Mourad v Breen Resources Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mourad v Breen Resources Pty Ltd [2023] NSWPIC 51
APPLICANT:	Ali Mourad
RESPONDENT:	Breen Resources Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	14 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 resulting from primary psychological injury sustained in the course of his employment with the respondent; the applicant claims permanent impairment compensation payable under section 66 resulting from injury sustained to his right lower extremity in the course of his employment with the respondent; the respondent disputes the applicant has sustained primary psychological injury in the course of his employment with the respondent and the respondent disputes the applicant has sustained injury to his right lower extremity in the course of his employment with the respondent; Held – award for the respondent in respect of the applicant’s alleged primary psychological injury and award for the respondent in respect of the applicant’s alleged injury to his right lower extremity.
determinations made:	1. Award for the respondent in respect of the applicant’s alleged primary psychological injury. 2. Award for the respondent in respect of the applicant’s alleged injury to his right lower extremity

STATEMENT OF REASONS

Background

At the time Ali Mourad (Mr Mourad) sustained injury the subject of these proceedings he was working with Breen Resources Pty Ltd (Breen). Mr Mourad is currently 29 years of age.
The circumstances of Mr Mourad’s alleged primary psychological injury is described in the following terms:
“The applicant sustained primary psychological injury caused/and or aggravated by the nature and conditions of his employment in 2017 and up to in or about January 2018 involving bullying and harassment, verbal abuse and physical abuse by managers and staff, and exposure to dirt, soot and asbestos with deemed date of injury of January 2018.”
The circumstances of Mr Mourad’s physical injury is described in the following terms:
“The applicant sustained injury to his right lower extremity (soft tissue injury to his right hip, right knee and right ankle) as a result of the nature and conditions of his employment in 2017 and up to in or about January 2018 involving pulling, carrying and moving heavy objects in the workplace.”
Mr Mourad claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 18% whole person impairment (WPI) resulting from primary psychological injury sustained in the course of his employment with Breen with deemed date of injury of January 2018 and 21% WPI resulting from injury sustained to his right lower extremity in the course of his employment with Breen as a result of the nature and conditions of his employment between 2017 and January 2018.
Mr Mourad’s claim for permanent impairment compensation is declined and he has been issued with notices dated 10 February 2021 and 28 June 2022 in which he has been advised of the decision to decline his claim.

Issues for determination

The parties agree that the following issues remain in dispute:
(a) whether Mr Mourad sustained primary psychological injury in the course of his employment with Breen, with deemed date of injury of January 2018, and if so, percentage WPI resulting from that injury, and
(b) whether Mr Mourad sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of his employment between 2017 and January 2018, and if so, percentage WPI resulting from that injury.

Procedure before the Personal Injury Commission (Commission)

These proceedings came before me for preliminary conference on 8 September 2022. Greg Horan of counsel, instructed by Hanaa Suvery appeared for Mr Mourad. Christopher Michael appeared for Breen. Daniel McAndrew and Lisa Bainbridge, EML were present. Mr Mourad wasn’t present.
With Mr Mourad’s claim unresolved, these proceedings came before me for conciliation/arbitration hearing on 31 October 2022. Mr Horan of counsel again appeared for Mr Mourad and Mr Stockley of counsel appeared for Breen. Both counsels’ instructing solicitors were present. Mr Mourad was present.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I 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 had sufficient opportunity to explore settlement and were unable to reach an agreed resolution of the dispute. When it became apparent that the arbitration hearing would not conclude during the day of 31 October 2022 following oral submissions made by Mr Stockley, I issued directions for the lodgement and service of written submissions by Mr Horan and any submissions in reply by Mr Stockley. This has now occurred.

Evidence

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents (noting that Dr Dayalan’s reports dated
29 July 2019, 10 September 2020 and 22 September 2020 are admitted into evidence relevant to history only);
(c)    Application to Admit Late Documents dated 12 September 2022 and attached documents lodged on behalf of Breen;
(d)    Application to Admit Late Documents dated 29 September 2022 and attached documents lodged on behalf of Mr Mourad, and
(e)    Application to Admit Late Documents dated 26 October 2022 and attached documents lodged on behalf of Breen.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

Findings and reasons

Brief review of evidence

Statement of Mr Mourad

Mr Mourad relies on his statement dated 8 August 2022. Mr Moran said that he commenced working with Breen in 2017, working on a full-time casual basis as a general labourer.
Mr Mourad said his work duties included clearing a rubbish tip, which he said contained asbestos. Mr Mourad said his work duties required him to lift heavy bags, which placed strain on his back and legs.
Mr Mourad said he was not provided with any safety or protective gear and was verbally threatened when he complained about this. Mr Mourad said his work duties also included cleaning worksite toilets, cleaning the manager’s personal car and cleaning large shipping containers.
Mr Mourad said on one occasion he was locked in a shipping container for eight hours “as punishment” and that his “employers” urinated in his juice “to make a joke out of me.”
Mr Mourad said he was “degraded and belittled and made fun of.” Mr Mourad also said:
“I was subject to serious bullying in the workplace by my co-workers and employer, other labourers would often ridicule and marginalize me, which in combination with the jobs I had to do, emulated feelings of anxiety, stress and often depression.”
Mr Mourad said that on or about 29 January 2018 he was dismissed from his employment with Breen.
While in his statement Mr Mourad made no mention of injury sustained to his right lower extremity while working with Breen, he relevantly explained that while working with ANZ as a bank teller between 2014 and 2016 he sustained injury when he fell downstairs, including injury to his right knee.
Relevant to treatment of injury the subject of the proceedings, Mr Mourad explained he has come under the general medical care of Dr Awada and Dr Lim. Mr Mourad explained he has also come under the psychological care of Tony Jones and psychiatric care of Dr Khan.
Mr Mourad also relies on a statement dated 29 September 2022, which he said was made in response to that made by Robert Young (Mr Young) (referred below). In essence, Mr Mourad says
Mr Young’s statement is false and unsubstantiated.

Factual report

MJM Investigations prepared a factual report dated 7 August 2022. The investigator described his engagement with Breen as initially “guarded”. It is evident from the factual report that Mr Mourad obtained his employment with Breen with the assistance of a disability agency. While it is apparent that a Safework NSW investigation took place after MJM Investigations had concluded their investigation, the consequent report (if any) is not in evidence.
While Mr Young, WHS Manager with Breen, provided a statement in response to the allegations made by Mr Mourad, Andrew Vincent, a work colleague of Mr Mourad, failed to provide a statement despite request.
It is noted from Mr Young’s statement:
·Mr Mourad was employed as a labourer, and the duties assigned to him were that of waste management.
·While Mr Mourad alleged he was working on a large rubbish tip up to 10,000m2 that needed cleaning and that there was asbestos in the soil that needed to be cleaned out with a digger, Mr Young said he engaged Jonathan Simnett, licensed hygienist to inspect the soil and create a safety plan. Mr Young said Mr Mourad wore a monitor to ensure air monitoring was maintained by operatives adhering to safety requirements and that each day the filters were sent for analytical examination, with no fibres of concern subsequently reported. There is photographic evidence provided of Mr Mourad wearing an air monitor at work.
·Mr Young refuted Mr Mourad’s assertion there was no Personal Protective Equipment (PPE). Mr Young said there was an Asbestos Remove Control Plan and PPE that was signed off by employees in toolbox meetings, being employees which included
Mr Mourad. Mr Young said Mr Mourad was provided with PPE and signed out on PPE on many an occasion. Mr Young said while Mr Mourad had complained to Safework NSW about PPE, Safework NSW had dismissed Mr Mourad’s complaints. There is photographic evidence provided of Mr Mourad wearing PPE at work.
·Mr Young confirmed Mr Mourad had signed safe work method statements.
·Mr Young refuted Mr Mourad’s assertion he had been asked to clean toilets and/or the manager’s car and confirmed Breen contracted cleaners to undertake the required cleaning duties.
·Mr Young confirmed Breen employees regularly undergo drug and alcohol testing with Jobfit and denied Mr Mourad had ever raised concerns about employee drug and alcohol use. The Fitness for Work Policy for Breen that is in evidence demonstrated a ‘zero tolerance stance’ in regard to the use of illicit drugs and provides for random drug and alcohol testing at any time.
·Mr Young denied Mr Mourad had been locked in a container and said that had this in fact occurred NSW Police would have been involved and the offending employee would have been terminated.
·Mr Young denied Mr Mourad would have been required to lift bags weighing more than 200kgs.
·Mr Young said minimal manual digging occurs as the site has ‘many machines’.
·Mr Young said Mr Mourad was not working 12 hours each day, and this is reflected in Mr Mourad’s time cards.
·There was no violent acts or sexual advances made at any time towards Mr Mourad in the workplace.
Mr Young said relevant to Mr Mourad’s termination of employment:
“Ali was tasked with the same job as many others on site, it was reported on several occasions that Ali would not be working and found places to hide or sleep, which led to his termination.”
There is photographic evidence that appears to depict Mr Mourad asleep at work, which was apparently forwarded to Mr Young by Mr Vincent on 24 November 2017.

