O'Brien v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O’Brien v ISS Property Services Pty Ltd [2022] NSWPIC 234
APPLICANT:	Nathan Wayne O’Brien
RESPONDENT:	ISS Property Services Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	23 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly payments, medical expenses and permanent impairment for psychological injury; worker had a previous significant psychological injury as a police officer; whether the worker perceived his workplace to be a hostile environment and was the cause of injury; reference to Attorney General’s Department v K; Held– the worker’s employment was the main contributing factor to his psychological injury; award for weekly payments of compensation, medical expenses and referral for assessment of permanent impairment to Medical Assessor.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent with a deemed date of injury of 10 August 2020. 2. The applicant has had no current work capacity since 10 August 2020. The Commission orders: 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $587.87 per week from 10 August 2020 to 9 November 2020, pursuant to section 36 of the Workers Compensation Act 1987; and (b) $495 per week from 10 November 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987. 2. The award of weekly payments can be varied by the indexation of the applicant’s pre-injury average weekly earnings as provided for by section 82A of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the Workers Compensation Act 1987. 4. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 10 August 2020 Body Part: Psychological injury Method of Assessment: Whole Person Impairment 5. The following documents are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the applicant on 17 February 2022; (d) Application to Admit Late Documents filed by the respondent on 4 May 2022; (e) Application to Admit Late Documents filed by the applicant on 5 May 2022; and (f) a copy of this decision.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nathan Wayne O’Brien, claims that he sustained a psychological injury in the course of his employment as a cleaner with the respondent, ISS Property Services Ltd.
The applicant claims he was subjected to bullying and harassment during the course of his employment from August 2018 to August 2020 which caused psychological injury.
The applicant made a claim for workers compensation on 14 August 2020. The respondent issued a letter on 10 September 2020 wherein it advised the applicant that liability had been accepted for this claim. However, a dispute notice was issued two months later on 11 November 2020 wherein liability was disputed on the grounds that the applicant had not sustained an injury in the course of his employment with the respondent.
The applicant states that he has never received any weekly payments of compensation for the psychological injury that he claims was caused by his employment with the respondent despite the initial acceptance of liability, and at the hearing the respondent did not confirm that any such payments had been made to the applicant.
The applicant claims that he has had no current work capacity since 10 August 2020. The applicant also seeks an order for the payment of reasonably necessary medical expenses for treatment for his psychological injury. The applicant has also made a claim for 21% whole person impairment for the psychological injury he claims to have sustained in the course of his employment with the respondent.
The applicant has previously sustained a psychological injury while employed as a police officer. On 30 January 2012 a Certificate of Determination was issued by the Workers Compensation Commission wherein the NSW Police Force was to pay the applicant lump sum compensation for 24% whole person impairment in accordance with a decision of a Medical Panel dated 30 November 2021, for a deemed date of injury of 25 September 2008.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury in the course of his employment with the respondent (section 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b) the extent of any incapacity for employment as a result of any injury sustained by the applicant in the course of his employment with the respondent (sections 32A, 33, 36, and 37, and Schedule 3 of the 1987 Act);

(c) whether the applicant is entitled to reasonably necessary medical treatment as a result of any psychological injury sustained in the course of his employment with the respondent (section 60 of the 1987 Act); and
(d) whether the applicant is entitled to lump sum payment compensation as a result of a psychological injury sustained in the course of his employment with the respondent (section 66 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 11 May 2022. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Parker appeared for the applicant, instructed by Ms Watt. Mr Hanrahan appeared for the respondent, instructed by Mr Thomas Murray.
The hearing was conducted by video in accordance with the protocols set by the Commission as a result of the coronavirus pandemic.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $618.81.
The submissions of the parties at the hearing were recorded and I do not propose to reiterate those submissions in these reasons. However, I will refer to the general thrust of those submissions in the course of this decision.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 17 February 2022;
(d)    Application to Admit Late Documents filed by the respondent on 4 May 2022; and
(e)    Application to Admit Late Documents filed by the applicant on 5 May 2022.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant, or any other witnesses who have provided statements.

