant does not dispute a prior chronic history of depression. These are recorded in the medical notes and relevantly repeated here unedited:
“Medical Certificate given from 09/03/2015 until 20/03/2015. teary while coming into room feels pressure with family issues difficult relation with ex-husband has two children - 15yr boy and 21 yr daughter want to have her house back supportive sister and girlfriend sleeping/eating well some suicide thought which has passed has depression since 1993 currently on dothep prefer to see psychologist through her company HR Reason for visit: Depression Plan continue dothep psychologist review take time off for 2 weeks review in 2 weeks”[8]
[8] Folio 193 ARD
“Surgery consultation
Recorded on 30/9/2015
Struggling with mood, seeking Robyn Fowkes, good insight, not suicidal at this stage.
Increase dose of Dothep”[9]
[9] Folio 196 of the ARD.
“Surgery consultation
Recorded on 5/3/2019
Subjective:
Longstanding history of depression, recent exacerbation due to work stressors, concern about aged father who is showing changed behaviour, son has moved away to Wollongong to study.
Tearful all the time, recent episode at work where she came across as rude and unprofessional, has apologised for this, but very embarrassed, worried about her work relations.
Suicidal ideation waxes and wanes, no intent, does not want to kill herself, mostly present when having to travel to and from Gundagai for work. Has not considered and will not consider OD. Had episode of OD when her daughter was a baby.
Has increased dose of Dothep, had been on 150mg in the past, now taking 125, had been on 75 for a long time. In the past not been able to tolerate SSRl's: caused suicidal ideation, Aropax made her very unwell mentally, started playing poker machines which is something she never does, was ceased during admission in psychiatric hospital and commenced on Tricyclics which have always worked best for her”[10]
[10] Folio 211 of the ARD
“Non visit
Recorded by: Dr Imke Hinze Visit date: 08/03/2019
Recorded on: 08/03/2019
Message from Miss Amanda Ingham on 07/03/2019 at 9:47 am Subject: med cert
Hi lmke
Marianne called-she has seen councillor yesterday. She wants to know if you can change her medical cert to light duties for the same dates?
The councillor feels she will be better to work from home-out of the stressful environment and she is happy to work from home. Thanks”[11]
[11] Folio 212 of the ARD.
“Surgery consultation
Recorded by: Dr Imke Hinze
Visit date: 22/11/2019 Recorded on: 22/11/2019
Has hearing aid right ear and is working really well, has made a world of difference, work environment is so much easier.
Is working hard, cleaning house of daughter and father on weekends Work is reasonable”[12]
[12] Folio 215 of the ARD.
“Surgery consultation
Recorded by: Dr Samia Shawkat
Visit date: 12/01/2021
Recorded on: 12/01/2021
Not coping well with both work and social stressors
Works full time at counsel, demanding job, works long hours
Finds it overwhelming sometimes
Grand daughter has terminal illness
Feels tired most of the time
Not sleeping well at night…”[13]
[13] Folios 221 and 222 of the ARD.
“Telehealth consultation
Recorded by: Dr Imke Hinze
Visit date: 07/06/2021
Recorded on: 07/06/2021
In tears, not coping, work is overwhelming, not a good environment to work in, plus is looking after her father too Needs some time off work, at least last week and this, might need more …”[14]
[14] Folio 224 of the ARD.
“Surgery consultation
Recorded by; Dr Imke Hinze
Visit date; 13/5/2022
Been extremely stressed at work, toxic work culture, nastiness, increased work load and very anxious
On weekends looks after her dad, quite taxing, but would not change this
Mood is good though, many positives
Discussed options…..”[15]
[15] Folio 228 of the ARD.
“Telehealth consultation
Recorded by: Dr Imke Hinze,
Visit date: 17/6/2022
Objective:
Very distraught, had a phone call from work telling her that she had been stood down awaiting a mental health assessment to decide whether she Is fit to work or not
Was asked to sign a document in which she agrees to have evaluation and access to personal information, no name of psychologist is entered on it, only the name of a company. Is waiting to talk to her union representative to discuss her options
Had a really good time away, stable mood, no anxiety or other psychological symptoms
Now this happened and really unwell
Has realised again that all her stress comes from work, been working there since 2016 and since then has done her best, worked hard, been told that she does a good job, but subjected to constant bullying of which this event now is just further proof.
Does have premorbid diagnosis of depression, but had been well controlled and in remission, has used learned strategies to keep herself well, the only issue over all the last few years has been work pressure and bullying
I will read the documentation she will email me, reassess, then refer to Psychiatrist and Psychologist. This undoubtedly is a work related psychological injury”[16]
[16] Folio 229 of the ARD.
“Surgery consultation
Recorded by: Dr lmje Hinze
Visit date: 21/06/2022
Subjective: Longstanding work stressors, ongoing bullying for many years, has just escalated over time and worse than ever this year.
Been extremely stressed at work, toxic work culture, nastiness, increased work load and very anxious Seen on 13 May for this reason, was struggling, but holiday planned, was booked for review on 17/6 to see how she was doing.
Planned return to work on 15 June
However on last day of work end of May she received an email from a councillor which included criticism of her from other councillors, interim general manager and interim finance manager. This was in response to a claim that the counsellors had not received the agenda she had prepared for an extraordinary meeting. She had however prepared this agenda on the evening of Thursday 26/5, the remote access server cut out and she lost all the work, having to do it again in the morning of 27/5 and sent it on to all the counsellors. She knows it was received since she got a response from a counsellor. The email criticising her was sent out on 28/5.
This caused an anxiety attack, Marianne acknowledges that she likely overreacted to the situation, but on the background of all the bullying going on for so many years was totally overwrought. She was not fit to work at that stage, but was going on leave anyway and therefore did not require a certificate.
She had a good holiday and felt well, anxiety had improved. On getting ready for her return back to work she was told that she was not allowed to return pending a Fitness to work assessment by an independent medical professional. I had a telephone consultation with her on 17 June and advised her to not have the assessment since she was not psychologically in a fit state to do so. It is my opinion that all the years of bullying have eventually taken their toll and that she is no longer fit to work due to an adjustment disorder with an anxious and depressed mood. She needs Psychiatrist and Psychologist support.
Marianne has over many years on numerous occasions during consultations mentioned that her workplace was toxic and she was being bullied. This mostly started in 2016 when she was appointed Customer service officer in Gundagai after the councils had merged. She was subjected to bullying in various forms, sneers, filthy looks, she had at times put in complaints but nothing ever eventuated. She was expected to work unreasonably long hours, lack of support and when asked for either ignored or denied. She has witnessed unethical practices but not been able to do anything about it.
She was one stage moved to the Cootamundra office since she could no longer work in the environment at Gundagai. The previous GM resigned, and an interim GM was appointed and this is when everything got a lot worse. There were allegations of corruption, ICAC involvement, she was asked to provide certain Information about practices of the previous GM to the Mayor, fears that councillors were informed of where the information came from and fears that she Is seen as a whistle-blower. Attitudes of councillors towards her deteriorated after this. Previous GM was asked to have council accept his resignation or have the details of corruption made public.”[17]
[17] Folios 229 and 230 of the ARD.

