Mieth v Sydney Trains
[2022] NSWPICPD 27
•14 July 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Mieth v Sydney Trains [2022] NSWPICPD 27 |
APPELLANT: | Aaron Mieth |
RESPONDENT: | Sydney Trains |
INSURER: | Transport for NSW |
FILE NUMBER: | A1-W1694/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 14 July 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 16 September 2021 is revoked. 2. The appellant sustained an injury in the nature of an aggravation, acceleration, exacerbation, or deterioration of a of a pre-existing psychological condition to which his employment was the main contributing factor within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987. 3. The appellant’s claims for weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987, and medical or related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 are remitted to another Member for determination. |
CATCHWORDS: | WORKERS COMPENSATION – section 4(b)(ii) of the Workers Compensation Act 1987 – aggravation, acceleration, exacerbation or deterioration in the course of employment of a prior psychological condition – perception of events in the workplace – test of causation – State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 discussed and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr S Hickey, counsel | |
| Carroll & O'Dea Lawyers | |
| Respondent: | |
| Mr P Stockley, counsel | |
| Gair Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Ms D Moore |
DATE OF MEMBER’S DECISION: | 16 September 2021 |
INTRODUCTION
The appeal is from a Certificate of Determination issued by the Personal Injury Commission Workers Compensation Division on 16 September 2021.
Mr Mieth, the appellant, was employed by Sydney Trains, the respondent, as a Customer Service Attendant. He claimed that as a result of bullying, harassment, intimidation and interpersonal conflict with his Manager, Ms Finegan, he suffered an aggravation of a pre-existing psychological injury with a deemed date of injury of 8 May 2020.
By an Application to Resolve a Dispute (ARD) he sought weekly benefits from 8 May 2020 to 18 January 2021 and expenses pursuant to s 60 of the Workers Compensation Act1987 (the 1987 Act).
The respondent declined liability on the ground that Mr Mieth had not sustained psychological injury arising out of or in the course of his employment with the respondent. The respondent further said that any psychological condition was a manifestation of the pre-existing psychological condition.
The Member said the principal issue for determination was whether the appellant sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act and, if so, was he incapacitated thereby from 8 May 2020 to 5 August 2020.
The Member found against the appellant and entered an award for the respondent.
BACKGROUND FACTS AND STATEMENT OF REASONS
The Member’s primary findings of fact are largely unchallenged and what follows is taken from the Statement of Reasons.[1]
[1] Mieth v Sydney Trains [2021] NSWPIC 354 (the reasons).
Mr Mieth was employed by Sydney Trains from 2012 as a Customer Service Assistant (CSA). His employment was supervised by Christina Finegan, a Customer Area Manager.
The appellant alleged in the ARD that he had sustained aggravation, acceleration, exacerbation or deterioration of a disease, caused by a series of events in the course of employment.
In summary those events were:
(a) A pay dispute in June/July 2018 when the appellant was working as acting Duty Manager at Eastwood. This was resolved in favour of the appellant after involvement of the Union and the appellant was paid at the correct rate.
(b) From 2018 to 2019, a dispute about the helping of a vision impaired patron to leave Beecroft Station. The appellant, together with other staff, were asked to assist the man off the station and escort him to a church in Beecroft. A further issue concerning this man arose at Meadowbank Station where he asked that he be escorted to Meadowbank TAFE. The appellant complained that he was not provided with proper guidance from his managers, particularly with respect to whether he was protected when leaving the station unattended.
(c) In mid-2019 there was an issue relating to a car that was abandoned in the railway carpark near Meadowbank Station. The carpark was two streets away from the station and the appellant was concerned that he had to leave the station and cross two streets. This dispute was unresolved for some months before Ms Finegan gave a clear instruction.
(d) In December 2019 there was a Christmas party at Hornsby RSL. Mr Mieth, who was by then a Union Delegate in which capacity he had raised a dispute, said that Ms Finegan at the party shook his hand, stood very close to him and caused him to feel uncomfortable and humiliated.
(e) On 23 March 2020 a fellow employee came to work sick with flu like symptoms. This was during the COVID-19 pandemic and the appellant raised with this employee whether she had been tested for COVID. When she responded in the negative, Mr Mieth rang Ms Finegan expressing his concern that the fellow employee could infect passengers and other staff, including him. Ms Finegan was asked whether he should return to work the next morning or whether he should visit his GP. Mr Mieth said Ms Finegan “snapped at him” and directed that he return to work. The appellant sought advice from the Union organiser and was advised that he should obtain from Ms Finegan a written direction.
