Mehr v Bulk Recovery Solutions Pty Ltd
[2021] NSWPIC 291
•13 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mehr v Bulk Recovery Solutions Pty Ltd [2021] NSWPIC 291 |
| APPLICANT: | Harry Mehr |
| RESPONDENT: | Bulk Recovery Solutions Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 13 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump sum compensation for permanent impairment pursuant to section 66 of the 1987 Act for psychological injury caused by a disease process; applicant had accepted injury to lumbar spine and left knee; no dispute that applicant had a psychological condition; whether factual allegations of bullying and harassment occurred; whether factual allegations of bullying and harassment were the main contributing factor to the psychological injury; whether the psychological injury was a secondary psychological injury and a defence was available pursuant to section 65A of the 1987 Act; whether a defence was available pursuant to section 11A of the 1987 Act in respect of a primary psychological injury; Held– the applicant’s psychological injury is an “injury” within section 4(b)(i) of the 1987 Act; the applicant’s psychological injury is a primary psychological injury and no defence is available pursuant to section 65A of the 1987 Act; the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken by or on behalf of the employer in relation to redundancy and no defence is available pursuant to section 11A of the 1987 Act; the respondent is to pay compensation to the applicant pursuant to section 66 of the 1987 Act in respect of psychological injury caused by a disease process. |
| DETERMINATIONS MADE: | 1. The respondent is to pay compensation to the applicant pursuant to s 66 of the Workers Compensation Act 1987 in the sum of $48,670 in respect of 19% whole person impairment resulting from a psychological injury caused by a disease process and deemed to have been received on 4 December 2018. |
STATEMENT OF REASONS
BACKGROUND
Mr Harry Mehr (the applicant) is a 40 year old man who has limited ability to understand and speak the English language. He was employed as a labourer by Bulk Recovery Solutions Pty Limited (the respondent).
The applicant sustained physical injury to his lumbar spine and left knee at work on 16 April 2018 (the physical injury). The respondent accepted liability in relation to the physical injury. By Medical Assessment Certificate dated 6 August 2019, the applicant was assessed as having 12% whole person impairment (WPI) resulting from the physical injury.
The applicant now claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from psychological/psychiatric injury (the psychological injury) sustained in the course of his employment with the respondent, with a deemed date of injury being 4 December 2018.
The applicant claims that he sustained the psychological injury, in the nature of a disease gradually over the whole period of his employment with the respondent, as a result of a variety of stressors which include:
(a) adverse treatment of the applicant by the respondent’s management over an extended period, perceived by the applicant to constitute bullying and
harassment, and causing the applicant to feel humiliated and diminished;(b) difficulties with management by the respondent’s insurer of the physical injury, and
(c) a traumatic episode on 4 December 2018 when the applicant was confronted, without prior notice, with the prospect that he would be made redundant, in circumstances in which he understood the subject of the meeting to be his return to work.
The applicant made a claim for s 66 entitlements in respect of psychological injury by letter dated 19 June 2020.
By notice dated 12 April 2021 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer denied liability for permanent impairment lump sum compensation for the psychological injury on the basis that:
(a) it did not agree that the applicant received a psychological injury as required by s 11A(3) of the 1987 Act, and
(b) it did not agree that the applicant was entitled to permanent impairment lump sum compensation because the permanent impairment had not resulted from an injury as required by s 66(1) of the 1987 Act.
The applicant filed an Application to Resolve a Dispute (ARD) on 20 April 2021.
There is currently no dispute that the applicant suffers from a diagnosed psychiatric condition and that his impairment in that regard is 19% (as assessed by Dr Rastogi and Dr Ahmed). Further, there is no dispute that if liability is determined in the applicant’s favour, an award pursuant to s 66 is to be entered, with the relevant sum being $48,670.
The respondent denies compensation specifically on the basis that:
(a) the psychological injury is a secondary psychological injury arising by reason of the physical injury and, by reason of s 65A of the 1987 Act, no compensation is recoverable;
(b) the factual allegations of bullying and harassment asserted by the applicant did not occur;
(c) if the factual allegations of bullying and harassment asserted by the applicant did occur, those events and the work is not the main contributing factor to the psychological injury, and
(d) if there was a psychological work injury which is not a secondary injury, it arises from the events which occurred at a meeting on 4 December 2018, and a defence is available to the respondent under s 11A of the 1987 Act.
ISSUES FOR DETERMINATION
There is currently no dispute that the applicant has a psychological injury within the meaning of s 11A(3) of the 1987 Act.
The issues for determination are:
(a) did the factual allegations of bullying and harassment asserted by the applicant occur;
(b) if the factual allegations of bullying and harassment asserted by the applicant did occur, were those events and the applicant’s work the main contributing factor to the psychological injury;
(c) is the psychological injury a secondary psychological injury arising by reason of the physical injury which, by reason of s 65A(1) of the 1987 Act, is excluded from giving rise to a claim for lump sum compensation under s 66(1) of the 1987 Act, and
(d) if there is a primary psychological work injury, does it arise from the events which occurred at a meeting on 4 December 2018, and is a defence available to the respondent under s 11A of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
At a hearing on 24 June 2021, the applicant was represented by Mr Craig Tanner, Counsel, instructed by Ms Christina Bahbal of Turner Freeman Lawyers. The respondent was represented by Mr John Gaitanis, Counsel, instructed by Mr Nick Maley of Holman Webb Lawyers.
Following the hearing, lawyers for the applicant and respondent filed written submissions in accordance with directions.
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 applicant did not object to the respondent’s Application to Admit Late Documents (AALD) and attachments. Leave was granted for filing of those documents on the basis that they were relevant to determination of the issues in dispute.
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD (as amended) and attachments,
(b) Reply to ARD and attachments, and
(c) respondent’s AALD and attachments.
Oral evidence
Neither party applied to adduce oral evidence or cross-examine any witness.
SUBMISSIONS
Detailed written submissions were made as follows:
(a) by the applicant’s counsel dated 2 July 2021;
(b) by the respondent’s counsel dated 8 July 2021, and
(c) by the applicant’s counsel in reply dated 19 July 2021.
Both counsel referred to relevant legislation, case law and evidence.
Submissions of applicant’s counsel
The applicant’s counsel submitted that the evidence supports a finding that the numerous alleged stressor events, which the applicant perceived to be bullying, harassing and intimidatory conduct directed at him, actually did occur in the workplace. The applicant’s counsel noted that the respondent has not filed statements of Mr Thompson or Les. He also noted that the statement of Mr Baillie does not specifically address the examples of conduct alleged by the applicant. The applicant’s counsel submitted that the applicant’s evidence in relation to the alleged stressors is unchallenged.
The applicant’s counsel submitted that the evidence supports a finding that those alleged stressor events and the applicant’s work were the main contributing factor to the psychological injury. He submitted that the applicant’s psychological injury is in the nature of a disease, sustained gradually over the whole period of the applicant’s employment with the respondent due to a variety of stressors. The applicant’s counsel submitted that it is apparent from clinical notes and medical reports that the applicant’s psychological symptoms were noted well before the meeting on 4 December 2018 and it is apparent that the applicant was in a severely injured stated from 1 November 2018 and that the applicant’s psychological injury deteriorated further as a result of the meeting on 4 December 2018. The applicant’s counsel submitted that the reports of Dr Ahmed should not be relied upon because Dr Ahmed did not consider the impact of the ongoing mistreatment of the applicant, the distress relating to the pressure on the applicant to return to work or the fact that the applicant had been diagnosed with a psychological injury prior to the meeting on 4 December 2018.
The applicant’s counsel submitted that evidence supports a finding that the applicant’s psychological injury was a primary psychological injury and not a secondary psychological injury. The applicant’s counsel submitted that the applicant’s allegations are largely uncontested. Counsel submitted that any argument that the applicant had a secondary psychological condition does not give due recognition to the distinct stressors alleged by the applicant. The applicant’s counsel submitted that the opinions expressed in the reports of Dr Ahmed (which is relied upon by the respondent) are misconceived and contradictory.
The applicant’s counsel submitted that evidence supports findings that the applicant’s psychological injury was not wholly or predominantly caused by action in relation to any of the categories listed in s 11A. He submitted that the applicant’s experience in the meeting on 4 December 2018 cannot be the whole or predominant cause of the applicant’s psychological injury because the applicant was diagnosed with a work-related psychological condition as early as June 2018, with successive diagnoses provided by treating psychologists in August, October and November 2018 and then the applicant was psychologically incapacitated on 2 November 2018. Further, the applicant’s counsel submitted that the evidence supports a finding that the respondent’s actions in relation to any of the categories listed in s 11A was not reasonable. The applicant’s counsel submitted that, on that basis a defence is not available under s 11A of the 1987 Act.
The applicant’s counsel submitted that, on that basis, there should be an award for the applicant pursuant to s 66 of the 1987 Act in the sum of $48,670 in respect of 19% WPI resulting from a psychological injury caused by a disease process and deemed to have been received on 4 December 2018.
Submissions of respondent’s counsel
The respondent’s counsel noted that there is no dispute that the applicant suffers from a psychological condition.