Mr Young provided incident reports relevant to Mr Mourad.
Investigation notes relevant to an incident occurring on 9 November 2018 record:
“Ali and Rob Brooker have had words. Ali alleges it was unprovoked and he was working like always. Rob Brooker has ‘not’ denied that he has told Ali to get off his ass and do some work. He says that Ali is lazy and sits around doing nothing while others are working. Ali and Rob Brooker have been separated as soon as this has happened. Rob Brooker has been sent to another part of the facility to work.
Ali has been spoken to to ensure that he is OK. He has advised that he does not want to take it further, although he did express that he does not come to work to be spoken to like that. He says if it happens again, he will take action. Rob Brooker has been taken aside and spoken to about the way he has spoken to Ali; he says that he is lazy and he gets away with doing nothing. Rob has been advised that this could possibly be construed as bullying. Rob says he did not bully him, he just calls it as he sees it. Further conversations were had with Rob about whether this is the correct way to deal with this. Whether he is the person that should be talking to Ali or whether it would be better coming from a supervisor or manager. Rob has agreed to stay away from Ali and not talk to him like this again.
A toolbox talk was held regarding bullying and harassment on 27 November 2017, which both Mr Mourad and Rob Brooker attended.”
Investigation notes relevant to an incident occurring on 19 December 2017 record
Mr Mourad’s nonattendance at work on 20 December 2017 with complaint of feeling unwell after working in the heat the day before.
Investigation notes relevant to an incident occurring on 21 November 2017 in which
Mr Mourad allegedly suffered injury to his neck while manual picking record there was no report of the alleged injury and it was not until after Mr Mourad’s employment was terminated on 29 January 2018 that he alleged he had been hurt at work. The notes record Mr Mourad’s complaint of injury was accompanied with “several other grievances” and on 15 March 2018 Breen received an unannounced visit from SafeWork NSW regarding Mr Moran’s allegations, which were discussed with Mr Young and others. Following investigation by SafeWork NSW,
Mr Whatman of SafeWork reportedly advised “he was satisfied with policies, procedures and safe work methods that had been questioned” and confirmed no further action was required.
In a file note dated 25 January 2018 Mr Young recorded a telephone conversation he had with Mr Mourad on 24 January 2018:
“Ali has made several allegations; I have asked him to put the allegations in writing so that they are not hearsay and I can confirm that I understand what he has said. He has alleged that we are putting him off as he refused to do an unsafe act. He says that he was told to put his hands in the Keestrack that was blocked while it was still running. He has said that he has not been trained on the machine and has not read a SWMS and therefore he believes it was unsafe for him to put his hands in the machine. He also alleges that they were using a bar to get the bulk rolling and he could have been hit by the bar and if the belt started moving, he had the potential to be hit by flying rocks and debris. He says that should be classed as near miss. I assured him that this was not the reason that he is currently not at work, although I also told him I was unsure of the exact reasoning and I could not really comment on that. He has made several more comments and allegations of being treated unfairly. He says that he is a Breen casual employee and if casuals need to be put off, and if this is because there is not enough work, agency casuals should be put off first. He has said that people swear around him during the day and he does not like it and he mentioned it makes him feel uncomfortable. He says that he feels that he does not have a safe work environment. He also made comment that he also thought he was being put off as he had mentioned to a few others that he might resign and says that although he said this, it is not a good reason to put him off. He has not put his resignation in writing. He has mentioned that he expects to be put off on Monday but says he has been offered two other jobs, one in a bank and one is a metal fabricator ($85,000 a year and a company car). So, he is not really worried about losing his job. He has made allegations that he had a photo taken of him while he had his eyes closed. He says his eyes were closed as he had a migraine and he was not asleep. He says that he has a solicitor’s opinion that taking a photo without his permission was illegal. I told him not being a lawyer I am unsure of this however if a supervisor takes a photo as he believes an incident has occurred this would be completely legal, and if he has fallen asleep while at work it is in effect an incident. He states that he was employed for construction and not to be on a picking station but then said it is OK but.”
Investigation notes relevant to an incident on 22 January 2018 record that an incident entitled “clean out screen without isolation” was not reported and explain that following Mr Mourad’s termination on 29 January 2018 Mr Mourad made a number of allegations, including being asked to perform unsafe work, which were investigated by Mr Young and determined to be false.

Treating medical evidence

Dr Awada

Mr Mourad initially came under the general medical care of Dr Awada.
In a report dated 2 May 2014 Dr Awada provided a report to GIO in response to a request, pertaining to alleged sexual abuse in the course of Mr Mourad’s employment with the Salvation Army in or about 2014. Dr Awada provided diagnosis at that time of mild to moderate reactive anxiety and depression “due to work environment stressors” and noted
Mr Mourad reported he had been experimenting with ecstasy “as a way of relaxation after the abuse started at the work place”. No pre-existing psychological condition was noted, and prognosis was considered “good” with psychological treatment.
In a report dated 19 March 2016 Dr Awada provided a report to ANZ in response to a request, pertaining to injury allegedly sustained when Mr Mourad fell while descending stairs on 15 October 2015 in the course of his employment with ANZ. Dr Awada relevantly noted
Mr Mourad sustained injury to his right knee and right ankle in the fall and also provided diagnosis of reactive anxiety. Dr Awada’s medical management plan at that time included “regular counselling; may need a review by a clinical psychologist”.
In a report dated 11 April 2017 Dr Awada provided a report to GIO CTP in response to a request, pertaining to injury allegedly sustained when Mr Mourad was involved in a motor vehicle accident, following which he presented to Canterbury Hospital and was admitted overnight. It is apparent Mr Mourad had been involved in a previous motor vehicle accident on 19 May 2016 and was described as being “on the mend” when this further motor vehicle accident occurred on 4 October 2016. Dr Awada’s diagnosis included reactive anxiety and his medical management plan at that time included antidepressant medication and counselling. With Mr Mourad complaining of “significant pain” Dr Awada referred him to
Dr Yu for pain management assessment and treatment.
In a report dated 14 February 2018 (which is shortly after Mr Mourad ceased working with Breen) Dr Awada reported to EML:
“Ali presented to me on 29/01/18 complaining of neck pain. He told me that he quit his job due to his unbearable symptoms.
…
Ali told me that his recent job required him to collect rubbish from ground level for several hours a day. He said that the rubbish included pieces of asbestos and heavy bags that needed to be lifted and carried to a large bin.”
While there is no mention in this report of Mr Mourad sustaining right lower extremity injury or psychological injury in the course of his employment with Breen, Dr Awada noted “his mood is unstable, and his anxiety levels fluctuate. I will be referring him to a clinical psychologist. He is on Lexapro for his depression”.
In a report dated 14 June 2018, Dr Awada reported to EML in response to specific questioning that diagnosis was “depressive illness associated with anxiety, drug use and gambling. He has some paranoia, but not overt psychosis”. Dr Awada reported:
“He has a long history of mental illness, going back to 2014 when he was a subject of abuse/harassment at the workplace. He was started on Zoloft, an anti-depressant and received regular counselling. He had no support at home and was always fighting with his parents who described him as a failure and good for nothing.
His injury while working at Breen Resources, aggravated his condition. He told me that he was the subject of daily verbal abuse while doing heavy work with asbestos.
I believe that work has aggravated his psychological illness. The alleged abuse at work coincided with him evicted from the family house.
…
Psychologically, he is still taking Lexapro for depression and is seeing Tom Jones, a clinical psychologist. The prognosis for his psychological illness is very much guarded due to persisting stressors impacting his life.
…
Due to Ali’s circumstances, he is prone to have aggravations of his psychological symptoms. He is very vulnerable and has many issues to contend with. So, as far as his psychological issues are concerned, I tend to believe that an aggravation of his mental illness would occur at any stage if he were the subject of criticism in any negative way, be it from an employer or a friend/family member.”