(f) Three days after the COVID incident the Union secretary, Terry Johnson, rang and told Mr Mieth that there had been a complaint from Ms Finegan to the effect that Mr Mieth had intimidated women. A couple of weeks after that a fellow employee, Esna Bhatti, said to Mr Mieth that she liked the way he helped staff and did not find him intimidating at all. Mr Mieth did not know how Ms Bhatti came to learn of the complaint and subsequently learned that Ms Finegan had been asking female staff if they found him intimidating.
(g) In mid to late April 2020 an issue arose between Ms Finegan and Mr Mieth concerning trackwork signs which were supposed to be disposed of. Mr Mieth said Ms Finegan did not give a direction as to which signs were to be destroyed, but left it to him to work out those to be cut up.
The lay evidence before the Member was comprised of multiple statements by Mr Mieth, and statements by Ms Finegan, Ms Bhatti and a Mr Austin. The Member set out substantial extracts from these. It is unnecessary to set out the details of the statements.
Under the heading “Findings and Reasons” the Member extracted from the statements specific matters and passages germane to her decisions.
The Member said:
“To begin with, it is true that a lack of corroborative evidence is not necessarily fatal to any claim in this jurisdiction, but in this case, there is simply no corroboration of any of the complaints made by Mr [Mieth].
As counsel for the respondent put it, one would expect ‘some crumbs of corroboration or facts to support the claim’ but there are none.”[2]
[2] Reasons, [62]–[63].
In support of those propositions the Member referred to the evidence of Mr Austin to the effect that he had never witnessed Ms Finegan bullying or harassing the appellant and further that the appellant did not mention to Mr Austin that Ms Finegan had ever bullied or harassed him. So far as the visually impaired customer was concerned, Mr Austin said:
“Most staff helped him out and locked the station to escort him to where he needed to go to make sure the customer got there safely.
I personally don’t think there was a risk or any big issue with this. The staff leave the station to get lunch or to do other things so I don’t think this was a problem.”[3]
[3] Reply to Application to Resolve a Dispute, p 41.
The Member noted at paragraph [69] that Mr Austin’s evidence was inconsistent with that of Mr Mieth but that, furthermore, it reinforced her view “that this is simply an example of what Dr Bisht [psychiatrist who examined the appellant at the request of the respondent] referred to as ‘routine workplace events’ or what [the Member] would describe as ‘an otherwise innocuous matter.’”
The Member said:
“The [appellant] claims that he sustained a psychological injury as a result of, inter alia, ‘pressure to do unsafe things/tasks’ such as that described above, namely assisting a blind passenger.
If he perceived a problem with this task, I regard it as a misperception of an [innocuous] matter that in line with Townsend and Yeo, does not support a finding of injury within the meaning of s 4 of the 1987 Act.”[4]
[4] Reasons, [70]–[71].
The Member accepted Ms Finegan’s evidence “not only in her statement but in emails and other documents to which [she] referred”.[5]
[5] Reasons, [74].
In relation to the staff Christmas party, the Member concluded:
“Not only is that an innocuous event, it is also a clear example of the significant pre-existing anxiety which the [appellant] has experienced for some years as documented by Ms Ticinovic [the treating psychologist].”[6]
[6] Reasons, [76].
The Member reached the same conclusion with respect to Mr Mieth’s anxiety concerning the abandoned car in the carpark. She said:
“No-one else seems to have seen this as a serious issue or an ‘unsafe thing/task’ to be attended to as Mr [Mieth] claims.”[7]
[7] Reasons, [77].
The Member said dispositive of the two issues in the matter:
“79. As regards Mr [Mieth’s] statement that he felt bullied or threatened in relation to his role in the union, again, there is not a shred of evidence to corroborate this statement. I would have expected some comment or statement from some of his colleagues, for example, the union secretary, Terry Johnson, whom Mr [Mieth] mentions if there was some substance to this allegation.
80. In summary, I am of the view that Mr [Mieth’s] perception of the various events or tasks he describes represent a misperception by him of innocuous matters such that he has failed to establish that he suffered an injury or an aggravation of a pre-existing condition within the meaning of s 4 of the 1987 Act.
81. This misperception I conclude is a manifestation of his underlying and pre-existing psychological condition as opined by Dr Bisht.
82. Even if I am wrong on the issue of injury, I do not accept that the [appellant] was incapacitated for work as a result of any aggravation of his pre-existing psychological condition.
83. Mr [Mieth] ceased employment on 8 May 2020. By his own admission, ‘I was offered the CSA PFT position which became vacant at Moss Vale Station on 5 May 2020. I accepted the offer from NSW Trains on 9 May 2020.’ He subsequently decided not to accept that offer.
84. He was certified as fit to work but not with Ms Finegan.
85. The job at Moss Vale accorded with all his medical certifications.
86. Section 32A of the 1987 Act provides that employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’.”
The Member concluded that there should be an award for the respondent.