The respondent’s counsel submitted that the evidence supports a finding that the numerous alleged workplace events did not occur. The respondent’s counsel noted the lack of contemporaneous and corroborative evidence to support the applicant’s allegations. Counsel noted that the applicant did not detail or describe the alleged workplace events until his statement of April 2021 notwithstanding opportunity to do so earlier. Counsel referred to the evidence of Mr Brad Baillie and Ms Briggs, particularly in relation to the meeting of 4 December 2018. The respondent’s counsel noted that the day following the meeting of 4 December 2018, the applicant sent a text message to Mr Baillie apologising for the applicant’s behaviour, which is inconsistent with the applicant’s allegations of mistreatment in the meeting. Counsel submitted that there is no compelling evidence of bullying or harassment and that the Commission should not find that the alleged events are real.
The respondent’s counsel submitted that if those events did occur, those events and the applicant’s work were not the main contributing factor to the psychological injury. Counsel submitted that various clinical notes do not refer to anything other than the physical injury and its consequences. The respondent’s counsel submitted that the opinion of Dr Ahmed should be preferred to that of the applicant’s treating practitioners including Dr Khan and Dr Rastogi. The respondent’s counsel submitted that the evidence supports a finding that the cause of the applicant’s psychological condition was the applicant’s physical injury or the applicant’s paranoid personality reacting to the applicant’s perception of matters he suspects will be adverse to him, not any actual conduct of the applicant. The respondent’s counsel submitted that, at worst, the applicant’s psychological condition arises from the rehabilitation of the physical injury, and not from any other conduct.
The respondent’s counsel submitted that the psychological injury was a secondary psychological injury arising by reason of the physical injury and, by reason of s 65A of the 1987 Act, no compensation is recoverable. Counsel submitted that there was overwhelming and consistent evidence of depression and anxiety throughout a period of time in 2018 related to the applicant’s physical injury and the inability of the applicant to work. Counsel submitted that s 65A of the 1987 Act must apply as a complete defence.
The respondent’s counsel submitted that, if there was a psychological injury which is not a secondary injury, it arises from the events which occurred at a meeting on 4 December 2018, and a defence is available to the respondent under s 11A of the 1987 Act on the basis that the respondent’s conduct was reasonable. Counsel submitted that the events which occurred in the meeting on 4 December 2018 concerned potential redundancy, triggering operation of this statutory defence. Counsel submitted that the opinion of Dr Ahmed is that the meeting on 4 December 2018 is the whole and predominant cause of the applicant’s psychological condition and there is no contrary evidence on that point. The respondent’s counsel submitted that, on the weight of the evidence, the respondent’s conduct was reasonable on an objective basis. Counsel submitted that the respondent has discharged every element of s 11A of the 1987 Act and that defence must apply as a complete defence.
The respondent’s counsel submitted that, on that basis, there should be an award for the respondent.
FINDINGS AND REASONS
The Law
Section 9(1) of the 1987 Act provides that:
“(1) A worker who has received an injury (and, in the case of death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
At the claimed date of injury, being 4 December 2018, s 4 of the 1987 Act defined “injury” as follows:
“In this Act:
injury:
(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 of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In respect of claims for compensation pursuant to s 66(1) of the 1987 Act made after on or after 19 June 2012, as was the present claim, s 66(1) of the 1987 Act (as amended) relevantly states:
“(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note –
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Section 65A of the 1987 Act makes special provision in relation to compensation for permanent impairment for psychological and psychiatric injury and relevantly states:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note –
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65(2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement to be determined by the Commission.
Note –
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injuries will be assessed together as one injury, but separately from any physical injury.
(5) In this section –
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to a physical injury.”
Section 11A of the 1987 Act relevantly states:
“(1) 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.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
…
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
… “
In Attorney General’s Department v K [2020] NSWCCPD 76, Roche DP, summarised as follows the authorities relevant to the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work:
“(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 Chelmer 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 a “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. (at [52])”.
In Kooragang, Kirby P (as he then was) stated at [463]:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation. In each case, the question of whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact determined on the basis of the evidence, including where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case the Judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question of whether the dispute of incapacity or death ‘resulted from’ the work injury which is impugned.”
In Cannon v The Health Snack People [2009] NSWWCCPD 32 (Cannon), Deputy President Roche, considered the concepts of primary and secondary psychological conditions in a factual matrix which involved a work-related physical injury. In that decision, the worker had suffered a physical injury in the course of her employment and, upon her return to work, on suitable and then normal duties, was alleged to have sustained a psychological injury as a result of harassment, bullying and verbal abuse. In that decision, Deputy President Roche stated (at [103]) that:
“Therefore, if a worker on suitable duties, because of the work-related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and as a consequence of that physical injury (the pain and/or the discomfort and/or loss of impairments caused by that injury), has developed a secondary psychological condition. It does not prevent the recovery of a lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed in suitable duties and, as a result of an “extraneous or extrinsic” event, such as harassment or bullying while on those duties, develops a psychological injury.
In the present matter, Ms Cannon’s case is that from June 2004, she was constantly harassed, bullied, verbally abused and discriminated against by her superiors and her co-workers. The instances of harassment relate, among other things, to her allegedly being told that she was not a good worker, because she was inefficient and her injury had slowed her down. Assuming that those things were said and they caused a psychological injury, that injury would have resulted from harassment It is correct to say that “but for” the back injury Ms Cannon would not have been impaired and she may not have been subject to the events about which she complains. That does not mean, however, that the alleged psychological injury has arisen as a consequence of the harassment. The back injury was merely a predisposing factor that resulted in Ms Cannon being placed in suitable duties. The events that occurred when Ms Cannon returned to work after her injury should be seen as separate and distinct from the back injury.”
In RSL (QLD) War Veterans’ Homes Ltd v Watkins [2013] NSWWCCPD 44 (Watkins), Deputy President Roche stated:
“The question of whether a worker has suffered a primary psychological injury or a secondary psychological injury depends on an assessment of all the evidence, lay and expert. That a doctor does not address the ultimate legal question to be decided is not fatal. The judge (or Arbitrator) must decide such a question on all the evidence, and
lay evidence may carry the day over an opposing expert (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]…”
Did the factual allegations in relation to the alleged stressors occur?
The applicant has set out in his statements a number of examples of conduct and events which he alleges gave rise to his perception that he was subjected to adverse, bullying, humiliating and discriminatory treatment.
Allegations of general adverse, bullying, humiliating and discriminatory treatment
In relation to the alleged conduct and events prior to the physical injury, is the applicant’s evidence that during the course of his employment:
(a) Mr Thompson:
(i)was very demanding of the applicant;
(ii)told the applicant that he was not working fast enough;
(iii)punched his fist into his hand and said “keep going” when the applicant asked for help cleaning concrete residue in the mixers;
(iv)told other workers not to help the applicant;
(v)sometimes told the applicant not to leave work and required the applicant to stay at work until 6pm, even though other workers were permitted to leave work early;
(b) ‘Les’:
(i)was constantly cranky;
(ii)would say “sorry mate, I’m too busy” when the applicant asked him for help, for example to get some proper safety glasses to stop concrete spraying into his face;
(iii)despite the applicant’s request, never gave the applicant a hat or gloves, which necessitated the applicant to find gloves himself in the store;
(iv)after the applicant’s request, “eventually” provided the applicant with goggles that were inadequate and allowed the concrete mixture to spray into the applicant’s face and eyes;
(c) Mr Brad Baillie:
(i)would say “this is what I want Harry to see” as the applicant was working to clean up concrete that was drying on the ground, while other workers stood around laughing;
(ii)did not want to do anything when the applicant told him about Les’ behaviour towards the applicant;
(iii)made excuses for Les’ behaviour by saying that his wife was unwell;
(iv)was involved in regular arguments with Mr Thompson and Les about various work issues but never asked the applicant what he thought would work best;
(v)just said “what the fuck…” after the applicant received an electric shock from a mixer;
(vi)drank alcohol from the office bar from midday every day and ridiculed the applicant because he did not drink;
(d) the applicant was initially not informed of his entitlement to a lunch break.
Mr Baillie gave very limited evidence in relation to the above matters. Mr Baillie simply stated that he was unaware of any incidents where the applicant had been harassed and stated that he was “fine with the claimant and did not have any grievances with him. I thought that we had a good relationship”.
It is significant that no evidence has been given by Mr Thompson or ‘Les’ or any other person which addresses any of their alleged conduct towards the applicant. Further, it is significant that Mr Baillie’s statement does not address any of the specific examples of conduct alleged by the applicant.
I accept that there is no contemporaneous or independent corroborating evidence of the applicant’s allegations in this regard. Equally however, the applicant’s evidence appears to be uncontradicted, which is a significant circumstance in favour of the applicant.
In a report dated 3 December 2018, Dr Lim recorded that the applicant believed he had been subjected to workplace bullying.
The clinical notes of Dr Lim dated 4 December 2018 refers to the incident that day but also notes “raised concerns about craig employer changed subject”.
Dr Lim’s clinical notes dated 5 December 2018 note “many months of harassment prior to and after his knee injury”.
Subsequently, there are a number of records of the applicant reporting similar or other adverse treatment in the workplace. Dr Khan’s report dated 5 December 2018 noted “alleged workplace bullying, which seemed to have continued recently”. Further, Dr Khan’s report dated 6 April 2020, noted an assessment on 1 August 2018 which referred to “alleged workplace bullying”. Details of alleged bullying were not provided.
