Naguib v Salesforce Australia Pty Ltd - [2010] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Naguib v Salesforce Australia Pty Ltd [2010] NSWWCCPD 1
APPELLANT:		Maher Naguib
RESPONDENT:		Salesforce Australia Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4165/09
ARBITRATOR:	Ms J Conley
DATE OF ARBITRATOR’S DECISION:		3 September 2009
DATE OF APPEAL DECISION:		7 January 2010
SUBJECT MATTER OF DECISION:		Proof of causation of injury.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	PK Simpson & Co
Respondent:		Moray & Agnew
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 3 September 2009 is confirmed. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

Mr Maher Naguib, a 27 year old single man, commenced employment with Salesforce Australia Pty Ltd (‘the Respondent’) as a Customer Service Agent on 9 December 2005. The Respondent conducts the business of a call centre at premises in Elizabeth Street, Surry Hills, NSW. The Respondent’s client, to whom call centre services were provided at relevant times, was Telstra (BigPond). Mr Naguib was later promoted to Team Leader. In April 2008 Mr Naguib accepted appointment to the position of Workforce Analyst. Mr Naguib in his evidence describes the demanding and stressful conditions of his employment both before and after acceptance of that position.

On 8 July 2008 Mr Naguib experienced a panic attack whilst travelling home from work on a train. He was absent from work on 9 July 2008 and attempted a return to work on 10 July. On that day after completing four hours work Mr Naguib states that he suffered a further major panic attack and that he was sent home in a taxi. Mr Naguib has not returned to work with the Respondent since that date.

Mr Naguib has received medical treatment and has been diagnosed as suffering from a Panic Disorder with Agoraphobia. He made a claim for compensation benefits against the Respondent which was declined by the Respondent’s insurer on 30 October 2008. A Notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) disputing liability was forwarded to Mr Naguib by the insurer on that date. That notice included an assertion that the claim was denied upon the basis that Mr Naguib’s “psychological injury” did not arise out of or in the course of employment and further that Mr Naguib’s employment with the Respondent had not been a substantial contributing factor to his alleged “injuries/condition” in terms of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

Mr Naguib filed an Application to Resolve a Dispute (‘ARD’,) in the Workers Compensation Commission (‘the Commission’) on 29 May 2009. That Application came before an arbitrator for conciliation/arbitration on 7 August 2009 seeking orders for weekly compensation, medical expenses and lump sums. Following the hearing the Arbitrator reserved her decision. A Certificate of Determination was issued on 3 September 2009 accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 3 September 2009, records the Arbitrator’s orders as follows:

“The Commission determines:
1. Award for the Respondent.
2.No order as to costs.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Application seeking leave to appeal against the decision of the Arbitrator was filed on behalf of Mr Naguib on 30 September 2009.

ISSUES IN DISPUTE

The issue in dispute in the appeal is whether the Arbitrator erred in concluding that Mr Naguib had failed to prove that he had received an injury arising out of or in the course of employment with the Respondent.

The documentation prepared on behalf of Mr Naguib on this appeal does not contain any precise statement of his grounds of appeal. At [2.7] of the supporting documentation there appear 10 subparagraphs which are headed “Grounds of Appeal”. Those paragraphs do not constitute grounds upon which the Arbitrator’s determination is challenged but are rather a series of submissions challenging the reasoning expressed by the Arbitrator and her conclusions of fact which led her to enter an award in favour of the Respondent. Those submissions are addressed below.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

There is no dispute between the parties concerning the threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on this appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

EVIDENCE

The documentary evidence before the Commission is summarised by the Arbitrator at [5] of Reasons. No oral evidence was given at the hearing. It is to be noted that the reports of
Dr Yolande Lucire, psychiatrist, which apparently had been served by Mr Naguib upon the Respondent’s solicitors, are not in evidence before the Commission. The transcript does not record any ruling of the Arbitrator with respect to those reports, however, it is clear from the Arbitrator’s summary of evidence that they had been excluded from evidence. No complaint is made by Mr Naguib with respect to that matter.

There are three written statements made by Mr Naguib in evidence. The first two dated 29 January 2009 and 14 February 2009 are similar in terms of content. Indeed, it appears that the latter statement in many respects is a reiteration of matters stated in the earlier document. The third statement, which is dated 11 March 2009, is limited to the subject of Mr Naguib’s dealings with fellow workers Mr Love and Mr Wang. That last statement records Mr Naguib’s approach to Mr Love and Mr Wang for the purpose of requesting a statement from each for the purposes of this litigation. It was Mr Naguib’s intention to seek to record events relating to excessive work load and suggested unethical work manner as witnessed by those individuals. Mr Naguib states that Mr Wang had informed him that project manager Mr Craig Snow had “threatened Mr Wang by notifying him that if he was to ever write a statement, it would be used against him and legal action will take place”. Mr Naguib states that he later received a telephone call from Mr Love “… verifying what Mr Wang informed me earlier”.

Mr Naguib states that he arrived in Australia in November 1996 and attended school for a period of one year in this country following which he commenced an apprenticeship in the trade of electrician. He did not complete that apprenticeship. Mr Naguib had earlier held part time positions with McDonald’s Family Restaurant, Pizza Hut and Splinters Seafood Restaurant at Sans Souci. After terminating his apprenticeship in 2004 he commenced work with RCT Australia at Rhodes where he worked in a marketing position engaged in a “call centre”. Mr Naguib attempted a course of study at Macquarie University, however by reason of work demands was unable to complete that course. He completed Certificate 3 in Customer Service following his commencement of work with the Respondent in November 2005.

Mr Naguib was initially employed as a customer service representative taking customer queries, selling broadband connections, taking billing enquiries and sending dispute forms to customers. In late 2006 he was promoted to “Floor walker”. That work involved training of new staff members. His duties over the period October 2006 to January 2008 became more responsible and by early 2008 he was promoted to Team Leader in charge of 15 staff members. By July 2008 Mr Naguib had attained the position of Workforce Analyst.