ON THE PAPERS
The respondent and appellant are content for the appeal to be dealt with on the papers.
Section 53(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed ‘on the papers’ without holding any conference or formal hearing.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 (THE 1998 ACT)
The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
THRESHOLD MATTERS
In the grounds of appeal and amended submissions in support of the grounds of appeal, the appellant submits that the weekly payment pursuant to s 36 of the 1987 Act in the event the appeal is allowed is $2,280 per week for the period 8 May 2020 to 5 August 2020, a total of $29,640. It is plain that if the appeal is allowed, s 352(3) of the 1998 Act is satisfied as to quantum.
The appellant lodged his appeal on 13 October 2021, and the parties agree the appeal has been lodged in time.
The respondent accepts the procedural requirements of s 352 of the 1998 Act have been met.
In considering these matters, I am satisfied that the threshold requirements of the 1998 Act have been satisfied.
GROUNDS OF APPEAL
The grounds of appeal and submissions in support set out four grounds, namely:
(a) “The Member erred at reasons [81] in failing to properly consider and misconceiving of the medical evidence of Dr Bisht and misdirecting herself as to that evidence in determining that the appellant’s misperception was a manifestation of his underlying pre-existing psychological condition as opined by Dr Bisht and thereby not a basis for a finding of a compensable psychological injury.” (Ground One)
(b) “The Member erred when having determined at reasons [59], [69], [71], [76], [77], and [80] that the appellant’s perception of the various events or tasks described represented a misperception by him of innocuous matters she then at reasons [80] and [81] misdirected herself in applying an incorrect causation test when failing to properly consider and misconceiving the opinion of Dr Bisht and misdirecting herself as to the final opinion of Dr Bisht in report dated 2 August 2021.” (Ground Two)
(c) “The Member erred in failing to engage with the appellant’s submissions as to incapacity from 8 May 2020 to 5 August 2020 and failed to provide reasons sufficient to show her path of reasoning in rejecting the medical certification of Dr Leung and the opinion of the treating psychologist Ms Ticinovic that the appellant had no capacity to work to 5 August 2020.” (Ground Three)
(d) “The Member failed to engage with or give reasons in relation to the appellant’s claim for s 60 medical and related treatment expenses.” (Ground Four)
SUBMISSIONS
As to Ground One – Misdirection and misconceiving the medical evidence of Dr Bisht
Appellant’s submissions
The appellant notes that Dr Bisht in his report of 2 August 2021 opined:
“I am of the opinion that the aggravation of his pre-existing condition was not caused by substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.”[8]
[8] Application to Admit Late Document (AALD) 9 August 2021, p 15.
The appellant submits that that opinion satisfies s 4(b)(ii) of the 1987 Act because it is no more than a restatement of an opinion that the appellant suffered from a pre-existing psychological injury which rendered the appellant susceptible or more susceptible to psychological insult to his mind than if he had not had such a pre-existing condition.
The appellant made supplementary submissions dated 3 November 2021 but these additional submissions do not appear to relate to Ground One of the appeal.
Respondent’s submissions
The respondent submits that the appellant’s submissions with respect to Ground One are an argument that Dr Bisht’s opinion properly understood supports a finding of injury within the s 4(b)(ii) definition of the 1987 Act.
The respondent submits that Dr Bisht was the only expert commentator provided with a full brief of the relevant material. It says that the appellant’s medical case was largely confined to the opinion of Ms Ticinovic, clinical psychologist. As a treating allied health practitioner, her received version of the facts was largely derived from the history supplied by her client. The respondent asserts that she seemed to accept this history uncritically and that her opinion verged on advocacy.
Dr Bisht’s first report of 20 April 2021 appears to provide support for the appellant’s case, but the causal nexus seems less obvious when Dr Bisht answered further questions.
The respondent makes two observations:
(a) the doctor uses the word “injury” synonymously with the expression “condition”, not by reference to s 4 of the 1987 Act, and
(b) the doctor’s view was that the real genesis of the injury was the worker’s pre-existing condition.
The respondent furthermore notes that Dr Bisht said of the appellant:
“His current psychological injury is predominately caused by a pre-existing condition, exacerbated by experiences at his workplace.”[9]
[9] AALD 9 August 2021, p 12.
The respondent submits “the key to the analysis is the nature and quality of the experiences at the workplace.” (emphasis in original)
With respect to that, the respondent submits that Dr Bisht concludes “the aggravation of his pre-existing condition was not caused by substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.”[10]
[10] AALD 9 August 2021, p 15.