Dr Ahmed’s report dated 8 February 2019 noted that the applicant reported workplace harassment in the nature of being often ignored and not adequately supported. The applicant reported being made fun of for his poor English and that one of his colleagues told him to “suck my d—k” although the context was unclear.
Dr Mirzaie’s report dated 18 July 2019 noted that the applicant reported being extremely hurt by mistreatment and bullying that he received at his workplace “early last year”. Dr Mirzaie noted that the applicant reported being mistreated and bullied because of his poor English and being harshly mistreated when his concerns about were safety were dismissed by management and he was laughed at and verbally abused when he was injured.
Dr Rastogi’s report dated 12 June 2020 noted that the applicant had reported that since the start of his employment with the respondent, the workers would make fun of him and make racial comments while laughing at his pronunciation of words due to his accent. The applicant reported that he was belittled, humiliated and mocked all the time and that he had raised grievances with his manager but no action was taken. He perceived ongoing victimisation and was being ostracized constantly.
Allegations of pressure on the applicant to return to work following the physical injury
In relation to the alleged pressure on the applicant to return to work subsequent to the physical injury, the applicant’s evidence that:
(a) the applicant was not supported by the respondent;
(b) after the physical injury, Mr Brad Baillie called the applicant on only one occasion;
(c) at a meeting on 30 October 2018, arranged by ReCare to assess suitable work duties, which was attended by the applicant, the rehabilitation assessor, Mr Brad Baillie and his sister, the applicant was not provided with a Farsi interpreter which caused him to struggle to understand what was said. The applicant was criticised for “sitting awkwardly”. There was discussion about a return to 38 hours per week with duties which included administration duties, scanning and testing lab samples. When the applicant spoke about his ability to work, the rehabilitation assessor and Mr Baillie’s sister told the applicant that he had to start working immediately after the meeting. They asked why Dr Lim had certified the applicant fit to work only eight hours per week and Mr Baillie’s sister said “I will speak to the doctor about that”. They became angry. They said that they wanted the applicant to recommence working 38 hours per week as soon as possible. When the applicant said that ReCare had recommended that he undertake English speaking classes, Mr Baillie’s sister said “that’s one of his business, you have to be here”. Mr Baillie humiliated the applicant in front of others at the meeting and said “aren’t you ashamed?” At the end of the meeting, Mr Thompson demanded that the applicant return to work the next day. The applicant felt that his input was being ignored. During the meeting, the applicant was pressured by Mr Brad Baillie, his sister and the rehabilitation assessor to return to work immediately after the meeting and to work 38 hours per week as soon as possible,
(d) after the physical injury, the applicant was ignored by his work colleagues.
Mr Baillie gave very limited evidence in relation to the above matters. Mr Baillie stated that around 30 October 2018 the respondent “tried to get the claimant to return to work in some sort of capacity” through Alan Huynh, the Return to Work Co-ordinator from ReCare Services, appointed by the insurer. He did not address the applicant’s evidence that the applicant was asked to resume work immediately after the meeting and to recommence 38 hours per week as soon as possible. Further, he did not address the applicant’s evidence that he humiliated the applicant in front of others and said “aren’t you ashamed”. However, Mr Baillie did say that he had no text messages with the applicant until 4 December 2018 apart from a text message from the applicant on 12 June 2018 when the applicant advised of the status of his knee injury.
It is significant that no evidence has been given by the rehabilitation assessor, Mr Thompson, Mr Baillie’s sister or the interpreter.
There is no evidence which contradicts the applicant’s evidence that, at the time of the meeting on 30 October 2018, he was medically certified to work only eight hours per week.
I note the applicant’s evidence that on 2 November 2018, he reported to his rehabilitation case manager that he felt targeted and intimidated at the meeting on 30 October 2018 and the applicant’s work capacity was then downgraded to nil. There is no evidence which corroborates the applicant’s evidence in this regard although the applicant’s evidence is not denied. Further, it is not in dispute that the applicant did not return to work following the meeting on 30 October 2018. If the applicant’s evidence in this regard is accepted, it corroborates the applicant’s evidence that he felt targeted and intimidated at the meeting on 30 October 2018.
I note that there is roughly contemporaneous evidence consistent with the applicant’s current evidence.
The clinical notes of Erin Carmody, Psychologist, dated 30 October 2018 refer to the applicant’s attendance with her later that day and states:
“rehab provider has organised with ins and employer to commence suitable duties and schedule worksite meeting for tomorrow
IW reports that he did not agree to any of this and decided on a different plan when he saw the rehab provider in person
reports he is willing to do suitable duties, but wants to be in a different section as manager provoking stress and anxiety
to discuss with NTD re certification and possible case conference to clarify RTW plan and available dates”Further, in a clinical note dated 1 November 2018, Hansen Li, Psychologist, noted:
“discussed
- Denied interpreter for workplace meeting
- Was ignored by everyone at the meeting
- Felt was being ordered around by his rehab who demanded he bring in a chair and demanded he sit properly
- They told him that he can work 38 hours per week
- Was told off for not walking as fast as expected but then they told him that he is fine
- Was demanded to return to work
- Felt humiliated by everyone there
- Was seen by everyone there as an enemy
- Feels stressed out and feels that recovery is not hampered
- Was also ignored by his rehab provider when he tried to protest things”
In a report dated 3 December 2018, Dr Lim expressed frustration that the applicant was unsupported in relation to management of his physical injury.
Allegations in relation to the meeting on 4 December 2018
In relation to the meeting on 4 December 2018, the applicant’s evidence is that:
(a) he had understood that the purpose of the meeting was to discuss how he was going on the return-to-work plan;
(b) at the meeting, the applicant was unexpectedly informed that his position could be made redundant;
(c) the applicant was bullied and not listened to or treated fairly;
(d) the applicant smashed a glass to his head;
(e) when the applicant was on the floor, Mr Brad Baillie stood over the applicant, and
(f) the applicant lost his phone.
It is Mr Baillie’s evidence that the meeting on 4 December 2018 was at least partly organised through Mr Huynh who was the Return to Work Co-ordinator from Recare Services. Mr Baillie said that the meeting at the workplace on 4 December 2018, was attended by the applicant, Mr Baillie, Mr Huynh and Bradley Rose who was another employee who replaced the applicant whilst he was absent from work. An interpreter was present to translate. Mrs Briggs attended to take notes. The attendees were seated around a table. Mr Baillie explained who everyone was and that he planned to discuss a possible redundancy. He handed out a letter titled “Potential Redundancy” and the interpreter read it to the applicant. The letter discussed a process of redeploying the applicant and Mr Rose to different areas of the business or an option of a redundancy. Mr Baillie described that the applicant became agitated and asked questions through the interpreter without waiting for a response. The claimant was shaking and saying, ‘Be truthful, be truthful, am I going to be redundant?’ Mr Baillie replied that the respondent was looking at redeploying before redundancy. The applicant then stood up, pushed his chair back, grabbed a glass of water and smashed it against his forehead. Mr Baillie stood and instructed others to clear the room and call for police and ambulance. The applicant folded to the floor near Mr Baillie’s feet and the applicant banged his head on the floor and made moaning noises for about 20 minutes. The applicant opened and closed his eyes and sometimes looked at Mr Baillie as he rubbed and banged his head on the floor. Mr Baillie cleared away the furniture and broken glass. Police and ambulance officers arrived. The applicant was unresponsive upon questioning. As the applicant was being conveyed to the ambulance he was yelling “She’s got my phone”. Police did not locate the phone by search.
Ms Briggs said that Mr Baillie opened the meeting and discussed the readjustment in the concrete plant where both the applicant and Mr Rose worked. Mr Baillie then gave each of them a letter. It was translated to the applicant by his interpreter. The letter discussed the new system and possible redundancy with positions to be re-evaluated within 24 hours. It was discussed that a further meeting would be conducted the following day “to receive the decision”. At that stage, the applicant asked some questions through his translator and asked if he was being made redundant. The applicant then asked question after question without waiting for a response and was asking about his superannuation payments in relation to his physical claim. The applicant was getting “heated” and was “showing tension by sitting on the edge of his seat and his voice elevating in volume”. The translator continued to translate. Ms Briggs said that the applicant appeared to take a drink of water and then shattered the glass. She thought it was by smashing the glass onto the table. She left the room shortly thereafter and called an ambulance upon Mr Baillie’s request. She cannot recall where the applicant was when she left the room and whether he was sitting or standing or in another position. Ms Briggs said that about 5 minutes later, she returned to the room and saw that the applicant was on the floor and was shaking and moaning. She could not see his face. Mr Baillie had moved the tables and chairs away from the applicant. In due course, ambulance and police officers arrived. As they were taking the applicant by stretcher to the ambulance, the applicant called out several times in English “She got my phone”. The applicant appeared to be referring to her but she did not have his phone.
The letter dated 4 December 2018 which Mr Baillie gave to the applicant at the meeting stated that the respondent was “presently considering a restructure of the area in which you work” and “we confirm we are considering making your role as a labourer redundant”. It requested a further meeting with the applicant the following day “to discuss the potential redundancy and any suggestions you may have to avoid this” and invited him to bring a support person or representative to the meeting. It stated “Before we make a final decision in this regard, we will consider any suggestions or matters raised by you. We will also consider whether you can reasonably be redeployed into any other roles within the Company”.
A copy of text messages between Mr Baillie and the applicant subsequent to the meeting on 4 December 2018, record that the applicant apologised for his conduct in the meeting on 4 December 2018 and reported losing his phone at the meeting.