Mr Naguib states that prior to 2008 he had never had any physical injuries other than minor injuries resulting from sporting activities and, in particular, had never had any symptoms of a psychological nature. He had spent six weeks in South Africa in 2005 at which time he carried out mission work for the Coptic Church. He was a keen soccer player, had an active social life, was involved in his church activities, had a girlfriend and related well with his family.

Mr Naguib, at the age of 21, was diagnosed as suffering asthma. Ventolin was prescribed by his general practitioner Dr Noussair.

Mr Naguib describes work conditions and experience in his statements and it is said that in April 2006 he was “disheartened” when he did not receive a promotion he hoped to attain. It was after that occasion that he was given the position of “Floor walker”. Mr Naguib was aware that a number of people employed after him were “moving up into management roles”. This caused him distress. Mr Naguib felt that there had been favouritism shown to others and that his failure to participate in visits to the pub on Fridays disadvantaged him. After some time he was promoted to Team Leader. Following that promotion it is stated that he had no guidance from his project manager concerning the performance of his duties. Mr Naguib felt that he and his team were being neglected as staff numbers expanded. Mr Naguib again felt that there had been favouritism shown to others by the project manager and that he and his staff were “black sheep”.

Mr Naguib states that he was working “50 hour weeks” and had trained his team to a high standard of efficiency when he was assigned a new group. Mr Naguib felt that he had been “…effectively put back to square one instead of moving forward like all the other team leaders”. He continued working ten hours per day assisting, coaching and monitoring his new group. Mr Naguib was not paid for his extra hours of work and was not recognised for his achievement and training of successful staff members.

Mr Naguib experienced communication difficulties with his project manager concerning problems encountered with one of his team members whom he suspected had attended work in an intoxicated state. Mr Naguib felt that he was being intentionally mistreated by a group of fellow employees who “always covered up for one another” and states that he was experiencing bullying and stress.

In January 2008 Mr Naguib requested a transfer to the “operations” side of the business to enable further development of his skills. Management agreed to that transfer and he was seconded to the Workforce Analyst position where he remained for three months. His duties in that position were demanding and difficulties were encountered with a new Operations Support Manager. Mr Naguib describes her behaviour as being “coercive treatment and abusive attitude”. Complaint was made concerning this woman’s conduct, however nothing was done to correct the situation.

In 2008 a new project was embarked upon involving substantial expansion of staff numbers. This resulted in the creation of a 300 plus seat call centre and Mr Naguib states that the pressure and stress increased as administration became complex. He became very stressed and frustrated and received no assistance from his superiors. Mr Naguib assumed his position as Workforce Analyst on 1 April 2008. The manager with whom Mr Naguib had experienced difficulty resigned some short time later.

Mr Naguib describes new staff training which caused a build up of pressure which created “unbearable stress” for him. The company’s client, Telstra, cancelled their training program, which had the result that the Respondent was very significantly overstaffed. Conditions became “an absolute nightmare” as many staff had no duties to perform. The problems associated with the overstaffing continued for three months. A request by Mr Naguib for a pay rise was made in 2008. The response to that request was the preparation by his superior of a work proposal that “set an unrealistic target”.

It is stated by Mr Naguib that the Workforce manager Ms Linda Sullings resigned because of her stressful workload and frustration. Mr Naguib complained to the project manager concerning excessive work demands and pressures and a variety of difficulties encountered in the Workforce. Mr Naguib also complained about the discipline process known as Dirty Ticket of Work (‘DTOW’) which, it was stated, created a negative impression about Mr Naguib’s role and he felt that he was despised by other staff members. Complaints made to his superior Mr David Turner did not result in any resolution of these problems.

Mr Naguib states that on 8 July 2008 as he travelled home from work on a train he experienced “a major panic attack” by reason of “the high pressure, stress and frustration” he had experienced in the course of his work. He experienced sweating and shaking and had difficulty breathing and experienced tightness in his chest. He arrived at Belmore station and rested on a bench for about 45 minutes. Thereafter he took approximately 25 minutes to walk home, a distance which usually took him seven minutes. He could not breathe, felt weak and was vomiting. He felt light headed and had numbness in his arms. He went to bed as soon as he got home. The following day he had similar symptoms though not as severe. Mr Naguib states that he then consulted Dr Mona Noussair, general practitioner at Belmore. He next attended work on 10 July 2008 when, at lunch in the company of his colleagues, he “…had a major panic attack”. His heart was racing, he was short of breath and he was sent home by management in a taxi. On the following Monday Mr Naguib was unable to attend work by reason of another panic attack and he sought treatment at Canterbury Hospital. It is stated that he was told by a psychiatric nurse that he was having a panic problem and that he needed to consult a psychologist. He was prescribed medication and returned to his home where he remained in his room for a period of four weeks. It is stated that at that time Mr Naguib’s father suggested he consult Dr Naim Hanna general practitioner at Mt Druitt. He consulted Dr Hanna, who advised a consultation “to get psychological help”.

Mr Naguib was unable to return to work, he was unable to shower or dress nor could he shave. He was unable to leave the house. He felt very depressed and unhappy and had difficulty sleeping. He became argumentative with his family, friends and his girlfriend and his “daily thoughts developed into hatred towards people”. He lost interest in soccer and had no interest in anything or anyone. He continued to shake, felt hot and cold, and had difficulty breathing.

Mr Naguib attempted to return to work on one occasion when he was driven to the workplace by his father. He could not leave the car upon arrival and he “broke down and started crying and panicking”. He called his superior Mr David Turner who came down to the car with Mr Craig Snow, Andrew Love and Mr Vas Wang. This incident occurred approximately six weeks after he first stopped work. He resigned his position with the Respondent in November 2008.

Mr Naguib’s statement outlines detail of medical treatment, which includes attendance at Canterbury Hospital on a number of occasions and investigation by “chest physician” Dr Freiberg. Mr Naguib contacted a psychologist Mr Hadi Stanbouliah who attended his home for a consultation on 8 August 2008. Mr Naguib returned to Dr Noussair to obtain a referral to see Dr M Younan psychiatrist. He attended Dr Younan on a number of occasions. Mr Naguib ceased consulting Dr Noussair and began consulting Dr George Kasar, a general practitioner of Bankstown.