The respondent submits in conclusion to Ground One:
“It was this medical opinion that formed the basis for Member Moore’s legal conclusions at paragraphs [80], [81] of her determination. While the Appellant seeks to impugn this conclusion, the evidence which she accepted went much further than merely acknowledging the existence of vulnerability or susceptibility.
Once the Member accepted that the Appellant’s reaction resulted from his pre existing disease, rather than the observed work place events, her conclusion was not only sound as a matter of law, but inevitable on the facts.”[11] (emphasis in original)
[11] Respondent’s submissions, [16]–[17].
Consideration
Dr Bisht provided two opinions in his reports dated 20 April 2021 and 2 August 2021. The Member accepted the revised opinion of Dr Bisht contained in the report dated 2 August 2021.[12]
[12] Reasons, [61].
In the report dated 20 April 2021, Dr Bisht said:
“The employment is not the main contributing factor to his injury. [Mr Mieth] had a significant pre-existing condition, and the employment has been the main contributing factor to the aggravation of the pre-existing condition.”[13]
[13] AALD 9 August 2021, p 11.
The explanation for why Dr Bisht regarded the employment as the main contributing factor to the aggravation was as follows:
“There haven’t been any non-work-related psychological stressors, around the time of the exacerbation, which would account for being the main contributing factor.
There is no significant contribution from any medical conditions or any other medications or any substances of abuse.
The aggravation has not ceased yet, as he is continuing to experience significant symptoms when he thinks about returning to work with Sydney Trains.”[14]
[14] AALD 9 August 2021, p 12.
That opinion, as the Member recognised,[15] was an acceptance that the events in the workplace were real and causative of an aggravation to Mr Mieth’s pre-existing psychological condition.
[15] Reasons, [60].
In the report dated 2 August 2021, Dr Bisht reviewed his previous opinion having regard to the additional information provided by the respondent’s solicitors in the form of a factual investigation report:
“The account, of the workplace events, given by the worker, differs from the findings of the factual investigation.
As per the factual investigation –
· There was a lack of evidence obtained following the investigations to suggest any conflict within the workplace. The nominated witnesses the worker identified have not corroborated his allegations of conflict, nor any bullying behaviour within the workplace.
· The worker had been offered a position with NSW Trains in or prior to May 2020. The worker later declined the offer of employment with NSW Trains. As a result of the worker initially accepting a transfer to NSW Trains, his position with Sydney Trains had been relinquished. He was subsequently provided with duties at Rooty Hill, after several meetings, with no involvement of the prior manager with whom he claimed he had been bullied.”[16]
[16] AALD 9 August 2021, p 15.
This led to Dr Bisht to revise his previous opinion “in regards to the contribution of the workplace to the worker’s condition.” The respondent quotes the revised opinion and this is set out above in paragraph [40].
Dr Bisht says that the aggravation of the pre-existing condition was not caused by “substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.” In my view the opinion expressed is that the events which caused the psychological condition were not, as described by Mr Mieth, “substantial events” but were “routine workplace events”. Nevertheless those events caused the psychological injury because they acted upon a pre-existing psychological injury. As I read Dr Bisht’s revised opinion to the effect that the routine workplace events, the happening of which was undisputed, precipitated the psychological injury in the form of the aggravation of the pre-existing condition that the appellant experienced.
The Member seems to have acknowledged this reading of Dr Bisht in paragraphs [80] and [81] of the reasons because she says:
“80. In summary, I am of the view Mr [Mieth’s] perception of the various events or tasks he describes represent a misperception by him of innocuous matters …
81. This misperception I conclude is a manifestation of his underlying and pre-existing psychological condition as opined by Dr Bisht.”
There is an apparent tension in these two paragraphs.
The jurisdiction provided by s 352(5) is to correct error of fact, law or discretion. It is not a review or new hearing. It is not sufficient that on equally open and finely balanced conclusions I might reach a conclusion contrary to that of the Member. The jurisdiction to interfere is engaged if I come to the conclusion that the Member was wrong. Even where the question is one of inference if the preponderant inference is to the contrary to that chosen by the member the jurisdiction is engaged.[17]
[17] Whitely Muir & Zwaneberg Ltd v Kerr (1966) 39 ALJR 505, 506; Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833.
In my view Dr Bisht does not support the conclusion that the psychological injury was a manifestation of the underlying psychological condition. Paragraph [80] of the reasons is contrary to paragraph [81]. The “misperception” of real events which occurred in the course of the appellant’s employment with the respondent was caused by the underlying psychiatric condition, but that misperception is of real events that occurred in the course of employment.
The Member’s conclusion at [81], that the psychological injury was a manifestation of the pre-existing condition, is not supported by the evidence of Dr Bisht and is erroneous.