Robyn Fowkes psychologist report dated 6 October 2022[18]

[18] Folios 234 to 241 of the ARD.

The history recorded by Ms Fowkes is consistent with the events recorded above. Her report refers to both personal and work related stressors and upon administering a DASS determined depression, anxiety and stress were all in the “extremely severe range”. She concluded (unedited):
“It is clear that Marianne's psychological disorder is directly and substantially related to her work as the Personal Assistant to the General Manager at Cootamundra Council over a number of years.
The telephone call on 14 June, 2022, was simply the final stressor in an ongoing accumulation of stress since 2016.
I believe Marianne's diagnosis is Post Traumatic Stress Disorder (PTSD).
PTSD manifests with both psychological and physiological symptoms.
While there are stresses in Marianne's personal life, she manages these and is well supported with these. She does not receive the same support at work.
Marianne has always responded well to counselling, however, every time she returns to work she becomes distressed once again. This has happened on a number of occasions since 2016.
Marianne had always talked about how much she ‘loved local government’. However, the difficulties at Cootamundra Council are going to take years to rectify. I understand that with deamalgamation, Council will be put under Administration until 2024 when there will be local government elections and new Councillors will be elected. I believe that Council will then be free to appoint a new General Manager. This will also take some time. The work environment, as a consequence, will continue to be uncertain and the question of leadership and the ongoing performance of Council Staff will not be addressed for quite some time.
Given the above scenario I believe it will not be suitable for Marianne to return to work at Cootamundra Council.”