In a report dated 29 May 2019 Dr Awada reported to EML:
“I believe that Ali’s behaviour and psychological/mental health problems are due to:
·total lack of parental and family support. They completely disowned him.
·Social and relationship problems that needs to be explored further.
·Loss of direction: needs to help to get back on track.
·Being out of work with no sense of purpose.
·Lack of skills, qualifications and education. This limits his ability to find work.
·His physical symptoms could be partly psychosomatic.”
Dr Awada’s clinical records are in evidence, and it is evident Mr Mourad has consulted with him since the late 1990s. While it also evident Mr Mourad had a willingness to complain about adverse events in the workplace and there is an entry on 11 January 2018 confirming Mr Mourad’s work duties with Breen are physical in nature, with complaint on
23 January 2018 of neck and back pain, and report on 29 January 2018 that he “quit his job today” because of the physical nature of his duties, which he said “he can’t do any more”, there is no complaint recorded that Mr Mourad had been subjected to adverse treatment by anyone at Breen during the course of his employment.

St George Community Health Service

In a report dated 3 January 2018 (which is while Mr Mourad was working with Breen) the “acute care team” reported to Dr Awada that Mr Mourad had presented to the St George Emergency Department on 31 December 2017 after he had allegedly threatened suicide to family and friends against a backdrop of ceasing pain medication. However, during assessment Mr Mourad conceded he had no suicidal ideation but rather “was upset about the issue of his pain medication”. Mr Mourad reportedly said, “he could not attempt suicide as he would be too scared” and a “nil prior of attempts” is recorded. The acute team said of
Mr Mourad during assessment “he continued to describe nil acute mental health issues and nil risks” in the context of the insurance company having now agreed to fund Mr Mourad’s pain medication.
It is evident elsewhere that Mr Mourad was being treated with pain medication relevant to injuries sustained in a motor vehicle accident and the reference to the insurance company in the correspondence referred is reference to a GIO CTP claim.
This correspondence reflects St George Hospital’s discharge referral note dated
31 December 2017.

Dr Teychenne

Mr Mourad came under the care of Dr Teychenne. Dr Teychenne has provided a number of reports. Dr Teychenne is a neurologist. Dr Teychenne’s reports are dated 7 February 2018, 15 February 2018, 18 April 2018 and 14 October 2018. While Dr Teychenne makes no mention of Mr Mourad sustaining injury while working with Breen, he refers to a report dated 28 April 2016 prepared by Dr Allen in which Dr Allen reported a history of Mr Mourad sustaining injury on 15 October 2015 to his right thigh, right knee and buttock in the course of his employment with ANZ Bank.

Dr Norris

Mr Mourad initially came under the psychological care of Dr Norris, with his first consultation reported to be on 20 February 2018. In an Allied Health Recovery Request dated
5 April 2018, Dr Norris provided diagnosis in terms of “amphetamine disorder possibly ? In early remission, cannabis use disorder, gambling disorder, adjustment disorder re work circumstances, excessive alcohol use, personality vulnerabilities”. At the time of reporting, while Dr Norris noted Mr Mourad had attended several sessions late and not attended sessions between 17 March 2018 and 5 April 2018, Dr Norris accepted Mr Mourad has personality vulnerabilities which have impacted to some degree on his engagement with therapy. At the time of reporting Dr Norris was discharging Mr Mourad from his care as
Dr Norris was no longer doing workers compensation matters.

Tom Jones

Mr Mourad subsequently came under the psychological care of Mr Jones. Mr Jones provided a number of reports. In his initial report dated 30 May 2018 Mr Jones confirmed Mr Mourad had “attended for the first time” that day and wrote:
“He described himself as being extremely distressed with a K10 score of 49. He said that he had been troubled since he worked for Breen Resources where he said he was verbally abused and made to clean up asbestos. He said that he became distressed and tried to hang himself on 31/12/17 and also on another occasion.
He also began losing money through gambling and continues to do so. He was dismissed from his employment at the end of January 2018 and began abusing various illicit drugs. He said that he has stopped most of these except for cannabis.
He has become semi-homeless, staying alternately with different relatives.
He said he has been taking Lexapro, 20 mg/day.
He described himself as paranoid, fearing that he may be followed or targeted by police. He also hears voices to some extent. These auditory hallucinations may be generated by cannabis or may persist even if he ceases cannabis.
Clearly, he has many mental problems. I will begin treatment, aiming to stabilise his moods, cease gambling, cease cannabis and stabilise his accommodation. He is about to begin a cleaning job, to his credit.”
On review on 2 June 2018 Mr Jones reported Mr Mourad remained highly distressed despite his medication and with a history that his paranoia continued, Mr Jones suggested to
Dr Awaba that antipsychotic medication may provide relief.
In a report dated 30 May 2018 Mr Jones reported Mr Mourad had failed to attend his most recent appointment and had not responded to follow up contact. Mr Jones wrote:
“He had been very disorganised in speech and behaviour when seen and said that he had been hearing voices, fearing that he was being followed and fearing persecution. He may have a psychotic illness; if so, he may benefit from antipsychotic medication. He will also need to cease illicit drug use.
Given his resistance to follow-up and possible psychosis, he may respond better to follow-up by the public mental health services.”
However, in a report dated 5 July 2018 Mr Jones reported he had reviewed Mr Mourad that day and wrote:
“He remains very agitated, angry and anxious. He uses marijuana daily but denies use of other street drugs. He says that he has on his own initiative, been taking up to 80mg Lexapro/day without benefit. I suggest use of an antipsychotic medication, for control of paranoid thoughts.”

