Murphy v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Murphy v Westpac Banking Corporation [2023] NSWPIC 296
APPLICANT:	Natalie Murphy
RESPONDENT:	Westpac Banking Corporation
Member:	Christopher Wood
DATE OF DECISION:	23 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses and lump sum compensation for whole person impairment by reason of psychological injury; whether the applicant had a psychological injury arising out of her employment with the respondent; sections 4(a), 9A and 11A(3); lack of evidence from applicant supporting claims of bullying and harassment by supervisor and lack of contemporaneous medical evidence detailing presentation with psychological symptoms; Held – absence of evidence and unreliability of applicant’s diary notes made retrospective diagnosis by treating and medico-legal practitioners unreliable; failure to discharge onus of proof; award for the respondent; Nguyen v Cosmopolitan Homes and Lyons v Master Builders Assoc referred to.
determinations made:	1. The applicant did not suffer from a psychological injury arising out of her employment (s 4A Workers Compensation Act1987). 2. Accordingly there is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Natalie Murphy, is a 58 year old woman who was employed by the respondent from 2002 through its St George Bank division as a customer services representative.
The applicant and her husband moved to the town of Oberon, New South Wales, in 2014 and the respondent allowed her to continue in her role as a customer services representative working remotely, reporting to management via the Epping branch of the respondent.
In 2017 or 2018 the applicant’s managerial reporting lines were changed to be through the Kogarah branch as the Epping branch had been closed. The applicant says that she noticed a shift in the work culture, atmosphere and approach during that time. She says that between 2017 and in particular throughout 2018 she had a series of interactions with her supervisor, she identifies as ‘Jacqueline’ , which caused her to feel unsupported. She found some interactions to be bullying and undermining in nature to the point where she felt threatened.[1] Her confidence dropped to the point where she sought legal advice as well as advice from her trade union. She says she did not report the matters which concerned her apart from one interaction with the respondent’s HR department or make a claim for workers compensation benefits at this time.
[1] Paragraphs 20 – 22 of the ARD.
In December 2018 the applicant was diagnosed with breast cancer which caused her to stop working from January 2019 until August 2021 while she underwent treatment. The applicant concedes this was a stressful time but says she had overcome the stresses of the treatment. On return to work she was only able to work for a short period because of flashbacks to her dealings with Jacqueline (who had since left the respondent’s employment) culminating in a “mental breakdown”.
The applicant first mentioned the matters she has identified as causing her psychological injury by way of formal claim on the respondent in December 2021 and now brings a claim for workers compensation benefits in the form of a lump sum whole person impairment claim by reason of psychological injury and medical expenses.

ISSUES FOR DETERMINATION

The s 78 notice issued by the respondent declines the claim for compensation by the applicant on the basis that she has not suffered, nor does she suffer, from a psychiatric injury for the purposes of the Workers Compensation Act1987 (the 1987 Act). It relies upon s 4, s 9, s 9A and s 11A(3) of the 1987 Act.
It also relies on s 254 and s 261 of the Workplace Injury Management Act 1998 (the 1998 Act) in relation to ability to properly meet the applicant’s claim.
These issues between the parties were refined during the course of the conciliation/arbitration phase of the proceedings before the Personal Injury Commission (Commission), outlined below.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a preliminary conference before Member Perrignon on 7 March 2023. The Member’s notes of the course of the preliminary conference indicate the applicant applied to amend the ARD to add a claim for weekly compensation to which the respondent did not oppose or consent. The application was declined with the applicant electing to proceed with her pleaded whole person impairment and s 60 claims (only).
During the course of the proceedings before me on 4 April 2023, experienced counsel
Mr McManamey for the applicant and Mr Barter for the respondent, instructed by
Ms Elmasri of Turner Freeman and Ms Singh of HWL Ebsworth, appeared. A representative of the respondent was also present.
The parties took considerable time to confer regarding the admissibility of late served evidence and the issues to be determined in the event they could not settle the dispute. Counsel indicated in particular that there had been some late served material that they needed to discuss. I encouraged the parties to at least seek to narrow their differences.
Eventually the parties indicated they could not resolve the claim and there was common ground that the matter could be determined by the Commission following written submissions. No indication was given that either party objected to all the material before the Commission, including late served material[2] being considered.
[2] This is not insignificant given the contents of the submissions by each party.
A timetable for the filing of submissions by both parties and in reply in the case of the applicant, was scheduled and the timeframe for submissions expired on 19 May 2023.
The Commission has before it submissions from both the applicant and the respondent, there being none in reply from the applicant. The submissions form part of the documents filed with the Commission and can be accessed and will be referred to throughout the reasons that follow below.

EVIDENCE
Oral evidence

No application was made by either party to lead oral evidence or cross examine witnesses, including the applicant who attended the conciliation/arbitration remotely from her home in Oberon.

