McLoughlin v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McLoughlin v Secretary, Department of Education [2021] NSWPIC 169
APPLICANT:	Amanda Jane McLoughlin
RESPONDENT:	Secretary, Department of Education
MEMBER:	Jill Toohey
DATE OF DECISION:	3 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for psychological injury; Adjustment Disorder with mixed anxiety and depressed mood; worker claimed unfair treatment and lack of support; no dispute that employment was the main contributing factor to her injury; respondent maintained injury not compensable by reason of section 11A(1); no dispute that the action relied on by the respondent was action with respect to performance appraisal; no dispute that the respondent’s action was reasonable; dispute whether respondent’s action was the whole or predominant cause; worker’s condition pre-dated the relevant action; Held- finding that the respondents action was not the whole or predominant cause of the injury; agreement by parties that worker had 15 per cent whole person impairment; award for the worker
DETERMINATIONS MADE:	1. The applicant has leave to amend the deemed date of injury in the Application to Resolve a Dispute to 23 August 2019. 2. The applicant suffered a psychological injury arising out of or in the course of her employment with the respondent to which her employment was the main contributing factor. 3. The applicant’s injury was not wholly or predominantly caused by reasonable action taken by with the respondent with respect to performance appraisal and/or discipline. 4. The respondent to pay the applicant lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 agreed at 15% whole person impairment.

STATEMENT OF REASONS

BACKGROUND

Amanda McLoughlin, the applicant, was employed by the respondent, the Secretary, Department of Education, as a teacher from 2001. She taught at Blacktown Boys High from 2001 to 2005 and thereafter at Hawkesbury High School where she taught a range of subjects including biology and agriculture.
Ms McLoughlin claims compensation pursuant to section 66 of the Workers Compensation Act1987 (the Act) for a psychological injury due to “bullying and harassment within the workplace, interpersonal differences and unfair treatment” by her employer, which injury was aggravated on 8 August 2019.
Psychiatrists engaged by Ms McLoughlin and the respondent to undertake independent medical assessments agree that she has 15 per cent whole person impairment as a result of her psychological injury.
By a dispute notice issued on 30 June 2020, the respondent accepts that Ms McLoughlin has a psychological injury to which her employment was the main contributing factor. However, the respondent denies liability to compensate her on the ground that her injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by her employer with respect to performance appraisal and/or discipline within the meaning of section 11A of the Act.

ISSUE FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether Ms McLoughlin’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline.

The parties agree that, if the respondent’s defence fails, Ms McLoughlin has 15% whole person impairment as a result of her psychological injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation/arbitration on 18 May 2021. The applicant was represented by Mr Ian Collins, solicitor. The respondent was represented by Mr Ross Hanrahan of counsel.

The Application to Resolve a Dispute (ARD) identified 19 July 2017 as the deemed date of injury. The applicant sought leave at the conciliation/arbitration to amend the deemed date to 23 August 2019, being the first date on which Ms McLoughlin was certified as having no capacity for work by reason of her injury. There was no objection, and leave was granted.

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 Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce all evidence or cross-examine any witness.

FINDINGS AND REASONS

Ms McLoughlin’s evidence

Ms McLoughlin provided a written statement dated 12 September 2019[1] and a supplementary statement dated 3 March 2020[2]. She also provided a nine-page, undated letter sent to her solicitor which she describes as a combined timeline and account of things she did not think about in her earlier statements[3].
[1] ARD at page 2
[2] ARD at page 1
[3] ARD at page 220
In her first statement, Ms McLoughlin states that she was born on 1 September 1964. She describes undertaking various studies and completing a Post Grad Dip Teaching in 1999. In 2000, she taught at the Kings School and, from 2001 to 2004, at Blacktown Boys High. In 2005, she started teaching at Hawkesbury High School and “loved it”. In 2007, she was given her first senior class, teaching biology. In 2008, her head teacher took over her class. In 2009, her year 12 agriculture class complained to the head teacher they did not like her style of teaching.
Ms McLoughlin states that, in 2013, the then principal constantly undermined her. Staff morale fell under his leadership and staff were too scared to speak up. She describes a range of incidents when she says the principal excused poor behaviour on the part of the students and did not support the teachers. She states that, in 2013, she reached a point where she could not cope any longer due to lack of support by the principal, and she threw papers in the air, burst into tears and cried for three days.
Early in the 2015 school year, Ms McLoughlin broke her arm and was forced to take almost six months off on half pay leave. During her absence, her son, who was in year seven at the school, was bullied and became very ill. Nothing was done and the bullying became worse. Ms McLoughlin describes other incidents of students’ behaviour which left “many teachers feeling unsupported”.
Ms McLoughlin took 2016 off as a “4 for 1 year”. She returned in 2017 to find that a young teacher with less than 10 years’ experience had been given the position of agriculture coordinator.
Ms McLoughlin describes some concerns raised with her in 2017 by the then acting principal, two of which led to a warning about not wearing her shoes or proper footwear. She describes being “micromanaged” about her teaching style, and being reprimanded unfairly by the acting principal over things like forgetting to turn off the farm sprinklers.
Ms McLoughlin describes further incidents when she says students were not dealt with and she felt unsupported. She does not identify dates for all of the incidents but it seems reasonably clear from her statement that they occurred between around 2017 and when she last worked in August 2019.
In the last week of 2017, a sheep ran through Ms McLoughlin’s legs, ripping her hamstring tendon. She needed surgery. On her return to work in 2018, she saw further incidents of students doing as they pleased, arriving late, swearing and calling her and other teachers “f-ing c-s”, refusing the put their phones away during class and refusing to do work. She says detentions, when they occurred, were “treated as a joke”.
Ms McLoughlin says the incidents left her feeling unsupported and worthless. There was a “feeling of student empowerment and teacher lack of respect”. Her sleep pattern started to be affected and she would find herself stewing over the day’s events. Late that year, her son told her he had been picked up by four fellow students and thrown in a dumpster in front of a teacher who did nothing.