The applicant’s evidence

The applicant has provided the following:
(a)    an unsigned statement that was recorded by an investigator on 7 September 2020;
(b)    an unsigned statement dated 6 July 2021;
(c)    three unsigned and undated statements which were provided by the applicant to his treating psychiatrist, Dr Scurrah, and attached to a report from Dr Scurrah dated 9 April 2021;
(d)    a signed statement dated 20 January 2022; and
(e)    a signed statement dated 26 April 2022.
Mr Hanrahan for the respondent made some criticism of the applicant’s failure to sign various statements he now relies upon and that the applicant’s failure to endorse his own evidence weighs against his credibility. The applicant states that he refused to sign the statement prepared by the investigator because he did not trust the investigator and “preferred the version of events that I set out in my earlier three statements”. Those are the three statements attached to the report from Dr Scurrah.
My view is that while it is preferable for the applicant to sign his statements, the evidence contained in the unsigned statements is nonetheless confirmed by the applicant by his inclusion of those statements in the ARD which has been filed on his behalf. I also note that the applicant states that the three unsigned and undated statements attached to the report of Dr Scurrah are copies of original statements that were signed and handed to management from the respondent.
The applicant states that he was subjected to offensive comments from another employee, Dale Foster, in the period from September 2018 to August 2019 while working for the respondent. These comments included Ms Foster telling other employees to watch out for the applicant because he was “an ex-copper”, comments about the applicant’s appearance, comments about the applicant’s wife, and the use of inappropriate language.
The applicant made a statement to the respondent regarding an incident with Ms Foster on 23 August 2019. The applicant states that he also saw his general practitioner, Dr Sugden, that same day because he was feeling extremely anxious at work and physically sick due to what was happening at work. He states that Dr Sugden gave him a certificate for a few days off work, which he took.
There is a “Grievance Recommendation/Resolution” form from the respondent dated 16 September 2019 wherein it is states: “3 employees at site and Leading Hand have all stated that Dale’s behaviour on site is bullying”, and: “Transferring Dale is highly recommended as she does not get on with the entire ISS team at the site”.
The applicant states that Ms Foster was removed from the team that the applicant was working in but the workplace “was still toxic post removal of Dale from site”. He states other staff told him that he should have been removed as he had not been employed for long with the respondent.
The applicant states that he returned to see Dr Sugden on 21 November 2019, was provided with a Certificate of Capacity, and made a workers compensation claim. The Certificate of Capacity for that date includes a diagnosis of adjustment disorder with anxious mood, but also states that the applicant is fit for pre-injury duties. The applicant states that he did not receive any contact from the respondent in regard to the claim he made until February or March 2020.
The applicant states that he continued on working for the respondent after he lodged his workers compensation claim but “things at work just continued to make me more and more anxious”. The details of those “things at work” are contained in two of the three statements from the applicant which are attached to the medical report of Dr Scurrah dated 9 April 2021.
The applicant states that after Dale Foster was transferred, he had ongoing difficulties with his supervisor, John Wraight. These difficulties included, but are not limited to, the following:
(a)    a confrontation with Mr Wraight in 2019 regarding Mr Wraight taking a vacuum cleaner home to use, wherein the applicant found Mr Wraight to be extremely aggressive;
(b)    a requirement that the applicant should learn to use the alarms at the premises he cleaned at, which was previously only used by senior cleaners, and which the applicant believes was motivated by the respondent using less staff. A conversation regarding this between the applicant and Mr Wraight included
Mr Wraight saying: “either learn the alarms or find another job”;
(c)    Mr Wraight being extremely moody and aggressive when challenged;
(d)    Mr Wraight telling a staff member about what another staff member said about them and vice versa; and
(e)    the applicant speaking to Mr Wraight in confidence about his concerns about two other employees, and then soon after one of those employees, Sharon Deku, contacting the applicant by phone to challenge the applicant.
The applicant states that he also had ongoing difficulties with Ms Deku. He states that
Ms Deku engaged in a lot of gossip which unsettled him. He also refers to Ms Deku bringing her rubbish from home to work, which then has to be disposed of by the applicant or other staff.
The applicant also states that difficulties arose at work when too many staff took leave at the same time, and that his concerns in regard to this were not properly addressed by the respondent.
The applicant states that he was eventually certified with having no capacity for work on 10 August 2020, and he has had nil capacity since that time.