The applicant’s evidence

The applicant commenced her employment with the respondent in 2002 and says at that time she was in good health and had no pre-existing psychological injuries.[3]
[3] ARD page 1, paragraph 8.
Residing in the country town of Oberon, NSW, she commenced working remotely in May 2014, initially reporting to her supervisors based in the Epping branch. In 2017 she began reporting through the Kogarah branch. She says that at that point she:
“immediately noticed a shift in work culture, atmosphere and work approach.”
The applicant’s supervisor was Jacqueline who she contends immediately developed a disdain and dislike towards her.[4]
[4] ARD page 2, paragraph 12.
The applicant says that Jacqueline would ignore her, brush her off and disputed her claims for overtime.[5]
[5] ARD page 2, paragraph 13.
The applicant outlines various interactions with Jacqueline which she found demeaning and inappropriate. I will not recite these seriatim, but they commenced at apparently on or about 26 February 2018. The applicant relies on what she calls diary notes to ground these interactions in time. I refer to the diary notes below as they are important in considering the merits of the applicant’s claim overall.
The applicant attended various coaching sessions with Jacqueline where she would be interrupted while conducting live calls with customers. Jacqueline also began to question her sick leave applications.[6]
[6] ARD pages 2-3, paragraph 16-19.
The applicant makes reference to her developing “stress and anxiety” about ever doing or saying something that would not align with her team leader.[7]
[7] ARD page 3, paragraph 19.
By the middle of 2018 the applicant was sufficiently concerned about her interactions with Jacqueline that she sought the advice of her trade union (not identified) and allegedly the HR department of the respondent.[8] She says that did nothing to improve her situation. She does not specify to whom she spoke or the advice given (by HR).[9]
[8] this is not accepted by the respondent.
[9] ARD page 3, paragraph 24.
The applicant says she also sought the advice of a solicitor on 16 July 2018 as her stress began to “culminate”. She says the solicitor advised her not to bring forth a workers compensation claim as it would be an expensive process. I pause here to note that I doubt the applicant’s current solicitors who are a well known specialist personal injury law firm would have given such advice.
The applicant says the negativity and treatment from Jacqueline continued for the remainder of 2018 and again points to her diary notes.
I note here that is an inconsistency in the applicant’s statement concerning when she was diagnosed with breast cancer. That diagnosis has some significance in her claim at least as far as the respondent is concerned. She says at paragraph 25 of her statement[10] that she sought advice of the solicitor on 15 July 2018 and goes on to say:
“I was hesitant to pursue a workers compensation claim and feared I would lose my job. At around the same time I was diagnosed with cancer and needed to focus on getting treatment as this was my priority at that time.”
[10] ARD page 3.
Later in her statement she says:
“Unfortunately, I was diagnosed with breast cancer in December 2018 and stopped working from January 2019.”[11]
[11] ARD page 4, paragraph 28.
In any event, having said that the negative treatment by Jacqueline continued from mid 2018 until she was diagnosed, the applicant was then understandably absent from her employment while she underwent treatment for breast cancer.
The applicant says that upon remission she was eager to return to her employment with the respondent which recommenced with her working from home in August 2021.[12] She says on her return to work she began having “instant flashbacks” of Jacqueline and felt scrutinised and inept. She could not undertake her work involving client phone calls and would “go blank”. She became easily “triggered”.
[12] ARD page 4, paragraph 31.
The applicant was only able to continue to work for approximately two weeks after completing a training schedule and continued to have fears about criticism which caused her to suffer a “mental breakdown”.[13] She eventually ceased work on 9 November 2021 and for the first time sought medical assistance for what she describes as stress and anxiety. Her general practitioner in Mudgee was Dr Ayngkaran Sivakmy who has provided a medical report and certificates of incapacity.
[13] ARD page 4, paragraph 32.
Dr Sivakmy referred the applicant to a psychiatrist, Dr Sivaruban, but she only saw him on one occasion.[14]
[14] ARD page 5, paragraphs 33-36.

Diary notes

I have referred above to the applicant’s reliance upon her diary notes and as these are also referred to in the submissions of the parties; they warrant careful consideration.
There are in fact two sets of what might loosely be termed ‘diary notes’ but it is those referred to as annexure A to her statement which the applicant calls upon in submissions in support of her claim.[15] In addition to appearing as an annexure to her statement, the ‘diary notes’ appear in greater detail (more pages) later in the supporting material to the ARD[16]. The first page of the diary notes is headed up with the words “Natalie Murphy 21-01-22”. While these pages are referred to as diary notes they appear to be more accurately described as a diary summary and I propose to refer to those pages from this point by that description (diary summary).
[15] ARD pages 7-10.
[16] ARD pages 96-102.
Copies of the pages of what is clearly a week-by-week diary for 2018 also form part of the ARD.[17] It is these pages which are more accurately described as the applicant’s diary from which she has produced the summary referred to above (the diary).
[17] ARD pages 103-136.
The diary summary sets out various interactions with Jacqueline which are, at least in part, capable of being verified by shorthand notes in the diary. The diary entries are broadly consistent with the applicant’s statement in that they at least support her various interactions with Jacqueline in the first half of 2018.