Clinical notes of Dr Lim dated 4 December 2018 note that in a consultation that day, the applicant reported:
“went back to employer
smashed cup over head
called ambulance
raised concerns about craig
employer changed subject”Clinical notes of Dr Lim dated 5 December 2018 state:
“On Tuesday, 4 December 2018 Mr Mehr reported that whilst at work he suffered a Psychological injury from attempting to RTW for suitable duties only to be handed redundancy letter. This is on the setting of many months of harassment prior to and after his knee injury. During this meeting, he smashed a glass on his head, the police and ambulance were called, and his phone was taken from the scene. His employer, who he has issues with, kicked his rehab and interpreter out of the room, staying with him one on one, as he lay on the floor...”
The report of Dr Abdal Khan, Psychiatrist, dated 6 April 2020, note that the applicant attended a psychiatric consultation on 5 December 2018. Dr Khan stated that the applicant then reported that the previous day he had attended an “unplanned work meeting where he was provided with a letter indicating the possibility of redundancy. Mr Mehr reported that he broke a glass on his head and started banging his head on the floor in response to the issues discussed in this meeting”.
Discussion
In relation to the applicant’s allegations of general adverse conduct, the respondent’s counsel submitted that I should not accept the applicant’s evidence because it is ‘vague’ and there is no ‘independent corroboration’ and no ‘contemporaneous evidence’ of the applicant’s allegations despite numerous opportunities for the applicant to have reported such treatment and conduct much earlier than he did.
However, I note that the applicant has provided evidence of examples of adverse conduct in his statement. Despite there being no contemporaneous evidence in relation to the alleged conduct, there is evidence that the applicant later complained at least of similar conduct to Dr Lim, Dr Khan, Dr Ahmed, Dr Mirzaie and Dr Rastogi. Further, I note the lack of any other evidence addressing the specific allegations of the applicant apart from the very general statement of Mr Baillie that he was unaware of bullying behaviour.
In relation to the applicant’s allegations concerning pressure to return to work following the physical injury and the meeting on 4 December 2018, I note that the applicant’s evidence is largely corroborated by other evidence including the evidence of Mr Baillie and treating practitioners.
In all the circumstances, I do not consider that the applicant’s text message apology for his conduct at the meeting on 4 December 2018 precludes a finding that the applicant was subjected to adverse treatment at that meeting. It is clear from the medical evidence that the applicant had significant psychological symptoms at that time. Further, it is understandable that he may have been apologetic about his behaviour in front of the respondent’s representatives, notwithstanding his perception of the events of the meeting. In his text message the applicant reported losing his phone at the meeting on 4 December 2018 and is at least in that regard supportive of the applicant’s evidence in relation to the meeting.
Considering the evidence as a whole, whilst acknowledging that there are some gaps and a certain lack of detail and clarity in the evidence relied upon by the applicant, I feel a sense of actual persuasion that the applicant is a truthful witness and I accept the factual allegations in relation to the alleged stressors as described in the applicant’s evidence. On that basis, I find that:
(a) the applicant was subjected to adverse treatment by the respondent’s management over an extended period, in particular by Mr Thompson, ‘Les’ and Mr Brad Baillie;
(b) the applicant was subjected to pressure exerted on him to return to work following the physical injury and difficulties with management of his physical injury, in particular at the meeting on 30 October 2018, and
(c) the applicant was subject to a traumatic episode at a meeting on 4 December 2018 when the applicant was confronted, without prior notice, with the prospect that he would be made redundant, in circumstances in which he understood the subject of the meeting to be his return to work.
Further, I find that the above conduct was perceived by the applicant to constitute bullying, harassment, humiliation and discrimination and caused him to feel humiliated and diminished.
Were the alleged stressors the main contributing factor to the psychological injury?
The respondent’s counsel submitted that there is insufficient evidence to find that the alleged stressors were the main contributing factor to the applicant’s psychological injury.
Relevant treating medical evidence
It appears that the applicant was initially diagnosed with a psychological condition on 21 June 2018. Clinical notes of Carl Nielsen, Psychologist, dated 21 June 2018, 2 July 2018 and 16 July 2018, recorded symptoms and diagnosis of Adjustment Disorder with Depressed and Anxious Mood. Mr Nielsen referred the applicant to Kr Khan, Psychiatrist, for opinion and management. The clinical notes do not detail the main contributing factor to the psychological condition.
Clinical notes of Erin Carmody, Psychologist, dated 24 July 2018 and 7 August 2018, also recorded that the applicant had depression. Ms Carmody’s notes dated 24 July 2018 indicated that relationship breakdown, financial stress and the physical injury were contributing factors. Ms Carmody’s notes dated 7 August 2018, indicated that uncertainty about the future and “doesn’t seem to be making progress with injury” were contributing factors.
Clinical notes of Dr Calvache-Rubio, General Practitioner, dated 7 August 2018 recorded that the applicant was frustrated, irritable, in pain, pressured from insurance and feels hopeless.
Clinical notes of Ms Carmody, Psychologist, dated 30 October 2018 stated:
“rehab provider has organised with ins and employer to commence suitable duties and schedule a worksite meeting for tomorrow
IW reports that he did not agree to any of this and decided on a different plan when he saw the rehab provider in person
Reports he is willing to do suitable duties, but wants to be in a different section as manager provoking stress and anxiety” (my emphasis)Clinical notes of Hansen Li, Psychologist, dated 1 November 2018 note that the applicant then presented as angry and depressed and was diagnosed with Adjustment Disorder with depressed and anxious mood and PTSD. The clinical notes stated:
“Denied interpreter for workplace meeting
Was ignored by everyone at the meeting
Felt was being ordered around by his rehab who demanded he bring in a chair and demanded he sit properly
They told him that he can work 38 hours per week
Was told off for not walking as fast as expected but then they told him that he is fine
was demanded to return to work
Felt humiliated by everyone there
Felt was seen by everyone there as an enemy
Feels stressed out and feels that recovery is not hampered
DASS21 complete, note extremely severe depression, anxiety and stress”
Clinical notes of Hansen Li, dated 7 November 2018 record that the applicant had symptoms of depression and fatigue with trembling hands. Hansen Li diagnosed “Depressed, PTSD?”. The notes stated:
“Depressed due to loss of identity and livelihood
Thoughts of self harm and anger towards past employer
Chronic headache and difficulty sleeping”
Clinical notes of Hansen Li, dated 12 November 2018, recorded ongoing fatigue and depression and a diagnosis of “Depressed, PTSD?”.
Clinical notes of Hansen Li, dated 21 November 2018, recorded ongoing fatigue and depression and a diagnosis of “Depressed, PTSD?”. The notes stated:
“Financial issues
Workplace issues
Manager called him and he had an anxiety attack”Clinical notes of Hansen Li, dated 26 November 2018 and 29 November 2018, also recorded ongoing fatigue and depression and a diagnosis of “Depressed, PTSD?”.
In a report dated 3 December 2018, Dr Lim noted the applicant had “chronic pain with psychological barriers” but also the applicant believed he had been bullied, had a “combative employer” and was unsupported in management of his physical injury.
Clinical notes of Dr Lim dated 4 December 2018 record that the applicant reported what had occurred at the meeting at the workplace that day which apparently included “raised concerns about craig” and “employer changed subject”. The notes do not indicate the applicant’s psychological state at that time.
Clinical notes of Dr Lim dated 5 December 2018 referred to the applicant’s attendance on 4 December 2018. Dr Lim noted that the applicant was agitated, shaking and in severe distress and stated a diagnosis of “Adjustment Disorder”. Dr Lim described the incident at the workplace on 4 December 2018 and noted that “This is on the setting of many months of harassment prior to and after his knee injury”. Dr Lim stated:
“In conclusion, Mr Mehr has suffered a longstanding psychological condition from persistent actions of his employer. These actions escalated, and resulted in a frank incident.”
The applicant was treated by Dr Abdal Khan, Consultant Psychiatrist. In a report dated 5 December 2018, Dr Khan noted that the applicant had a “background” of major depressive episode, Cluster B personality vulnerabilities, left knee pain, chronic lower back pain and lumbar spine injury with radiculopathy. Dr Khan noted that the applicant’s mental state had “stabilised since our initial assessment” although the applicant continued to experience psychological symptoms including “difficulties with affective dysregulation, reduced enjoyment in activities and sleep disturbance”. Dr Khan noted that the applicant’s mental state deteriorated on 4 December 2018 after the workplace incident. Dr Khan concluded:
“Mr Mehr presented with a major depressive episode in the context of a work-related physical injury and subsequent chronic pain. There is an indication for further assessment of underlying trauma-related symptoms secondary to alleged workplace bullying, which seemed to have continued recently and caused an acute exacerbation of his mental health difficulties. Mr Mehr has a background of major depressive disorder and cluster B personality vulnerabilities...”
In reports dated 12 December 2018 and 13 May 2019, Dr Khan noted the applicant’s ongoing psychological symptoms.
In a report dated 16 June 2019, Dr Lim repeated the history that he previously noted and also stated:
“In conclusion, Mr Mehr has suffered a longstanding psychological condition from persistent actions of his employer. These actions escalated, and resulted in a frank incident. He has underlying personality vulnerabilities which exposes him to an injury to his pride.