The “misperception” of real, albeit innocuous, events in the course of employment resulted from the underlying pre-existing psychological condition, but that does not mean the events were delusional or illusory. The appellant’s psychological injury was caused by the events, even though such events would not cause psychological injury to a person who did not have the appellant’s pre-existing psychopathology.
On the basis of Dr Bisht’s opinion and the Member’s finding at paragraph [80], the aggravation of his pre-existing psychological injury was caused by the appellant’s misperception of the innocuous events in the course of employment.
The Member’s finding to the contrary in paragraph [81] was in error.
Ground One of the appeal is made out.
Ground Two – Misdirection as to the correct test of causation
Appellant’s submissions
The appellant submits that the Member emphasised Yeo v Western Sydney Area Health Service[18] and relied upon it as support for her reasoning at paragraph [59]. The appellant submits that the test was correctly stated in Townsend v Commissioner of Police[19] and that the decision on this aspect of the matter in Yeo was mere obiter.
[18] [1999] NSWCC 1; 17 NSWCCR 573 (Yeo).
[19] (1992) 25 NSWCCR 9 (Townsend).
The substance of the appellant’s submission on this ground of appeal is contained in paragraphs [35] and [36] of the submissions:
“35. … the Appellant’s psychological injury is compensable as resulting from his perception of ‘real events’ which were not ‘external events’ or even his misperception of ‘real events’ which were not ‘external events’ as a misperception is a perception and particularly applicable to persons who might suffer from a pre-existing psychological illness or susceptibility to aggravation or exacerbation by even real events that to some may seem innocuous.
36. … the Member misconceived the test analysis and misdirected herself in applying to the Appellant’s contraction of aggravated or exacerbated psychological injury the Yeo obiter”. (emphasis in original)
The appellant sets out passages from State Transit Authority of New South Wales v Fritzi Chemler[20] relying upon that authority for the following proposition:
“… the Member failed to reason and determine that in spite of conflicting evidence contained in statements from the Respondent’s witnesses as to absence of observation of harassment and any bullying by Ms Fin[e]gan the evidence from the Appellant nevertheless refers to real events and occurrences in his workplace which aggravated his psychological condition due to his susceptibility. Such accords with the eggshell skull or ‘talem qualem’ principle as discussed in Chemler.”[21]
[20] [2007] NSWCA 249 (Chemler).
[21] Appellant’s submissions, [40].
The appellant concludes that, for the reasons expressed in support of Ground One of the appeal, Dr Bisht did not provide an opinion “that the Appellant’s condition was only as it was manifest before the alleged workplace aggravation.”
There does not appear to be anything in the supplementary submissions in support of the grounds of appeal dated 3 November 2021 filed by the appellant in support of Ground Two.
Respondent’s submissions
The respondent submits that the complaints made in support of Ground Two are the same as those made with respect to Ground One, with the added assertion that the Member applied an incorrect causation test.
The respondent submits:
“The attack in this respect is focused on what the Member recorded at para [59]. However, on examination, it is clear that she acknowledged as appropriate the test set out in Townsend, which the Appellant argues was correct (submission 34). This cannot constitute error.
What the Appellant complains of is that she (impermissibly?) emphasised the decision in Yeo (submission 33). Did she? The Appellant does not point to a passage of reasoning that demonstrates this alleged transgression. The identification of this error is not made out.”[22]
[22] Respondent’s submissions, [21]–[22].
The respondent submits that the appellant’s argument is predicated on an incorrect understanding of the decided authorities. The respondent submits that the appellant’s argument assumes “that so long as the event or matter complained of actually existed and is not the product of a delusion the tests identified in Chemler and Townsend are satisfied”.[23]
[23] Respondent’s submissions, [23].
The respondent submits that an examination of the facts in the respective decisions demonstrate that this premise is incorrect. It is pointed out that in Chemler there was a perception of real events which the respondent submits were “external events” which in turn were capable of satisfying the test of injury “arising out of or in the course of employment”. According to the respondent what Chemler demonstrates is that the intention of the workmates was in the circumstances irrelevant.
This should be distinguished from the factual scenario in Townsend where the respondent points out that the Chief Judge observed that “several of the stressors complained of by the officer were not external to the applicant himself, but are in fact perceptions that the applicant himself formed of the event around him, and inferences that he drew from these events.”
The respondent submits that the critical finding of Member Moore at [81]–[82] is of precisely the same character as the findings of the Chief Judge in Townsend. In so concluding, she accepted the only medical evidence that dealt with the question, namely that of Dr Bisht.
The respondent then deals explicitly with the evidence of Ms Bhatti. It concludes:
“33. Here, the external event was a conversation with Ms [Bhatti]. However, based on her account of it, its injurious quality can only have been as a result of his misperception of its content and significance.