Ms McLoughlin describes further incidents involving her son in 2019 which left her feeling “hurt and let down” by her workmates. At some point (date unspecified) she went to the acting deputy principal crying because of stress over how year 9 students in particular were treating her, and was told not to take it personally. She voiced her concerns in the staff room over the lack of discipline but her concerns were shrugged off. The principal, Igor Marek, always explained that the children came from a background of trauma and the school was the only consistent thing in their lives, and they would always “try to push teachers’ buttons”.
Ms McLoughlin states that, after she complained about incidents such as when a student tried to spit on her from the top of the truck, Mr Maric started “popping up” frequently in her classes to observe her lessons. She started to feel that everyone was turning a blind eye to what the students were doing, and outsiders were also too scared to do anything. She describes further incidents in which she “experienced feelings of total betrayal leading to further physiological [sic] issues”.
Ms McLoughlin states that she was “brought to a meeting” on 18 September 2018 because she swore at a student who called her a “fucking cunt” and was throwing a bag at another student and jumped out of the classroom window. She was angry about this meeting because teachers were picked on and students got away with their behaviour. She thought it was unfair but this meeting did not cause her injury; she was already on medication and suffering from depression.

In the statement to her solicitor, Ms McLoughlin describes an incident when a student she had previously had trouble with “rolled the tractor, jumped behind me, screaming at me several times” and then “jumped onto a part of posts which then fell on my foot”. She saw her doctor who told her she should “look after her mental health and not go back”. She did not return to work.
Ms McLoughlin states she has been off work since 23 August 2019 due to psychological injury due to work stress and unfair treatment. She has been seeing her general practitioner, Dr Santha Batuwangala and Dr Lynn Wright psychologist, and has been under the care of
Dr Muhammad Malik, psychiatrist.
In her supplementary statement, Ms McLoughlin states that she suffered a psychological injury “as a result of bullying, backstabbing, micromanagement and verbal abuse from students and parents and lack of support from the executive”.

Incident report form and claim form

An incident report form[4] dated 23 August 2019 shows that Ms McLoughlin reported “several incidents involving continual student behaviour which has [sic] caused workplace stress”. She advised that “they were standing outside near the vegetable garden when the student has been jumped behind the employee and was screaming in her ear”. The student had jumped on some logs, one of which had “bounced up and landed on [her] foot.” Her foot was slightly swollen, she saw the doctor that day and the foot would be “ok”.
[4] ARD at page 95
According to the incident report form, Ms McLoughlin advised that three year 9 students whom she had in multiple classes had been intimidating her with their behaviour, twisting her words, making threats against her and saying they would complain to the principal about her. She was feeling victimised and very upset by the students and other employees. She had requested the students be taken out of her class but it was yet to happen. She was now being watched by the principal following a previous incident, she was extremely upset and could not sleep at night, and she had been seeing a psychologist and had been referred to a psychiatrist to help cope with these issues.
On a claim form dated 3 September 2019[5], Ms McLoughin describes her injury as due to “an accumulation of numerous incidents”. She states the “final straw” was during an “Ag lesson”. She refers to “all Sentral submissions[6]”.She identifies the site of her psychological injury as the “science lab, Ag plot, school environment”.
[5] ARD at page 48
[6] Mr Maric’s statement explains that Sentral refers to the school’s data entry system.