Mr Naguib’s continuing symptoms include an uncontrollable hiccup which he experiences constantly, he experiences sweating in his hands and feet and he is light headed and dizzy. He continues to have breathing difficulty, experiences nightmares, is unable to sleep and requires ongoing medication.

Mr Naguib obtained employment on 30 January 2009 with Discovery Clothing at Rosebery. He was engaged as a dispatch person. He was unable to continue in this position by reason of his state of health.

Mr Naguib states that he complained to Mr Craig Snow and Mr David Turner on a regular basis concerning his work conditions and he disputes statements made by those individuals that he had made no complaint.

There was a statement by Mr Zhiwu Wang dated 8 April 2009 in evidence before the Arbitrator. Mr Wang states that he is employed as a Team Leader/Manager with the Respondent. It was Mr Wang’s opinion that Mr Naguib was very competent and reliable as an employee of the Respondent. Mr Wang states that the work with the Respondent is fast paced and there were always a lot of changes concerning policies, procedures, management tools and styles of work. Mr Wang observed Mr Naguib getting “…really tired and exhausted because of the constant changes”. Mr Wang further states that training was sometimes inadequate. Mr Wang noticed that Mr Naguib, following a transfer to another section (WFM), was “going home sick”. He appeared to be struggling to breathe. Mr Wang states that Mr Naguib was under “a lot of stress” because of the huge workload. Mr Wang states that at one stage there were quite a few people leaving because of the stress and workload. Mr Wang spoke of two fellow workers who left employment with the Respondent because of the pressure of work. Mr Wang states that Mr Craig Snow spoke to him concerning provision of a statement. It is stated that Mr Snow said “…you can give a statement but you may be actually pursued by the company in relation to what you say and any negative comment you make”. Mr Snow appeared unhappy about Mr Wang providing a statement.

There were a number of medical certificates before the Arbitrator. Those were issued by Dr Hanna, Dr Noussair, Dr Freiberg, Dr Kassar and certificates issued by practitioners at Canterbury Hospital. Mr Naguib also relied upon reports from Mr Stambouliah, psychologist, Dr Klaas Akkerman, psychiatrist and a letter of referral from Dr Kassar. The detail of this evidence is addressed below.

The evidence before the Arbitrator included copies of medical records of Canterbury Hospital, clinical notes from Dr Mona Noussair which included copy of a report addressed to that practitioner by Dr Younan, psychiatrist, dated 18 August 2008, a medicare statement and notice of charge and a wages schedule. The detail of these documents is addressed below.

Respondent’s evidence

The Respondent relied upon medical reports provided by Dr Brian Potter, psychiatrist, who had been qualified to provide an opinion for the purposes of administering the claim brought by Mr Naguib. The Respondent also tendered copies of documents produced by Canterbury Hospital and the clinical notes of Dr Noussair.

Copies of emails prepared by various members of staff of the Respondent concerning Mr Naguib’s claim are relied upon by the Respondent. An investigation report dated 9 October 2008 which included copies of statements from fellow employees of Mr Naguib was in evidence. Where relevant detail of that report and those statements is addressed below.

The Respondent relied upon a number of other documents in evidence which are not strictly relevant to the issues raised on this appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

Before addressing the matters raised on appeal, it is important to note the nature of injury as alleged by Mr Naguib in his ARD. Part 4 of the ARD includes allegations of two distinct injuries. Firstly an injury occurring on 8 July 2008 is alleged as being the “result of his employment including work overload, inappropriate behaviour, abuse, bullying, humiliation, insults, belittling him in the presence of others, inappropriate work practices, not responding to and addressing work complaints, unfair work allocation, unprofessional work practices, failure by Management to deal with work complaints and work issues, Management ignoring OH&S complaints and Applicant’s risk hazards, mismanaged work issues by Management, victimisation at work, made to work in hazardous conditions, undermined by work colleagues and Management and treatment by the Respondent and its representatives, treating him inappropriately whilst being on light duties, which has caused him to suffer a primary psychiatric injury during and in the said course of his employment for the Respondent employer”.

The second injury is alleged to have occurred between November 2005 and July 2008. Similar allegations are made in respect of the second injury as has been set forth in [39] above. Injury in each case is described as “primary psychiatric injury, major depression, anxiety and panic attacks”.

It may be seen from the manner in which injury has been particularised in the ARD that Mr Naguib’s case is founded upon the assertion that there is a causal nexus between his work conditions and his psychiatric injury. As has been noted by the Arbitrator at [31] of her Reasons, there is no dispute between the parties that Mr Naguib has at relevant times suffered from a psychiatric disability diagnosed as Panic Disorder with mild agoraphobia. The Arbitrator identified the issue in dispute between the parties when she said at that paragraph “The issue is whether the Applicant’s psychological condition arose out of or in the course of his employment with the Respondent.” The Arbitrator, following a careful summary of the evidence before her, found (at [41]) that the evidence was “…insufficient to establish that the Applicant received an injury arising out of or in the course of employment with the Respondent.” In those circumstances an award was entered in favour of the Respondent.

It is difficult to draw any relevant distinction between the manner in which the “injuries” have been particularised in the ARD. It is important, at the outset, to note that no express reliance was placed by Mr Naguib upon the provisions of section 4(b)(i) nor section 4(b)(ii) of the 1987 Act ( “the disease provisions”) . It appears that the allegation of injury relates to the occurrence of “personal injury” within the meaning of section 4(a) being the occurrence of a frank injury. This approach to the facts as alleged by Mr Naguib is to an extent confirmed when submissions put on his behalf by counsel appearing before the Arbitrator are considered. It was suggested that work conditions as described by Mr Naguib and his witness Mr Wang would be accepted as fact and that those conditions were such that they would “precipitate or trigger” the condition diagnosed by both Dr Akkerman and Dr Potter. (Transcript T.8).
At [40] of Reasons the Arbitrator acknowledged the evidence before her concerning the work conditions which prevailed before the occurrence of the alleged injury. Whilst the Arbitrator makes no express finding as to work conditions in the course of her Reasons leading to entry of the award in favour of the Respondent, she noted that “… there is little contemporaneous record in the medical evidence that it was the work environment that was causing the Applicant [sic] difficulties. While the hospital clinical notes do record on one occasion, 14 July 2008, recent work stress the main emphasis in the hospital notes is the family situation.” The Arbitrator’s conclusion that there was no causal nexus between the work conditions and Mr Naguib’s psychological condition, that is that no injury in the relevant sense had been received, relieved her of any need to consider the relevance or otherwise of the provisions of section 9A (substantial contributing factor) to the facts. That section, as noted at [3] of Reasons, was raised by way of defence by the Respondent.