Applicant’s medical evidence

The applicant relies upon treating doctor’s reports being those of her general practitioner, Dr Ayngkaran Sivakmy[18] (including a report to Dr Sivakmy from Dr Sivaruban of JAAS Psyc Consultants dated 13 October 2021), a report of Dr Mavaddat (a treating psychotherapist) and a medico-legal report of Dr Richa Rastogi dated 18 May 2022. There are no clinical notes detailing the applicant’s treatment for psychological injury or any other conditions during 2018.
[18] Erroneously referred to in the ARD list of documents as Dr Priya.

Dr Ayngkaran Sivakmy

The applicant’s submissions in support of her claim refer to Dr Sivakmy as Dr Ayngkaran.
Dr Sivakmy has provided a report dated 1 August 2022[19] and copies of clinical notes from his practice are also before the Commission.[20]
[19] ARD page 65.
[20] ARD page 72.
Dr Sivakmy provided certificates of incapacity from November 2021 in respect of the applicant’s alleged psychological injury.
Dr Sivakmy’s report on Oberon Medical Centre letterhead records that he had treated the applicant continuously after he took over from another doctor in the practice (that doctor is not identified). He groups several questions put to him by the applicant’s solicitors in responding to details of treatment provided,his diagnosis etc.
Apparently, the applicant first reported feeling anxious on resuming her duties to his predecessor in 2019. At that time medication and psychologist therapy was suggested. She apparently reported in April 2020 she had “few psychological injuries at work when she was working” and had anxiety symptoms at that time and these apparently got worse when she was diagnosed with cancer.[21] He records in September 2021 the applicant started working back [sic] and her symptoms got worse. In October 2021 the applicant had consults regarding symptoms “mostly PTSD symptoms related to previous work experience”.
[21] ARD page 66.
In setting out whether in his opinion the applicant’s condition was wholly or predominantly caused by her employment, Dr Sivakmy says:
“as explained above as summary she stated that had work related anxiety symptoms even before her cancer diagnosis (I did not see her at that time. It was a retrospective discussion). The cancer diagnosis and the treatment made her symptoms worse. However they got better. When she started her work in September her symptoms were back again.”
Dr Sivakmy continued to regard the applicant as being unfit for her employment as at
1 August 2022.

Dr Sivaruban

Dr Sivaruban is a treating psychiatrist. He has provided a report dated 13 October 2021 in the form of a letter to Dr Sivakmy.[22] The report references a feedback session having been conducted between the practitioners. Dr Sivakmy reports the applicant as having told him that she had been bullied in the workplace before she was diagnosed with cancer. In the same paragraph, under the heading “Progress”, he records the applicant as telling him her workplace is supportive and goes on to say that the applicant was planning to resign in the end of October (2021). He further records that the applicant reported her manager (presumably Jacqueline) was very mean and (she) did not like her nor did she engage constructively in giving the applicant feedback and she made her cry.[23]
[22] AARD page 1.
[23] AARD page 1.
Again consistent with the applicant’s statement, she said she asked for some advice from her solicitor and contacted her union and HR department and eventually she left for treatment for her cancer.
The applicant reported that her mood and anxiety got worsened [sic] since she went back to work.[24] Her bad memories resurfaced and she got flashbacks about her experiences.
[24] AARD page 2.
Dr Sivaruban records the applicant as seeing a psychologist with whom she had 10 sessions which she found helpful.[25] The identity of this psychologist is not specified. The doctor records his impression of the applicant (presumably his diagnosis) as “chronic adjustment disorder with depressed mood and anxiety” and suggests that the applicant would benefit from ongoing psychiatrist review and thanks Dr Sivakmy for requesting him to organise a follow up.
[25] ARD page 2.