Lay evidence relied upon by the respondent

John Wraight has provided a statement dated 16 September 2021. Mr Wraight states that he is employed as a cleaner and team leader at Lismore TAFE, and has been employed with the respondent since 1993.
Mr Wraight states that the cleaners at the TAFE were himself, Andrew Davis, Sharon Deku, Dale Foster and the applicant. He states that John Franklin replaced Ms Foster in September 2019. He states that the applicant had a disliking for Ms Foster, and also did not like her replacement John Franklin.
Mr Wraight states that the applicant was moody and would whinge. He states that the applicant’s demeanour deteriorated after Ms Foster was moved as the applicant was hoping that Ms Foster would be sacked. He states that the workplace was toxic at times from after the Christmas 2019 holidays because the applicant and Andrew Davis (a friend of the applicant) avoided talking to other staff.
Mr Wraight denies that he stole a vacuum cleaner from work. He states that he took the vacuum cleaner home for a week until he purchased a new one. Mr Wraight denies that he was aggressive when interacting with the applicant on this issue, but rather it was the applicant who was aggressive.
Mr Wraight states all staff were required to operate the alarms, but the applicant did not want to learn this because he said it was not part of his job.
Mr Wraight denies that he was moody and aggressive, or that he manipulates or agitates other staff members.
Mr Wraight states that Ms Deku was allowed to bring her rubbish and place it in a bin at work. He states that it did not matter if Ms Deku’s rubbish was in the wheelie bin because the applicant and Mr Davis had to empty all the wheelie bins on the premises.
Mr Wraight states that he, Ms Deku and Ms Foster were very cautious around the applicant after an investigation was held into the applicant’s complaint of bullying by Ms Foster. He states: “We believed that it was the Claimant who bullied Dale, and not the other way round”. He states that he was wary that the applicant would submit a complaint about him, so that he was cautious towards the applicant, but remained cordial and respectful.
Sharon Deku has provided a statement dated 12 September 2021. Ms Deku states she has been doing cleaning work at Lismore TAFE since 2000. She states that John Wraight is her brother-in-law.
Ms Deku states that the applicant “gives off an intimidating vibe”. She states that at times the applicant would talk to her and at other times ignore her. She states that the applicant did not talk to her at all from the beginning of 2020 until around April of that year. Ms Deku states that she wanted a transfer because the applicant kept ignoring her.
Ms Deku states that all the employees gossiped, and that the applicant gossiped as much as anyone else. She states that the applicant complained about anything and everything. She states that she does not believe the workplace is ‘toxic’.
Ms Deku states that all staff were required to know how to operate the alarms.
Ms Deku states that she never noticed Mr Wraight agitate or manipulate people, nor become aggressive when challenged. Ms Deku does concede that it is difficult to address those allegations because “I am family with John”.
Ms Deku states that Mr Wraight told her that the applicant said in the last week of term she had done nothing at work along with another employee, John Franklin. She states that she was annoyed by this and rang the applicant and he did not answer. She states that she left message that she did not like the accusation made against her and that he was two faced.
Ms Deku states that she brought her rubbish from home twice weekly for many years because there was no bin service where she lived. She states that the applicant knew this but made a complaint anyway.
Ms Deku states that she did not like being involved in the investigation regarding Ms Foster and thought the investigation was stacked against Ms Foster. She states that she told the applicant that she was shocked that Ms Foster was removed.
Allan Renwick has provided a statement dated 10 September 2021. He states that he is a Key Account Manager for the respondent.
Mr Renwick states that on 23 August 2019 he received from the applicant a complaint of bullying regarding Ms Foster. A counter claim of bullying was made by Ms Foster.
Mr Renwick states statements were provided by the employees relevant to the complaint with the exception of Ms Deku. He states that an investigation was undertaken by Victoria Carroll, People and Culture Manager, and it was found that there was sufficient evidence of bullying by Ms Foster, which led to her transfer from Lismore TAFE. He states that there was not enough evidence to support the claim of bullying made by Ms Foster.
Mr Renwick states that the work schedules at Lismore TAFE were not inequitable and there is no favouritism towards staff taking annual leave. He states that he is not aware of any issues involving Mr Wraight being moody or agitating staff.

The medical evidence

The applicant attended Goonellabah Medical Centre for treatment and the clinical notes from that medical centre are in evidence for the period from 21 October 2016 to 2 October 2020.
An entry made by Dr Sugden on 23 August 2018 includes:
“Bullying by a female employee
Since he was in job for about a month
Comments about work, family, partner, children – consistently, in front of other colleagues.”
The entry also includes a specific incident involving that employee that day. There is a record made of anxiety and panic attacks. The entry includes the applicant having his first job since a medical discharge from the NSW Police in 2010 for a neck injury, but also having had previous anxiety and depression. The entry includes: “Things have been good for a long time”.
The next entry made by Dr Sugden on 6 September 2019 records that there has been progress at work, that his employer was supporting him, and that things will be better at work once there is a resolution in regard to the perpetrator of the bullying.
There is a lengthy entry made by Dr Sugden on 21 November 2019. It is recorded that the issue of bullying in August had resolved, but there were other issues now contributing to stress. Those issues include uncertainty regarding a reduction of one hour of work per shift, not being made part time so that he could accrue leave entitlements, being asked to take on the responsibility of the alarm system, his boss talking about him to other employees, and lots of low grade comments by other employees. Dr Sugden records the applicant feeling on edge, sleeping poorly and dreading having to go to work on Monday.
There are attendances by the applicant for treatment for stress and anxiety at Goonellabah Medical Centre on 25 November 2019, 12 December 2019, 20 January 2020, 13 March 2020, and 8 April 2020. There is an entry made by Dr Sugden on 31 January 2020 of a case conference with “Jason” from the respondent, which includes a mediation to be arranged by Jason.
There is no entry in the notes from the medical centre from 8 April 2020 until 10 August 2020. Dr Sugden records on 10 August 2020 that the bullying culture at work is continuing and this is affecting the applicant’s mental health. A medical certificate is issued for “2 days off – clear head, build resilience”.
There is an entry made by Dr Sugden on 2 October 2020 which includes:
“Nathan doesn’t feel he can work currently
I think this is valid and accurate
He presents as burnt out and anxious with panic attacks
Needs some time to build up his resilience.”