Statements of Igor Maric

Mr Maric has provided statements dated 1 September 2019[7] and 19 June 2020[8]. He states that Ms McLoughlin has been a permanent, full-time teacher at the school since January 2005. He states “currently there is a performance concern that has been brought to [her] attention and which is being managed within the performance and development cycle to support her to improve her teaching performance.”
[7] Reply at page 1
[8] Reply at page 4
On 17 September 2018, Mr Maric sent an email to Ms McLoughlin asking to schedule a meeting in his office on 19 September 2018 “to discuss allegations of inappropriate comments directed at students at the school”.[9] A copy is in evidence. Mr Maric stated that the meeting would give her an opportunity to provide her account of events and she could have a support person attend if she wished.
[9] ARD at page 44
On the same day, Ms McLoughlin replied by email.[10] Her email read:
“That's fine, I did call [two students] arseholes as I was pushed to the limit after a term of constant disrespect, being sworn at myself as well as others. My exact words were
'Sorry good guys, but because of the arseholes you don't get to do the fun stuff.' I also told [one student] "I have a zero care factor" as he yelled and left the room after being told his behaviour was so bad that I was being told about it by people in his youth group.
I am happy to admit I was unprofessional because I was. I have been twice before sworn in the presence of my year 12s when I was their year advisor when one was blatantly stealing food bought for fund raising and when I ran around barefoot in the prep room early last year. I was reprimanded quite rightly for both. When I make errors of judgement I am happy to take the consequences, but am very angry that the same students get away with much worse, day after day to little or no consequences and we are held accountable.”
[10] ARD at page 44
Mr Maric describes the meeting on 19 September 2018 as “an initial informal meeting” with Ms McLoughlin about inappropriate language used in class when talking to her students. There is no record of the meeting in evidence but there does not appear to be any dispute as to its purpose or what was discussed.

On 6 August 2019, Mr Maric sent an email to Ms McLoughlin inviting her to a meeting in his office on 8 August 2019. He said the purpose was to make her aware of his concerns in relation to her performance. He said he would like to discuss how his concerns “aligned to Professional Standards for Teachers”, the areas that needed improvement, goals in her PDP that might need to be added or adjusted, and additional supports available to her.
In his statement of evidence, Mr Maric describes the meeting on 8 August 2019 as a formal meeting with Ms McLoughlin about continued use of inappropriate language and additional concerns about “maintaining a safe and supportive learning environment”. The notes of the meeting indicate that Mr Maric said it was an informal meeting but nothing appears to turn on this.
Mr Maric states that, in particular, Ms McLoughlin had left a class unsupervised while she took a small group of students to make them a cup of tea. Mr Maric states that they discussed how his concerns aligned with Professional Standards for Teachers, areas that needed improvement, goals in Ms McLoughlin’s PDP that needed to be added or adjusted, and additional supports available to her.
Mr Maric refers in his statement to “a reported incident” in Ms McLoughlin’s agriculture class on 22 August [2019] when she said a log rolled on her foot. He notes that the incident was reported on the school’s data entry system but, to his knowledge it was not reported to him or any of the school executive as required. He does not appear to suggest that the incident did not happen. He states that Ms McLoughlin has a perception she has been targeted by a couple of female students, one of whom has a significant trauma background and an intellectual disability.
Mr Maric states that Ms McLoughlin took leave from Friday 9 August 2019 to Friday 16 August 2019 and again from 23 August 2019. She has not returned since.
Mr Maric acknowledges that Ms McLoughlin “may find behaviours of some students challenging” but states that he has observed that she does not use strategies available to her to manage those behaviours appropriately. She has been offered a range of support strategies to help her. He believes she perceives that students get away with certain behaviours and are not held accountable, whereas teachers are held accountable, and she perceives that she is being targeted by students and treated unfairly because her inappropriate behaviours have been addressed.

Meeting notes

Draft notes of the meeting on 8 August 2019 were provided to Ms McLoughlin and are in evidence. They show the meeting went for 50 minutes. Another teacher attended as support for Ms McLoughlin. Mr Maric reviewed the “Performance and Development Cycle document” and advised Ms McLoughlin it was an informal process.
The notes show that the main concerns set out in Mr Maric’s email were discussed, including an occasion when Ms McLoughlin left the classroom for 10 to 15 minutes to make a cup of tea “out of compassion for students” and left the remaining students in the classroom. She had “opened up” about some personal issues which, Mr Maric said, “tends to trigger emotions” in students. They discussed managing challenging students including one who had a significant intellectual disability with severe trauma and tended to “push buttons” of certain teachers.
The notes show that Ms McLoughlin said she sometimes “snaps” with challenging students. Mr Maric asked her if there was anything going on that he needed to be aware of. She said she was seeing a psychologist regarding her anxiety to help her “deal with things”. Mr Maric suggested she might observe a class to see what techniques and strategies another teacher had for managing the students’ behaviour.
The notes show that Mr Maric acknowledged that Ms McLoughlin was “a proficient teacher” and asked her to identify three things to focus on in relation to students’ challenging behaviours. He suggested she talk to her psychologist about strategies. She said she would let him know what the psychologist suggested. She said she was aware of his concerns and “will try”. Mr Maric asked her to try not to take students’ behaviour personally because they “push buttons”. Ms McLoughlin described to him an incident some weeks earlier when three girls hid from her and rang the school to say she had purposely locked them out. She told
Mr Maric she was “sick all night over it” and it had “really affected her”.
There is no suggestion from Ms McLoughlin that the notes do not accurately reflect what was discussed at the meeting.