Dr Mavaddat

Dr Mavaddat is self-described as a GP Psychotherapist[26]. He has provided a report to the applicant’s solicitors. Apparently the applicant was referred to him for counselling via a healthcare service with the doctor being based in Blackburn, Victoria. He records five consultations between May and August 2022 (it seems this is not the practitioner referred to by Dr Sivaruban in the report pre-dating those consultations).
[26] AARD page 5.
The report is essentially a recitation of the doctors attendances on the applicant on the various dates detailed in his report to the applicant’s solicitors. I will not unnecessarily repeat the contents of each consultation suffice to say that the history taken by
Dr Mavaddat is broadly consistent with that given by the applicant to other practitioners. There were a series of stressful interactions with her supervisor / team leader.
I note as a matter of some interest an entry relating to Dr Mavaddat’s 18 May 2022 attendance on the applicant where he records her as reporting that she may have seen a psychologist during 2018 “but did not have any psychology therapy at that time and did not discuss widely with HR but what she did say to HR was not helpful”.
Dr Mavaddat has not seen the applicant since August 2022, at that stage the applicant told him that she was hoping to find direction for the future as she felt there was no way she could “return to the kind of work with clients she was doing previously due to the loss of confidence in that area of the work”.[27] Dr Mavaddat opines the applicant was significantly impacted by her work at the time of the injury. He also records that the treatment for breast cancer would not alone have caused her loss of confidence and anxiety.[28] He goes on to say that the applicant’s employment was the main contributing factor to her psychological condition at the time.
[27] ARD page 7.
[28] ARD page 8.
Dr Mavaddat’s report was responding to a letter to him by the applicant’s solicitors and apparently that letter provided a copy of the respondent’s medico-legal report of Dr Roberts although what report is not specified. Dr Mavaddat, despite having access to a report of
[29] AARD page 8.
Dr Roberts, records that such opinion did not alter his view that the applicant suffered a work-related psychological condition when he responds positively to that question “yes”.[29]
Finally, Dr Mavaddat records his diagnosis as “adjustment disorder / anxiety and stress secondary to work place bullying”. At that time no ongoing treatment was indicated.

Dr Richa Rastogi

As noted Dr Rastogi saw the applicant for medico-legal purposes. The doctor refers to both the applicant’s statement attached to the ARD and a supplementary statement dated
[30] ARD page 52.
30 April 2021. This later document is not in the material before the Commission. There is also reference to numerous other medical reports which is similarly not before the Commission.[30]
The history taken by Dr Rastogi is broadly as set out in my summary above. She records the applicant as feeling belittled, powerless and helpless with constant intimidation from Jacqueline. She was lost and felt constantly undermined and unsupported. She was anxious and felt watched and targeted by Jacqueline, developing self-doubts and her confidence plummeted.[31] Dr Rastogi recorded the applicant at the time of the consultation as planning to do gardening or growing vegetables, living in a small country town (Oberon) there weren’t many opportunities available for her. She did not want to return to the workplace. Consistent with the applicant’s own statement, Dr Rastogi records the applicant as being on Endep as needed and seeing a treating psychiatrist on one occasion only.
[31] ARD page 53.

Dr Rastogi concludes that the applicant has suffered a work-related incapacity and this is a consequence of “belittled dismissive attitude, lack of support, threats of losing her job, being undermined constantly, not supported through training and micromanaged since 2018 last reported to Jacqueline”[32].
[32] ARD page 58.
As Dr Rastogi has noted, she had the benefit of numerous medical reports and was asked to respond to some 21 questions from the applicant’s solicitor. The questions and letter of instruction donot appear in the material before the Commission.
Dr Rastogi’s diagnosis and opinion is that the applicant has a chronic adjustment disorder and anxiety.[33]
[33] ARD page 56.

Respondent’s evidence

The respondent calls lay evidence from Mr Nasar Chami. This is in the form of a witness statement dated 1 February 2022 forming part of the material before the Commission and in respect of which no objection was raised during the course of the conciliation/arbitration process.[34]
[34] AALD page 1.
Essentially Mr Chami was higher up the respondent’s line of management than Jacqueline. He records that prior to the applicant’s more recent line manager (following her brief return to work), the applicant’s line manager was a person called Jacqueline Calnan. He was Jacqueline’s (who he refers to as Jac) manager and so in turn the applicant’s manager during the relevant period in 2018.[35]
[35] AALD page 2.
Mr Chami does however, also say he knew the applicant for “quite some years”. He confirms the applicant had worked from home since around 2014 when she relocated to Oberon. Mr Chami says he was aware that the applicant had been on extended leave since February 2019 and she requested to return from such leave in 2021.[36]
[36] AALD paragraph 16 and 17.
Mr Chami says that on seeking to return to work the applicant spoke to her team manager on 31 May 2021. He identifies the team manager at the time as Amina Ejaz. Jacqueline had left the employment of the respondent.
Mr Chami’s statement details the support given to the applicant on her return to work.[37]
[37] AALD pages 3-4, paragraphs 23-27.
[38] AALD page 4, paragraph 30.
Mr Chami goes on to outline his desire to be accessible and making sure that his team who were working remotely were comfortable in coming to him. He outlines his approach once appointed to his role in 2017. He notes that the applicant was supported in her role while she was off work following her diagnosis, including the payment of income protection benefits. Apparently the applicant spoke to Mr Chami at the time of her cancer diagnosis. He took this as a sign that she was comfortable in approaching him as her “2 up”.[38]
As far as Mr Chami is concerned the applicant was never counselled about her work performance and he describes the applicant as neither a “high flyer nor someone we had to be on top of”. He agrees that prior to going to her leave, the applicant was supervised by Jacqueline. He notes that it appears the applicant’s complaints in relation her workplace experiences refer to the time that Jacqueline was her supervisor but says there were never any communications by either of those parties in relation to interpersonal conflict.
He outlines that the respondent has in place operating procedures in relation to tasks to be performed by employees and that it also has procedures in relation to the reporting of an injury of which he indicates that as the applicant had been working in her role for quite some time, she would have been aware of.[39]
[39] AALD page 6, paragraphs 41 and 42.
Mr Chami says the first he heard that the applicant was alleging she had suffered a workplace injury was when a workers compensation certificate was lodged. He expresses surprise and said that no reports or complaints had been raised with him that the applicant was experiencing a negative reaction to her workplace experiences.[40]
[40] AALD page 6, paragraphs 43 – 45.
Mr Chami was not aware of any interpersonal conflict or any action that was taken that might be considered unreasonable. He said that if there was any issue in terms of workplace conflict it would have come through to him as a matter of grievance or performance management.