It may be seen from the matters outlined above that the Arbitrator, in the course of her Reasons, treated as fundamental to the question of causation an examination of the histories as recorded in contemporaneous documents. In the circumstances it is proposed to examine the detail of that evidence relating to relevant history before addressing the matters raised by Mr Naguib challenging the Arbitrator’s reasoning process and ultimate finding.

The records of Canterbury Hospital which have been tendered on behalf of each party, contain the following notations:

(i)27 January 2006. Attendance at emergency department. Complaints unable to breathe, took Ventolin puffer, nil improvement, HX asthma. The diagnosis was “breathing difficulty”. It is recorded that no cause could be found for Mr Naguib’s breathlessness.

(ii)6 June 2008. Attendance at emergency department presenting with cough “to point of vomiting” tight in chest short of breath referred to local doctor for follow-up.

(iii)11 July 2008. Admitted emergency department. A Discharge Referral notes the following matters:

“Diagnosis
PROVISIONAL DIAGNOSIS:
Shortness of breath
ADDITIONAL DIAGNOSES/COMPLICATIONS:
Summary of patient progress and follow-up
Patient progress:
-     25 year old male, consulted for palpitations and SOB
-     known asthmatic
-     last seen at Canterbury ED for an exacerbation of his asthma 3 weeks ago
-     was discharged with a 3-day course of Prednisone and weaning doses of Ventolin
-     he states since he got discharged from ED, he has not been able to wean off his use of Ventolin as he would get short of breath frequently
-     he has been using it daily since then (4-5 times per day)
-     he has also been experiencing intermittent palpitations and pleuritic chest and back pains; also notes headaches after severe coughing episodes
-     also states he would experience numbness and tingling of his extremities intermittently
-     denied fever
-     consult done today as he was concerned that he was not getting any better

BACKGROUND:

-     Asthma since childhood – on prn Ventolin; no maintenance medications (preventers or controllers)
-     Chronic nausea – has had a gastroscopy – NAD
-     denies other medical problems
-     nil previous surgeries

NIL KNOWN DRUG ALLERGIES
FAMILY/SOCIAL HISTORY:

-     smoker – used to smoke a packet a day; states that he has cut down to using 1 packet in 2 days 3 weeks ago
-     family history of ischaemic heart disease
-     no recent travel

ON EXAMINATION:

-     awake, alert, nil distress; asymptomatic at the time of examination
-     BP: 124/65, HR: 64, RR: 15, afebrile, saturating 99-100% on room air
-     not pale, no jaundice
-     Chest clear
-     CVS: normal rate, regular rhythm, heart sounds dual, nomurmurs [sic]
-     Abdomen soft and non-tender
-     Extremities: full and equal pulses, (-) pallor, (-) oedema, (-) cyanosis

Bloods as below. D-Dimer negative.

ECG showed a normal sinus rhythm with no acute ischaemic
changes.
His main issue at present is that he has poor asthma control and that he is not on any controllers or preventers at the moment. The other symptoms he has (numbness and tingling of the extremities) are probably due to hyperventilation as he admits he gets these symptoms when he breathes fast. He will be started on Seretide today.
He was seen by the COPD nurse who has instructed him on how to use the Seretide. An interim asthma management plan was given to him as well.
He did not require any therapeutic intervention while he was in ED.
Kindly follow-up his progress in the next few days.
Many thanks for your continued care.”

(iv)14 July 2008. Attendance at emergency department. Complained of difficulty breathing/epigastric pain radiates to LT lower chest.

Handwritten notes record that Mr Naguib had been “unwell for approximately 1/12”, that he had a persistent dry cough, was not able to catch his breath: struggles on deep inspiration: epigastric discomfort; sensation of band around chest sometimes wakes from sleep with discomfort; getting more distressed; no relief with Ventolin.”
A history of “vomiting daily for the past 12 months was also recorded. The notes record that Mr Naguib “…states he has been under a lot of stress at work and at home recently; feels anxious and depressed at times; had considered seeing a counsellor but felt too unwell.” It was noted, following review by mental health personnel that Mr Naguib “has quite a considerable anxiety disorder.”
The handwritten notes which appear to have been completed by G. White, Mental Health Nurse Practitioner include the following notation: “[Mr Naguib] described at length work stress, family stressor, multiple difficult dynamics, historical problem and conflict with father.” Notes also include-“Maher states he has been under a lot of stress at work and at home recently; feels anxious and depressed at times; had considered seeing a counsellor but felt too unwell.”
The summary recorded – “25 year old man, presents with exacerbation of asthma complicated by anxiety and panic”.

(v)21 September 2008. Attendance at emergency department. It is recorded that Mr Naguib “has been more anxious today: hiccups when breathing, 1/52 worse today, chest tightness, abdo discomfort. Anxiety and panic attacks for 2-3/12. Patient sees a psychologist and psychiatrist which have been helping. No suicidal ideations or intentions to harm others.”

(vi)29 October 2008. The notes record – “this evening, whilst watching tv, patient felt the onset of a panic attack with shallow and rapid breathing and tingling of his limbs and banding across his chest. He was unsure if the SOB was due to the anxiety or an exacerbation of his asthma. He admits to increasing stress related to his finances over the past 1-2 weeks due to finances. He has also had an associated dry cough and has been seen at Bankstown Hospital by Dr Freidberg [sic] in the past, where he had a lung function test and was advised against taking bronchodilators.”