Report of Dr Malik

Dr Malik reported to Ms McLoughlin’s general practitioner, Dr Batuwangala, on 9 September 2019[11]. He took a history from Ms McLoughlin of alleged bullying and micromanagement, that she was exposed to verbal abuse from children and their parents, that her mistakes were highlighted and her statements taken out of context, and that rather than support from management, she was criticised for not being able to “move on”. This had had a negative impact on her mental health and she “now cannot cope”.
[11] ARD at page 25
Ms McLoughlin reported being depressed, struggling to sleep at night, struggling with suicidal thoughts which had now reduced, and “vivid recall of the incidents”. On examination she was distressed and in tears, and her mood was depressed. Dr Malik reported that his “impression is major depressive disorder and workplace bullying”. He recommended treatment and that she continue to see her psychologist.

General practitioner’s records

Dr Batuwangala’s records show that he referred Ms McLoughlin to Dr Lynn Wright on 21 September 2018 under a GP mental health plan for opinion and management for counselling. She noted “depression”.

Dr Batuwangala reported to Ms McLoughlin’s solicitors on 9 October 2019, attaching medical records for four dates in August and September 2019.
On 23 August 2019, Dr Batuwangala recorded, relevantly:
“very emotional and upset
too much stress at work place as she is ill-treated by her superiors
getting worse in recent time and making things hader [sic] to concentrate
attending counsellor service
wants to see a psychiatrist [sic]”

Dr Batuwangala’s notes for 6 September 2019 show, relevantly “work coverv [sic] related” but no further details.
On 10 September 2019, Dr Batuwangala recorded, relevantly:
“severe stress, emotional and depressed
Counselling
CBT
advise follow up with psychiatrist and psychology counselling as well”

On 27 September 2019, Dr Batuwangala’s notes refer to Ms McLoughlin’s return to work, plan and that she was “still very emotional and psychologically labile”.

Report of Dr Wright

Dr Wright reported to Dr Batuwangala on 7 November 2018[12]. She stated that
[12] ARD at page 130
Ms McLoughlin attended her first appointment on 1 November 2018 and reported she had multiple episodes of suicidal ideation and intent, and some serious attempts. She had seen a psychologist for 10 sessions earlier that year under WorkCover, which had “helped significantly”.
Dr Wright described a number of distressing and traumatic events in Ms McLoughlin’s life dating from 1988. Scores on testing indicated depression and anxiety in the mild range, and stress in the severe range. Dr Wright considered Ms McLoughlin would benefit from psychological treatment.
On 9 October 2019, Dr Wright reported to Ms McLoughlin’s solicitors[13] that Ms McLoughlin had been off work since 23 August 2019 “due to psychological injury due to work stress and unfair treatment” (quotation marks in the original). She was under the care of Dr Malik, and Dr Batuwangala who certified her totally unfit for work.
[13] ARD at page 21
Dr Wright reported that, when she first saw Ms McLoughlin, she had been assigned a class area in which she had little experience, adding to what Ms McLoughlin described as significant work related stress. She provided an extensive history of incidents leading up to her nominal date of injury.
Dr Wright said she was impressed that Ms McLoughlin was “highly motivated to be a teacher” and “cared deeply for her roles and her students” and she was upset on numerous occasions when the students were declined opportunities or support she believed the school should have provided. She was disappointed by the lack of support from fellow teachers and spoke of numerous similar incidents at the school that happened to other teachers. She described incidents when students were highly disrespectful to her and she was told she was not up to coping with her work. She had begun to “shake with anxiety” during classes, wondering what else would be falsely reported about her.
Dr Wright diagnosed an adjustment disorder with mixed anxiety and depressed mood, and said Ms McLoughlin’s symptoms fitted with the work history she provided. She was suffering both exacerbation of pre-existing depression as well as stress and anxiety relating to her workplace driven by inadequate workplace intervention and her own value system.

Report of Dr Powick

Dr Vanessa Powick, psychiatrist, reported to general practitioner, Dr Michael Azmir, on 19 July 2017 in response to his referral[14]. She said Ms McLoughlin presented in relation to a review of restrictions on her firearms license imposed following an incident at her home in November 2016 which led to police attending and an apprehended violence order being taken out against her husband.
[14] ARD at page 160
Dr Powick reported that Ms McLoughlin “was very forthcoming regarding her current mental state and previous history”. She rated her mood herself as “6 out of 10” and said her main stresses were related to working with some “temperamental high school students”. Other stresses included issues with trades people regarding ongoing home renovations, but otherwise her mood was stable and she was functioning well.

Dr Powick outlined various matters in Ms McLoughlin’s history including episodes of suicidal ideation which is not necessary to detail here. Dr Powick diagnosed major depressive disorder in recovery, Ms McLoughlin having responded well to medication.