34. Applying a principle of reductio ad absurdum, an injured applicant might well identify as an external event, the fact that a colleague wore a green tie. If he reached the illogical and unsupported conclusion that this indicated his colleague was a terrorist, the actual cause of the resulting anxiety would not be the green tie but the irrational misperception.
35. In the present matter the point is that the Appellant received no corroboration that any of the external work events that he pointed to were of such a character as to cause his injury. The additional and necessary ingredient in each instance was his pre existing psychiatric condition as certified by Dr Bisht.”
Consideration
Fundamental to the Member’s finding on causation are the following paragraphs:
“57. Moreover, the employer was obliged to take Mr [Mieth] as they found him, noting his prior history of psychological problems.
58. I accept these submissions as they relate to the principles in Chemler. There were clearly ‘real events’ in the workplace in that case as found in all the various proceedings.
59. The real issue as I see it however is whether it can be said that Mr [Mieth] had a ‘perception of real events, which are not ‘external events’’, in order to satisfy the test of injury arising out of or in the course of employment [Townsend] or whether it can be said that he misperceived otherwise innocuous matters which led to him aggravating his pre-existing psychological condition such that his condition cannot be said to be an injury arising out of or in the course of employment [Yeo].”
For the reasons that follow, in my view, the Member applied the wrong test of causation.
The Member quoted extensively from the decision of the Chief Justice in Chemler. In particular, she quoted paragraph [47], which emphasises that the critical issue is whether there were acts in the workplace which had a particular effect on the mind of the respondent. The point of the Chief Justice’s reference to the talem qualem principle that employers take their employees as they find them was that the employer was liable for the reaction that the worker had to the events which occurred in the workplace even though that was a reaction which might not have been experienced by others. The contrast with Townsend, as the Chief Justice made clear at [49], was that in Townsend, “nothing suggested the rumours could be sourced to conduct in the workplace …”.
The Member did not refer to Basten JA’s judgment in Chemler at [69]:
“… If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognisable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.”
The issue accordingly is whether or not the events in fact occurred and whether the appellant’s perception of real events in the course of employment led to a cognisable psychiatric injury. The accepted evidence of Dr Bisht was that Mr Mieth had a reaction to routine workplace events “with this reaction likely resulting from the pre-existing psychological injury”. (emphasis added)
Mr Mieth had a particular reaction to innocuous events in the course of employment because of the pre-existing condition. On the findings of the Member, Mr Mieth felt bullied and harassed by Ms Finegan, under pressure to perform unsafe tasks, threatened as a result of his position with the union, and subjected to the possibility of a false complaint by a fellow (female) employee. He perceived those events as “offensive and hostile”. His perception was objectively mistaken but nevertheless, the events caused the reaction and this satisfies the test for causation.
The dicta of Judge Nielson in Yeo at [53] is not a correct statement of principle. As the Chief Justice observed in Chemler at [54], Judge Nielson stated the authority of Townsend too broadly.
Furthermore, it is important to understand that Judge Neilson’s remarks were by way of addendum to the substantial decision which related to s 11A(1)(b) of the 1987 Act.
I find support for my conclusion in the decision of Roche AP in Attorney General’s Department v K[24] at [52] where the Acting President said, amongst other things:
“…
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[24] [2010] NSWWCCPD 76 (K).
The Acting President said further:
“The principles discussed in Chemler, which are consistent with Wiegand and Sheridan, have been applied by the Commission in several cases (see South Eastern Sydney and Illawarra Area Health Service v Nikolis [2009] NSWWCCPD 74; Callingham v Tophos Pty Ltd t/as Central Coast Easy Care [2008] NSWWCCPD 140; Roads and Traffic Authority of New South Wales v Gentle [2009] NSWWCCPD 111).”[25]
[25] K, [53].
In my view, Ground Two of the appeal is established. The failure to find causation in favour of the appellant was erroneous.
Ground Three – The Member’s finding as to incapacity
Appellant’s submissions
The appellant submits that the Member found that the appellant was not incapacitated as a result of an aggravation of his pre-existing condition, without engaging with the appellant’s evidence and submissions concerning his incapacity from 8 May 2020 to 5 August 2020.
The appellant points to the evidence of Dr Leung’s Certificate of Capacity dated 8 July 2020[26] that the appellant had no capacity for work due to the exacerbation of his anxiety in relation to work related stress (emphasis added). Dr Leung’s certificate dated 5 August 2020[27] certifies the appellant as fit for the pre-injury duties provided he did not work under his previous manager.
[26] ARD, p 161.
[27] ARD, p 164.