There are three medical certificates issued by Dr Hanna, general practitioner. The first is dated 16 July 2008 which certificate notes that Mr Naguib was suffering from shortness of breath, epigastric pain (for investigation). There are two further certificates in similar form to the first dated 20 July 2008 and the other dated 31 July 2008.

The clinical notes of Dr Noussair indicate that the first occasion Mr Naguib consulted that practitioner following the difficulty he experienced whilst travelling home from work on 8 July 2008 occurred on 22 July 2008. Those hand written notes record complaints made during that consultation as follows “had several attacks of shortness of breath – cough. Epigastric (illegible)”. Medications and blood pressure were noted. Parts of that entry are difficult to decipher and neither party has made any submission either before the Arbitrator or on this appeal as to the matters there recorded.

Dr Noussair’s notes indicate that Mr Naguib attended for treatment of similar symptoms on 28 July 2008, 4 August 2008, 12 August 2008, 14 August 2008, 21 August 2008 and 28 August 2008. It appears that Mr Naguib was referred to Dr Freiberg on 4 August 2008 for investigation of his respiratory problems. Following that referral Dr Noussair, on 12 August 2008, has recorded “panic attacks, anxiety refer see Dr Younan” and on 21 August 2008 the notes record that Mr Naguib wanted “to claim w/c (workers compensation) as he started to have this problem since 8 July 2008 due to pressure and excessive workloads.” The last entry, having been made on 28 August 2008, records that Mr Naguib was “still stressed and anxious.”

A WorkCover NSW medical certificate was issued by Dr Noussair on 21 August 2008 which records an injury as follows “panic attacks on 8/7/08 while at work due to excessive work demands and pressure”. The diagnosis was panic attacks and anxiety. It is noted on that certificate that Mr Naguib had been seeing a psychologist since 8 August 2008 and had been seeing Dr Younan, psychiatrist.

A copy of a report addressed to Dr Noussair by Dr David Freiberg dated 4 August 2008 records relevant history as follows:

“He has never been definitely diagnosed with asthma but has used short acting bronchodilators intermittently over the years. However a month ago he developed a flu like illness with a cough and copious amounts of mucous. There was a lot of upper airway irritation with it. He could cough to the point of vomiting. Since that time he feels dyspnoeic. Specifically he feels he can’t get enough air into his lungs. This is more related to rest than exertion. There are a lot of symptoms of hyperventilation with this. This includes anxiety and presyncope.”

The records of Dr Noussair produced to the Commission included a copy of a short report dated 18 August 2008 addressed to her by Dr Younan, psychiatrist. That report stated, in part:

“Thankyou for referring Mr Naguib whom I saw on the 12^th instant. I listened to and took a history of his complaints, enquired into his family and background histories and assessed his current mental state.
His upbringing was unfortunately traumatic and that most likely, in addition to biological factors, has contributed to the current condition of panic disorder with agoraphobia.”

Included among Dr Noussair’s notes is a report dated 13 August 2008 addressed to her by Mr Hadi George Stambouliah, psychologist. It is recorded that Mr Naguib referred himself for assistance to Mr Stambouliah. The history taken during the first consultation at Mr Naguib’s home on 8 August 2008 is as follows:

“Maher described a panic attack on 8/7/2008 while at work, and mentioned excessive work demands and pressures for previous few months. His anxiety symptoms became worse and he was hospitalised due to significant breathing problems and abdominal pain. Review by Chest Physician, Dr Freiberg was NAD. He was on ativan, which he took for one night. He was also prescribed endep 10mg. He developed significant distress about leaving the house or driving, became sensitive to any family issues and withdrew from his pleasurable activities from friends and girlfriend.”

The records produced by Canterbury Hospital include a handwritten letter of referral dated 24 September 2008, from Mr Stambouliah to a practitioner at that hospital. That letter included the following notation:

“He presented tonight with significant anxiety and depression symptoms with thoughts and planning of suicide. He was extremely distressed by his ongoing panic attacks and a stressful family situation. He reported that he attended the Canterbury Hospital on 21/9 and the St George Hospital on 22/9 for similar complaints of increased anxiety and panic associated with family distress. He reported thoughts and intent of self harm by overdose and carries his medications with him.”

A report from Mr Stambouliah dated 6 November 2008 addressed to Dr George Kassar of Bankstown was in evidence. That report, stated to be an “update”, detailed history of excessive workload and other stressors at work and subsequent major panic attacks on 8 and 10 July 2008.

A report from Dr John Lee, gastroenterologist, dated 1 November 2005 addressed to Dr Noussair was included among the documents produced. Dr Lee recorded a history of concern by Mr Naguib about “vomiting over the past few years”. That vomiting was recorded as occurring frequently and was the subject of investigation by that practitioner.

I have taken time to summarise that evidence in which relevant history has been recorded given the manner in which the claim has been conducted on behalf of Mr Naguib and given the Arbitrator’s approach to a determination of the question of causation. At the hearing Mr Naguib relied upon the qualified opinion of Dr Akkerman as recorded in reports dated 14 April 2009, 6 May 2009 and 22 July 2009. Dr Akkerman’s diagnosis was that of panic disorder with mild agoraphobia and tic disorder. In the first of his reports Dr Akkerman acknowledged that he had been provided with a “variety of statements” however that report contains no detailed description of any work stressors. Dr Akkerman had recorded that Mr Naguib had given a history that there was “favouritism” at his workplace and that his boss “did not care”. It is also recorded that Mr Naguib stated there was “no support” and that “the boss was never there”. A history was taken that he worked long hours, that the company over employed people and that he was not paid for overtime.

Dr Akkerman was asked specifically by Mr Naguib’s solicitors to address the question of causation of their client’s “current condition”. In particular Dr Akkerman was invited to provide an opinion “on whether any incapacity is the result of injury at work”. Dr Akkerman stated in that report:

“My opinion as to what caused the current condition.
This is a difficult issue. I understand that Dr Potter decided that it had a constitutional basis.
However, the temporal link between the development of the symptoms and his employment to me, makes it more likely than not that his employment was a substantial contributing factor.”