Report of Dr Teoh

Dr Ben Teoh, psychiatrist, saw Ms McLoughlin for assessment on 8 April 2020. He provided a report on that date[15] and a supplementary report on 23 February 2021[16].
[15] ARD at page 13
[16] ARD at page 217
In his first report, Dr Teoh outlined a history broadly consistent with other reports.
Ms McLoughlin told him the last two principals at the school not good leaders, she was unfairly treated, she had to deal with difficult students who disobeyed her, and she was not supported by the principal. She consulted her general practitioner in August/September 2018 with emotional distress and took a week off work. When she returned, she was unfairly criticised. She was referred to a psychologist whom she saw for a year. She tried to persist with her job because she loved it but she could not return to work as a teacher.
Dr Teoh described an incident in term 1, 2019, when a year 7 student threw a table in class. Ms McLoughlin was told the child was suffering from trauma and she had to put up with it. She started seeing a psychologist in August 2019, and was referred to Dr Malik and prescribed antidepressants medication.
Dr Teoh said Ms McLoughlin’s presentation was consistent with a diagnosis of chronic adjustment disorder with mixed anxious and depressed mood. Her condition was caused by her employment; she was unsupported, unfairly criticised and harassed. Dr Teoh assessed 15% whole person impairment as a result of her injury.
For the purposes of his supplementary report, Dr Teoh was provided with reports from
Dr Aman Suman, Dr Malik, Ms Wright, and Dr Powick as well as Mr Maric’s statements and the section 78 notice. He cited parts of each and said Ms McLoughlin “developed significant psychiatric symptoms prior to August 2019 when the issues were raised about disciplinary action against her.”
Dr Teoh said the meetings in relation to Ms McLoughlin’s performance “could have aggravated her condition, but was not wholly or predominantly caused her psychiatric symptoms.[sic]”

Reports of Dr Suman

Dr Aman Suman, psychiatrist, saw Ms McLoughlin for assessment on 23 March 2020[17] and for review on 18 May 2020[18]. He was provided with documents including Mr Maric’s statement, Dr Batuwangala’s clinical records, reports from Dr Malik and Ms Wright, and the incident report form dated 23 August 2019.
[17] Report at Reply page 14
[18] Report at Reply at page 29
Dr Suman took a history from Ms McLoughlin that she had been stressed in her job for the last five to six years, that the last three principals had been difficult to work with, the children were very disruptive and violent on occasion, the workload was too much to handle and she felt unsupported by management. She started seeing a psychologist around October 2018. She said she started experiencing panic attacks since early 2019 and she described “classical symptoms of a panic attack”. She said she had not slept much over the past two years.

Dr Suman noted Mr Maric’s statement about the meetings in September 2018 and August 2019. He noted that some concerns were highlighted around when Ms McLoughlin started seeing a psychologist October 2018. Ms McLoughlin told him she started experiencing panic attacks in early 2019 and that “managing disruptive students was one of the main stressors which brought on panic attacks”. She went to see her general practitioner for the first time in August 2019 following the formal meeting with the principal.
Dr Suman said it was evident that Ms McLoughlin experienced significant distress and continue to ruminate on past work issues. She presented with “mix of anxiety and depressive symptoms in the context of workplace stressors” and she “experienced worsening of her mental health symptoms in the context of performance issues” raised by Mr Maric. She felt increasingly stressed after the meeting in August 2019 and “decompensated in terms of her mental health”. Dr Suman diagnosed adjustment disorder with mixed anxiety and depressed mood.
As to the “causative events”, Dr Suman said he did not elicit any non-work related factors. In his opinion, Ms McLoughlin’s “interaction with her principal, especially in the context of her performance issue remains the main contributing factor” to her injury.
Asked about the whole or predominant cause of the psychological disorder, Dr Suman said:
“it is apparent that Ms McLoughlin’s psychological injuries are secondary to her interaction with [Mr Maric who] had highlighted performance issues around September 2018 and a full meeting was arranged to address these issues in August 2019. Ms McLoughlin decompensated in terms of her mental health after attending this meeting.”

Dr Suman concluded that Ms McLoughlin’s “interaction with Mr Maric (in the context of performance management) was the predominant cause of her current presentation.”

The respondent’s submissions

Mr Hanrahan’s and Mr Collins’s oral submissions were recorded. The following is a summary.
Mr Hanrahan refers to the history given by Ms McLoughlin in her statement and referred to by Dr Powick but not otherwise raised in any histories taken by the doctors. That history includes that her son was bullied at school and that she had had a number of suicide attempts and an incident in November 2016 involving her husband and an apprehended violence order.
Mr Hanrahan submits that it is significant that Ms McLoughlin has complained about each of her principals at Hawkesbury High School.
Mr Hanrahan submits that any difficulties Ms McLoughlin was having at school and with her son did not prevent her from doing her job, she remained able to work despite difficulties with the students. With reference to incidents involving students between 2018 and 2019, Mr Hanrahan submits that Ms McLoughlin seemed to “carry resentment” of their behaviour and that they could get away with things that she could not.
In Mr Hanrahan’s submission, whatever went before, the final event that caused
Ms McLoughlin to cease work was Mr Maric’s attempt to have meetings with her in 2018 and 2019. In doing so, he acted reasonably, given her ongoing issues.
Mr Hanrahan submits that, although Ms McLoughlin said in 2018 that she was happy to take the consequences for her actions, she remained angry that students could get away with their behaviour while teachers were held accountable. The school had to manage her and needed to have a conversation with her. When the time came for the meeting in 2019, she ceased work the following day. She refers to an incident involving a student on a log but there is no clear date given for that incident. Her unwillingness to engage in the performance process led to her going off work.

