Nand v Toll Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nand v Toll Transport Pty Ltd [2022] NSWPIC 595
APPLICANT:	Rohitendra Nand
RESPONDENT:	Toll Transport Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	26 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation in relation to alleged psychological injury; whether applicant suffered a psychological injury; if so, whether that injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline and/or dismissal; Held – the applicant suffered a psychological injury in the course of his employment to which his employment was the main contributing factor; Attorney General’s Department v K and State Transit Authority of NSW v Chemler followed and applied; the causes of the applicant’s injury were multi-factorial including matters which in no way relate to the issues which the respondent raises in support of its defence under section 11A of the Workers Compensation Act 1987 (1987 Act); the respondent’s defence under section 11A of the 1987 Act is not made out; the matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the psychological injury.
determinations made:	1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 3 April 2020. 2. The applicant’s employment with the respondent was the main contributing factor to the injury. 3. The respondent's defence pursuant to s 11A of the Workers’ Compensation Act 1987 is not made out. 4. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 3 April 2020 (deemed); Body systems claimed: psychiatric/psychological injury, and Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondent’s Application to Admit Late Documents dated 15 September 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

Rohitendra Nand (the applicant) was employed by Toll Transport Pty Ltd (the respondent) as a truck driver for approximately four to five years from approximately 2015.
The applicant alleges that during the course of his employment he suffered a psychological injury as a result of ongoing interpersonal difficulties together with bullying, repetitive use of profane and derogatory language, racial slurs, aggressive behaviour and exclusionary tactics. A number of the allegations also relate to the approach of co-workers to the applicant wearing a mask during the COVID 19 pandemic.
The respondent denies liability, alleges the applicant did not suffer a psychological injury and says if he did, it was wholly or predominantly caused by the respondent's reasonable action taken with respect to performance appraisal, discipline and/or dismissal.
The applicant had previously brought proceedings with respect to this injury, which were dealt with in Consent Orders in January 2021 by way of a voluntary payment of weekly benefits and medical expenses. The applicant brings these proceedings seeking payment of permanent impairment compensation in respect of his alleged injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered a psychological injury in the course of his employment to which his employment was the main contributing factor, and
(b) if the answer to [a] above is in the affirmative, whether the applicant's injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal, discipline and/or dismissal.
As a preliminary issue, the applicant raised the question of whether the payment of weekly compensation and medical expenses by the respondent in accordance with the previous Consent Orders constituted an admission of compensable injury by the respondent. The applicant argued if this was the case, the matter would immediately be referred to a Medical Assessor as an admission of the existence of a compensable injury means the injury is capable of being compensable pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent opposed that application and noted the only matter consented to in the previous orders was the discontinuance of proceedings, and the balance of the agreement was reflected in notations.
Mr Jones submitted to the extent there was any admission in the previous orders (which is denied), an admission was rebuttable upon the production of additional material. He submitted that in this matter, there is additional material by way of factual investigation and medical opinion to the effect the applicant's condition is not related to the workplace. Mr Jones noted there were various opinions from independent medical examiners (IMEs) which postdate the previous Certificate of Determination.
Mr Jones also noted no notice of this issue had been given by the applicant at the telephone conference.
On balance, I am not of the view that the previous Consent Orders are sufficient to ground an admission on the part of the respondent of the presence of compensable injury. The only award made by the former Workers Compensation Commission was a consent discontinuance. The balance of the Consent Orders are notations, reflecting a voluntary agreement entered into between the parties. Notwithstanding the factual material on which the respondent relies including the statements go back to May 2020, I do not believe there is an admission on the part of the respondent in this matter as to injury. The delay between that material coming into existence and the demand of liability is, however, in my view can be taken into consideration and given some weight by the Personal Injury Commission (the Commission).