Dr Akkerman’s report of 6 May 2009 was compiled following a request by Mr Naguib’s solicitors that Dr Akkerman consider material which is described on the second page of that report. It appears that the report was requested to ensure that Dr Akkerman had before him a comprehensive history. The summary of material available to Dr Akkerman included a report from Dr Younan psychiatrist who had seen Mr Naguib for the first time on 12 August 2008. It is of significance that Dr Akkerman, at page four of his report, declined to comment on the treatment by Dr Younan and it is stated by Dr Akkerman “no report by Dr Younan was included and therefore I cannot comment on this.” Dr Akkerman proceeded to state:

“As I have outlined in my earlier report, I do believe that he suffers from a Primary Psychiatric condition and that his condition is substantially contributed [sic] by his work.”

Dr Akkerman, when taking a history during his first consultation, recorded at page three of the report of 14 April 2009 that Mr Naguib had seen Dr Younan on one occasion. It is recorded in that report that Mr Naguib “did not like him”. It is to be noted that the Health Insurance Commission records indicate that Mr Naguib had consulted Dr Younan on six occasions, the first being 12 August 2008 and the last 19 December 2008.

In his last report dated 22 July 2009, Dr Akkerman addresses the opinion as expressed by Dr Potter in his reports which are in evidence. With respect to Dr Potter’s view that Mr Naguib’s psychiatric condition was attributable to constitutional factors Dr Akkerman had the following comment:

“Dr Potter refers to Psychiatry being a scientific study and this is indeed correct. However many issues regarding causation are still unclear. Family adoption and twin studies all suggest that there is a genetic component to the causation of Panic Disorder however, this contribution is far from being 100%. In other words a patient needs to have a genetic pre-disposition to develop a particular condition but that is not sufficient for the patient to actually develop the disorder. The second outside factor needs to be added to the pre-existing factor for a disorder such as Panic Disorder to develop.

To merely say that Panic Disorder has a constitutional basis is over simplifying the matter. I concur with Dr Potter that more likely than not Mr Naguib has a genetic pre-disposition for this condition but if it was not for the participating (sic) factor (work) he would not have developed this Panic Disorder.”

There are three reports from Dr Brian Potter, psychiatrist in evidence before the Commission dated 15 October 2008, 2 April 2009 and 7 July 2009. Dr Potter, on the first occasion Mr Naguib attended for examination, obtained a detailed history of Mr Naguib’s work conditions including detail of extra pressure and work demands placed upon him in the months before his experience of a panic attack on 8 July 2008 (misstated in the first report as being on 8 February 2008). When seeking detail of treatment at that consultation and a subsequent consultation which occurred in March 2009, Mr Naguib did not volunteer detail of his attendance upon Dr Younan, psychiatrist. Dr Potter’s diagnosis was that of panic disorder with agoraphobia. The view was expressed by that practitioner that such disorder is “constitutional”. It is specifically stated by Dr Potter that Mr Naguib’s psychiatric condition is not related to his work conditions. Dr Potter, in the second of his reports, states that the level of Mr Naguib’s dysfunction and the level of his suicidality suggests that he requires more intense treatment and perhaps in-patient treatment in a unit which specialises in the treatment of anxiety disorder.

The report of Dr Potter dated 7 July 2009 was prepared after Dr Potter had perused those documents which are summarised at page one of the report. Reference is made by Dr Potter to the report of Dr Younan dated 18 August 2008 and he stated “… it is unwise to simply dismiss his recording of, ‘his upbringing was unfortunately traumatic’, based on a current cross-reference with Mr Naguib.”

Dr Potter noted in that last report that it was of interest that the suggested conflict and difficulties at work had not been recorded in the notes made by doctors who had seen him at the time including those at Canterbury Hospital, Dr Noussair and Dr David Freiberg. Dr Potter confirmed his diagnosis and views as expressed in his earlier reports.

It is not disputed between the parties that Dr Younan was unable to produce his notes in response to a Direction for Production which had been served upon him. Those documents had been lost and the representatives of both parties acknowledge that is the stated reason for non-production.

The Arbitrator’s Reasons

In the course of her Reasons the Arbitrator identified the issues raised for determination as being the question as to whether Mr Naguib received a psychological injury arising out of or in the course of his employment and, if so, was that employment a substantial contributing factor to such injury. The evidence adduced by the parties is thoroughly summarised by the Arbitrator. The Arbitrator had earlier noted that there was no dispute that Mr Naguib “has a diagnosis of a Panic Disorder with agoraphobia.” The Arbitrator noted the evidence of both Mr Naguib and Mr Wang concerning the demanding nature of the work performed by staff employed by the Respondent. She also noted that evidence concerning complaints relating to work conditions were denied by Mr Turner and Mr Snow.

The Arbitrator makes no finding concerning work conditions and makes it clear (at [35]) that “In considering whether the panic disorder and agoraphobia arise out of or in the course of employment with the Respondent I have had regard to the medical evidence.” Whilst the term “causation” was not mentioned by the Arbitrator in the course of her Reasons it is clear that her examination of the medical evidence had been embarked upon with a view to determining the relevance or otherwise of Mr Naguib’s work conditions to the causation of his undoubted psychiatric disability.

The Arbitrator has placed considerable reliance upon the content of the short report from Dr Younan which had been produced among the clinical notes of Dr Noussair. The Arbitrator has, it is apparent, accepted as being the relevant history that which is recorded by Dr Younan, namely – “upbringing was unfortunately traumatic, and that most likely in addition to biological factors, has contributed to the current condition of panic disorder with agoraphobia”. As observed by the Arbitrator, Dr Younan’s report does not mention Mr Naguib’s employment at all.

The Arbitrator proceeds to address the content of the records of Canterbury Hospital and the reports of Mr Stambouliah. She correctly notes (at [37]) the apparent contrast concerning relevant history to be found in Mr Stambouliah’s report of 24 September 2008 addressed to an unnamed medical practitioner and that dated 6 November 2008. The former report was summarised as identifying suicidal thoughts associated with increased anxiety and panic associated with family distress. The latter report was said to make mention of excessive work demands and pressures during the previous few months.