Mr Hanrahan submits that, despite saying she was unsupported, Ms McLoughlin has not identified what support she wanted, and she interpreted Mr Maric’s desire for a conversation as criticism. She perceived she was being undermined when in fact she was being supported.

Mr Hanrahan submits that Dr Suman identified four issues that Ms McLoughlin said made it hard for her to work, including feeling targeted by the principal, and she only stopped work after he raised matters with her at their meeting in August 2019. Dr Malik took a similar history. Dr Teoh took a similar history, noting that Ms McLoughlin could not return to work after the meeting in August 2019. Mr Hanrahan submits that, of all the difficulties she had, nothing contributed to her incapacity in the same way as her response to the principal’s desire to deal with her performance.
In Mr Hanrahan’s submission, the evidence supports the conclusion that the performance appraisal process was the predominant cause of Ms McLoughlin’s injury.

The applicant’s submissions

Mr Collins submits that it is not correct to say the first time Ms McLoughlin had incapacity as a result of stress was in 2019. The evidence is that she suffered from work-related stress from 2013.
Mr Collins submits that Ms McLoughlin gives an uncontradicted history of a lack of support throughout the following years. In 2017, she saw Dr Batuwangala and was referred to
Dr Powick who took a history of workplace stress and lack of support. Ms McLoughlin recounts a number of incidents over the years including the occasion in 2017 when her son was thrown in the dumpster by other students and no action was taken.
Mr Collins submits that Ms McLoughlin was referred to Dr Wright on 9 September 2018, before the informal meeting with Mr Maric on 19 September 2018. Her email in response to his invitation shows that she accepted the reprimand even though she felt it was unjust.
Mr Collins refers to Dr Wright’s report of 1 November 2018 in which she says Ms McLoughlin had an exacerbation of workplace stress. In other words, Mr Collins submits, the condition already existed. Ms McLoughlin described to Dr Wright quite extreme actions taken by students and none by management in response.
Mr Collins submits that the notes of the meeting on 8 August 2019 show that Mr Maric considered Ms McLoughlin to be a proficient teacher. The notes show that he acknowledged that students “push teachers’ buttons”, and that Ms McLoughlin said girls had been making false allegations which had made her sick all night. The notes show that Ms McLoughlin was already seeing a psychologist about workplace stress, and that Mr Maric suggested she discuss possible strategies with the psychologist.
Mr Collins submits that it is clear from Mr Maric’s comments as recorded in the notes of the meeting that Ms McLoughlin was not in trouble, rather the purpose of the meeting was to assist her. Mr Collins submits that, considering the terms of Mr Maric’s email inviting
Ms McLoughlin to the meeting, he would probably have to concede it was about performance appraisal.
However, Mr Collins submits, the meeting was not injurious and it was not the predominant cause of Ms McLoughlin’s injury. Contrary to what Mr Hanrahan says, she did not cease work immediately following the meeting. She was off work for some days, then returned for some days. The final factor was when one of the students jumped on a log and almost injured her.

Submissions in reply

In reply, Mr Hanrahan submits that there is no basis for Ms McLoughlin’s claim that students were out of control. There were incidents of misbehaviour and Mr Maric suggested the strategy of observing another class. Her attitude is clear, that she object to any criticism.
Mr Hanrahan submits that the school wanted to support Ms McLoughlin, that everything the school did was reasonable but she was unwilling to change her beliefs and this led to her incapacity. The predominant cause of her injury was her perception of criticism and the suggestion that she needed to change. Her unwillingness to do so meant she stopped work and led to injurious consequences.

Discussion

Section 4 of the 1987 Act defines “injury” to mean personal injury arising out of or in the course of employment, and includes a “disease injury” which means a disease contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease.
The respondent accepts that Ms McLoughlin has a psychological injury, being Adjustment Disorder with mixed anxiety and depressed mood, to which her employment was the main contributing factor. The respondent maintains, however, that Ms McLoughlin’s injury is not compensable by reason of section 11A(1) of the 1987 Act.
Section 11A(1) provides:

“No compensation is payable under this act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by 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.”

The respondent bears the onus of establishing on the balance of probabilities that the action relied on was action within the meaning of s 11A(1), that it was the whole or predominant cause of Ms McLoughlin’s injury, and that the action was reasonable: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206.
The respondent relies on the meeting in September 2018 and, in particular, the meeting on 8 August 2019, as constituting the relevant action for the purposes of s 11A(1). As I understand the respondent’s position, it is not suggested that together or separately they constituted discipline, rather that they were action with respect to performance appraisal.