Dr Scurrah, consultant psychiatrist, had treated the applicant for psychological injury which the applicant had sustained while employed with the NSW Police Service. The applicant was referred back to Dr Scurrah in November 2020. Dr Scurrah has provided a report dated 9 April 2021.
Dr Scurrah states that the applicant stopped consulting him after 26 October 2016. Previous treatment was for chronic post-traumatic stress disorder (PTSD), a chronic depression with anxiety, and alcohol abuse. Dr Scurrah records that the applicant said that he had been well for a prolonged period of time. He records that the applicant now attributed his symptoms (being consistent with chronic depressive disorder with anxiety symptoms and alcohol abuse) to workplace stressors with the respondent.
Dr Scurrah does not record details of the causes of stress claimed by the applicant to have occurred at work, but he notes the referral by Dr Glendenning of bullying incidents and ongoing animosity from colleagues after the perpetrator of the bullying had moved on. As already noted, Dr Scurrah was also provided with statements from the applicant documenting workplace stressors and which are attached to his report.
Dr Scurrah opines that because the applicant had been well for a prolonged period of time, “there has not been a diagnosis related to his police service”. Dr Scurrah diagnoses the applicant having initially a chronic adjustment disorder with anxiety symptoms but that there is now a chronic depressive disorder with anxiety symptoms and alcohol abuse in remission. Dr Scurrah opines:
“The chronological history of Mr O’Brien’s current mood symptoms emerging in response to stressors he experienced with ISS Property Services and the absence of any other significant contributing factors identified by Mr O’Brien suggests his employment with ISS was the main contributing factor to the above condition(s).”
Dr Takyar, consultant psychiatrist, has provided a report at the request of the applicant’s solicitors dated 12 August 2021.
Dr Takyar records that the applicant had difficulties with other employees who had drug or alcohol problems, namely ‘Brendan’ and ‘Jamie’. He records that Brendan, who hated the police, called the applicant a “narc’. Dr Takyar records the applicant being required to do jobs that was outside his area of work, such as cleaning the toilets which Brendan should have done and was being paid for.
Dr Takyar records that the applicant finally ceased work because he “had enough” of “so many drunks and drug addicts there”. Dr Takyar also records that the applicant could not handle the “bitchiness” of the people he worked with, and that staff had verbally attacked his wife. Dr Takyar records that the applicant considered that there was a lack of support from his employer.
Dr Takyar acknowledges that the applicant had a pre-existing history of post-traumatic stress disorder and depression from his work as a police officer and that the applicant was in partial remission at the time of his injury with the respondent. He opines that the applicant presents with an adjustment disorder with mixed anxiety and depressed mood (chronic).
In answer to a question of what aspects of the applicant’s employment with the respondent caused injury, Dr Takyar responds:
“…essentially Mr O’Brien described being bullied and harassed by colleagues, being (apparently unfairly) accused by his colleagues, having other people force him to complete duties that they were paid for and he also reported that inappropriate and harassing comments about his wife were made.”
Dr Takyar also opines that the applicant’s anxiety and depressive symptoms are more intense than any sporadic anxiety and depression before the work injury commenced as a result of remnant PTSD symptoms.
Dr Miller, consultant physician in psychiatry, has provided two reports at the request of the respondent dated 3 November 2020 and 3 October 2021.
In her report dated 3 November 2020, Dr Miller records that the applicant was the subject of offensive remarks by Ms Foster, which led to him making a formal complaint about her. She records that Ms Foster was removed from the site following an investigation, but the workplace environment remained toxic because other workers believed the applicant should have been removed instead.
Dr Miller records that the applicant feels upset with the bullying, gossiping and isolating of people in the workplace by Mr Wraight and Ms Deku.