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 21 September 2022. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Robison instructed by Mr Staninovksi appeared for the applicant. Mr Jones instructed by Ms Bauer appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) and attachments dated 15 September 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a psychological injury

The applicant alleges his injury occurred as a result of an ongoing course of conduct or his perception of that conduct. In Attorney General’s Department v K [2010] NSW WCCPD 76, Deputy President Roche, in considering the issue of establishing a psychological injury in circumstances of the worker's perception of real events, provided at [52] the following useful summary of the relevant authorities on this issue:
“a.     Employers take their employees as they find them. There is an 'eggshell psyche' principle which is the equivalent of the 'eggshell skull' principle (Spiegelman CJ in State Transit Authority of NSW v Chemler [2017] NSW CA249 (Chemler) at [40]);
b.     A perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
c.     If events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler) at [69]);
d.     So long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
e.     There is no requirement at all that the worker’s perception of the events must have been one that passed some qualitative test based on an 'objective measure of reasonableness' (Von Doussa J in Wiegand at [31]), and
f.     It is not necessary that the worker's reaction to the events must have been 'rational, reasonable and proportionate' before compensation can be recovered."
In relation to a worker’s perception of events, Basten JA noted in Chemler:
"67. The appellant’s contention is a misperception, or indeed a perception, not give rise to an Injury 'arising out of or in the course of employment', must be a contention that the accepted psychological state of the respondent did not arise out of or in the course of employment. For there to be the relevant connection with the employment, it was argued that the events perceived must be 'real' and not 'imagined'.
68. No doubt a psychological state can be based upon a delusion, but the question remains one of causation. The point was succinctly identified and addressed by Windeyer J in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 642;
'Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it.'
69. There must be an aspect of the employment which constitutes 'a substantial contributing factor to the injury' [since the amendments, now the main contributing factor] for compensation to be payable: see s9A (1) of the 1987 Act. To focus on the concept of 'perception' may obscure the real issue. Although the arbitrator said that he accepted the statements from witnesses who denied that they had heard anybody refer to the respondent in a derogatory fashion because of his race or religion, he nevertheless accepted that. 'In this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that'. In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of law. Nor is it necessary to determine whether the respondent's response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, that in a limited sense, the motivation, intention, or other mental state of the co-worker or supervisor; CF Purves v NSW(Department of Education and Training) (2003) 217 CLR 92 at [166] (McHugh Kirby JJ); and [234] – [236] (Gummow, Hayne and Haydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognisable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was flaws identified by this ground."
It is apparent from these authorities that where an applicant has a perception of real events in the workplace, they can be sufficient to ground a finding of a work-related psychological injury.
The applicant submitted he was subjected to a number of stressors during the course of his employment, and these objectively true matters combined with his perception of them are what founded the psychological injury.
The most contentious incident surrounding this matter is an alleged assault perpetrated on the applicant by a supervisor Mr Innes on 3 April 2020. The applicant's version of the events of that day is seriously and significantly at odds with those of other witnesses to the incident, whose versions are supported by CCTV footage.
Mr Robison submitted the Commission should accept the applicant's account of the assault as true, and that he resiled from it because he was forced to. Moreover, Mr Robison submitted that even if the assault did not occur, it was one of many issues which caused the applicant's injury.
Having regard to the lay evidence surrounding the alleged assault, I am unable to find in favour of the applicant's version of events. I have little difficulty finding that the applicant’s relationship ship with Mr Innes and several of his workmates was tense, however, his version of events surrounding the alleged assault is so at odds with that of the other witnesses that I am unable and the balance of probabilities to accept it.
However, it should be noted that findings surrounding the incident said to have given rise to the alleged assault are not determinative of whether the applicant suffered a work-related psychological injury. It is necessary to examine the factual matrix of the case in full before deciding whether such injury has risen.
The applicant alleges in his statement:
"3.     I have felt ridiculed and humiliated by my manager Mitchell Varnam for wearing a mask and gloves due to COVID 19. I have family who have health conditions and I do not want to risk infecting them.
4.     Mitchell kept saying that I was only meant to wear the mask if I had the virus. Stephen has also humiliated me for this.