With respect to “performance appraisal”, the Commission has consistently applied the interpretation set out in Irwin v Director General of School Education (unreported, Compensation Court of NSW, 18 June 1998, No 14068 of 1997) by Geraghty CCJ:
“Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged.
Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discrete process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.”
Mr Maric’s emails to Ms McLoughlin inviting her to the meetings, in particular to the meeting on 8 August 2019, make clear that they were to be about her performance. Ms McLoughlin does not dispute that the action relied on by the respondent was action with respect to performance appraisal. I find that the meetings constituted action taken by the respondent with respect to performance appraisal.
Nor does Ms McLoughlin dispute that the respondent’s action was reasonable. She was given notice of the meetings and what was to be discussed, and the opportunity to have a support person present. She acknowledged before the first meeting that she had been unprofessional and “quite rightly” was reprimanded about her language and going barefoot.
There is no record of the discussion at the meeting on 19 September 2018 but there is no dispute that it was to discuss Ms McLoughlin’s use of inappropriate language when talking to her students in class. The outcome of the meeting does not appear from the evidence of
Ms McLoughlin or Mr Maric. He describes it in his statement as “an initial informal meeting” but there does not appear to have been any follow-up, and there is no evidence of further action with respect to performance appraisal until August 2019.
The notes of the meeting on 8 August 2019, which are not disputed, indicate that the discussion was professional and constructive. Mr Maric acknowledged that Ms McLoughlin was a “proficient teacher”. She acknowledged her behaviour. She disclosed that she was seeing a psychologist, and Mr Maric suggested she discuss possible strategies with her psychologist. She acknowledged his concerns and said she “will try”.
The evidence does not suggest that the meeting was conducted in a way that particularly upset Ms McLoughlin, and she continued to work for several days. However, despite acknowledging her own shortcomings, she remained aggrieved that, in her view, students got away with things for which teachers were held accountable.

The real issue for determination is whether Ms McLoughlin’s injury was wholly or predominantly caused by her employment with the respondent. The respondent has not asserted that it was the whole cause, rather that it was the predominant cause, of her injury.
The first question to consider is whether Ms McLoughlin’s psychological injury was caused, at least in part, by behaviour that she perceived amounted to “bullying and harassment”, “interpersonal differences” and “unfair treatment”.
Ms McLoughlin’s grievance at what she perceived was unfair treatment, when compared with the students, was long-standing. In her statement of evidence she recounts incidents dating from 2013 when she felt “undermined” and “unsupported” because of what she perceived as differential standards of accountability between students and teachers. She cites an occasion in 2013 when she felt she could no longer cope and spent three days crying. She describes her son being bullied at school in 2015 and what she perceived as a lack of response by the school. She cites instances of her son being thrown in a dumpster in front of a teacher, of being spat on by a student, being sworn at, students hiding from her and, finally, around 23 August 2019, the incident when a student jumped on a log and it struck her, or nearly struck her.
There is no challenge to Ms McLoughlin’s account of these incidents. There is no dispute that she perceived that students got away with behaviour while teachers were held, unfairly in her view, to account.
In July 2017, Ms McLoughlin reported to Dr Powick that her main stresses at that time were related to working with some “temperamental high school students”. She made that report in the context of an unrelated matter.
Dr Batuwangala’s records show that he referred Ms McLoughlin to Dr Wright on 21 September 2018 under a GP mental health plan for opinion and management in relation to depression.
Dr Wright reported that, when she saw Ms McLoughlin for the first time in November 2018, she said she had been assigned a class area in which she had little experience, adding to what she described as significant work related stress. She also provided an extensive history of incidents leading up to her “nominal injury”. Ms Wright reported that Ms McLoughlin was off work due to psychological injury due to what Ms McLoughlin described as work stress and unfair treatment.

Dr Wright said she was impressed that Ms McLoughlin was “highly motivated to be a teacher” and “cared deeply for her roles and her students”. She was disappointed by the lack of support from fellow teachers and she spoke of numerous incidents that happened to other teachers. She described incidents when students were highly disrespectful to her and she was told she was not up to coping with her work. She had begun to “shake with anxiety” during classes.
In her report dated 11 November 2018, Dr Wright said Ms McLoughlin’s score ranges were indicative of depression and anxiety in the mild ranges, and stress in the severe range. It is true that the referral to Dr Wright for opinion and management in relation to depression was made on 21 September 2018, shortly after the 19 September 2018. However, considering the evidence as a whole, it shows that she had been experiencing distressing incidents with students, complaining of lack of support, and experiencing symptoms for some years.
In her report dated 9 October 2019, Dr Wright said she diagnosed an adjustment disorder with mixed anxiety and depressed mood. The dates of the nine occasions when she saw
Ms McLoughlin are not clear. It does not appear that Dr Wright saw her after the meeting with Mr Maric on 8 August 2019 but it is not clear. In any event, it seems likely that she made the diagnosis of adjustment disorder before that meeting.