Dr Miller records that the applicant denies experiencing social withdrawal, any experiences of helplessness or hopelessness, any cognitive impairment, or any panic attacks. She concludes:
“Collectively, these symptoms do not meet the threshold for a compensable, work-related psychiatric injury as defined by DSM-V or ICD 10. Mr O'Brien is experiencing emotional upset in the context of workplace interpersonal conflict. Furthermore, Mr O'Brien reported that since August 2019, he has consumed approximately six to ten standard drinks every night. This meets the threshold for Alcohol Use Disorder, as defined by DSM-V and ICD 10, but is not a compensable, work-related psychiatric injury.”
Dr Miller opines that the applicant’s alcohol use disorder is unrelated to his work with the respondent and is likely related to his previous employment as a police officer. She then opines:
“However, it is my opinion that Mr O'Brien's employment with ISS Property Services is the main contributing factor to his emotional upset. However, whilst I do not wish to invalidate Mr O'Brien's emotional distress, this emotional upset does not meet the threshold for a psychiatric injury as defined by DSM-V or ICD 10. To suggest that an individual should not feel distressed under the circumstances where they believe that they have been treated unjustly by colleagues is wholly unreasonable and to suggest that any human distress that arises from such a situation renders an individual mentally ill, is erroneous.”
In her second report a year later, Dr Miller notes that the applicant’s alcohol use disorder is now in partial remission as he has been abstinent from alcohol since November 2020.
Dr Miller records that the applicant’s mood has deteriorated, and he is experiencing irritability, lack of sleep and explosive anger.
Dr Miller now diagnoses the applicant with an adjustment disorder with depressed mood, and alcohol use disorder now in remission. However, Dr Miller opines that the adjustment disorder has occurred as a result of an underlying personality vulnerability which is due to the traumatic events he experienced as a police officer. She states that when the applicant experienced what he interpreted as adversity at work, he was unable to adapt to the situation.
Dr Miller also opines that the applicant’s adjustment disorder has occurred due to the challenges of the workers compensation claim he has made, including the denial of that claim.

FINDINGS AND REASONS

Whether the applicant sustained an injury in the course of his employment with the respondent