5.     Some other drivers have also made similar remarks about me wearing a mask.
6.     In December 2019, I felt threatened by Steve. That day he slammed his palm on the table and pointed at me and then drew his finger across his throat. He threatened to fire me for speaking up to the union…"
In a supplementary statement, the applicant said:
"1.     I believe that the incident with Stephen Innes [referring to the alleged assault] was just the final straw which led me to report a psychological injury. There were many events that had occurred previously which I found made the working environment highly toxic and it was difficult for me to feel safe and comfortable working at Toll.
2.     Many of my co-workers would often make racist jokes and comments about people of Indian ethnicity. They would say things like 'they are hopeless' when referring to people of Indian descent. This made me feel particularly uncomfortable, excluded and saddened.
3.     Profanity was also very common amongst my colleagues. Words like 'cunt' and 'fuck' were said on a daily basis. This sort of behaviour also made me feel very uncomfortable and I further felt that I was excluded from my colleagues.
4.     In addition to the profanity, many of my colleagues would make sexualised comments about women. I would try to avoid participating in these sorts of conversations as I am married, and I felt very uncomfortable when these sorts of topics were discussed. When I spoke to my colleagues about the way they discussed women, they laughed at me and asked me if I was gay…
7.     I was ridiculed about my concerns regarding COVID 19. When I would voice these concerns to my colleagues, or wear a mask, they would openly laugh in my face. I felt humiliated and degraded by this behaviour."
The respondent submitted the applicant was dishonest concerning the events regarding the alleged assault. However, Mr Robison noted the applicant's version as set out in his statement reveals that when he felt a tug on his shirt and being shoved from the left side, "I believe it was Steve, but I did not see who did it." Mr Robison submitted that if the Commission did not accept the applicant’s version of events, his evidence demonstrates not a lack of honesty but rather him having drawn a conclusion which may well have been erroneous because the alleged assault was outside his field of vision.
One of the matters which the applicant drew attention to was an incident which allegedly took place in December 2019, when a group of workers have been in the lunchroom and Mr Innes had spoken to him in what he described as an aggressive and intimidating manner saying "You know what is going to happen now that you stuck your head up, when you stick your head up, you are going to get squished".
In his statement, Mr Innes refer to this incident as follows:
"I recall that I had been having some banter with a group of guys when I made a comment to the effect of, 'you pop your head up in this business, you cause too much trouble, you are out of here'.
I cannot recall my exact words, but I did not say 'you are going to get squished', that is not in my vocabulary.
I may have placed my hand on the table, but I would not have slammed my hand down. I am not a slammer, it would have been more of pat.
Mitchell Varnum and John Neasey would have been there on that day. I had been speaking to the whole group and this comment had not been directed at Roy.
The incident was reported to the CWU, but nothing was made of it.
I apologised to Roy sometime later advising him that I was sorry if I had offended him as it had never been my intention.
I believe that Roy was coached by some of the HSR committee members to make these allegations."
That comment by Mr Innes is more illuminating than he likely intended. It is relevant that his conduct was reported to the union. This is suggestive it was regarded as sufficiently serious by some people to warrant such a report. Moreover, it is noteworthy Mr Innes felt the need to apologise to the applicant sometime later. This is suggestive of him being aware of his comments having an effect on the applicant.
It is also apparent from the lay evidence that there was some tension in the workplace between the respondent’s managers and the unionised members of its workforce. The statements made by the respondent’s witnesses frequently refer to suggestions of the applicant and other workers fabricating or exaggerating matters because of their involvement with the union and in the applicant’s case his participation on the health and safety review (HSR) committee. That evidence from the respondent’s own witnesses is supportive of the proposition the workplace was one where there was tension between colleagues and workers and their managers.
In his statement, Mr Innes referred to the applicant allegedly being coached by HSR committee members to make certain allegations. That itself is a serious allegation on the part of Mr Innes, but one which is not supported by the fact that he saw fit to apologise to the applicant in relation to the December 2019 incident. In his statement, Mr Innes set out some background as follows:
"This was part of the reason that the company had brought me back in August 2019, as the business had been a very poor state industrially as the workforce had not been following instruction and the HSR committee had been making false allegations.
I was brought in to fix our relationship with the employees and the customer and to retain the business over the next 12 months.
Unfortunately, as a result of that, some of our very militant union delegates and other employees no longer work on the site. But never, ever have we targeted people."