Workers Doctors

Mr Mourad has come under the general medical care of Dr Lim and Dr Dickson, both of whom practise out of Workers Doctors. Dr Lim provided a report dated 5 July 2019 in which he confirmed Mr Mourad initially consulted with him on 5 July 2019 with complaint of injury to “neck/back/psych”. Dr Lim reported:
“On Tuesday, 21 November 2017 Mr Mourad reported that whilst at work he suffered a back injury after having to work with asbestos in difficult conditions. Psychological deterioration post back injury. He has developed a substance disorder following his injury. He associated with the wrong people as he could not maintain normal relationships. He feels more comfortable talking to people in the park.”
On examination, Dr Lim noted “poor concentration, erratic thought” and provided diagnosis of major depression with psychosis. Dr Lim considered Mr Mourad required urgent psychiatric care and referred him for expeditious review by Dr Khan.
In a report date 17 May 2022, Dr Dickson reported to EML:
“… suffers chronic adjustment mixed disturbance of emotions and conduct. He continues to suffer pervasive anxiety, unwanted memories of work-related trauma and affect dysregulation. His symptoms remain but are attenuated by his adherence to his current psychotropic medication regimen as advised by Dr Khan (psychiatrist).”

Dr Khan

Mr Mourad came under the psychiatric care of Dr Khan following urgent referral by Dr Lim.
In his initial report dated 8 July 2019 Dr Khan reported to Dr Lim:
“Mr Mourad denied any psychiatric history prior to his work-related injury. He described how during his employment as a labourer with Breen resources, he struggled psychologically after he was required to crush asbestos and mix it with soil that was being sold to the Council and public. Mr Mourad described being subjected to bullying, harassment and forced labour where he was required to dig with his hands for more than 10 hours per day, five days per week, during his employment. He reported coughing blood and was concerned due to the exposure to asbestos. He described physical issues related to headaches as well as pain in his neck, lower back and right hand.”
Relevant to his mental state examination of Mr Mourad, Dr Khan reported:
“… Mr Mourad presented as casually dressed in appropriate self-care. Rapport was established and there was no evidence of psychomotor disturbance. He described his mood in dysphoric terms with his affect appearing congruent. There were no abnormalities of speech or thought form. Mr Mourad’s thought content comprised depressive and anxious cognitions. There were no acute risk issues. Mr Mourad’s cognition was grossly intact. He had appropriate insight and judgement.”
Dr Khan provided diagnosis of chronic adjustment disorder with mixed anxiety, depressed mood and disturbance of conduct perpetuating addiction issues (substance use and gambling).
In a report dated 4 March 202 relevant to assessment that day, Dr Khan reported he had last had the opportunity to assess Mr Mourad on 18 July 2019. He reported of Mr Mourad:
“Mr Mourad continued to experience significant depressive and anxious cognitions that were perpetuated by psychosocial stressors. He reported ongoing intermittent alcohol use and cannabis use but denied any other substance use.”
Dr Khan provided diagnosis of chronic adjustment disorder with mixed anxiety, depressed mood and disturbance of conduct perpetuating addiction issues (substance use and gambling).
In a report dated 29 April 2020 relevant to assessment that day, Dr Khan reported of
Mr Mourad:
“He continued to experience depressive and anxious cognitions. He remained concerned about his agitation and sleep disturbance. Mr Mourad reported minimal alcohol use, but he continued to smoke cannabis once a week.”
Dr Kahn provided diagnosis of chronic adjustment disorder with mixed disturbance of emotions and conduct pertaining addiction issues (substance use and gambling).
In a report dated 29 May 2020 relevant to assessment that day, Dr Khan reported of
Mr Mourad:
“He described ongoing difficulties with depressive and anxious cognitions. Mr Mourad struggled with affective dysregulation, a motivation, and sleep disturbance…
Mr Mourad reported intermittent alcohol use and cannabis use, which had reduced significantly.”
Dr Khan again provided diagnosis of chronic adjustment disorder with mixed disturbance of emotions and conduct perpetuating addiction issues (substance use and gambling).
In a report dated 24 September 2020 Dr Khan reported to EML that he last assessed
Mr Mourad on 29 May 2020. Dr Khan reported:
“Mr Mourad’s DSM-5 diagnosis is adjustment disorder with mixed disturbance of emotions and conduct. He has also suffered from numerous addiction issues, including opioid use disorder, stimulant (methamphetamine) use disorder, cannabis use disorder and gambling disorder. He also seemed to have an underlying borderline personality disorder. This opinion is based on psychiatric assessments conducted with Mr Mourad on 8 July 2019, 4 March 2020, 29 April 2020 and 29 May 2020. Mr Mourad has been an inconsistent historian and it has been difficult to ascertain the temporality between his addiction issues, his subjective psychotic symptoms and workplace injury. I do not have the opinion that Mr Mourad has a primary psychotic disorder such as schizophrenia.
…
I am unable to comment on when Mr Mourad first began to experience psychotic symptoms as he has been a guarded and consistent [sic] historian.
…
It is important to note that Mr Mourad has only attended 4/9 scheduled psychiatric consultations, which has made it difficult to assess his mental state and goals for recovery.”
In a report dated 30 September 2020 relevant to assessment that day, Dr Khan again noted he last had the opportunity to assess Mr Mourad on 29 May 2020. Dr Khan reported
Mr Mourad continued to struggle with effective dysregulation, anxiety and intermittent memories about his work-related trauma. Dr Khan again provided diagnosis of chronic adjustment disorder with mixed disturbance of emotions and conduct perpetuating addiction issues (substance use and gambling).