Specific Questions
Here we have a man who tries to return to work following a knee injury. We spent months encouraging him that returning to some sort of work was going to be good for his well being. He agreed that inspite [sic] the way his employer had treated him as a result of his injury, he would try and overcome this.
On the day he goes in to discuss return to work, he is served a termination notice. This has resulted in an extreme insult to his pride, and he over reacted by breaking a glass on his head. He employer further kicks his rehab provider out of the room, where he remained alone with the offender. This was a very terrible situation for Mr Mehr to be in. His phone later disappeared during the incident.
Considering the above, this incident was clearly the primary cause for Mr Mehr’s actions and psychological injury. His chronic pain has stabilised [sic], and he had physical capacity to return to some sort of work...”
The report of Dr Mohsen Mirzaie, Psychiatrist, dated 18 July 2019 noted that Dr Mirzaie reviewed available reports and interviewed the applicant in his language of origin and took a detailed history. The applicant reported that he was extremely hurt by mistreatment at the respondent’s workplace and the applicant gave some examples of such mistreatment. Dr Mirzaie noted that:
“Whilst the applicant did not place much emphasis on the physical injuries he sustained, he talked with a great sense of anger and hurt about the way he was treated after he claimed workers compensation. The applicant reported that he was abused and mistreated at work, called names, was labelled a “liar” and eventually threatened with dismissal. The applicant apparently perceived that his last meeting with his previous manager was one of abuse, neglect and mistreatment, which led to the applicant reacting by smashing a glass on his head and having a seizure like reaction and being hospitalised”.
Dr Mirzaie was unable to assess depression due to medication that the applicant was taking but noted that the applicant fulfilled the criteria for PTSD under DSM IV. Dr Mirzaie opined that “I think that the treatment Harry received in his workplace, which may have not been with bad intention, has led to a significant psychological trauma leading to PTSD for him”.
In a report dated 20 August 2019, Dr Mirzaie noted the applicant’s ongoing psychological symptoms. The applicant reported that he vividly recalled that in the workplace meeting on 4 December 2018, he “was held down on the ground by a security officer” and that “he remembers his ex-manager shouting abuse at him ‘you, mother f... bastard’”. Dr Mirzaie stated “In my opinion, he continues to present with a severe form of PTSD perpetuated by ongoing legal battles...”.
In a report dated 5 September 2019, Dr Mirzaie stated that he reviewed the applicant after he received advice of increased risk of harm and suicidality. Dr Mirzaie noted that the applicant presented with ongoing psychological symptoms and acknowledged having been engaged in self-harm. Dr Mirzaie stated that the applicant “expressed a great deal of stress related to his perception of mistreatment and inability to trust in relation to his work-related trauma”.
In a report dated 3 October 2019, Dr Mirzaie noted that the applicant “continues to express a great deal of stress related to his traumatic work-related incident” and “work-related psychological trauma and lack of acknowledgment that he expected from authorities” and had ongoing psychological symptoms.
In a report dated 16 October 2019, Dr Mirzaie stated that in his opinion the applicant was suffering from PTSD due to exposure to a traumatic experience at work where he felt unfairly treated. Dr Mirzaie noted that the applicant reported flashbacks/reexperiencing “vivid memories of the incident where he was verbally abused by his manager” and “being held down underground by a security officer when he ex-manager is shouting abuse at him”. Dr Mirzaie opined that the applicant’s presentation was most likely caused by “his traumatic encounter with his ex-manager at work” in December 2018.
Dr Andrew Kam, Neurosurgeon, treated the applicant in relation to his physical injury. In a report dated 20 November 2019, Dr Kam recommended that the applicant have posterior lumbar fusion surgery at the L4/5 to address his leg pain.
In a report dated 12 December 2019, Dr Mirzaie observed that the applicant’s mental state did not seem much improved notwithstanding ongoing medication and treatment.
In a report dated 12 February 2020, Dr Mirzaie again observed that the applicant’s mental state did not seem much improved. Dr Mirzaie assessed that the applicant “continues to suffer from a mixed mood disorder due to his work-related injury and perpetrated by his upcoming court case”.
In a letter dated 18 February 2020 to the insurer, Dr Mirzaie noted the applicant’s ongoing self-harm behaviour and his recent distress. He recommended an urgent risk assessment.
In a report dated 19 March 2020, Dr Mirzaie reported that the applicant had ongoing symptoms and suicidal thoughts. Dr Mirzaie stated that the applicant “continues to be very worried about how he is treated by the workers compensation system”. Dr Mirzaie stated that the applicant “is hurt by not being believed. He continues to report his utmost frustration because ‘I don’t like to be humiliated and patronised’”. It is important for him to be treated as a decent human being who was hurt through a work incident”. Dr Mirzaie assessed that the applicant “continues to suffer from a mixed mood disorder due to his work-related injury.”
In a report dated 6 April 2020, Dr Khan detailed the applicant’s history including the alleged workplace bullying. Dr Khan noted that the applicant described deterioration of his mental state “Since the work-related injury” which included suicidal ideation. Dr Khan noted that the applicant had continued to demonstrate psychological symptoms at various assessments during 2019 and his diagnosis of major depressive disorder remained unchanged. Dr Khan stated “Mr Mehr’s incapacity was the result of his physical injuries at work and their impact on his mental state and based on my assessment, Mr Mehr’s employment was the main contributing factor to his psychiatric/psychological injury”.
Dr Seyed Hosseinipour, Psychologist, treated the applicant at various times since late 2013. In a letter dated 12 May 2020, Dr Hosseinipour noted that the applicant had been referred to him shortly after he came to Sydney for management and treatment of his anxiety because of his immigration status and the applicant had continued psychological counselling on a need basis to maintain his psychological well being and improve his lifestyle in Australia. Dr Hosseinipour noted that Dr Forghani referred Mr Mehr to him on 1 May 2018. Dr Hosseinipour stated:
“Mr Mehr was injured at work in March 2018. He sustained back and knee injury and he was supported by workers compensation.
On 4th December 2019, a meeting was arranged by workers compensation with his work manager and an interpreter. Mr Mehr stated that the was told that this meeting was about his rehabilitation and back to work plan. He stated that the manager suddenly told him and at the same time, showed a letter to him that he was sacked. This resulted that he impulsively smashing a glass on his head. It appears that he became a seizure like reaction.
Since that trauma in November 2018, his mental health has been deteriorated. It was times that he became suicidal and severely depressed. On semi structured mental health examination, he presented as being extremely anxious and depressed.
The symptoms appeared to be very severe and frequent and have impaired his physical, social, and psychological functioning. Mr. Mehr presented almost all the psychological symptoms of depression during almost all the consultations and reported to feel the same way since that event on 4th of December 2018. He has reported all the symptoms which are consistent with depression including disturbed sleeping patterns, low self-esteem, negative self-image, lack of concentration, feeling sad all the time and feelings of worthlessness.
Clinical Impressions
I have seen Mr Mehr since December 2013. He initiated contact with a psychologist to improve his coping mechanism during the post migration and depressing time for almost all asylum seekers came to Australia with boat. At this stage, psychological contact is recommended and supported by Australian Immigration and many asylum seekers are referred for treatment of reactive depression and anxiety of adjustment issues. Reactive disorder means a disorder caused by any stressful life event which migration is one of them. Therefore, Mr Mehr’s contact with psychology at that time was only because of a very normal reaction into change of his life.
Mr Mehr responded very well to therapy, however he was keen and passionate to learn how to live better and more efficient in this new society. He followed my advice to learn English and to reduce his contact with his fellow Iranians and to mix more with people speaking English. He was very enthusiastic and keen to change his lifestyle and learning how to to integrate himself into Australian community. He never lived or shared his accommodation with his country people. His few girlfriends were all non-Iranian. He tried extremely hard to work in Australian owned working places. In general, he became incredibly positive and hopeful of his future. Mr Mehr had never had any wrongdoing throughout living in Australia. He was so proud of not even becoming a traffic offence. I remember the last year when he came to see me, and he was terribly upset because of getting a traffic ticket for a very innocent mistake on the way driving to see his specialist.
Unfortunately, his happy and hopeful life ended in March 2018 when he was seriously injured at work. According to him his trust to people he had expected to understand and supporting him suddenly shuttered and he found himself alone and helpless in a world full of unjust. He said that the day when he was still injured and physically unable to work, expecting understanding and support, the employer brutally gave him letter of his termination. He still does not know and even not exactly remember how he could have smashed a glass with his head.
For the cause of any psychological breakdown, psychologists should know that, this circumstance is a textbook example of a traumatic situation. And a fair and nonjudgmental psychologist or psychiatrist would assess this , to be a trauma. It is important to mention that Dr Mirzaei indicated on his report dated 18th July 2019, that he developed the symptoms of PTSD after that incident.
Therefore, I have no doubt that Mr. Mehr has been suffering from all the said symptoms of PTSD caused by that incident at work on 4th December 2019. He will need long-term medical and psychological intervention...”
In a report dated 19 May 2020, Dr Mirzaie again reported that the applicant had ongoing symptoms. The applicant complained of “mental burden related to his workers compensation case. He feels that his physical issues are not acknowledged by the insurance company which gives him a great deal of stress”. Dr Mirzaie opined that the applicant continued to suffer from a mixed mood disorder due to his work-related injury complicated with elements of PTSD.