31. This statement by Mr Innes partly corroborates the applicant's version of events that the workplace had become toxic and confrontational.

32.Mr Innes denied the applicant had been singled out in the lead up to his alleged injury and said that if he had been, he would have been called into meetings or received notices from management. By contrast, in his statement, Mr Neasey, in answer to the allegations of targeting of the applicant, replied "we have had many conversations and meetings with Roy over the course of the last year regarding the fact that he was taking too long to leave the yards in the morning."

33.I do not accept the conversations and meetings with the applicant by Mr Neasey and Mr Varnum necessarily constitute a targeting, however, it is apparent from his evidence that the applicant perceived that this was so.
34.The applicant's IME, Dr Takyar provided a report dated 2 September 2022. In that report, Dr Takyar recorded the following history provided by the applicant:
"I started noticing the changes, in the atmosphere with the drivers – there are a few drivers who are more comfortable in going out with racial slurs, swearing more and felt more comfortable about things that offended me – more and more guys started being more comfortable doing these things ‘swearing’. He reported that in relation to the incident in December 19 with [Mr Innes] '[he] laughed it off like he was joking – he is the kind of person who says something in a joking manner, but he is serious'. Mr Nand reported that racist and anti-Indian comments were 'made by other drivers…[SI] and [Mr Innes and other managers] would not pull them up on it'. He reported that he tried, as much as he could, to avoid confrontations at work with other drivers. He stated that if comments were made towards him or near him, he would try not to respond or escalate the situation ‘but it just kept on escalating'. I asked him how often these incidents occurred and he stated, 'since [Mr Innes] started as a new manager, it increased - at first, it was every so often, then these guys got comfortable regularly, a few times a day - stuff like, 'ah these fucking Indian cunts…they would not have a clue – I would be walking and, 'oh there is another one - what would he know’…And I was like, 'excuse me, hang on a minute'. He felt increasingly, workers felt that they could make racist and inappropriate comments. He wondered if these workers felt threatened by ethnically Indian workers. He reported that they would make further slandering racist comments like, 'they are all fucking hopeless, you too, you would not have a clue'."

35. In terms of the applicant's response to the exposure to the racist comments, Dr Takyar recorded:

"He noted that it was difficult to be exposed to such commentary - 'various different comments, that also be…for a long time, people I know, I love my wife, I have two sisters, I love my mum [he stated that when his mother became unwell, he brought her into his own home to care and look after her], I have come and see drivers looking at porn, trying to show me porn, when they are talking about other women’s stuff, I was very affected'. He stated that they would speak about women in a sexist and in an appropriate manner - 'I have respect for them [women]'. He stated that they would make inappropriate sexualised comments or sexist comments about a female staffer. He stated that this female staffer was friendly, and was managing difficult work tasks, including payroll. He found her to be supportive and friendly and he felt uncomfortable when inappropriate comments were made about her. He stated that when he spoke up about this, he was admonished by his peers, and asked if he was homosexual."

36.Dr Takyar diagnosed the applicant is suffering from mixed anxiety and depressed mood (chronic), a condition which can also be diagnosis of major depressive disorder and generalised anxiety disorder.
37.In a supplementary report dated 22 March 2022, Dr Takyar commented on the report of Dr Lee, IME for the respondent. Dr Lee had provided an opinion the applicant did not suffer from any diagnosable or recognised psychiatric injury and alleged the applicant to be a malingerer. Dr Takyar responded:
"I have not provided a comment in my opinion on the presence of malingering, given I found no discordance between Mr Nand’s history, despite noting that he was vague - this vagueness and requirement for prompting appeared to be in the context of his symptoms, particularly anxiety, and anxiety and depression related cognitive difficulties. I noted the relatively extensive psychiatric treatment with a psychiatrist, psychologist and antidepressant therapy, which is congruent with there being a significant psychiatric illness to treat. It was not my view that there was evidence clinically at review of malingering."

38. The presence of a psychological condition is also supported by a treating psychologist, Warwick Brown. In his report dated 24 July 2020, in which he noted the applicant's depression score placed him in the extremely severe range, as did his anxiety, Mr Brown diagnosed the applicant as suffering from an adjustment disorder with mixed anxiety and depressed mood (acute). To the extent Mr Brown dealt with the question of causation, he referred to the incident on 3 April 2020 when the applicant was told by a manager that he could not take photographs and then the alleged assault by Mr Innes together with other issues, including a culture of bullying, aggressive management styles, feeling targeted in his role as an HSR committee member and unsafe practices relating to COVID 19.

39.Each of these causative factors are plainly work-related. That opinion of Mr Brown is, in my view, consistent with that of Dr Takyar, who, when dealing with causation noted the following:
"It was my view that the psychiatric symptoms developed in the context of difficulties with co-workers and a manager, including Mr Nand feeling that he was being pushed out of the business, and reported racial, sexist, and possibly other comments being made that he felt were being tolerated by his employer inappropriately.
With respect to the various statement documents provided, I am not in the position to confirm the truthfulness of lack of truthfulness of the various statements noted in Dr Lee’s report, particularly with respect to the fact that I have not been able to examine them. I disagree with Dr Lee’s assertion that Mr Nand returning to work was inconsistent with the psychiatric disorder. Individuals with psychiatric disorders can return to work, and their ability to function well in the role may be affected by the psychiatric condition."