Respondent’s medical evidence

The respondent relies upon three medical reports of Dr John Roberts dated 4 April 2022 and two of 6 November 2022. Dr Roberts like all the other medical practitioners relied upon, saw the applicant long after the matters of which the applicant complains in her statement.
Dr Roberts reports are detailed and exhaustive in their content, running in total to some 39 pages.
Dr Roberts first report is that dated 4 April 2022.[41] The history taken by Dr Roberts is unremarkable and is consistent with other practitioners however, he does address in greater detail the applicant’s diagnosis of breast cancer in December 2018 which led to her ceasing work shortly thereafter. He records the applicant reporting to him that she suffered from anxiety attempting to return to work in August 2021, having undergone training for some 2 – 3 weeks with such training extending to 5 – 6 weeks and after that she felt that she “crumbled”.[42]
[41] AALD page 20.
[42] AALD page 21.
Dr Roberts records questioning the applicant about what she meant by anxiety and the applicant is said to have responded with words to the effect of “a brain freeze”.[43]
[43] ARD page 21.
Dr Roberts records the applicant reporting to him negative feedback from Jacqueline who, like Mr Chami, she referred to as Jac. There were negative interactions and she felt her job was being threatened.[44]
[44] AALD page 22.
Thereafter Dr Roberts details interactions between the applicant and Jacqueline consistent with other practitioners.
Dr Roberts says that the applicant told him she was a happy person and refers to positive aspects of her life including her marriage and the property on which she lived.[45]
[45] AALD page 22, under heading “Mood”.
Dr Roberts says that he attempted to elicit from the applicant evidence of psychological concomitants of anxiety, namely such symptomology as would be present in someone who was suffering from significantly heightened anxiety regardless of the cause[46] and sets out his reasons for asking such questions. He says that such questions are a usual means of attempting to ascertain with a heightened anxiety is present or not to look for the pathognomonic signs of heightened anxiety, namely the psychological concomitants of such state. If heightened anxiety to an appropriate degree cannot be demonstrated, no reactive state can be diagnosed.[47]
[46] AALD page 24, under heading “Psychological Concomitants of Anxiety”.
[47] AALD page 24, under heading “Psychological Concomitants of Anxiety”.
Dr Roberts then goes on to deal with symptoms which might be associated with a post-traumatic stress disorder diagnosis. He says that anxiety becomes abnormal when it is excessive and disproportionate to the circumstances.
Dr Roberts says he had regard to the issues considered by other doctors including bullying, harassment and negativity from the team leader.[48]
[48] AALD page 29.
Dr Roberts also has regard to Mr Chami’s statement and what is described as “Summary of Medical Evidence”, perhaps a document prepared by the respondent’s solicitors which unfortunately like so many other documents referred to by medical practitioners relied on by each party, is not before the Commission. He says he agrees with a statement which I am not able to have regard to.[49]
[49] AALD page 30.
In his summary and opinion in his first report, Dr Roberts says the following:
“There is however no evidence of any mental or nervous illness, disorder, condition or problem, there is a mild degree of anxiety but no sufficient to make a DSM diagnosis”.[50]
[50] AALD page 31.
Dr Roberts concludes in response to specific questions from the applicant’s solicitor, that he does not consider the claimant’s (applicant’s) diagnosis is in accordance with a DSM5 in terms of the development of a mental condition. He would accept that she was understandably distressed by the diagnosis of breast cancer and was suffering from a normative stress reaction. He goes on to say there was an organic basis that the applicant’s symptoms may have developed from the breast cancer. He cannot find evidence of a mental illness.[51]
[51] AALD page 32.
He records that the applicant is fit to undertake work but has indicated no plans to do so, intending to involve herself in growing vegetables and plants. He concludes that the applicant’s decision not to return to work with the respondent is based on choice, not psychopathology.
Dr Roberts subsequent reports dated 6 November 2022 really do not take the issues in dispute much further. The first report of 6 November 2022[52] showed a re-examination by way of teleconsultation on 20 October 2022.
[52] AALD page 35.
It would appear that various additional documents were available to Dr Roberts but these are not expressly set out at the beginning of the report. Much of this report is consistent with the first report with Dr Roberts again addressing the issue of the applicant’s breast cancer diagnosis and subsequent treatment post chemotherapy. Dr Roberts said that he attempted to elicit from the applicant evidence of physiological concomitants of anxiety which would be present in someone who was suffering from significantly heightened anxiety, regardless of cause.[53] Dr Roberts notes that cancer is not only a significant stressor but the treatment for cancer has the potential to give rise to cognitive difficulties.[54]
[53] AALD page 39.
[54] AALD bottom of page 39.
Dr Roberts says there is “no symptom pathology of heightened anxiety or inappropriate degree”.[55] He rejects Dr Rastogi’s diagnosis of a chronic adjustment disorder with anxiety and says that he could only assume that the applicant’s presentation to Dr Rastogi was different to her presentation to him. Ultimately Dr Roberts maintains his opinion that the applicant does not have a recognisable psychological injury and that she was fit to undertake gainful employment. In so concluding he notes that treatment has been minimal such that that undertaken could not be stated to be a treatment program.[56]
[55] AALD page 40.
[56] AALD page 44.
Dr Roberts’ second report of 6 November 2022 deals with the level of permanent impairment from which the applicant may be suffering. Consistent with the other two reports prepared by Dr Roberts this is a relatively detailed summation concluding that she has a 4% whole person impairment and otherwise disputes the level of impairment contended for by the applicant of 17%.