Independent medical evidence

Dr Rastogi

Mr Mourad was psychiatrically assessed by Dr Rastogi in her capacity as independent medical examiner. Dr Rastogi assessed Mr Mourad on 18 July 2019 and provided a report dated the same day. While Dr Rastogi had a statement of Mr Mourad made available to her at the time of authoring her report, it is evident that the statement made available to Dr Rastogi is not the statement of Mr Mourad that is in evidence, as that statement is dated 8 August 2022.
Dr Rastogi reported a history of injury which included Mr Mourad’s work duties requiring him to clear a rubbish tip that included asbestos without the use of protective gear, with verbal abuse and threats made when Mr Mourad made complaint. Dr Rastogi reported Mr Mourad was also required to clean toilets and clean the manager’s car. Dr Rastogi reported Mr Mourad was locked in a container for eight hours as punishment, which caused him to be “extremely distraught”. Dr Rastogi reported Mr Mourad was told to lift bags weighing up to 200 kg and manually pull them “and they would laugh at him”. Dr Rastogi reported Mr Mourad’s food was contaminated with urine. Dr Rastogi reported:
“He was working 12 hours a day doing excessive physical labour and would be kicked, punched, and abused daily. He alleged some of the workers made inappropriate sexual advances and comments and manhandled him.”
Dr Rastogi said of Mr Mourad:
“He made a grievance to the manager about alleged verbal and physical abuse and this led to his termination.”
Dr Rastogi reported that following the termination of his employment, Mr Mourad’s behaviour became erratic. Mr Rastogi reported Mr Mourad was using illegal substances leading to auditory hallucination and paranoid ideation. Mr Mourad attempted suicide by “attempted hanging” at a friend’s home and was involuntarily admitted to St George Hospital in December 2018 [sic], where he was diagnosed with drug induced psychotic episode.
Dr Rastogi reported Mr Mourad had a recent altercation with his general practitioner two weeks earlier resulting in an AVO and criminal charge. While Dr Rastogi reported there was no previous history of psychological injury, Dr Rastogi noted there was a history of illicit recreational drug use, methamphetamines and heroin, since 2017 and a history of alcohol abuse.
Dr Rastogi’s background history included:
“He has three sisters. He is estranged from his family for more than 10 years due to ongoing conflict. He describes a traumatic childhood. He attended school and academically performed reasonably. He finished year 12 and enrolled in university doing civil engineering. He got expelled from university in 2018 due to absences and not attending to any assignments and exams. In terms of his employment, he worked for McDonald’s for seven years at Mascot until it closed down for renovations. He was unemployed for a few months and was on Centrelink benefits until he acquired a job at Breen resources in 2017 through disability services. He has never been in a relationship.”
Following mental state examination and review of the limited documents made available to Dr Rastogi, Dr Rastogi provided diagnosis of drug induced psychosis, polysubstance abuse, adjustment disorder with depressed mood, chronic pain disorder, and personality vulnerability (Cluster B traits). Dr Rastogi provided opinion:
“Mr Mourad has had pre-existing drug and alcohol issues with personality vulnerabilities as well as chronic pain disorder. He has pre-existing psychological issues stemming from Cluster B personality traits characterised by impulsivity, poor frustration tolerance and interpersonal crisis. The presence of comorbid drug abuse has also contributed to his mood deterioration. Furthermore, he has history of chronic pain from 2016 with physical restrictions and limited work capacity. His anxiety and adjustment disorder aggravated by workplace exploitation and working in unsafe hazardous work environment in 2017. He subsequently was consuming recreational drugs and amphetamines culminating into psychotic episode. His depression stems from complex aetiologies and holds a poor prognosis. The workplace bullying and exploitation exacerbated his depression.”
Dr Rastogi declined to provide an assessment of permanent impairment on this occasion. She said:
“Your client has not been reviewed as with psychiatrist and his medication needs titration and review. He needs drug and alcohol rehabilitation with maintaining abstinence for a period of 9 months before whole person impairment can be assessed.”
Dr Rastogi re-assessed Mr Mourad on 2 September 2020 and provided a report dated the same day. On this occasion Dr Rastogi noted Mr Mourad had secured his employment with Breen with the assistance of a disability agency. Dr Rastogi again described Mr Mourad as being subjected to bullying and harassment by his managers and staff during his course of employment, which she said culminated into a psychological condition with Mr Mourad’s termination in January 2018.
Following mental state examination on this occasion and review of the further documents made available to her, Dr Rastogi provided diagnosis of schizoaffective disorder (aggravation), polysubstance abuse (pre-existing) and personality vulnerabilities (Cluster B traits). Dr Rastogi provided opinion:
“Mr Mourad has had pre-existing drug and alcohol issues with personality vulnerabilities as well as chronic pain disorder. He has very complex psychological presentation with co morbidities. He has pre-existing psychological issues stemming from Cluster B personality traits characterized by impulsivity, poor frustration tolerance and long history of poor interpersonal relatedness. The presence of comorbid drug abuse has also contributed to his mood deterioration. He has suffered a drug induced psychotic episode as well. There have periods of adjustment disorder with anxiety stemming from multifactorial aetiology and he displayed poor stress coping and vulnerabilities
…
The workplace exploitation and working in unsafe hazardous work environment with Breen Resources in 2017 led to aggravation of his underlying mood disorder with florid psychotic symptoms. He was consuming recreational drugs amphetamines culminating into drug induced psychotic episode.
He has continued to experience mood instability, poor impulse control, active symptoms of psychosis with auditory and visual hallucinations, persecutory delusions, impaired judgement, and insight despite treatment posing a poor prognosis. His diagnosis is consistent with schizoaffective disorder with presence of mixed affective mood disorder with co-morbid mood congruent psychotic features. The work-related condition has aggravated his underlying psychiatric conditions with deterioration and functional decline.
The presence of work-related incidents and bullying at Breen Resources has caused aggravation of his pre-existing psychological injuries depression and schizoaffective disorder complicated by polysubstance abuse and pre-morbid personality vulnerabilities.
I note despite having pre-existing complex psychological conditions, he was functioning in some capacity and at the time of joining Breen did not display florid psychotic symptoms. There may be underlying feeling of persecution and mood lability.”
In response to specific questioning, Dr Rastogi provided opinion Mr Mourad’s employment with Breen “led to exacerbation of pre-existing complex psychological pathology and exacerbation of schizoaffective disorder”. On this occasion Dr Rastogi assessed Mr Mourad at 18% WPI resulting from his psychological injury, noting diagnosis of schizoaffective disorder and co-morbidity of polysubstance abuse. She said too of a pre-existing condition:
“There is evidence of pre-existing disorder with depression anxiety, co-morbid drug abuse, drug induced psychotic disorder and chronic pain and personality vulnerabilities.”

Associate Professor Wong

Mr Mourad was assessed on 13 December 2019 by Associate Professor Wong (A/Prof Wong) in his capacity as independent medical examiner. A/Prof Wong is a general surgeon. A/Prof Wong provided a report dated the same day. A/Prof Wong reported a history of
Mr Mourad having been enrolled at university to undertake civil engineering and being dismissed for lack of participation.
Associate Professor Wong reported background was in the following terms:
“Mr Ali Mourad is a 26 year old man who was employed by Breen Resources Pty Ltd from January 2017 to January 2018. At the time of the work injury he working as a general labourer. He was at site to work on a huge tip up to 10,000 square meters need clearing. He worked 12 hours a day doing heavy physical labour. He experienced aggravation to his neck and back and sustained injuries to his right leg.”
Associate Professor Wong described the nature and conditions of Mr Mourad’s employment with Breen between January 2017 and January 2018:
“As a general labourer Mr Mourad was assigned to work on a huge rubbish tip up to 10,000 square meters that needed clearing. He worked 12 hours a day doing heavy physical labour. There was asbestosis in the soil that was required to be cleared out with a digger and shovels. He was required to manually drag bags of soil weighing up to 100kg. Whilst being forced to do these duties, he experienced significant aggravation of his neck and back. He sustained injuries to his right hip, right buttock, right knee.
Mr Mourad informed me that after digging 10 hours a day for more than 6 months, he developed pain at his knees and ankles and the right knee and right ankle were worse. He thought the toes were broken. He also complained of clicking sensation at the right hip. Mr Mourad had no consultation with his doctors about his bilateral lower extremity problems and he had no X-rays for them either.”
Following clinical examination, and review of the documents made available to him, which are not identified, in response to specific questioning A/Prof Wong provided diagnosis in terms of “soft tissue injury to the right hip, right knee and right ankle from the nature and conditions of employment as labourer” and said, “Breen Resources Pty Ltd is a substantial contributing factor to the soft tissue injury to the right hip, right knee and right ankle”. A/Prof Wong assessed Mr Mourad with 21% WPI resulting from injury sustained to his right lower extremity.

Dr Dayalan

Mr Mourad was assessed by Dr Dayalan on 19 July 2019 in his capacity as independent medical examiner. Mr Mourad was re-assessed by Dr Dayalan on 4 September 2020.
Dr Dayalan is a psychiatrist. Dr Dayalan provided reports dated 29 July 2019,
10 September 2020, and 22 September 2020.
In his initial report Dr Dayalan explained Mr Mourad was “quite difficult to interview and presented as quite disordered in thought form”. He reported:
“Mr Mourad said that his role involved cleaning ground off asbestos. He explained that his employers would put soil on the ground and make them dig for asbestos. He claimed that his employers crushed asbestos intentionally to poison people he also alleged that some of his employers and work colleagues had urinated in his juice bottle and put faeces in his lunchbox. He described an instance where he had been locked inside a shipping container for nine hours by his employer.
During the discussion, Mr Mourad got onto the floor and mimicked the posture adopted whilst at work. He added ‘we were like cats there.’ He said that whilst he had been at work, he had been kicked on his back and suffered a back injury.
Mr Mourad also said an employer by the name of Damien had cast a voodoo spell on Mr Mourad and he had been struggling to function since then. He had understood from another person that he had to go to India to get the voodoo spell off him and that he was desperate to go to India.”
Dr Dayalan reported Mr Mourad suffered paranoid delusions, which included persecution by a number of different people, including family members, and auditory hallucinations.
Dr Dayalan described Mr Mourad as wearing a hooded jumper during examination with the hood over his head, which Mr Mourad explained “reduced the intensity of the auditory hallucinations”. Dr Dayalan described Mr Mourad as wearing socks over his hands during examination and at one point covering himself with a black garbage bin bag and sitting on the floor. Dr Dayalan said Mr Mourad told him that “he had spent hours in the bush whilst it was raining with a plastic bag over him”.
In his subsequent report Dr Dayalan said again that Mr Mourad was “quite difficult to interview given his tendency to be quite tangential in his thought form”. Dr Dayalan reported:
“Mr Mourad explained that his role involved cleaning ground of asbestos and he added that he had to dig the ground with his hands. He alleged his colleagues had urinated in his lunchbox and had poisoned him. He also said that they had placed their faeces in a container and tried to serve it to him claiming they were meatballs.
Mr Mourad claimed that one of the individuals that the workplace had done black magic on him and he believed that he had been cursed since. He believed as a result of the black magic his mental health and physical health had deteriorated. He was unable to recall any other details. Mr Mourad denied any other sources of stress at the time.”
Dr Dayalan again reported Mr Mourad suffered paranoid delusions, which again included persecution and auditory hallucinations. Mr Mourad told Dr Dayalan he had stopped psychological counselling as he believed his psychologist had worked with the Klu Klux Klan.