Evidence of Dr Richa Rastogi, Consultant Psychiatrist
The applicant relies on a medicolegal report of Dr Rastogi, Consultant Psychiatrist, dated 12 June 2020.
It is apparent from the report that Dr Rastogi took a detailed history of the applicant. Dr Rastogi noted that the applicant had a history of anxiety and reactive depression in 2013 in the context of immigration status and being a refugee with no fixed abode and lack of adaptation. The applicant reported that his anxiety settled after treatment and he had been able to overcome his negative thoughts and overthinking. Dr Rastogi noted that the applicant sustained the physical injury at work with the respondent on 16 April 2018. The applicant reported being bullied by his manager and rehabilitation services during a meeting resulting in psychological injury in December 2018 and the applicant was deemed unfit to work. The applicant reported constant pain from his physical injury which impacted his ability to do things and he struggled with day to day activities. He reported being depressed given the severity of pain, the functional consequences and inability to sustain his vocational career. The applicant stated that he was under pressure by the rehabilitation provider to resume work with the respondent. The applicant reported that since the start of his employment with the respondent, the workers would make fun of him and make racial comments while laughing at his pronunciation of words due to his accent. He stated that he was belittled, humiliated and mocked all the time. He raised his grievances with his manager but no action was taken. He perceived ongoing victimisation and was being ostracized constantly, feeling helpless and would cry at times in despair. The applicant reported a meeting with his employer to discuss his work prospects and during the meeting he had a panic attack. He was provided with a termination letter. He felt targeted, put down and he was extremely distressed. This resulted in him hitting his head with glass and police were called. His manager continued to swear at him whilst he was lying on the floor after his actions. He was taken to hospital and discharged the following day. The applicant reported ongoing sleep problems and flashbacks of his boss standing over him and laughing over him and ongoing avoidance. The applicant felt belittled and angry by the way he was unjustly treated at work. He felt that his integrity was challenged and he lost confidence.
Dr Rastogi noted on examination that the applicant was dishevelled and demonstrated poor self care. The applicant had hand tremor and generalised shakiness. He described his mood as depressed and frustrated. The applicant described feeling worthless and hopeless and was consumed with rejection and helplessness. The applicant felt angry and let down by his employer, loss of identity and career and risk of increased dependence. He reported fleeting suicidal ideation and psychotic symptoms.
After examining the applicant and reviewing available reports, Dr Rastogi expressed the following diagnosis and opinion:
“- Persistent Major Depressive Disorder with post traumatic features
- Social anxiety Disorder
Mr Mehr reported onset of bullying by his colleagues since start of his employment where he was socially ridiculed, mocked, humiliated and racial comments made towards him. He brought these grievances to his manager but no action was taken. He sustained a work-related physical injury on 16th April with significant pain and functional limitations culminating into a depressive disorder. His depressive disorder was further exacerbated by a meeting on 4th December 2019 where he was terminated by his employer as well as ridiculed by his manager whilst working a future vocational plan. This resulted into impulsive behaviours and self-harm due to perceived betrayal, build up of ongoing exploitation and victimisation by his employer. He had a chronic lack of support and felt alienated. He presented with post traumatic features with flashbacks of his manager, social ridicule, anxiety with issues of trust and magnification of depressive cognitions. He feels socially inept, aroused in public, feels scrutinized and judged with feelings of inadequacy which are stemming from his negative experiences at work.
This has resulted in him feeling humiliated, his integrity being challenged and impacted his confidence and self-esteem. There are unresolved grievances that have not been addressed by his employer and furthermore his psychological condition has [been] aggravated by his employer being obstructive and not supporting his return to work.
From the psychological perspective there is loss of career with dismissal future earning [sic], loss of identity, loss of relationship after injury.
He does hold a guarded prognosis with unresolved grievances and lack of validation at work with his self-esteem being scarred.”
Dr Rastogi stated that:
“The psychological condition directly related to bullying and harassment during his course of employment and physical injury sustained during his employment.”
In a letter dated 12 June 2020, Dr Rastogi stated that he assessed that the applicant had 19% impairment arising from psychological injuries.
Evidence of Dr Tanveer Ahmed, Psychiatrist
The respondent relied on reports of independent medical examiner, Dr Tanveer Ahmed.
In a report dated 8 February 2019, Dr Ahmed noted the applicant’s reported history of early life in Iran and seeking asylum as a refugee in Australia after arriving by boat via Indonesia. In Australia, he undertook English classes and obtained short-term work before commencing employment with the respondent. The applicant reported that he was employed with the respondent for about six months when he sustained the physical injury. Dr Ahmed noted that the respondent “declined further” when there was an attempt to return to work. The applicant reported that at a meeting in early December with a manager and return-to-work officer, the prospect of redundancy was raised and the applicant became highly distressed and banged his head on a glass. The applicant described workplace harassment as being often ignored and not adequately supported. He said that he was made fun of for his poor English and that one of his colleagues told him to “suck my d—k”. The context was unclear. The applicant said that he was not given the right work clothes at times where other workers were. The applicant reported that he felt inappropriately harassed in the meeting when there was a lot of people. He said he attempted to tell a big boss, but it was not pursued. Dr Ahmed stated that he noted from correspondence that the applicant’s managers were unaware of his grievances and thought they had good relations with him. The applicant denied psychiatric history of himself or in his family.
Dr Ahmed noted that he examined the applicant, mostly without an interpreter due to an interpreter arriving just as the interview was ending. Dr Ahmed felt that the applicant’s English was sufficient to conduct the interview. On examination, Dr Ahmed observed that the applicant became highly distressed at times and was initially paranoid. The applicant demonstrated a strong victim mentality with themes of mistreatment and a sense of hopelessness about the future, with deficits in concentration and attention. He described thoughts of self-harm.
Dr Ahmed believed that the applicant satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood. Dr Ahmed opined that the applicant’s symptoms “was primarily in response to his sense of feeling mistreated at the meeting in December”. Dr Ahmed stated that the applicant did not have a pre-existing condition although he likely has a paranoid personality and is more sensitive to feeling mistreated by authorities or people. In response to a number of questions, Dr Ahmed stated:
“In your opinion, has Harry’s psychological injury arose as a consequence of, or secondary to his knee injury (noting that the meeting was in relation to the knee injury), if not please provide your opinion on causation?
At the time of the meeting in December, he was ready to attempt to return to work. He had been certified for working at least eight hours. He was agreeable to this despite not suggesting he felt mistreated in the workplace.
It is likely he felt vulnerable due to his physical injury, however. What is more likely is he misinterpreted the nature of the meeting, felt mistreated and decompensated. The cause had more to do with his underlying personality and not substantially related to work or any unreasonable actions.
Is Harry’s employment a substantial contributing factor with regards to his diagnosis?
His employment is not substantially related in that the actions from the employer were reasonable.
After reviewing the available information, in your professional opinion, is Harry’s psychological injury wholly or predominantly as a result of the discussion regarding redundancy undertaken by the employer?
His psychological injury is primarily caused by his perception of the work-related meeting where he felt mistreated and thought he had been told of an imminent redundancy. This was most likely a misinterpretation. He has a much longer history of feeling mistreated by authorities which is likely to be legitimate in Iran, but this also has heightened his sense of feeling mistreated locally. He has also had great difficulty maintaining work since acquiring permanent residency in Australia. He had only worked on and off up until this most recent job.
Are you aware of any factors outside of the workplace that may be contributing to Harry’s current presentation?
Outside factors include his social isolation, limited English and a wider inexperience with the local culture. He is much more sensitive to feeling mistreated when much of it, in my opinion, was likely to be misinterpretation or lack of integration into the local community and the organisation.
...”In response to a request for clarification, in a report dated 18 February 2019, Dr Ahmed stated:
“Are you of the opinion the psychological injury occurred, wholly or predominantly as a result of the discussion regarding the redundancy discussion undertaken by the employer?
This is to confirm that yes, his injury is not substantially work related. Just because he perceived it as work related does not make it substantially work related. This has more to do with his underlying personality and psychological vulnerabilities. There is nothing untoward or unreasonable about the actual work meeting.”In response to a further request for clarification, in a report dated 6 August 2019, Dr Ahmed stated:
“In regard to:
- We would appreciate your comment on whether the psychological injury sustained by the claimant is primary and/or secondary in nature.
The psychological injury is not primary. It is not directly caused by the work-related accident. It can be considered a partial response down the track and therefore secondary.
- Could you please further comment on if the claimant’s psychological injury resulted more from pre-existing issues and not related to work.
Mr Mehr’s psychological injury is primarily related to pre-existing issues. Notably, he has features of paranoid personality and is much more sensitive to feeling mistreated. This is outlined in my original report. Further evidence of this is the fact that he felt persecuted in Iran and is extra sensitive to feeling mistreated.”
In a further report dated 24 February 2021, Dr Ahmed noted that he interviewed the applicant (assisted by an interpreter) on 12 February 2021 and reviewed relevant documents. Dr Ahmed noted that the applicant reported perceiving mistreatment from his work colleagues from being belittled about his English to being sworn at. The applicant claimed that this was made known to his boss but Dr Ahmed noted that factual statements suggested that no such grievances were communicated. The applicant reported that he most ruminated about the particular meeting that was aimed at return to work. The applicant said that his desire was to return to work but he was humiliated in the meeting. The applicant said that his return-to-work coordinator was asked to leave the meeting, his phone was taken and he was issued with a termination notice. Dr Ahmed said the applicant “now uses the word ‘traumatic’ regarding the meeting and said it was the ultimate cause of his problems”. On examination, Dr Ahmed noted that the applicant spoke with themes of resentment, helplessness and lack of motivation and his affect was very much in the anxious to depressed range. Dr Ahmed noted that the applicant “was briefly irritable at times particularly when asked about his past employer. When asked about ruminations over the past work, his references were entirely regarding the final meeting”.