SUBMISSIONS

Before turning to the submissions by each party which form part of the papers filled with the Commission, I note that it was represented by counsel for each party that there was no area of disagreement as to the admissibility of any of the material which might form the basis for a decision as to the applicant’s entitlement to payments of workers compensation.
I note that both submissions deal with the admissibility of some aspects of the evidence including assertions that certain documents had not been filed or were unavailable to the other party. These matters not having been fairly and squarely raised during the course of the conciliation/arbitration when it was otherwise represented that there were some late received material, means that the following findings and reasons precede having regard to all documentation before the Commission. If there are any documents which were in issue then each party had foregone the opportunity to object and in the interest of procedural fairness, I have had regard to all material on the file.

Applicant’s submissions

The applicant’s submissions, which are able to be reviewed by reference to the Commission file, are based on the matters set out in paragraphs 12 – 27 in her statement. The applicant notes there was no statement from Jacqueline nor had Mr Chami[57] given evidence despite being in a position to do so.
[57] there is a statement from Mr Chami on the Commission’s file; a matter noted by the respondent in its submissions.
It is submitted the applicant’s evidence should be accepted. There is reference to the applicant’s diary entries which are said to support her case as contemporaneous. The footnote to the applicant’s submissions on point[58] refer to pages 7 – 10 of the ARD.
[58] Paragraph 8 of submissions.
Pages 7 – 10 of the ARD are annexure A to the applicant’s statement which are what I have referred to as the diary summary (of the diary).
As I have noted, the diary summary in fact extends beyond Annexure A of the statement to several more pages and is dated 21 January 2022. I return to this below.
The applicant does not contend that the evidence in relation to her return to work in August 2021, are a “new injury”. What occurred was the reaction to work as a result of the injury that had been caused in 2018. The submissions go on to address the various medical reports. It is noted those reports record the same history as that given by the applicant (i.e. that she had been bullied by her manager). Attention is drawn to Dr Sivaruban who the applicant’s counsel does concedes did not make a specific comment on causation, however the history and description recorded by him supports the view that the applicant’s condition was caused by the events of 2018. The submissions note that the breast cancer was in remission and there was no stress from the cancer.
Reference is made to Dr Mavaddat. Dr Mavaddat’s diagnosis of adjustment disorder with anxiety and stress is repeated.
The general practitioner, Dr Sivakmy’s, report is also identified in detailing that as at 2019 the applicant was experiencing anxiety with resuming duties. As the applicant did not resume duties until 2021. Dr Sivakmy does record anxiety symptoms associated with psychological injuries at work in April 2020. Dr Rastogi’s opinion is pointed to and the events in 2021 were a re-triggering of the applicant’s psychological condition.
Criticism is made of the respondent in relation to its reliance on Dr Roberts’ first report of
4 April 2022. It is asserted that the report had not been filed and served despite it being referred to in the index. Again this document was in the papers before me on the day of the conciliation/arbitration and no objection was taken that time. The applicant says that as the first report is not in evidence, the second report should not be admitted.
It is asserted there is an inconsistency in Dr Roberts assessing the applicant as suffering a 4% whole person impairment despite him saying there being no diagnoseable psychological condition.
The applicant contends that when all the evidence is considered, the Commission ought be “comfortably satisfied” that the applicant suffered an injury as a result of the behaviour of Jacqueline and that employment was the main contributing factor to that injury.