Dr Hughes

Mr Mourad was assessed on 15 October 2019 by Dr Hughes in his capacity as independent medical examiner. Dr Hughes is an orthopaedic surgeon. Dr Hughes provided a report dated 25 October 2019. As Dr Hughes’s assessment is relevant to alleged injury to Mr Mourad’s neck and Dr Hughes takes a limited history of Mr Mourad’s employment duties with Breen I do not propose to canvass his report here save to note Dr Hughes reported Mr Mourad was not working due to psychological problems.

Dr Whetton

Mr Mourad was assessed by Dr Whetton on 15 January 2021 in his capacity as independent medical examiner. Dr Whetton is a psychiatrist. Dr Whetton provided a report dated
18 January 2021. By way of introduction Dr Whetton confirmed he took the opportunity to review the medical information forwarded to him prior to recording the history provided by
Mr Mourad as he said, “Mr Mourad was psychotic, and his history cannot be relied upon”.
Dr Whetton noted Mr Mourad said he had commenced studying engineering at University but became unwell and was expelled.
The history provided by Mr Mourad on examination and recorded by Dr Whetton in part canvassed Mr Mourad’s work with Breen involving “cleaning asbestos in machines, which he said was crushing the asbestos and putting it back into the soil”. Mr Mourad said the soil was going to be distributed to parks, which could result in people suffering cancer. Mr Mourad said he was required to “do hard work, which led to problems with his hands and back”.
Mr Mourad said he was forced to pull heavy bags, which was physically beyond him.
Mr Mourad reported abuse at work. He said he was kicked and pushed. He said he was subjected to his work colleagues “pooing in my lunch box and urinating in my drinks”. He said he was locked in a shipping container for eight hours in an isolated area. He explained that what had happened to him during the course of his employment with Breen “was due to voodoo and black magic”. He said curses were made, attempts were made on his life and attempts were made to “play with his brain”.
Relevant to his examination of Mr Mourad, Dr Whetton reported:
“He gave a long and complex history of paranoid delusions and was insistent in his history giving. He indicated that he was sensing signals. He described hallucinations of people calling his name and then he would go to try and find them and become angry if he could not. There were ideas of reference being the signals. His mood did not appear anxious or depressed. He was thought to disordered and the overwhelming content was of bizarre delusions and picture was that of a psychotic state.”
Dr Whetton provided diagnosis of paranoid psychosis, which is a severe degree, and most likely chronic schizophrenia. In response to specific questioning, Dr Whetton said with reference to the history of work issues that had arisen, which he described in terms of most being “bizarre”:
“This is not a primary psychological injury as a result of alleged work related stressors but a chronic psychiatric condition, which has developed in the setting of substance abuse disorder and with the severity with which he presents would be against a background of a constitutional vulnerability to allow this condition to have developed. Work could not cause this state.”

Dr Wallace

Mr Mourad was assessed on 27 January 2021 by Dr Wallace in his capacity as independent medical examiner. Dr Wallace is an orthopaedic surgeon. Dr Wallace provided a report dated 29 January 2021. Dr Wallace’s recorded history included:
“In 2017, he was employed on a casual basis working full time hours up to 50 hours per week. His work duties included removing asbestos from contaminated soil on a land clearing site. He states that heavy machinery was used to spread the contaminated soil over the site and then he would have to work on his hands and knees with gloved hands digging through the soil to remove asbestos. In 2017 during the course of his work, he noted the onset of pain and swelling at his knees and ankles.”
Dr Wallace said Mr Mourad described no previous history of injury to his lower right limb.
Dr Wallace said Mr Mourad presented with “global aching pain about the right lower limb which he describes as a constant heavy ache”. Following clinical examination, and with no diagnostic imaging available for review, Dr Wallace provided diagnosis in terms of “no identifiable organic pathology at the right lower limb”.

Dr Smith

Mr Mourad was assessed on 10 March 2022 by Dr Smith in his capacity as independent medical examiner. Dr Smith is an orthopaedic surgeon. Dr Smith provided a report dated
22 March 2022. As Dr Smith’s assessment is relevant to alleged injury to Mr Mourad’s neck and Dr Smith takes a limited history of employment duties with Breen I do not propose to canvass his report here save to note that although Dr Smith said from an orthopaedic perspective he could find nothing wrong with Mr Mourad, he also said:
“He has, in my opinion, significant psychiatric illness, and is uncooperative and uninformative.”

Dr Kafataris

Dr Kafataris provided a report dated 9 May 2022 following file review in his capacity as injury management consultant. Dr Kafataris provided diagnosis which included “psychological condition”. Dr Kafataris relevantly confirmed he had reviewed the report of Dr Khan dated
24 September 2022 and the report of Dr Dayalan dated 22 September 2020. Dr Kafataris accepted Mr Mourad’s reported presentation included “a significant psychological component”.

Submissions

Mr Stockley made oral submissions during the arbitration hearing on 31 October 2021,
Mr Horan has provided written submissions and Mr Stockley has provided written submissions in reply to those of Mr Horan. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance they have afforded me in this particular matter.

Injury

It is disputed Mr Mourad sustained primary psychological injury in the course of his employment with Breen with a deemed date of injury of January 2018. It is also disputed
Mr Mourad sustained injury to his right lower extremity (right hip, right knee and right ankle) as a result of the nature and conditions of his employment with Breen between 2017 and up to in or about January 2018
Section 4 of the 1987 Act relevantly defines injury as a personal injury arising out of or in the course of employment.
Relevant to the primary psychological injury Mr Mourad alleges he sustained in the course of his employment with Breen, the definition in s 4 of the 1987 Act includes injury in the nature of a disease injury, which means 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 also a disease that is an aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation of deterioration of the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[1] with comment that the test of “main contributing factor” is one of causation that involves consideration of the evidence overall.
[1] [2020] NSWWCCPD 9.
Relevant to the injury Mr Mourad alleges he sustained to his right lower extremity in the course of his employment with Breen, which is in the nature of a soft tissue injury, s 4 of the 1987 Act must be read together with s 9A of the 1987 Act, which essentially provides no compensation is payable under the 1987 Act in respect of injury if the employment was not a substantial contributing factor to injury. The law in relation to “substantial contributing factor” was considered by the NSW Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd [2]and Da Ros v Qantas Airways Ltd [3]. It is said that for employment to be “a substantial contributing factor” to injury for the purposes of s 9A of the 1987 Act, the causal connection must be “real and of substance” and in determining whether a worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be considered to the extent they are relevant.
[2] [2009] NSWCA 324; DDCR 75
[3] [2010] NSWCA 89.
Relevant to the issue of causation generally, in Kooragang v Cement Pty Ltd v Bates[4] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
As noted, Breen has placed both primary psychological injury in issue and right lower extremity injury in issue and Mr Mourad has the onus of proving (a) he sustained primary psychological injury in the course of his employment with Breen, with a deemed date of injury of January 2018 and that his employment with Breen is the main contributing factor to such injury, and (b) he sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of his employment in 2017 and up to in or about January 2018 and that his employment with Breen is a substantial contributing factor to that injury.
These questions are questions of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[5] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”

Primary psychological injury
[5] [2008] NSWCA 246 (Nguyen).