Dr Ahmed noted that there was no evidence of past psychiatric history. Dr Ahmed stated that the applicant:
“does not report any psychological disability up until after the meeting. Prior to that, his complaints were entirely related to his physical injury. I note this is in odds with atter diagnosis of posttraumatic stress disorder. It is only in the latter reinterpretation he has reported ruminations of past bullying and harassment. There is no evidence of this in the lead up to the work meeting”.
Dr Ahmed diagnosed chronic Adjustment Disorder with mixed anxiety and depressed mood. In relation to the cause of the current diagnosis, Dr Ahmet stated:
“The key contributor is his anger and resentment at the final meeting where he felt humiliated and mistreated. He now described that incident as traumatic. It is from that incident that his interpretation of psychological mistreatment originates. He has since reported that he has felt bullied and mistreated, which is entirely plausible, but according to the employer there was little mention of this.”
Dr Ahmed opined that “His diagnosis results from the employment, in that it results from the meeting related to redundancy” and further that “employment can be considered a substantial contributing factor, although there is every chance the actions could be considered reasonable”. Dr Ahmed assessed the applicant’s impairment as a result of the psychological injury to be 19% WPI.
In a supplementary report dated 8 April 2021, Dr Ahmed opined that the applicant’s psychological problems:
“are predominantly related to reasonable actions taken by the employer regarding transfer, demotion or termination. As he himself relates, this was the critical incident where he felt humiliated and which ultimately led to his psychological decline. He was not reporting psychological symptoms prior and any impairment was primarily related to physical injury”.
Discussion
There is considerable evidence from the applicant’s various treating medical practitioners that the applicant had psychological symptoms and a diagnosed psychological condition well prior to the workplace meeting on 4 December 2018:
(a) as early as May 21 June 2018, Carl Nielsen, Psychologist, recorded symptoms and diagnosed Adjustment Disorder with Depressed and Anxious Mood;
(b) on 1 May 2018, the applicant was referred to Dr Seyed Hosseinipour, Psychologist;
(c) on 2 July 2018, Mr Nielsen recorded ongoing symptoms and diagnosis;
(d) on 16 July 2018 Mr Nielsen recorded ongoing symptoms and diagnosis;
(e) on 24 July 2018, Erin Carmody, Psychologist, recorded that the applicant had depression, with relationship breakdown, financial stress and the physical injury noted as contributing factors;
(f) on 7 August 2018, Ms Carmody, Psychologist, again recorded that the applicant had depression;
(g) on 1 August 2018, Dr Khan, Psychiatrist, diagnosed a major depressive episode in the context of a work-related physical injury and subsequent chronic pain, but noted there was an indication for further assessment of underlying trauma-related symptoms secondary to alleged workplace bullying;
(h) on 30 October 2018, Ms Carmody noted that the applicant’s manager was “provoking stress and anxiety”;
(i) on 1 November 2018, Hansen Li, Psychologist, diagnosed Adjustment Disorder with depressed and anxious mood and PTSD with “extremely severe depression, anxiety and stress” following the applicant’s perceived humiliation at the workplace meeting on 30 October 2018;
(j) on 7 November 2018, Hansen Li, diagnosed “Depressed, PTSD?” and noted the applicant’s anger towards his past employer;
(k) on 12 November 2018, Hansen Li again diagnosed “Depressed, PTSD?” and noted financial issues, workplace issues and the applicant having an anxiety attack upon a call from the applicant’s manager;
(l) on 26 November 2018, Hansen Li again diagnosed “Depressed, PTSD?”;
(m) on 29 November 2018, Hansen Li again diagnosed “Depressed, PTSD?”, and
(n) on 3 December 2018, Dr Lim noted “chronic pain with psychological barriers” but also that the applicant believed he had been bullied, had a combative employer and was unsupported in management of his physical injury.
The above evidence supports a finding that the applicant had a diagnosed psychological condition which included depression from at least 21 June 2018. It is significant that almost immediately after the workplace meeting on 30 October 2018, the applicant’s psychological state appears to have considerably worsened and the applicant then demonstrated “extremely severe depression, anxiety and stress” as noted by the psychologist, Hansen Li. Further, the psychologist thereafter also included an additional possible diagnosis of PTSD. It appears from the evidence that at least by 1 November 2018, the applicant was in a severely injured state psychologically and that workplace issues, and in particular the pressure to return to work placed on the applicant at the meeting on 30 October 2018, was the main contributing factor to the psychological injury.
There is also considerable evidence from the applicant’s various treating medical practitioners that the applicant had further psychological symptoms and a diagnosed psychological condition following the meeting on 4 December 2018:
(a) on 4 December 2018, Dr Lim noted “raised concerns about Craig” and “employer changed subject”;
(b) on 5 December 2018, Dr Lim diagnosed Adjustment Disorder (K10:47) in the context of the workplace meeting on 4 December 2018 “on the setting of many months of harassment prior to and after his knee injury” and noted a “longstanding psychological condition from persistent actions of his employer... [which]... actions escalated, and resulted in a frank incident”;
(c) on 5 December 2018, Dr Khan, Consultant Psychiatrist, diagnosed “major depressive episode in the context of a work-related physical injury and subsequent pain” and noted “an indication for further assessment of underlying trauma-related symptoms secondary to alleged workplace bullying, which seemed to have continued recently and caused an exacerbation of his mental health difficulties”;
(d) on 12 December 2018 and 13 May 2019, Dr Khan noted the applicant’s ongoing psychological symptoms;
(e) on 18 July 2019, Dr Moshen Mirzaie, Psychiatrist, was unable to assess depression due to the applicant’s medication but diagnosed PTSD under DSM IV and opined that workplace treatment was a significant psychological trauma leading to PTSD. He noted that the applicant reported being abused and mistreated at work, called names, labelled a “liar” and was threatened with dismissal;
(f) on 20 August 2019, Dr Mirzaie diagnosed a severe form of PTSD and noted that the applicant vividly recalled being held on the ground by a security officer and his ex-manager shouting abuse at him including “you, mother f... bastard”;
(g) on 5 September 2019, 3 October 2019, 16 October 2019, 12 December 2019, 12 February 2020, 18 February 2020, 19 March 2020 and 19 May 2020, Dr Mirzaie noted ongoing symptoms which at times deteriorated and confirmed his diagnosis, and
(h) on 12 May 2020, Dr Hosseinipour, Psychologist, noted ongoing psychological symptoms including PTSD.
The above evidence supports a finding that following the workplace meeting on 4 December 2018, the applicant had psychological symptoms including symptoms of PTSD and psychiatric diagnosis of PTSD. Due to the applicant’s medication, Dr Mirzaie was unable to assess depression. It appears from the evidence that workplace treatment, including the meeting on 4 December 2018, was the main contributing factor to the psychological injury.
The evidence of Dr Rastogi supports a finding that the applicant had Persistent Major Depressive Disorder with post traumatic features, “directly related to bullying and harassment during his course of employment and physical injury sustained during his employment”. Dr Rastogi opined that the workplace bullying and physical injury culminated into a depressive disorder which was further exacerbated by the meeting on 4 December 2018.
Dr Rastogi’s report appears to be based on a sound understanding of the applicant’s history including his history of anxiety and reactive depression in 2013 in the context of his immigration status and being a refugee with no fixed abode and lack of adaptation, which settled after treatment. Dr Rastogi’s report appears to be well reasoned and appears to have given real consideration to all of the stressors reported by the applicant and the various psychological diagnosis since May 2018.
Dr Ahmed diagnosed adjustment disorder with mixed anxiety and depressed mood. There appears to be some inconsistencies in relation to Dr Ahmed’s opinion as to the cause of the applicant’s psychological condition. In his report dated 8 February 2019, Dr Ahmed stated that in his opinion the diagnosis was “not substantially related [to the applicant’s employment] in that the actions of the employer were reasonable”. Later in that report, Dr Ahmed stated that the psychological injury “is primarily caused by his perception of the work-related meeting where he felt mistreated and thought he had been told of an imminent redundancy. This is most likely a misinterpretation”. Dr Ahmed was apparently influenced by his understanding that the respondent’s conduct was reasonable and that the applicant likely had a heightened sense of feeling mistreated. In his report dated 24 February 2021, Dr Ahmed stated that the applicant’s psychological injury was “not substantially work related” and that it had “more to do with his underlying personality and psychological vulnerabilities”. Dr Ahmed again noted that there was “nothing untoward or unreasonable about the actual work meeting”. In his report dated 6 August 2019, Dr Ahmed opined that “The psychological injury is not primary. It is not directly caused by the work-related accident. It can be considered a partial response down the track and therefore secondary”. Later in that report, Dr Ahmed stated the applicant’s psychological injury “is primarily related to pre-existing issues. Notably, he has features of paranoid personality and is much more sensitive to feeling mistreated”.