Respondent’s submissions

The respondent confirms that the deemed date of injury is 8 July 2022 and it is common between the parties that there was no notice of injury, claim lodged nor any evidence of complaint made by the applicant in relation to bullying by Jacqueline prior to her leaving work in January 2019 following her cancer diagnosis in December 2018. The respondent says there is no evidence to suggest any reason for leaving work apart from the diagnosis of breast cancer. The respondent says the first it knew of the applicant claiming an injury as a result of bullying in the workplace was in December 2021. It says it did not have the opportunity to investigate the allegations and was denied the opportunity of taking a statement from Jacqueline.
The respondent takes issue with the assertion by the applicant that Mr Chami gives no evidence. I have addressed that aspect above. The respondent urges caution in relation to the applicant’s reliance on diary entries. It says that they are not corroborated and bespeak a course of behaviours which should have been subject of complaint by the applicant but she did not do so. It notes that the diary entries have not been tested in cross examination and the weight given to them should not be unduly great.
The respondent does concede the applicant may have been “sufficiently affronted by Jacqueline’s behaviour to enter notes in her diary” and seek advice from her union and a solicitor but she was not sufficiently distressed to result in a diagnosis of psychological injury. The allegations that she consulted HR management, her union and a solicitor are disputed with there being no evidence offered in supported of those claims.
The respondent notes there are no contemporaneous medical or other documentary evidence supporting the applicant’s contentions. It notes that the doctors whose opinions have been proffered by the respondent are entirely dependent upon the history given by the applicant after a prolonged absence from work, including Dr Sivakmy who did not see the applicant until sometime in 2020 and he did not report until 1 August 2022.
The respondent notes that Dr Rastogi’s opinion relies on the applicant’s uncorroborated reconstruction of events and it points to the comprehensive reports of Dr Roberts quoting his conclusion[59] that the applicant has a mild degree of anxiety but it is insufficient to make a DSM diagnosis, she has a normative stress reaction to a significant stressor being treatment over two years for breast cancer.
[59] Paragraph 18 of submissions.
Finally, the applicant says that it relies on s 254 of the 1987 Act and s 261 of the 1988 Act in pointing to real and identifiable prejudice of its case.

FINDINGS AND REASONS

The documentation before the Commission is incomplete in terms of references to material made available to the doctors on both sides.
Numerous medical reports are relied upon which refer to letters from each party’s solicitors and other medical practitioners in the case of Dr Rastogi which are not in evidence. I infer that much of this would relate to the applicant’s breast cancer treatment which is relevant but may ultimately not be determinative of whether the applicant has suffered from an identifiable psychological injury arising out of her employment.
In reaching the conclusion I have below I have also noted contentions that certain evidence (at least from the respondent) should not be relied upon.
The conciliation/arbitration was delayed while experienced counsel conferred as to recently served material. There was no objection taken to the reliance by either party upon the documents which are before the Commission. I therefore reject any suggestion that any of the material referred to in the submissions ought not be considered by the Commission.
The applicant relies on her diary entries.
There are both the diary and there is the diary summary which I have identified and defined above. It is the latter which forms part of the annexures to the applicant’s statement. The diary summary also appears later the evidence brief supporting the ARD and are more extensive than the annexures to the statement. The summary is headed with the words “Natalie Murphy 21-01-2022” and as I have noted above this is seemingly drawn from the diary which appears as one week per two pages throughout 2018[60]. I am satisfied the summary document was created after the original diary entries, and it would not be unreasonable to infer they were created by the applicant on 21 January 2022 after she had been advised by the respondent her claim for workers compensation benefits had been rejected following her return to work. As submitted by the respondent, I agree the weight given to them should not be unduly great.
[60] ARD paragraph 96 – 102 and ARD paragraph 103 – 136 respectively.
The entries in the (one week by two pages) diary do set out various aspects of the applicant’s day to day work life with the respondent. They also record some of the applicant’s interaction with Jacqueline between early 2018 and the middle of that year.[61]
[61] See for example diary entries 13 February 2018, 6 March 2018, 16 April 2018, 30 April 2018, 17 May 2018, 12 June 2018, 27 June 2018 and 2 July 2018.