The applicant undertook work as a cleaner with the respondent at Lismore TAFE for two years between August 2018 and August 2020. From my review of the evidence, it appears that in the first year of that work the predominant cause of psychological distress experienced by the applicant was the offensive behaviour directed towards him by
Ms Foster. That culminated in a verbal altercation between the two of them on 23 August 2019, and it led to the applicant making a complaint and seeking medical treatment.
Neither Mr Wraight nor Ms Deku provide details of witnessing offensive comments or behaviour by Ms Foster. Mr Wraight states that it was the applicant who bullied Ms Foster, but the applicant did so in subtle ways. However, the “Grievance Recommendation/Resolution” form issued by the respondent on 16 September 2019, which followed the investigation of the complaint made by the applicant, found: “3 employees at site and Leading Hand have all stated that Dale’s behaviour on site is bullying”.
The evidence therefore supports a finding that the applicant was working in a hostile environment in that first year of employment with the respondent, and the psychological symptoms recorded by Dr Sugden on 23 August 2019 coincide with the difficulties that the applicant was experiencing at work due to the behaviour of Ms Foster.
The entry made by Dr Sugden on 6 September 2019 that there had been some progress at work suggests some optimism for the applicant’s ongoing work for the respondent at Lismore TAFE. However, the applicant states that events at work made him more anxious. The applicant returns to see Dr Sugden on 21 November 2019 due to having symptoms of stress and anxiety, and Dr Sugden lists several issues of concern for the applicant. The applicant then continues to attend Goonellabah Medical Centre on five further occasions between November 2019 and April 2020 to seek treatment for symptoms of stress and anxiety that he believes have arisen from his work.
I do find it difficult to accept a number of the issues identified by the applicant as capable of being the cause of anxiety and stress. Asking a worker to learn to use alarms to get and in and out of secure property so that cleaning work can be done seems hardly controversial. Surely a worker would need to have this information in case another worker, who does know how to operate the alarm, is not able to work on a particular day.
Mr Wraight provides a reasonable explanation for why he took a vacuum cleaner home for one week. Ms Deku was given permission to bring her rubbish in to work and had done so for some years. That appears to be no more than a small concession to assist an employee who had been working with the respondent for nearly 20 years.
The applicant states that it was not just these issues themselves but the aggressive response from Mr Wraight which caused stress to the applicant. However, Mr Wraight is adamant that it was the applicant who was aggressive in his manner when raising these issues. It is difficult to form a view on this issue from the evidence that has been made available.
Those incidents which I have referred to lend support to the submission made by
Mr Hanrahan that the applicant took issue with many aspects of his employment and that his complaints were just not rational or reasonable.
However, the applicant also complains of comments being made about him even after
Ms Foster had been removed, and a lot of gossiping amongst the staff. I find it reasonable to accept this allegation made by the applicant because both Mr Wraight and Ms Deku were clearly unhappy that Ms Foster had to be transferred and the applicant continued to work at Lismore TAFE. Those employees were not happy with the outcome of the investigation.
A tangible example of the gossiping complained of by the applicant is the admission made by Ms Deku that she was told by Mr Wraight of a complaint made by the applicant that Ms Deku had not done any work during the last week of term, which led Ms Deku to ring the applicant and leave a message that the applicant was two faced.
The principles set out for the determination of a psychological injury which is sustained by a worker in the course of employment are set out by DP Roche in Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K), and have been consistently followed by the Commission ever since. Deputy President Roche said at [52]:
“The following conclusions can be drawn from the above authorities:
(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in 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 law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ Von Doussa J in Wiegand at [31]), and
(f)    it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
Deputy President then went on to say at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
I have concluded from a review of the evidence that the applicant was working in a hostile environment while having to work with Ms Foster. I also accept that the applicant continued to work in a hostile environment following the departure of Ms Foster because of ongoing gossip and negative comments in the workplace. I accept that the applicant perceived that he was the subject of ongoing criticism by his work colleagues. The perception of the applicant working in a hostile environment is then confirmed in the records made by his general practitioners between August 2019 and August 2020.
I prefer the evidence and opinion of the applicant’s treating doctors on the question as to whether the hostile environment which the applicant worked in caused a psychological injury.
I particularly prefer the evidence and opinion of Dr Scurrah. Dr Scurrah is in the unique position of having seen and treated the applicant for over six years between 2010 and 2016 in regard to the psychological injury sustained by the applicant when he was a police officer. He is able to compare the applicant’s psychological condition from the time he saw the applicant in October 2016 to four years later in November 2020.