40.Mr Varnum provided a statement in which confirmed he and Mr Neasey had spoken with the applicant on a number of occasions concerning being late for work and other matters. In relation to the events on 3 April 2020, Mr Varnum was requested to comment on whether he had walked over to the applicant as he was taking photos in the training area. Mr Varnum's response to the allegation was as follows:
"Roy had taken some steps back from the training and had gotten his mobile phone out to take photos in an area where he should not have been using his mobile phone. We had separated our training area from where the trucks parked by placing cones down to make sure that no one was to park there. But it was still an area where employees were not to be using their mobile phones, regardless of what was being undertaken in the area, which is a yard rule and a safety requirement.
I believe that Roy had been doing so send them to Paul Wilson or other safety committee members to try and derail our training in the process which we have been trying to implement.
I told Roy that he was to put his phone away and that he was not to take photos and that if he was finished, then he was to go and do his job, to which he had responded, 'I am just taking photos because we need them. I am going.' He had a demeanour of purpose.
There has been a long-standing perpetuated attitude that the drivers do not wish to undertake any new tasks and that they fight any new tasks, which we wish for them to undertake. So, they try and delay it and prolong the inevitable.
Roy had become disruptive since having joined the HSR during August 2019. Prior to that, he had been a quiet individual."

41.Mr Varnum’s statement is corroborative of the applicant's assertion that the workplace was a hostile one. He plainly approached the applicant having taken photos with a preconception that he was doing so with a view to somehow undermine the respondent's management. The gratuitous comment about alleged long-standing attitudes of a group of drivers indicates in my view that Mr Varnum was not well disposed to the applicant, as is his comment that having joined a safety committee, the applicant had somehow become disruptive. In other words, the applicant was health and safety committee representative at the workplace, and it is apparent Mr Varnum was not well disposed to the applicant being a part of that committee, or indeed the committee itself.
42.The applicant consulted Dr Singh, psychiatrist for treatment. He provided a report dated 24 June 2020 to Dr Li, the applicant's general practitioner. In that report, Dr Singh provided the following history:
"Mr Nand states his mental health issues started in the context of what he describes as a toxic work environment wherein he felt unsupported by his management and alleges being bullied and being subjected to verbal and physical intimidation and aggression by one of the managers over the preceding months before stopping work. Mr Nand also states being targeted over disagreements with the management over his opinion and managing on health and safety at workplace in regards to COVID 19 in his roles as being a health and safety representative which did not help matters further for him.
Over the period of about three months preceding his first appointment with me, Mr Nand presented to me with what seems to be some classical depressive symptoms including persistent lowered mood, amotivation, inability to concentrate, feeling mentally and physically exhausted along with markedly reduced interests in his usual pleasurable activities, especially going out, spending time with friends and other social activities. It has also been associated with an increasing snapping and irritability that Mr Nand reports was quite out of his usual character. Mr Nand admitted the themes of helplessness and hopelessness along with experiencing passive death wishes but denied for any active suicidal intent or plan and describes his young family as his major protective factor. Mr Nand also presented with frank panic attacks associated with symptoms of body shakes, tightness in chest, palpation along with shortness of breath."

43.The respondent relied upon a reported consultant’s psychiatrist, Dr George, IME dated 8 May 2020. Dr George took a history of the alleged assault in April 2020, together with the applicant having "felt intimidated in the workplace over several months." Dr George stated the applicant had suffered a recognisable psychological injury and that the applicant did not appear to be exaggerating on the date of his assessment. Dr George diagnosed the applicant as suffering from mixed anxiety and depressed mood.
44.Dr George provided a supplementary report dated 6 July 2020, in which he was provided with the following commentary:
"Upon reading through the material now available to us, it would seem Mr Nand's comments to you was somewhat misleading. We seek your further views and opinion in this matter and ask if you could kindly read through the attached documents and provide us with a report of your findings."