In addition, the appellant refers to the certificates of Ms Ticinovic that for the first 12 weeks from 8 May 2020, the appellant’s capacity for work was zero and that by August 2020, the appellant could return to work 3 to 4 days a week, 6 to 8 hours to see how he goes. Further, the appellant relies on the report of Dr Bisht of 20 April 2021 that he was still suffering from psychological injury as he was continuing to experience significant symptoms when he thinks about returning to work at Sydney Trains.
The appellant submits ultimately:
“… the failure to address the evidence of the medical practitioners referred to above and the evidence from psychologist Ms Ticinovic as to the Appellant’s incapacity between 8 May 2020 and 5 August 2020 was an error in that there was failure to provide sufficient reasons and a failure to engage with and provide reasons for rejecting the Appellant’s submissions made at arbitration as to his incapacity.”[28]
[28] Appellant’s submissions, [48].
Appellant’s supplementary submissions in support of grounds of appeal
The appellant with the benefit of the transcript of evidence submits:
“Now upon reviewing the transcript provided and at page 31 therein it is evident that I made no such concession and to the contrary submitted that the worker ought to be entitled to an award of weekly payments of compensation pursuant to s 36 at the rate of $1,339.54 per week from 8 May 2020 to 7 August 2020 and thereafter pursuant to s 37 at the rate of $1,228 per week from 8 August 2020 to 18 January 2021 based upon the opinion of Dr Bisht psychiatrist. (Transcript dated 5 August 2021 at page 5, lines 9 to 18 and Transcript dated 25 August 2021 page 2, lines 20 to 25).”[29] (emphasis in original)
[29] Appellant’s supplementary submissions, [2].
The appellant in the supplementary submissions submits that:
“More importantly my submissions made to Member Deborah Moore on 5 August 2021 at Transcript pages 29 to 31 in support of the s 37 award for the second period of weekly payments claimed from 8 August 2020 to 18 January 2021 is to be considered and engaged with along with my description of the ‘Background to the Appeal’ under the heading ‘Capacity’ at paragraphs [21], [26], & [27] on page 5 of my earlier Amended Submissions and in support of the 3rd Ground of Appeal.”[30]
[30] Appellant’s supplementary submissions, [5].
Respondent’s submissions
The respondent submits that the appellant’s complaint fails to engage with the reasoning that the Member did provide, namely, that the appellant accepted a position with an employer other than the respondent, thus avoiding the necessity for contact with Ms Finegan. He provided no persuasive explanation as to why he rejected his job placement.
Additional supplementary submissions in response to a Direction made on 17May 2022
On 17 May 2022, I directed that further submissions be made by the appellant with respect to paragraph [86] of the Member’s reasons relating to the application of s 32A of the 1987 Act and that the respondent should make such further submissions in response to the appellant’s submissions as it may choose. The appellant made additional supplementary submissions in support of Ground Three of the appeal on 1 June 2021. The respondent’s additional submission is dated 6 June 2022 but was not received until 9 June 2022. I have taken the added submissions of each party into account.
The appellant’s additional submissions were:
(a) The Member did not properly engage with the medical evidence before her which demonstrated at the time of ceasing employment on 8 May 2020 or almost immediately thereafter the appellant had no capacity for work as a result of his psychiatric injury alleged.
(b) The evidence demonstrating that the appellant had no capacity was contained in the reports of Ms Ticinovic dated 19 August 2020 to the effect that during the first 12 weeks from 8 May 2020 the appellant had no capacity for work and the certificates of Dr Leung dated 8 July 2020 and 5 August 2020 to the effect that as at 8 July 2020 Mr Mieth had no capacity for work and from 5 August 2020 he was certified by Dr Leung as fit for pre-injury duties but not when working with the previous manager.
The appellant’s submission is that the Member applied an incorrect test by having regard to s 32A of the 1987 Act in circumstances where the appellant was certified as having no capacity for work.
The respondent submits the offer of employment at Moss Vale “was evidence of work capacity” and that the Member’s reasoning “hung on the identification of the job, not the fact that the appellant had not taken up the position”.
Consideration
It is plain that the psychologist, Ms Ticinovic, regarded the appellant as having no capacity for work as at 8 May 2020 and for a period of 12 weeks thereafter.
Dr Leung’s certificate dated 8 July 2020 provides that the appellant had no current work capacity for any employment at that time. In the certificate dated 9 September 2020, the doctor certifies the appellant as having a capacity to perform his pre-injury duties but not under the previous manager.
The reports of Dr Bisht are not specific with respect to the appellant’s incapacity as at 8May 2020, and to this extent his reports do not contradict or engage with the appellant’s evidence at the arbitration on the issue of capacity.
The Member’s brief Statement of Reasons on this issue proceeds on the basis that Mr Mieth, having been offered employment at Moss Vale not supervised by Ms Finegan, meant he necessarily had a capacity to perform that job. The respondent’s additional submissions of 6 June 2022 expressly submit that the Moss Vale job “was evidence of capacity”.