Dr Scurrah accepts that the applicant had been well for a prolonged period of time.
Mr Hanrahan is critical of this assumption made by Dr Scurrah. Mr Hanrahan points out that the period of time from when Dr Scurrah last saw the applicant for his psychological injury arising from work as a police officer in October 2016 to the beginning of harassment of the applicant by Ms Foster sometime in 2018 is hardly a prolonged period of time.
Furthermore, Mr Hanrahan submits that regard must be had to the many years that the applicant suffered from symptoms of psychological injury arising from work as a police officer. There are reports from Dr Hayes, psychiatrist, and Mr du Sautoy, psychologist, in evidence that date back to 2005, and there are notes from Dr Mitchell in 2015 which records the applicant still having anxiety, panic attacks and flashbacks.
The applicant states that he finalised a work injury damages claim against the NSW Police Force in November 2016, and that during 2017 and 2018 he was able to assist in running a shop for his family in Lismore, do some asbestos removal work, do some work on his farm, and feel confident enough to return to the workforce. The clinical notes from Goonellabah Medical Centre do not record any attendances by the applicant for any psychological problems from October 2016 to August 2019.
Dr Scurrah does not state what he considers to be a “prolonged period of time”, but he accepts that the applicant had a significant improvement in his symptoms from his past psychological injury over a period of time that allows him to opine that it was the applicant’s employment with the respondent which has been the main contributing factor to the presentation of symptoms in November 2020.
The explanation provided by Dr Scurrah as to the cause of the symptoms which the applicant presented with is well reasoned and has the distinct advantage of being an opinion from a specialist who knows the applicant well.
The records made by the doctors at Goonellabah Medical Centre between August 2019 and August 2020, which set out psychological symptoms which coincide with stressful events at the applicant’s workplace, along with the opinion provide by Dr Scurrah, leads me to accept that the applicant sustained a psychological injury in the course of his employment with the respondent.
That finding is supported by the opinion of Dr Takyar. The details of the stressful events and incidents which are recorded by Dr Takyar have a somewhat different emphasis from the evidence provided by the applicant and what is recorded by Dr Sugden. Dr Takyar records the applicant having difficulties with other employees who he believed were drunks or drug addicts, yet that does not appear in the statement which the applicant provided to the investigator or in the three statements that were attached to the report from Dr Scurrah. Nor could I locate any such reference in the notes from Dr Sugden.
However, Dr Takyar also records what the applicant calls the “bitchiness” of other employees, and he ultimately opines that the bullying, harassment and accusations by other employees, including comments about his wife, were the cause of the applicant’s psychological injury. That is consistent with the records made by the doctors at Goonellabah Medical Centre and the opinion reached on the cause of injury by Dr Scurrah.
The opinion from Dr Takyar therefore reinforces my conclusion that the applicant sustained a psychological injury in the course of his employment with the respondent.
I also agree with a submission made by Mr Parker for the applicant that the opinion from
Dr Miller on the cause of the applicant’s psychological injury, at least in her first report, is not far removed from the opinions of Drs Scurrah and Takyar.
Dr Miller opines that the applicant’s employment with the respondent was the main contributing factor to his emotional upset. Dr Miller therefore accepts that the applicant was psychologically affected by events at work, but she was not prepared to opine that he had sustained a diagnosable injury. That appears to be based on her belief that it is wholly unreasonable that distress which arises from being unjustly treated by work colleagues could render a person mentally ill.
However, the psychological symptoms recorded by Dr Sugden, such as panic attacks, feeling on edge, sleeping poorly, are significant, and ultimately led to the need for referral to a psychiatrist for specialist treatment. Dr Miller records in her first report that the applicant denied a lot of these symptoms, and that may have also been a reason for the opinion that the applicant had not sustained a diagnosable injury. My preference is to accept the findings of symptoms made by the applicant’s general practitioners, and the opinion which is then made by Dr Scurrah that the applicant had sustained a psychological injury which was caused by his work with the respondent.
In her second report, Dr Miller changes her opinion on the cause of the applicant’s injury to being due to an underlying personality vulnerability which had resulted from the traumatic events the applicant experienced as a police officer. Mr Hanrahan submits that it was the psychological injury which the applicant sustained as a police officer which is the main contributing factor to his current psychological condition.
It is well recognised that “employers take their employees as they find them” (Spigelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [40]). It may well be that the applicant was vulnerable to further psychological injury but the issue for determination in this dispute is whether events at work while employed with this employer caused or at least aggravated a psychological injury.