In these proceedings Mr Mourad alleges he sustained:
“primary psychological injury caused/and or aggravated by the nature and conditions of his employment in 2017 and up to in or about January 2018 involving bullying and harassment, verbal abuse and physical abuse by managers and staff, and exposure to dirt, soot and asbestos with deemed date of injury of January 2018.”
While Breen accepts Mr Mourad suffers psychological injury, Breen argues such injury was not caused or aggravated by the nature and conditions of Mr Mourad’s employment with Breen.
Mr Horan has correctly pointed out that the gravamen of the argument in this particular matter arises with Breen’s argument that Mr Mourad’s account of workplace events were not real and involved “delusion” on the part of Mr Mourad. When considering the issue of establishing primary psychological injury in circumstances of an injured worker’s perception of real events occurring at work, it is important to note that in Attorney General’s Department v K[6] Deputy President Roche usefully summarised the principles to be applied at [52]:
[6] [2010] NSWWCCPD 76.
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ (Spiegelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40];
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President all in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FAC at 1464 at [31], and
(f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
And said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional…”
In his statement dated 8 August 2022, which is some four and a half years after Mr Mourad ceased working with Breen in January 2018, Mr Mourad made complaint that the environment in which he worked at Breen affected his mental health. He said he was required to work with asbestos and “deeply” feared contracting dust related illness. He said he was not provided with PPE. He said he was required to undertake “undignified” duties which included cleaning toilets and his manager’s car. He said he was locked in a shipping container for eight hours as punishment. He said work colleagues urinated in his refreshment drink. He said he was “degraded and belittled and made fun of”. He said he was subjected to “serious bullying in the workplace by my co-workers and employer”. He said of his work colleagues that they “would often ridicule and marginalise me, which in combination with the jobs I had to do, emulate feelings of anxiety, stress and often depression”.

It is evident from the factual report dated 7 August 2022 that while it is true Mr Mourad was required to work with asbestos contaminated soil, he was provided with PPE, and while it is true that Mr Mourad was subjected to adverse comment by Mr Brooker on 27 November 2017, Mr Young denied a significant number of the allegations made by Mr Mourad, specifically being required to clean toilets and the manager’s car, being locked in a shipping container for eight hours, working 12 hours each day undertaking digging duties, and being subjected to violent and sexual advances in the workplace.
Dr Awada’s clinical records are in evidence and demonstrate no recorded complaint by
Mr Mourad of adverse treatment by anyone during the course of his employment with Breen. While in his report dated 14 June 2018 Dr Awaba provided opinion in response to specific questioning that Mr Mourad had told him “he was the subject of daily verbal abuse while doing heavy lifting work with asbestos” and provided opinion “I believe that work has aggravated his psychological illness” Dr Awaba accepted Mr Mourad had a long history of mental illness and said of Mr Mourad:
“He is very vulnerable and has many issues to contend with, So, as far as his psychological issues are concerned, I tend to believe that an aggravation of his mental illness would occur at any stage if he were the subject of criticism in any negative way, be it from an employer or a friend/family member.”
In his subsequent report dated 29 May 2019 Dr Awaba made no mention of Mr Mourad’s earlier employment with Breen being relevant to Mr Mourad’s mental health fragility, but rather said his mental health fragility was relevantly due to:
“Total lack of parental and family support. The completely disowned him.
Social and relationship problems that needs to be explored further.
Loss of direction: need to get back on track.
Being out of work with no sense of purpose.
Lack of skills, qualification and education. This limits his ability to find work.”
When Mr Mourad presented with reported suicidal ideation at St George Emergency Department on 31 January 2017, being a time when Mr Mourad was working with Breen,
Mr Mourad made no mention that his employment with Breen was relevant to his mental health fragility.
When Dr Norris provided report on 5 April 2018 relevant to Mr Mourad’s mental health fragility, he merely included diagnosis of “adjustment disorder re work circumstances” along with a number of other diagnoses not related to employment. Dr Norris provided no reasoning for his diagnosis of adjustment disorder and no history as to circumstances of injury.
When Mr Jones provided his initial report on 30 May 2018, Mr Jones reported a history of
Mr Mourad having become “troubled since he worked with Breen Resources where he was verbally abused and made to clean up asbestos”. Mr Jones reported a history of Mr Mourad’s suicidal ideation on 31 January 2017 “and also on another occasion”. Mr Jones said of
Mr Mourad, “Clearly, he has many mental problems”. Mr Jones noted Mr Mourad’s paranoia and auditory hallucinations. Mr Jones considered Mr Mourad may benefit from antipsychotic medication. Mr Jones provided no opinion on the cause of Mr Mourad’s mental health fragility.
When Dr Lim provided his report on 5 July 2019 and Dr Dickson provided his report on
17 May 2022, while both general practitioners noted Mr Mourad complained of psychological injury, neither of them provided circumstances of injury reflective of the circumstances of injury alleged by Mr Mourad in these proceedings.
Dr Khan has provided a number of reports and it is evident from his report dated
24 September 2020 that while Dr Khan provided diagnosis of psychological injury, he accepted Mr Mourad had only attended four of his nine scheduled consultations with him, which he said, “made it difficult to assess his mental state”. Dr Khan also relevantly said:
“Mr Mourad has been an inconsistent historian and it has been difficult to ascertain the temporality between his addiction issues, his subjective psychotic symptoms and workplace injury.”
Dr Rastogi provided reports following her assessment of Mr Mourad on 18 July 2019 and again on 2 September 2020. Both of Dr Rastogi’s reports pre-date Mr Mourad’s evidentiary statements, which are dated 8 August 2022 and 29 September 2022. Mr Horan’s submissions are restricted to the second of Dr Rastogi’s reports in which Dr Rastogi provided diagnosis of schizoaffective disorder, Polysubstance abuse with exacerbation, personality vulnerabilities, and opinion Mr Mourad’s employment with Breen led to exacerbation of pre-existing complex psychological pathology and exacerbation of schizoaffective disorder. In submission, Mr Horan set out the history of alleged work-related events on which Dr Rastogi based her opinion:
“These events were that the worker was a labourer on a huge rubbish tip, that there was asbestos in soil which needed clearing, the worker had to separate foreign materials from soil and filter it, there were no masks or gloves, a manager verbally abused him, he had to clean toilets putrid and clean the manager’s car, some co-workers were under influence alcohol and drugs at work, he was regularly verbally abused, he was sworn at constantly, he felt undermined and treated without dignity, he was locked in container for eight hours as punishment, he ‘was told to lift bags weighing up to 200 kilos and manually pull it and they would laugh at him’, they said to him ‘dig the floor, you dog’, they were contaminating his food with your own, he was placed in a significantly hazardous environment and exposed to sort dirt and asbestos, he was kicked and punched, sexual advances were made, and he was manhandled and felt unsafe and fearful of his safety”
While I accept Mr Mourad was required to work with asbestos contaminated soil and I accept Mr Mourad was subjected to adverse comment by a work colleague in late November 2017, both being ‘real events’ not external to his workplace, I also accept that a number of the events which Mr Mourad reported to Dr Rastogi and to which she had regard in providing diagnosis and opinion on causation are not ‘real events’. While Mr Horan submitted events canvassed in Mr Mourad’s statements and in Dr Rastogi’s history of events involve
Mr Mourad’s flawed perception of real events that are not external to his workplace because of Mr Mourad’s “disorder mind”, I do not accept such submission as a number of the events canvassed by Mr Mourad and Dr Rastogi are clearly not real events that are not external to his workplace. Mr Young has provided evidence, which I have no reason not to accept (despite submission by Mr Horan that Mr Young was not “working side by side” with
Mr Mourad and cannot provide evidence about Mr Mourad’s work day in the way Mr Mourad can), that Mr Mourad was not required to undertake the cleaning duties he alleges,
Mr Mourad was not locked in a container for eight hours as punishment, Mr Mourad was provided with PPE (which included a monitor), Mr Mourad was not subjected in the workplace to violent behaviour or sexual advance, Mr Mourad made no complaint that his co-workers worked under the influence of drugs and alcohol, and Mr Mourad was not required to handle bags weighing up to 200 kg.
Dr Whetton provided a report following his assessment of Mr Mourad on 15 January 2021, in which he stated, “Mr Mourad was psychotic, and his history cannot be relied upon”. Relevant to examination, Dr Whetton reported Mr Mourad gave “a long and complex history of paranoid delusions and was inconsistent in history giving”. Dr Whetton said of Mr Mourad “he was thought disordered and the overwhelming content was of bizarre delusions and the picture was that of a psychotic state”. Dr Whetton provided diagnosis of paranoid psychosis, which he considered to be severe, and most likely chronic schizophrenia. Dr Whetton provided opinion:
“This is not a primary psychological injury as a result of alleged work related stressors but a chronic psychiatric condition, which has developed in the setting of substance abuse disorder and with the severity with which he presents would be against a background of a constitutional vulnerability to allow this condition to have developed. Work could not cause this state.”
Both Dr Rastogi and Dr Whetton specialise in psychiatry, and relevant to the competing psychiatric opinion provided by Dr Rastogi and Dr Whetton, I am mindful that in Singh v FTW Products Pty Ltd[7] Snell ADP made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[7] [2007] NSWWCCPD 230.
I prefer the opinion of Dr Whetton to that of Dr Rastogi in that I agree with Mr Stockley’s submission that Dr Rastogi’s opinion is based on assumptions of a number of alleged events that are not external to Mr Mourad’s workplace that I do not accept are real events. I am comforted in my preference for Dr Whetton’s opinion to that provided by Dr Rastogi, as it does not appear to me that Mr Mourad’s treating general practitioners, Dr Awada, Dr Lim and
Dr Dickson, his treating psychologists, Dr Norris and Mr Jones or treating psychiatrist,
Dr Khan, have provided opinion that Mr Mourad has sustained psychological injury in the course of his employment with Breen. Relevant to causation, Dr Rastogi’s medical opinion appears to be an outlier.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I do not accept Mr Mourad has discharged the onus required of him. For reasons discussed above, I do not accept Mr Mourad sustained primary psychological injury in the course of his employment with Breen with a deemed date of injury of January 2018.