Dr Batuwangala’s next clinical record in evidence is dated 23 August 2019 when he recorded that Ms McLoughlin was “very emotional and upset”, that there was “too much stress at work place as she is ill-treated by her superiors” and that it was “getting worse in recent time”. Although not stated, it is reasonable to infer that “recent time” is a reference to the meeting on 8 August 2019.
Dr Malik took a history in September 2019 of alleged bullying and micromanagement, and that Ms McLoughlin was exposed to verbal abuse from children and parents, she was unsupported and criticised, and this had had “a negative impact on her mental health” and she “now cannot cope”. Her mood was depressed. He said his impression was of major depressive disorder and workplace bullying.
Dr Teoh reported in April 2020 that Ms McLoughlin’s presentation was consistent with a diagnosis of Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood. Her condition was caused by her employment as a teacher. She “felt unsupported, unfairly criticised, and harassed”.
In March 2020, Dr Suman took a history that Ms McLoughlin had been stressed in her job for the last five to six years. She highlighted a number of issues which made it difficult for her to continue working including that the children were disruptive and violent on occasion and she felt unsupported. She said she started experiencing panic attacks since early 2019 and she described “classical symptoms of a panic attack”. She said she had not slept much over the past two years.
Dr Suman diagnosed Adjustment Disorder with Mixed Anxious and Depressed Mood and said Ms McLoughlin suffered a mix of anxiety and depressive symptoms in the context of workplace stressors and that she “decompensated” following interaction with her principal in 2019. Her perceived lack of support as well as her struggle managing disruptive students contributed to her psychological injury.
Ms McLoughlin has given uncontradicted evidence of incidents involving students and what she perceived as a lack of support from her employer. Her evidence that she developed symptoms of depression and anxiety before the meetings with Mr Maric, in particular the meeting in August 2019, is supported by the medical evidence.
In Attorney General’s Department v K [2010] NSWWCCPD 76, Deputy President Roche considered authorities concerning the relevance of a worker’s perception, from which he said at [52] the following conclusions could be drawn:
“(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” principle (Spigelman CJ in 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 at [54]);
(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 (President Hall in Sheridan);
(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 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.”
I find that Ms McLoughlin developed an Adjustment Disorder as a result of the incidents she describes in her evidence and to her doctors, and that her perception of unfair treatment and criticism, and lack of support, caused her psychological injury.
I accept that the meetings with Mr Maric on 19 September 2018 and on 8 August 2019 contributed to Ms McLoughlin’s perception of unfair treatment and exacerbated her condition but I am not persuaded that, either separately or together, they were the predominant cause of her injury.
“Predominant” means “mainly or principally caused”: Ponnan v George Weston Foods Ltd(2007) NSWWCCPD 92 . The test of causation is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
Dr Teoh considered that Ms McLoughlin developed significant psychiatric symptoms prior to August 2019, when “the issues were raised about disciplinary action against her”. His reference to “discipline” rather than performance appraisal, is not significant in my view.
Dr Teoh reported that Ms McLoughlin had indicated that she had “managed to deal with the meetings in relation to her performance”. Dr Teoh does not specifically refer to the meeting in September 2018, although he noted that Ms McLoughlin consulted her doctor around that time with emotional distress and was referred to a psychologist. It is not clear whether
Ms McLoughlin told him about that meeting in particular, but he refers later in his report to “meetings”. In any event, the evidence about the meeting in September 2018 supports the conclusion that Ms McLoughlin did in fact “manage to deal with it”, even if she thought it unfair that she student were not called to account.
Dr Teoh concluded that the “meetings” could have aggravated Ms McLoughlin’s condition but were not the whole or predominant cause of her psychiatric symptoms.
Dr Suman came to a different conclusion. He reported that Ms McLoughlin presented with “mix of anxiety and depressive symptoms in the context of workplace stressors”. She “experienced worsening of her mental health symptoms in the context of performance issues” raised by Mr Maric, and increasingly stressed and “decompensated” after the meeting in August 2019. Dr Suman concluded that Ms McLoughlin’s “interaction with
Mr Maric (in the context of performance management)” was the predominant cause of her current presentation.
Dr Suman noted that Ms McLoughlin’s “mental health symptoms” pre-existed “the performance issues”. He refers to the predominant cause of her “current presentation” when he saw her in March 2020.
With respect to Dr Suman, I prefer Dr Teoh’s opinion. In my view, Dr Teoh’s opinion was more considered. It placed the performance appraisal action in the context of a long history. Dr Teoh noted that Ms McLoughlin had developed significant psychiatric symptoms before the meeting in August 2019. He took into account her claim that she “managed to deal with the meetings”. He recognised they may have aggravated her condition but not that they were the whole or predominant cause.

I am not persuaded by the fact that Ms McLoughlin left work approximately two weeks after the meeting on 8 August 2019, and has not returned, that the performance appraisal action was the predominant cause of her injury. Mr Maric confirmed that she was off work for a few days, then returned before the incident that occurred on or about 23 August 2019 when a student jumped on the log. Mr Maric says the incident was not reported to him or the executive as required but I do not understand him to challenge Ms McLoughlin’s claim that it occurred.
I accept that the incident on or around 23 August 2019, coming shortly after the meeting with Mr Maric on 8 August 2019, was, in effect, the final straw for Ms McLoughlin.
I am not satisfied that the respondent has discharged the onus of establishing that the performance appraisal action was the predominant cause of Ms McLoughlin’s psychological injury.
The parties have agreed that, if the respondent’s defence fails, Ms McLoughlin has whole person impairment of 15% resulting from her injury.
Accordingly, I make the orders in the attached Certificate of Determination.

[2021] NSWPIC 169

3 June 2021