Some of these entries record Jacqueline listening to her calls and indeed on 27 June 2018, the applicant says that she felt threatened for her job although she felt like she did a good job.[62] There is reference to calls being escalated and sick leave being in dispute.
[62] ARD page 118.
There is no doubt these constitute some contemporaneous record of events which brought the applicant into some conflict with Jacqueline and the applicant now contends caused her anxiety. This had allegedly got to the point where the applicant engaged with the respondent’s HR department, approached her union and sought legal advice. She says going to HR did not improve her situation. Those interactions are what Mr Chami says, at least in the case of the HR department, he would have expected to occur but the respondent has no record of them. Mr Chami is referred to it seems by the applicant when she notes she had a good relationship with her more senior supervisor. Despite escalating the matter to HR, her trade union and seeking legal advice, the applicant did not consult with a medical practitioner regarding the anxieties or other responses she may have suffered from through interactions with Jacqueline. She was able to keep working
I have been able to identify a few recorded interactions with Jacqueline after the middle of 2018 in the diary and in the absence of time away from work being recorded or in fact asserted by the applicant it seems to the extent she continued to have negative encounters with Jacqueline she pressed on finally ceasing work after being diagnosed with breast cancer in December 2018. Her diagnosis of breast cancer was what the respondent says it understood to be the reason the applicant ceased work.
The applicant’s medical evidence diagnosing a chronic adjustment disorder, depressed mood with anxiety referrable to the applicant’s employment in 2018 hinges on the reliability of her history concerning the impact of her interactions with Jacqueline at the time. The applicant’s claim also needs to be viewed against the background of her cancer diagnosis and treatment which she says was no longer a factor, although the applicant says the anxiety she suffered with her diagnosis and treatment was different to that she felt at work and once in remission was no longer an issue for her.

Injury – s 4, Workers Compensation Act 1987

The definition of injury for the purposes of payment of workers compensation benefits is as follows:
“4. Definition of ‘Injury’
‘Injury’
(a)means personal injury arising out of or in the course of employment,
(b)includes a ‘disease injury’, which means
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
I am to have regard to both the events and the pathology arising from the events in determining whether the applicant has suffered a compensable injury of the type diagnosed by the medical practitioners upon which she relies.
As I have said, there were no doubt interactions between the applicant and Jacqueline at least in the first half of 2018.
Whether a worker has suffered a psychological injury will depend upon the nature and severity of her symptoms.
While the history given by the applicant to the various doctors is broadly consistent, there are also inconsistencies. In her own statement she records her diagnosis of breast cancer as being both in the middle of 2018 and then when it was actually diagnosed at the end of that year.[63]
[63] Compare paragraphs 5 and 28 of the applicant’s statement.
The applicant apparently told Dr Sivaruban that the respondent’s workplace was supportive.[64] This history is consistent with Mr Chami’s evidence that there were processes in place which would have allowed the applicant to report her concerns and their impact upon her. Despite what is now presented as events having a significant impact on her psychological health the applicant did not see a doctor nor escalate issues with the respondent despite apparently taking advice from her trade union and her solicitor. She may have been given certain legal advice that to embark for a claim for compensation was expensive but such advice unless it was given by a completely inexperienced practitioner, is palpably incorrect and I note trade unions have a referral system for their members to specialist legal practitioners. As the respondent has noted, none of the allegations by the applicant as to what she did in mid-2018 is in evidence. The (contemporaneous) diary notes do no more than corroborate certain interactions with Jacqueline.
[64] AARD page 1.
The applicant submits her diary notes support her account and references the diary summary. The respondent urges caution saying the diary entries have not been tested as to their veracity or contemporaneity and no great weight should be given to them. While I do not find it to be so, one conclusion available is that the applicant’s diary summary bearing a heading with a date after her claim for compensation was initially rejected, is a self-serving.
All of the medical practitioners relied upon by each side are dependent upon the reliability of the history given to them by the applicant. In the absence of contemporaneous medical evidence and compelling diary entries (rather than a later summary) and /or supporting lay evidence I cannot be satisfied on balance that the applicant’s reaction to any interactions with Jacqueline which may have occurred, were sufficiently significant to have generated or substantially contributed to a personal injury of a psychological nature for which compensation is payable. It would have been a very simple for the applicant to expand on or particularise the steps she says she took in mid-2018 by identifying to whom she spoke to in HR, at her union or the firm of solicitors from which she took advice. Evidence from her husband or other family member or friend may have assisted. Any retrospective diagnosis of a recognised psychological condition for which the applicant contends based on the history provided is in all the circumstances problematic.
I accept the respondent was unable to identify any relevant interaction between its HR department and the applicant. I also accept that the applicant as a longstanding employee was familiar with the respondent’s internal procedures to escalate any matters of concern to her.
With the applicant’s evidence being limited to her statement, diary and diary summary I am not satisfied on balance[65] that the matters complained of caused the applicant the level of stress and anxiety she asserts to the point she suffered an injury or the pathology arising from it[66] for the purpose of s 4 of the 1987 Act. The applicant has not discharged her onus of proof.
[65] Nguyen v Cosmopolitan Homes (2008) NSWCA 246.
[66] Lyons v Master Builders Assoc (2003) 25 NSWCCR 442.
Having concluded that the applicant did not suffer an injury for the purposes of s 4 of the Act, I do not need to determine the remaining areas of dispute, namely s 9, s 11A and the denial of reasonable opportunity to the respondent although as to the latter point as it was able to call on Mr Chami’s evidence and as a well resourced large corporate entity no doubt had detailed HR records was not unduly prejudiced by the applicant’s delay.
There is an award for the respondent.

[2023] NSWPIC 296

23 June 2023