Injury to right lower extremity

In these proceedings Mr Mourad alleges he sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of employment in 2017 and up to in or about January 2018 and that his employment with Breen was a substantial contributing factor to injury. Breen argued
Mr Mourad has not sustained injury as alleged.
Although in his statement Mr Mourad said his duties with Breen required him to lift heavy bags, which placed strain on his back and legs, he made no specific mention of sustaining injury to his right lower extremity while working with Breen. While it is apparent from investigation notes prepared by Mr Young that Mr Mourad made complaint of injury to his neck while working with Breen, there is no mention of an alleged injury to his right lower extremity.
There is no mention by Mr Mourad’s initial treating general practitioner, Dr Awada, that Mr Mourad complained of sustaining injury to his right lower extremity in the course of his employment with Breen. There is no mention by Mr Mourad’s subsequent treating general practitioners, Dr Lim and Dr Dickson, that Mr Mourad complained of sustaining injury to his right lower extremity in the course of his employment with Breen.
When A/Prof Wong assessed Mr Mourad on 13 December 2019 in his capacity as independent medical examiner, he recorded a history of Mr Mourad working 12 hours each day with Breen between January 2017 and January 2018 in duties which A/Prof Wong described in terms of “very physical labour”, involving “digging for 10 hours a day for more than 6 months” and manually dragging bags of soil weighing up to 100kg. While A/Prof Wong provided opinion Mr Mourad had sustained soft tissue injury to his right lower extremity (right hip, right knee and right ankle) as a result of the nature and conditions of his employment with Breen and that Mr Mourad’s employment with Breen was a substantial contributing factor to injury, when Mr Mourad was assessed on 27 January 2021 by Dr Wallace in his capacity as independent medical examiner and by Dr Smith on 10 March 2022 in his capacity as independent medical examiner, Dr Wallace provided opinion he could find no identifiable pathology in Mr Mourad’s right lower extremity and Dr Smith provided opinion that from an orthopaedic perspective he could find nothing wrong with Mr Mourad.
I have previously touched on my inability to accept Mr Mourad’s account of workplace events as reliable and in the absence of complaint by Mr Mourad in his statement as to injury sustained to his right lower extremity in the course of his employment with Breen, absence of documented complaint by Mr Mourad to his general practitioners as to injury sustained to his right lower extremity in the course of his employment with Breen and absence of independent medical opinion provided by Dr Wallace and Dr Smith that Mr Mourad has sustained injury to his right lower extremity in the course of his employment with Breen, I do not accept Mr Mourad sustained injury to his right lower extremity in the course of his employment with Breen, as alleged. While Mr Horan has correctly submitted the opinion of A/Prof Wong provides evidence supportive of injury to, and impairment of, Mr Mourad’s right lower extremity resulting from the nature and conditions of his employment with Breen, I am not at all confident in the history Mr Mourad provided to A/Prof Wong relevant to the nature and conditions of his employment with Breen and A/Prof Wong has failed to identify any of the documents made available to him that may have assisted him with his diagnosis of soft tissue injury and opinion on causation. In the circumstances I do not accept A/P Wong’s opinion.
Following review of the evidence as a whole and careful consideration of counsels’ submissions, I do not accept Mr Mourad has discharged the onus required of him. For the reasons discussed above, I do not accept Mr Mourad sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of his employment between 2017 and January 2018.

Permanent impairment

As I do not accept Mr Mourad sustained primary psychological injury in the course of his employment with Breen with a deemed date of injury January 2018, with Mr Mourad’s employment with Breen being the main contributing factor to injury, there is to be no remittal of Mr Mourad’s claim for permanent impairment resulting from that injury to the President for referral to a Medical Assessor.
As I do not accept Mr Mourad sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of his employment with Breen in 2017 and up to in or about January 2018, with Mr Mourad’s employment with Breen being a substantial contributing factor to injury, there is to be no remittal of Mr Mourad’s claim for permanent impairment resulting from that injury to the President for referral to a Medical Assessor.

SUMMARY

I do not accept Mr Mourad sustained primary psychological injury in the course of his employment with Breen with a deemed date of injury January 2018 with Mr Mourad’s employment with Breen being the main contributing factor to injury.
I do not accept Mr Mourad sustained injury to his right lower extremity (right hip, right knee and right ankle) in the course of his employment with Breen as a result of the nature and conditions of his employment with Breen in 2017 and up to in or about January 2018 with
Mr Mourad’s employment with Breen being a substantial contributing factor to injury.

[2023] NSWPIC 51

14 February 2023