45.To his credit, Dr George did not engage in a fact-finding exercise and instead replied as follows:
"I had read the attached documents where some of the statements by Mr Nand have been challenged. Where there are claims and counterclaims, it is always difficult to know where reality lies. However, in this case it was Mr Nand’s perception that he was under threat in the workplace and did not feel safe in the workplace. He took the additional measure of not only complaining to his employer about his circumstances but, also, reporting an assault to the police. He appeared genuine on presentation on the day of assessment.
As an independent examiner, I am not in a position to arbitrate on factual information as such. I would point out to you that an adjustment disorder is a disorder that resolves usually relatively quickly once a person is removed from the circumstances generating the symptoms. I cannot comment further." (emphasis added)

46.Dr George's comments are consistent with the applicant suffering a psychological injury of the nature found by the Court of Appeal in Chemler. His comments are, in my view, broadly consistent with those of the applicant's treating psychiatrist, psychologist, and his own IME Dr Takyar.
47.The respondent also relied in the report of Dr Lee, IME dated 6 December 2021. In that report, Dr Lee applied the Miller Forensic Assessment Test (M-FAST) which he indicated revealed a number of atypical symptoms normally expected from “authentic psychiatric patients." He also undertook the Green’s Memory Complaints Inventory (MCI) and reported a score which "makes it very likely that considerable symptom exaggeration is present, and that any cognitive test results obtained from him will significantly underestimate his cognitive abilities, and the test results will be unreliable on retesting."
48.Dr Lee does not set out the specific questioning and findings in support of his test results. Rather, he provides comment on findings not specifically set forth in his report for comment by other practitioners or for the Commission to consider.
49.Moreover, Dr Lee is the only practitioner, treating or medico-legal, who suggests the applicant is either malingering or exaggerating his symptoms. In any event, as Mr Robison noted if there is exaggeration present on the part of the applicant that would be a matter for determining his degree of whole person impairment by a medical assessor, not whether injury itself exists.

Dr Miller also embarked upon a fact-finding exercise in which he expresses concern in accepting the applicant's versions of events. He concludes that the respondent's factual investigation was inconsistent with the reported cause of the applicant's injury, and the memory tests were inconsistent with a recognised psychiatric disorder. Dr Lee adopts what can only be described as an advocate’s enthusiasm in even disavowing the respondent's other IME, Dr George's opinions. He does so by suggesting that the applicant would have been malingering when he was examined by Dr George, something which, quite frankly Dr Lee cannot know.

51.Dr Lee also indicates the fact the applicant returned work "at face value appears inconsistent with a psychiatric disorder." I reject that opinion on the part of Dr Lee. As Dr Takyar noted, the presence of a psychiatric disorder does not necessarily prevent people from carrying out work, as anyone who practises in this jurisdiction would well know. It may be that workers with a psychological injury operate at work under some distress, or they may be capable of doing so unimpeded. Neither of those things obviate the presence or diagnosis of a psychiatric condition. As Dr Takyar noted, the applicant returned work with a new employer, which he had described as supportive, in a role which he also said was simpler than in his pre-injury duties.
52.On balance, the preponderance of the medical evidence in this matter strongly favours a recognisable psychological condition in the applicant caused by his workplace stressors. Dr Lee’s view that there is no psychiatric condition stands alone in the face of medico-legal opinion from Drs Takyar and George, together with treating material of a psychiatric, psychological, and general practitioner nature.
53.On the balance of probabilities, I am satisfied the applicant suffered a work-related psychological injury to which his employment was the main contributing factor. There is no suggestion in any of the material that matters other than the applicant’s workplace caused his condition. True it is that there were some family issues including an illness in his mother, however, the applicant was well capable of functioning until his work-related stressors came to affect him, and it is plain from the history provided to all the doctors that his focus was and always has been on work-related matters.
54.In my view, the applicant's perception of real events in the workplace are the main contributing factor to his injury and as such, there will be a finding that such an injury has taken place.
The defence under s11A

55. The respondent bears the onus of making out of defence pursuant to s11A of the 1987 Act; Pirie v Franklin’s Ltd [2001], NSW CC 167 and Department of Education and Training v Sinclair [2005] NSW CA 465.