Leanne McInerney dated 15 November 2022

The report confirmed a diagnosis of adjustment disorder with mixed anxiety and depression and concluded the circumstances of the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant’s mental health.

Further it was considered the phone call on 14 June 2022 was did wholly or predominantly cause injury and that the applicant’s work injury precedes the phone call in question. Specifically on this point it was stated:
“The phone call in question was not the cause of the injury, but rather, a manifestation of the chronic workplace stressors over time (building since November 2016 and escalating significantly over the past 18 months) that culminated in her ongoing injury. Ms McInerney’s work injury precedes the phone call in question. ….
Her initial capacity for work certificate completed by her General Practitioner (GP) on 21 June 2022 indicated nil fitness for return to work. She has maintained that status since”.[19]
[19] Folio 250 of the ARD

Dr Bhaswati Bhattacharyya, consultant psychiatrist dated 9 May 2023[20]

[20] Folios 252 to 255 of the ARD

The history taken is consistent to that recorded above. A diagnosis of major depressive episode was offered related to “work stressors which have been ongoing since 2016”. It was concluded that employment was the main contributing factor to the aggravation, acceleration, deterioration of her disease and further that the phone call by Mr McMahon on 14 June 2022 was not the whole or predominant cause of the applicant’s injury as her injury appeared to begin in the years prior to the incident.

Certificates of Capacity

A complete series of certificates issued by Dr Hinze and others confirm total incapacity from 29 May 2022 to date diagnosing adjustment disorder with anxiety and depressing arising out of long-term bullying in the workplace and dysfunctional work environment.[21]
[21] Folios 256 to 295 and others refer 4 of the ARD

Respondent’s evidence

The respondent has not presented a medical case. It declined liability on factual evidence alone.

Witness statements

The respondent relies on many witness statements and as indicated above it had failed to serve three key statements of Mr McMahon[22], Katrina Smith[23] and Mr McMurray[24] with the s 78 notice. Updated statements were filed in an attempt to correct the s 78 violation, a disingenuous tactic to circumvent the legislation which was disallowed. The updated parts of the statements were admitted into evidence, relevantly:
·        paragraphs 61 to 85 of Mr McMahon’s further statement;
·        paragraph 55 to 85 of Ms Smith’s statement, and
·        paragraph 57 to 96 of Mr McMurray’s statement.
[22] Folios 256 to 263 of the Reply.
[23] Folios 269 to 284 of the Reply.
[24] Folios 295 to 311 of the Reply.
The respondent did not refer to these statements in its oral submissions.

Statement of Catherine Smith[25] dated 9 August 2022[26]

[25] Not to be confused with Katrina Smith.

[26] Folios 330 to 337 of the Reply.

Ms Smith was a colleague of the applicant who confirmed the need to work late hours and that she herself stayed back to 10.00pm on some evenings to assist with the high workload. She observed the applicant to have to deal with matters beyond her job description, the difficulties had with Mr McMurray and a general decline in the applicant’s mood.

Statement of Linda Wiles dated 27 July 2022[27]

[27] Folios 334 to 339 of the Reply.

The statement confirms the interactions and difficulties between the applicant and Mr McMurray, discusses her understanding of the applicant’s psychosocial problems and offers that the applicant’s moods and attitudes towards her were unpredictable during their work exposure.

Statement of Albert McAllister dated 27 July 2022[28]

[28] Folios 365 to 370 of the Reply.

The statement suggests he did not observe any rude or aggressive behaviour towards the applicant and that the applicant was prone to mistakes, had personal issues and that it was his view that her role was “too large and too demanding for her”.