I note that, at least in the initial examination, Dr Ahmed spoke with the applicant without the benefit of an interpreter. As noted in his further report dated 24 February 2021, Dr Ahmed appears to have had the benefit of an interpreter in his later examination of the applicant, at which time he recorded the applicant’s reports of mistreatment at the workplace. Dr Ahmed noted that although the applicant claimed that he complained to his boss, factual statements suggested that no such grievances were communicated.
In his report dated 24 February 2021, Dr Ahmed noted that there was no evidence of past psychiatric history and that the applicant “does not report any psychological disability up until after the meeting” on 4 December 2018 and that “Prior to that, his complaints were entirely related to his physical injury”. This does not accord with the considerable evidence of psychological symptoms and diagnosis prior to the meeting on 4 December 2018, which is detailed above. It appears that Dr Ahmed did not give real consideration or appropriate weight to the applicant’s psychological history in that regard.
It also appears that Dr Ahmed did not give real and appreciable consideration to the applicant’s allegations in relation to workplace mistreatment prior to the meeting of 4 December 2018 in the context of that history of psychological symptoms and diagnosis.
Further, Dr Ahmed’s opinion appears to have been largely influenced by his understanding that the actions of the respondent were challenged by evidence of the respondent and were “reasonable”. Particularly in the context of my findings in relation to the alleged stressors above, I consider that such emphasis is inappropriate.
For the above reasons, I prefer the evidence of the applicant’s treating medical practitioners and the independent medical expert, Dr Rastogi and place little weight on the opinions of Dr Ahmed.
Considering the evidence as a whole, I feel a sense of actual persuasion that the alleged stressors were the main contributing factor to the applicant’s psychological injury and I find accordingly.
Was the psychological injury excluded from giving rise to a claim for compensation under s 66(1) of the 1987 Act by reason that it was a secondary psychological injury arising by reason of the physical injury?
The respondent’s counsel submitted that the evidence supports a finding that the main contributing factor to the applicant’s psychological injury was pain from the physical injury, potentially giving rise to a defence under s 66(1) of the 1987 Act by reason that it was a secondary psychological injury.
I note that there is evidence that the applicant endured ongoing pain from his physical injury.
Clinical notes of Dr Sebastian Calvache-Rubio dated 26 November 2018 recorded:
“Ongoing knee and back pain
Ongoing concerns
Psychologically distress
Chronic pain syndrome”In a report dated 3 December 2018, Dr Eric Lim noted that the applicant had “Chronic pain with psychological barriers” however he also noted that the applicant “believes he has been bullied”, a “combative employer” and was unsupported in management of the physical injury.
In a report dated 16 June 2019, Dr Lim opined that the respondent’s conduct rather than the physical injury was the main contributing factor to the applicant’s psychological injury. Dr Lim noted that by the time of the meeting on 4 December 2018, “His chronic pain has stabalised [sic], and he had physical capacity to return to some sort of work...”.
In a report dated 18 June 2019, Dr Mirzaie noted that “Whilst the applicant did not place much emphasis on the physical injuries he sustained, he talked with a great sense of anger and hurt about the way he was treated after he claimed workers compensation”.
In a report dated 19 March 2020, Dr Mirzaie stated that the applicant “continues to be very worried about how he is treated by the workers compensation system”. Dr Mirzaie stated that the applicant “is hurt by not being believed. He continues to report his utmost frustration because ‘I don’t like to be humiliated and patronised’. It is important for him to be treated as a decent human being who was hurt through a work incident”. Dr Mirzaie assessed that the applicant “continues to suffer from a mixed mood disorder due to his work-related injury.”
In a report dated 19 May 2020, Dr Mirzaie noted that the applicant complained of “mental burden related to his workers compensation case. He feels that his physical issues are not acknowledged by the insurance company which gives him a great deal of stress”.
In a letter dated 12 May 2020, Dr Hosseinipour stated that:
“Unfortunately, his happy and hopeful life ended in March 2018 when he was seriously injured at work. According to him his trust to people he had expected to understand and supporting him suddenly shuttered and he found himself alone and helpless in a world full of unjust. He said that the day when he was still injured and physically unable to work, expecting understanding and support, the employer brutally gave him letter of his termination. He still does not know and even not exactly remember how he could have smashed a glass with his head.
For the cause of any psychological breakdown, psychologists should know that, this circumstance is a textbook example of a traumatic situation. And a fair and nonjudgmental psychologist or psychiatrist would assess this , to be a trauma. It is important to mention that Dr Mirzaei indicated on his report dated 18th July 2019, that he developed the symptoms of PTSD after that incident.
Therefore, I have no doubt that Mr. Mehr has been suffering from all the said symptoms of PTSD caused by that incident at work on 4th December 2019. He will need long-term medical and psychological intervention...”In the medicolegal report dated 12 June 2020, Dr Rastogi, Consultant Psychiatrist, stated:
“[the applicant reported]... the onset of bullying by his colleagues since start of his employment where he was socially ridiculed, mocked, humiliated and racial comments made towards him. He brought these grievances to his manager but no action was taken. He sustained a work-related physical injury on 16th April with significant pain and functional limitations culminating into a depressive disorder. His depressive disorder was further exacerbated by a meeting on 4th December 2019 where he was terminated by his employer as well as ridiculed by his manager whilst working a future vocational plan. This resulted into impulsive behaviours and self-harm due to perceived betrayal, build up of ongoing exploitation and victimisation by his employer. He had a chronic lack of support and felt alienated. He presented with post traumatic features with flashbacks of his manager, social ridicule, anxiety with issues of trust and magnification of depressive cognitions. He feels socially inept, aroused in public, feels scrutinized and judged with feelings of inadequacy which are stemming from his negative experiences at work.
This has resulted in him feeling humiliated, his integrity being challenged and impacted his confidence and self-esteem. There are unresolved grievances that have not been addressed by his employer and furthermore his psychological condition has [been] aggravated by his employer being obstructive and not supporting his return to work.
From the psychological perspective there is loss of career with dismissal future earning [sic], loss of identity, loss of relationship after injury.
He does hold a guarded prognosis with unresolved grievances and lack of validation at work with his self-esteem being scarred.
...
The psychological condition directly related to bullying and harassment during his course of employment and physical injury sustained during his employment.”
Considering the evidence as I whole, and my findings above that the alleged stressors were the main contributing factor to the psychological injury, I am not satisfied that the evidence supports a finding that the main contributing factor to the applicant’s psychological injury was pain from the physical injury. The applicant’s psychological injury is a primary injury and the main contributing factor was the alleged stressors referred to above.
On that basis, a defence under s 66(1) of the 1987 Act is not available to the respondent.
Is a defence available under s 11A?
Further and in the alternative, the respondent’s counsel submitted that the evidence supports a finding that the applicant’s psychological injury was wholly or predominantly caused by the meeting of 4 December 2018 and reasonable action taken and proposed to be taken by the respondent with respect to retrenchment, giving rise to a defence under s 11A of the 1987 Act.
As noted above, the above evidence supports a finding that the applicant had a diagnosed psychological condition which included depression from at least 21 June 2018. It is significant that almost immediately after the workplace meeting on 30 October 2018, the applicant’s psychological state appears to have considerably worsened and the applicant then demonstrated “severe depression, anxiety and stress” as determined by the DASS21. Further, the psychologist thereafter also included an additional possible diagnosis of PTSD. It appears from the evidence that at least by 1 November 2018, the applicant was in a severely injured state psychologically and that workplace issues, and in particular the pressure to return to work placed on the applicant at the meeting on 30 October 2018, was the main contributing factor to the psychological injury.
It is clear from the medical evidence that the meeting of 4 December 2018 was a significant additional stressor which led to a worsening of the applicant’s psychological condition.
However, having regard to the whole of the evidence and my findings above, I am not satisfied that the applicant’s psychological injury was wholly or predominantly caused by the meeting of 4 December 2018.
On that basis, a defence under s 11A of the 1987 Act is not available to the respondent.
Summary
Having regard to the legal principles set out above, particularly the principles stated by Deputy President Roche in Cannon and Watkins, and having regard to the whole of the evidence, I feel a real sense of persuasion that that there is a causal chain between the alleged stressors and the applicant’s psychological injury and that causal connection is sufficient that the psychological injury is a primary psychological injury and is not a secondary psychological injury.
For the above reasons, I make the following determinations:
(a) the applicant’s psychological injury is an “injury” within s 4(b)(i) of the 1987 Act, in that it was a disease that was contracted by the applicant in the course of employment and the employment was the main contributing factor to contracting the disease;
(b) the applicant’s psychological injury is a primary psychological injury and accordingly no defence is available to the respondent pursuant to s 65A of the 1987 Act;
(c) the applicant’s psychological injury was not 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 and accordingly no defence is available to the respondent pursuant to s 11A of the 1987 Act, and
(d) the applicant’s psychological injury gives rise to a claim for lump sum compensation under s 66(1) of the 1987 Act.
There is no dispute that the applicant suffers from a diagnosed psychiatric condition and that his impairment in that regard is 19% (as assessed by Dr Rastogi and Dr Ahmed).
On that basis, it is appropriate to order that the respondent is to pay compensation to the applicant pursuant to s 66 of the 1987 Act in the sum of $48,670 in respect of 19% WPI resulting from a psychological injury caused by a disease process and deemed to have been received on 4 December 2018.
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