The Arbitrator proceeded to address the content of Dr Akkerman’s evidence and made reference to the judgment of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The Arbitrator, at [40] of Reasons summarises Mr Naguib’s evidence concerning work conditions, following which she noted that there was little contemporaneous record in the medical evidence at the time of Mr Naguib’s cessation of work that the work environment caused his difficulties. The Arbitrator acknowledges the entry made in the Canterbury Hospital notes on 14 July 2008 concerning “recent work stress” but notes that “…the main emphasis in the hospital notes is the family situation.”

At [41] of Reasons the Arbitrator concludes, for the reasons there stated, that the evidence of Mr Stambouliah and Dr Akkerman, when assessed in the light of other evidence concerning difficulties experienced by Mr Naguib in his family situation was “insufficient to establish that [Mr Naguib] received an injury arising out of or in the course of employment with the Respondent”.

Appellant’s submissions and discussion

As noted earlier in these reasons Mr Naguib has not identified with any precision those grounds of appeal upon which he relies. It is proposed to deal with the complaints raised which challenge those factual findings made by the Arbitrator which lead her to enter the award in favour of the Respondent.

The first such error suggested is the manner in which the Arbitrator assessed the evidence of Dr Younan. The submission at [2.7.1] is poorly expressed however it appears that the Appellant’s complaint is that the Arbitrator failed to take into account that Dr Younan’s clinical notes concerning history were not in evidence. The point is made at paragraph [2.7.2] that Dr Younan’s records had been lost. As I have earlier observed the Arbitrator placed considerable reliance upon the content of the short report of Dr Younan. The fact that that report is short is of no relevance to a determination as to the weight that should be ascribed to its contents. It was argued before the Arbitrator by counsel that, given the brevity of the report, and the absence of the notes, the Commission simply did not know what history was taken by Dr Younan. The submission on this appeal and those made before the Arbitrator appear to disregard the fact that Dr Younan’s report was one, as pointed out by the Arbitrator, addressed to the treating general practitioner, not one prepared for medico-legal purposes. It was open to the Arbitrator, in my view, to accept the contents of that report as representing those matters of relevance and significance which had emerged during the course of Dr Younan’s first consultation. There is no mention of work stresses or other circumstances and an inference that no such history was provided by Mr Naguib was open to the Arbitrator. Shortly stated, the Arbitrator’s reliance upon that report and the weight ascribed by her to its contents was open to her and her approach is one with which I respectfully agree.

At [2.7.3] Mr Naguib submits that the Arbitrator “put undue weight” on some aspects of the medical evidence. Her reliance upon the evidence of Dr Younan is again criticised upon the basis that there was a suggested disregard of the notes of Canterbury Hospital. With respect to that matter I note that the Arbitrator did in fact acknowledge reference to “recent work stress” in the hospital’s records concerning an attendance by Mr Naguib on 14 July 2008. Complaint is also made that evidence of Mr Stambouliah had been disregarded. I reject that submission and, as noted above at [68], the Arbitrator has expressly noted the contrast in the recorded history as found in the separate reports of that practitioner.

At [2.7.4] the Arbitrator’s assessment of the evidence of Dr Akkerman is criticised upon the suggested basis that there had, again, been a disregard of the history of work stress to be found in the Canterbury Hospital notes and the report of Mr Stambouliah. It is suggested that the “test applied by the Arbitrator is fundamentally flawed”. This submission is difficult to distinguish from those matters raised earlier and the Appellant has failed to make clear the nature of the “test” mentioned. As earlier stated I conclude that the Arbitrator’s evaluation of the evidence was open to her and that her conclusions were in accordance with my own views of that evidence.

At [2.7.5] the Appellant submits, “The Applicant does not have to explain or give evidence to negate on (sic) a possible cause of injury (here family discord).” Such an argument, in my view, does not advance the challenge to the Arbitrator’s reasoning concerning her findings of fact. The onus upon the Appellant before the Arbitrator was one with respect to the question of causation of his undoubted disability upon the civil standard of proof. It is correct that a party has no obligation to adduce evidence to negate possible causes of an alleged injury. What is required is proof of a nexus, on the present facts, between the work performed and the psychiatric disability which has been diagnosed. The Arbitrator has found insufficient evidence of such nexus given the almost complete absence of any contemporaneous record made by medical practitioners implicating the work conditions as alleged. As I have earlier stated such approach was proper and her conclusions were open to her.

At [2.7.6] the Appellant appears to accept that the onus is upon him to prove the causal nexus between work stress and his psychiatric condition and that the work stress was a substantial contributing factor to his injury. It is asserted that there is ample evidence of the existence of a stressful work environment and attention is drawn to that evidence of Mr Naguib, Mr Wang, the Canterbury Hospital notes and Mr Stambouliah. Having regard to the evidence as a whole it is probable that Mr Naguib was engaged in a stressful work environment and I so find. I have reached that view having regard to Mr Naguib’s evidence and that of Mr Wang. That evidence is, to an extent, corroborated by witnesses upon whom the Respondent has relied. The evidence of Mr Stambouliah and the contents of Canterbury Hospital’s notes are of little relevance to a determination of the fact that work was stressful. That evidence is relevant to the question of causation of his psychiatric disorder. This submission appears to confuse two distinct issues that is, firstly, the question as to the nature of the work and, secondly, the relevance of that work to causation of injury. With respect to the second of those questions I have earlier expressed my agreement with the Arbitrator’s reasoning process and conclusions.

At [2.7.7] Mr Naguib repeats matters raised earlier concerning the Arbitrator’s acceptance of Dr Younan. Reference is made to the temporal connection between the onset of Mr Naguib’s panic attack and “the work he was doing”. That temporal nexus was noted by Dr Akkerman. This submission, which again lacks clarity, raises issues which concern the manner in which Mr Naguib particularised his claim and the evidence in support of it.