Statement of David Graham dated 27 July 2022[29]

[29] Folios 392 to 401 of the Reply.

The statement verifies the applicant’s perception that “there was a general animosity felt by a proportion of staff from what had been the previous Gundagai Shire Council in relation to the merger”. The statement acknowledges possible inappropriate comments but confirms none were directed at the applicant but rather a reflection of his “black and white” communication style. The statement also confirms the applicant had personal issues and that she was prone to making mistakes in her work. Such mistakes were highlighted to the applicant in “reply all” emails and so those mistakes were also cc’d to other staff in such bulk emails. The statement continues he never intended to belittle or humiliate the applicant.

Statement of Charlie Sheahan dated 27 July 2022[30]

[30] Folios 403 to 408 of the Reply.

As Mayor, Mr Sheahan records he observed the applicant’s “paper preparation and email communications to be professional and appropriate throughout and did not have any issues with her performance” and between approximately 2019-2021 she had to deal with “a significant work load”. He records that Mr McMahon had concerns that the applicant acted beyond her role at times and indicated he [Mr McMahon] was not comfortable with the applicant continuing to work with him and that he intended to try moving the applicant on to a new role within the organisation.

Statement of Sharon Langman dated 3 August 2022[31]

[31] Folios 420 to 428 of the Reply.

The statement refers to the applicant’s personal problems but also confirms that Ms Langman had very limited contact with the applicant between September 2021 to May 2022.

Statement of John Chapman dated 3 August 2022[32]

[32] Folios 429 to 435 of the Reply.

The statement refers to the applicant’s personal problems but also that she stayed back on many occasions to ensure that the demands of the role had been met.

Statement of James Les McMahon dated 21 September 2023[33]

[33] Folios 23 to 30 of the AALD filed on 19 August 2023.

The assessment of the evidence is confined to paragraphs 61 to 85 of this statement for reasons outlined above.
The statement suggests that the applicant placed a rod in her own back by undertaking tasks outside of her role and that there were complaints about this from other staff members. Concerns about quality of work are stated and the applicant is compared to other executive assistants who seem to be able to complete the work in ordinary business hours suggesting the applicant worked back on her own initiative and not due to organisational need. In relation to the events on 14 June 2022 he states:
“82. In relation to my comments to Marianne during this call to the effect that she would not be coming back to work as my EA, I would certainly have ensured that all applicable procedures and protocols in association with our obligations under the Local Government (State) Award were observed before any such change was formally decided upon or actioned. By making this comment to Marianne, I was simply forewarning her of what I regarded as the likely developments to follow, and was trying to provide her with some practical insight and assistance in terms of where things could be expected to go from there. This was an honest assessment of the situation from my point of view, but was of course also subject to the Functional Work Assessment to follow.”

Statement of Katrina Smith dated 7 September 2023[34]

[34] AALD dated 6 October 2023 - folios 19 to 25.

The assessment of the evidence is confined to paragraphs 55-85 of this statement, for reasons outlined above.
Ms Katrina Smith denies being hostile to the applicant and did not observe her to overworked, rather frequently observed her having regular breaks and suggests that at all times her interactions with the applicant have been professionally appropriate.

Statement of Phillip McMurray dated 24 August 2023[35]

[35] AALD dated 6 October 2023 - folios 101 to 111.

The assessment of the evidence is confined to paragraphs 57-96 of this statement, for reasons outlined above.
The statement denies inappropriate behaviour and highlights the applicant was prone to errors in her work. He rejects the statements he was involved in illegal or corrupt activity and flatly denies the allegations made by the applicant against him both in terms of personal and professional conduct.