56."Wholly" and "predominantly" are separate concepts and a finding of one or the other needs to be considered. In Smith v Roads and Traffic Authority of New South Wales [2008] NSWWCCPD 130 (Smith) an arbitrator made a finding that the subject injury was "wholly or predominantly" caused by action taken by the respondent employer. Snell ADP (as he then was) said at [62] the concepts of wholly and predominantly are different and if such findings were to be made, it needed to be one or the other.
57.The phrase "wholly or predominantly caused" has been held to mean "mainly or principally caused". The test of causation to be applied is that set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSW LR 452, namely a commonsense evaluation of the causal change, having regard to the totality of the lay and medical evidence.
58.As was noted in Hamad v Q Catering Ltd [2017] NSWWCCPD 6, it is more often than not necessary for a respondent employer to provide medical evidence as to the whole or predominant cause of an applicant's injury.
59.The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a s 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event, which has given rise to psychological injury.
60.In accordance with Deputy President Snell’s decision in Hamad, medical evidence in a case such as the present one is required which addresses the relative causative contributions before a finding as to whether reasonable actions of a respondent "wholly or predominantly" caused the injury at issue.
61.It must also be pointed out that, to successfully raise a defence under s 11A, the respondent must not only satisfy the existence of a causal connection between its actions and the applicant's injury but must also satisfy the Commission that their actions were reasonable.
62.Considering the concept of reasonableness in this context, Geraghty J in Irwin v Director General of Education NSWCC 14068/97, 18 June 1998 (Irwin) said:
"The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Although an action is reasonable should be attended, in all the circumstances, by questions of fairness."

63.In Ritchie v Department of Community Services [1998] 16 NSW CCR 727, Armitage J said:
"It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent's conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the applicant as the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue."

64.Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action (see Burke J in Melder v Oswald Pty Ltd) [1997] 15 NSW CCR 454. Armitage J in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45 stated "only if the employer’s action in all the circumstances was fair could it be said to be reasonable" see also Northern NSW Local Health Network v Heggie [2013] NSW CA 255 (Heggie), where it was held that the reasonableness of a person's actions is assessed by reference to the circumstances known to that person of the time the action is taken.

65.In this matter, I am of the view the causes of the applicant’s injury were multifactorial. It is apparent the applicant perceived he had been targeted by the respondent's officers for approximately 12 months before leaving work. The fact the applicant ultimately withdrew his complaint of assault against Mr Innes is not of itself determinative of causation. The lay evidence in this matter makes it clear that there was some hostility in the workplace, particularly to those employees who are members of a relevant trade union. That much is clear from references by Messrs S Neasey, and Varnum of "militant" trade unionists and workers, without examples being provided as to what constituted such militancy other than, in the applicant’s case being placed on a health and safety committee. The evidence also discloses obvious tension between the applicant and Messrs Innes and Varnum in particular. It is also plain there was tension between Mr Innes and the applicant to some point, to the point where Mr Innes apologised to the applicant for comments made in late 2019.
66.Moreover, there is no lay evidence produced by the respondent which disputes the applicant’s statement as to racist, sexist and profane language being used by co-workers, together with racial epithets directed towards persons of Indian extraction, including but not limited to the applicant.
67.The applicant has provided histories to the various doctors in which he repeatedly states these racial epithets were troubling to him, as were the comments of co-workers of a sexist nature towards women. In my view, it is plain these comments are a causative factor in the development of the applicant's condition in that they were a cause of his perception of being targeted and singled out in the workplace.
68.As the decision in Chemler makes clear, it is not necessary for the applicant to demonstrate that he was in fact targeted or the subject of bullying. Rather, in this instance, I am of the opinion that the applicant's perception of real incidents in the workplace, some of which such as the use of profane and racist language can in no way be said to be the subject of a defence under s 11A were significant factors in the cause of his injury. The applicant’s history of those factors affecting him over the course of many months is uncontested, while the respondent’s own evidence of the applicant being spoken to over the course of several months regarding workplace issues which were neither part of a disciplinary or performance appraisal process.
69.This being so, the respondent's defence pursuant to s 11A must fail at the first hurdle, as it was not the sole or predominant cause of the injury which I have found to have taken place.
70.In the circumstances, having found the cause of the applicant’s injury to be multifactorial, it is unnecessary for me to make a finding as to the reasonableness or otherwise of the respondent's conduct, which is said to relate to performance appraisal, discipline and/or dismissal.
SUMMARY
71.For the above reasons, I find the applicant suffered a work-related psychological injury in the course of his employment with the respondent, to which his employment was the main contributing factor. I also find that the respondent's defence pursuant to s 11A is not made out.
72.The Commission will therefore make the findings and orders set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 595

26 October 2022