I agree with the submission made by Mr Parker that at the very least the opinion on causation that is provided by Dr Miller in her second report supports an aggravation of a psychological disease where the applicant’s employment is the main contributing factor to that aggravation, thus satisfying section 4 (b)(ii) of the 1987 Act.
The evidence from the applicant’s treating doctors supports a finding that the applicant’s employment was the cause of his psychological injury. There is additional support from
Dr Takyar, and a careful reading of the opinions of Dr Miller also assists the applicant on proving he sustained injury in the course of his employment with the respondent.
There will therefore be a finding that the applicant sustained a psychological injury in the course of his employment with the respondent. The deemed date of injury should be the first date of incapacity, being 10 August 2020.

The claim for weekly payments of compensation

The applicant states that in addition to undertaking his part time job with the respondent, he was able to work from 2017 in the family business of ‘Vintique Furniture and Homewares’ in Lismore. He states that he was able to manage running the shop and dealing with customers and suppliers. He states that in February 2021 his partner made the decision to close the shop.
The applicant states that he was able to engage in some asbestos removal work in 2017 and 2018. He also states that he worked on his farm at Goolmangar. He states that during the first half of 2021 he tried his best to look after his farm but downgraded his share farming arrangements.
Since August 2020 the applicant’s general practitioners have consistently issued Certificates of Capacity certifying that the applicant has no current work capacity due to his psychological injury, except for a certificate issued on 4 September 2020 which certified the applicant fit for pre-injury duties. The most recent certificates issued in 2022 continue to certify the applicant having no current work capacity.
The opinion of Dr Scurrah in April 2021 was that it was difficult to be precise in commenting on the applicant’s future employability given the numerous variables and that the applicant was still undergoing treatment. Dr Scurrah was hopeful that at some time in the next six to twelve months, and possibly earlier, the applicant would be able to return to some form of work in an area yet to be identified, but that would depend on the progress of his condition.
Dr Takyar in August 2021 considered the applicant had no capacity to return to work with the respondent as that would just lead to a worsening of his mental state. He considered that the applicant had no current capacity for any other work because he was too unwell.
In her first report in November 2020, Dr Miller considered that the applicant was completely and immediately fit to return to his role with the respondent or with an alternative employer doing the same hours of work because the applicant was not suffering from a work related psychiatric injury.
Twelve months later, and with a different diagnosis of adjustment disorder with depressed mood, Dr Miller opines that the applicant was fit to work for less than 20 hours per week, and that initially he should not work more than 12 hours per week, with a gradual increase in hours once his mood improves.
I am mindful that caution needs to be exercised where Certificates of Capacity are issued on a regular basis and the doctor is simply printing out the same restrictions without any consideration of any change in the worker’s condition. I am also mindful of what President Keating said in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
I nonetheless prefer the opinions of the applicant’s treating doctors on the issue of the applicant’s incapacity for work because those doctors have had the opportunity to monitor the applicant over a period of almost two years since he ceased work and are in the best position to provide an opinion on the applicant’s incapacity for work.
There is no further report in evidence from Dr Scurrah after his report in April 2021, although the applicant states in his statement on 20 January 2022 that he was continuing to see
Dr Scurrah for treatment, and the schedule of medical expenses in the ARD identifies attendances by the applicant on 24 August 2021 and 12 October 2021. Dr Scurrah had expressed optimism in April 2021 that the applicant might be able to undertake some type of work within six to twelve months, but that appeared to be contingent on the success of ongoing treatment.
In his most recent statement on 26 April 2022, the applicant states that he has not consulted Dr Scurrah more recently because he cannot afford to pay for each session.
Despite there being no further report from Dr Scurrah since April 2021, I consider it reasonable to infer that Dr Scurrah would have kept the applicant’s general practitioners informed of the applicant’s progress with treatment. The ongoing certificates issued by the applicant’s general practitioners leads me to conclude that despite the applicant having some further treatment by Dr Scurrah during the course of 2021, the applicant has remained totally incapacitated for work.
I prefer the opinions of the applicant’s treating doctors on the issue of the applicant’s incapacity for work over that of Dr Miller. The first report from Dr Miller is provided following a consultation on 15 October 2020 and within a few months of the applicant ceasing work.
Dr Miller considered that the applicant could return to work with the respondent or to some similar job without restriction.
However, only two weeks earlier Dr Sugden had recorded the applicant being teary and having symptoms like panic attacks, and she noted that the applicant’s feeling that he could not return to work was “valid and accurate”. The applicant’s psychological condition was serious enough for Dr Glendenning, at the same practice as Dr Sugden, to refer the applicant to Dr Scurrah the day after the applicant had seen Dr Miller.
When the material provided by the applicant’s treating doctors in late 2020 and early 2021 is placed against that first report of Dr Miller, it is apparent that the applicant’s treating doctors were much more aware of the difficulties which the applicant was having and concluded that the applicant was not fit for any form of work at that time.
There is then a substantial alteration a year later by Dr Miller in her opinion of the applicant’s capacity for work when she takes a cautious approach to the applicant’s work capacity by recommending that the applicant start out working no more than 12 hours per week.
I prefer the consistent approach taken by the applicant’s treating doctors, who have seen the applicant on a regular basis, regarding the applicant’s ability to return to the workforce as opposed to the significant and unexplained change in the opinion made by Dr Miller.
The applicant does state that he has a farm and he continued to do some work on the farm in 2021, which is after he had ceased work with the respondent. That does suggest that the applicant might have some capacity for some employment on a rural property. However, that has not been explored by any of the medical experts.
In the absence of any further information as to whether there is any suitable employment that might be available in the rural industry given the ongoing psychological difficulties which the applicant has, the evidence which I prefer supports a finding that the applicant has had no current work capacity since 10 August 2020.
Pre-injury average weekly earnings is agreed at $618.81. Ninety five per cent of PIAWE is $587.87. Eighty per cent of PIAWE is $495.
There will be an award of weekly payments of compensation in favour of the applicant as follows:
(a) $587.87 per week from 10 August 2020 to 9 November 2020, pursuant to section 36 of the 1987 Act; and
(b) $495 per week from 10 November 2020 to date and continuing, pursuant to section 37 of the 1987 Act.
The applicant should also receive the benefit of indexation of PIAWE as provided for by section 82A of the 1987 Act.

The claim for medical expenses

The ARD included a claim for an order to be made pursuant to section 60 (5) of the 1987 Act that the respondent meets the costs of future consultations with a general practitioner and psychiatrist, and medication. That was amended by Mr Parker at the commencement of the hearing to a claim for a general order for the payment of the applicant’s reasonably necessary medical expenses for the treatment of his psychological injury.
Given the findings that I have made in regard to injury, it is appropriate that there also be an order that the respondent is to pay the costs of reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.

The claim for a lump sum payment for whole person impairment for psychological injury

My task is to determine whether the applicant sustained an injury in the course of his employment with the respondent.
Having made that determination it is now the role of a Medical Assessor to determine any whole person impairment as a result of this injury and the appropriate orders will be made to that effect.

[2022] NSWPIC 234

23 May 2022