FINDINGS AND REASONS

I found the applicant’s written statement to be credible and entirely consistent with the medical history and the majority of witnesses of the respondent. The applicant has been forthcoming about her previous mental health conditions and significantly, the applicant has only relied on treating doctors in support of her claim, who have taken a history of past stressors, the events at work since 2019 and the interaction with McMahon on 14 June 2022.
The respondent has stated that there is insufficient evidence to link the applicant’s current capacity to workplace incidents prior to 14 June 2022 and that I could not make such a finding. I have summarised the medical evidence above, which without debate renders such a position unsustainable.
I will now turn to the credibility of the witnesses for the respondent. Many witnesses were interviewed. There appeared to be a focus on the applicant’s known personal issues but the general theme amongst the majority of the witnesses was that it was well known that the merged council was not a healthy environment. Most witnesses seek to confine their statements to various incidents but the majority also confirm that they did not have a direct and daily working relationship with the applicant or in fact had had limited contact with her. I find that the limited admitted paragraphs of the statements of Mr McMahon, Mr McMurray and Katrina Smith to be self-serving and to be entirely inconsistent with the evidence of others in the council including the Mayor, particularly with regards to day to day demands of the role.
I acknowledge the majority of the respondent’s statements refer to the applicant’s psychosocial and personal troubles, however, I also cannot ignore that the applicant had a fairly solid and steady work history, demonstrating an ability to continue to work and meet the requirements despite these non-work related stressors. I also cannot ignore that whilst the applicant was allegedly afflicted by such troubles, she took on extra tasks to ensure timelines were met, acknowledged by most witnesses.
The respondent emphasised the applicant’s lack of disclosure of events that took place on 14 June 2022 resulted in the medical evidence not being obtained in a “fair climate” and I was referred to a number of authorities. This is not a sustainable argument as all the medical evidence refers to this event and suggests that it was the event that “broke the camel’s back” as opposed to being the predominant or whole cause of incapacity.
As the applicant’s claim relates to psychological injury, she must demonstrate her employment was the main contributing factor to either the onset of her condition or any aggravation to it.
There is much case law on this issue, but overall, the authorities make it clear that what is required is an evaluation of the totality of the evidence to determine the main contributing factor of an injury. As discussed, it has been alleged (via the respondent’s witness statements) that a number of non-work related matters impacted on the applicant’s mental health thereby negating employment events as being the main contributing factor. It is important to note that the respondent has no medical evidence. In circumstances such as this, it is necessary for me to consider the causative of the competing factors, and then decide whether the employment was the main one, AV v AW [2020] NSWWCCPD 9 at [76].
On the basis of the medical and factual evidence, I accept that the applicant has suffered a work related injury (aggravation) in the course of her employment with the respondent and further that her employment with the respondent was the main contributing factor to aggravating that illness pursuant to s 4(b)(i) of the Act. I accept the views of her treating medical practitioners and the medico-legal specialists. Whilst I appreciate the argument of the respondent in relation to those opinions, the respondent has not offered any medical evidence to the contrary that would completely discount those opinions, instead has cushioned its defence in what can best be labelled conjecture or speculation.
With regard to capacity for employment, the medical evidence in unambiguous, that is, the applicant has a total incapacity for work from 29 May 2022 to date and continuing as a result of her workplace injury. The respondent has no medical evidence to discount this.
I now must turn to the s 11A defence. There is no medical evidence, and the respondent concedes that it was difficult to run the argument but at the same time refused to abandon it in the hope that any future appeal against my interlocutory decision would be successful.
The importance of medical evidence in establishing whether a psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by an employer was highlighted in Hamad v Q Catering Limited,[36] where Snell DP stated:
“… There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A (1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A (1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic….”[37]
[36] [2017] NSWWCCPD 6 (Hamad).
[37] Hamad, at [88].
It is questionable whether the request to attend a medical appointment (14 June 2022) i.e. “the seminal event” to assess medical capacity falls within the ambit of s 11A. In any event, the discussion is redundant as I have found on the basis of the extensive evidence before me that incapacity has arisen as a result of workplace events prior to 14 June 2022 and that the “seminal event” so heavily relied upon by the respondent cannot be considered to have wholly or predominantly caused the injury. Further, the respondent conceded it could not advance the s 11A argument, predominantly as “I had denied it the opportunity”.
With regards to PIAWE, here the parties were in agreement and so it follows that the applicant is an entitled to an award from the date of certified incapacity to date and continuing.

SUMMARY

For the reasons stated above, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 628

23 November 2023