The Member concluded that Mr Mieth was provided with “suitable work” within the meaning of s 32A and that that necessarily precluded an award of compensation from 8 May 2020.
There are a number of things to be said with respect to the Member’s conclusion and the respondent’s submission in support of that conclusion:
(a) It is not until Dr Leung’s Certificate of 5 August 2020 that the appellant is certified fit for his pre-injury duties subject to his not being required to work under the previous manager. Up to that point of time the medical evidence from Ms Ticinovic and Dr Leung is that the appellant had no capacity for work.
The Member sets out at [11] of the reasons Mr Mieth’s statement of 2 August 2021. She relied on the appellant’s “admission” that he had been offered a position at Moss Vale on 5 May 2020, which he accepted on 9 May 2020. But she did not recognise that the appellant was asserting in the statement that he had been certified totally unfit for employment with Sydney Trains from 8 May 2020 and that his acceptance was qualified by the observation that he was “hopeful that [he] would be able to return to work, and that moving to a work environment where [he] was away from [his] antagonist would be suitable to [him].”[31]
The appellant declined the transfer to Moss Vale on 28 May 2020 because he “did not feel confident going back [to] any work environment, even though [he] would have been removed from seeing [his] antagonist.”[32]
(b) The claim made by the appellant for the period commencing 8 May 2020 to 5August 2020 was a claim under s 36 of the Act. The premise of s 36 is that the injured worker has no current work capacity. In this circumstance the definition of “suitable employment” in s 32A is not relevant because the premise of “suitable employment” is that of “employment and work for which the worker is currently suited”. If the worker has no capacity for employment then he cannot be suited to employment.
[31] AALD 2 August 2022, p 1, [4].
[32] AALD 2 August 2022, p 1, [8].
In my view the Member’s determination with respect to the appellant’s capacity for work as a result of the aggravation of the pre-existing psychological condition was in error because:
(a) The Member made no express finding with respect to the appellant’s “capacity for work”.
(b) The test applied by the Member that she did “not accept that the [appellant] was incapacitated for work” was not the appropriate statutory test for the purpose of s 36. The statutory test for s 36 is whether or not the appellant has a “current work capacity”.
(c) The Member’s reasons, on this point, did not refer to the evidence of Ms Ticinovic or Dr Leung with respect to the appellant’s capacity for work for the period 8May 2020 to 5 August 2020. Indeed, so far as the reasons are expressed it does not appear to have been appreciated that the first occasion on which the appellant was certified fit for work not under Ms Finegan is Dr Leung’s Certificate of 5August 2020.
In my view Ground Three of the appeal is made out.
As to Ground Four – Section 60 expenses
Appellant’s submissions
The appellant submits that the Member failed to engage or give reasons in relation to the appellant’s claim for medical or related expenses pursuant to s 60 of the 1987 Act.
Respondent’s submissions
The respondent accepts that if the appellant succeeds on the issue of liability he would be entitled to an order pursuant to s 60 of the 1987 Act.
Consideration
In view of the Member’s determination it was unnecessary for her to determine this issue.
As I have found the first 3 grounds of the appeal in favour of the appellant it follows from the respondent’s concession that the appellant is entitled to an order with respect to s 60 expenses if any have been incurred.
CONCLUSION
For the reasons given above Grounds 1 and 2 of the appeal are made out, and I revoke the Certificate of Determination dated 16 September 2021.
I am satisfied as to causation of the injury and thus make a new determination of the injury issue which is subject of those grounds of appeal, namely the appellant sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act.
So far as the claims for weekly compensation and medical or related expenses are concerned, the appellant seeks weekly compensation under s 36 of the 1987 Act for the period 8 May 2020 to 5 August 2020 and thereafter weekly compensation pursuant to s 37 from 8 August 2020 to 18 January 2021. The appellant seeks an order for medical and related expenses under s 60.
Primarily because I do not regard the parties as having fully addressed the issue of work capacity and have only addressed the appellant’s s 60 entitlement from the point of view of principle but not in detail, these matters should be remitted to a Member for determination of the appellant’s work capacity, and any resulting entitlement to weekly compensation and medical or related treatment expenses.
DECISION
I therefore make the following orders:
(a) The Certificate of Determination dated 16 September 2021 is revoked.
(b) The appellant sustained an injury in the nature of an aggravation, acceleration, exacerbation, or deterioration of a of a pre-existing psychological condition to which his employment was the main contributing factor within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987.
(c) The appellant’s claims for weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987, and medical or related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 are remitted to another Member for determination.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
14 July 2022
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