It will be recalled that the nature of the injury alleged is either a discreet injury received on 8 July 2008 or one which manifested by way of a panic attack on that day resulting from the nature and conditions of his work over a period. It will also be recalled that that first panic attack occurred whilst Mr Naguib was on a journey from his place of work to his home within the meaning of section 10(3)(a) of the 1987 Act. No reliance has been placed upon that provision and it is reasonably clear that Mr Naguib’s case as presented is that the panic attack which manifested on that occasion was one that had been caused by a series of psychological traumata over a period of time in the course of his work. In the circumstances the provisions of section 9A of the 1987 Act become relevant only if the initial question of “causation” is established by Mr Naguib. The Arbitrator’s rejection of the evidence identified by Mr Naguib in this submission was, as earlier stated, open to her and her reasoning discloses no error requiring correction on this appeal.

At [2.7.7] Mr Naguib appears to address the question of the weight of Dr Younan’s evidence. It is suggested that it is “incomplete” given that his notes are not available and that there is no evidence of what history was given to that practitioner on the occasions of subsequent consultations. The first matter to note in relation to that submission is that Mr Naguib expressly states to Dr Akkerman during consultation on 8 April 2009 that he “saw Dr Younan once. He did not like him. He sees Hadi Stambouliah…”(report 14 April 2009 at p. 3). The submission accepts that Mr Naguib had consulted Dr Younan on six occasions. Each of those six occasions had occurred, as established by the Health Insurance Commission record which is in evidence, prior to that consultation with Dr Akkerman. I reject the suggestion in the submissions that the weight of Dr Younan’s evidence should be assessed with reference to the absence of the notes and the absence of any evidence of history recorded at subsequent consultations. What is overlooked in this submission is the fact that Dr Younan’s short report was a contemporaneous note which may be taken to contain a fair summary of matters relevant to the onset of Mr Naguib’s disability. The reference in the submission to section 9A is made in disregard of the Arbitrator’s finding concerning the question of “causation”.

Submissions contained in [2.7.8] and [2.7.9] lack clarity however it appears that the Appellant challenges the Arbitrator’s rejection of Dr Akkerman’s evidence. The complaint appears to be directed to the matters noted by the Arbitrator at [41] of Reasons. It was there stated that – “the history taken by Dr Akkerman about the Applicant’s family situation is not consistent with other evidence before the Commission and does not adequately address evidence in the report of Dr Younan, the hospital clinical notes and the referral report of Mr Stambouliah. The evidence is therefore insufficient to establish that the Applicant received an injury arising out of or in the course of employment with the Respondent.” It is suggested that the Arbitrator’s evaluation of the evidence overall is flawed in some way and it is argued that “… Dr Akkerman can only comment on the history he has taken not on why the Applicant has given a different history to another doctor.” That argument, such as it is, appears to misapprehend the Arbitrator’s analysis of the evidence and her manner of evaluating the evidence of individual witnesses.

The submission which appears at [2.7.10] appears to reiterate matters raised earlier in submissions. A clear understanding of matters raised in that submission is somewhat clouded by reference to the term “… the incident of 8 July 2008”. Having regard to the manner in which the claim has been presented before the Commission it cannot be said that that an “incident” being an injury occurred on 8 July 2008. Rather, as noted above at [78], what was alleged to have occurred on that day was a symptomatic manifestation of an injury which had occurred over a period of time. The evidence referred to in the course of this submission has been dealt with above and the argument that there is an “injury consequent upon the incident of 8 July 2008” must be rejected.

The evidence in this matter clearly establishes that Mr Naguib has for a very considerable period of time suffered from a seriously debilitating psychiatric condition. It is the view of both Dr Akkerman and Dr Potter that he is in need of intensive treatment. That condition is incapacitating and there was no dispute between the parties on hearing before the Arbitrator concerning the nature of the disability and its incapacitating consequences. Mr Naguib’s claim has failed before the Arbitrator by reason of the insufficiency of evidence adduced in support of the allegation that his undoubted disability is causally related to his work. The Arbitrator’s conclusion is one with which I agree and therefore this appeal must fail. The evidence reveals that the first general practitioner consulted by Mr Naguib following the panic attack experienced on 8 July 2008 was Dr Hanna who issued a certificate dated 16 July 2008. Mr Naguib states that he consulted Dr Noussair shortly after that panic attack. An examination of Dr Noussair’s clinical notes reveals that the first consultation of Mr Naguib after 8 July 2008 occurred on 22 July 2008. Neither Dr Hanna nor Dr Noussair have recorded any relevant work history with respect to the onset of the panic attack. It is to be noted that there are certificates but no report from Dr Hanna in evidence. Mr Naguib first consulted Dr Younan on 12 August 2008. It may be seen that there is an absence of evidence presented by Mr Naguib from those two practitioners whom he initially consulted following the subject panic attack.

In concluding that the manner of the Arbitrator’s assessment of the evidence was correct I have had regard to the fact that Mr Naguib has not adduced any evidence of Dr Hanna other than medical certificates as noted at [46]. The circumstances of this matter permit that an inference may be drawn that any such further evidence would not have assisted Mr Naguib’s case. A similar inference may be drawn concerning the state of the evidence of Dr Younan. The only evidence from that practitioner is found in the report produced by Dr Noussair. Failure to call any further evidence from Dr Younan is not, in my view, satisfactorily explained by the loss of his notes. There is no evidence that Dr Younan has no recollection of the relevant history.

Other than the short entry concerning ‘work stress’ found in the hospital notes of 14 July 2008, there is no evidence concerning the suggested relevance of those matters until 8 August 2008 when history is recorded by Mr Stambouliah. Having conducted a review on the merits the state of the evidence, in my view, is not sufficient to establish a causal nexus between work conditions and the onset of Mr Naguib’s psychological condition.

DECISION

The Arbitrator’s orders contained in the Certificate of Determination dated 3 September 2009 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O’Grady
Deputy President

7 January 2010

I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

Amendments:

Reference at [84] to 14 November 2008 amended to read 14 July 2008.

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Citations

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