Pearsall v Port Stephens Council
[2022] NSWPIC 546
•4 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Pearsall v Port Stephens Council [2022] NSWPIC 546 |
| APPLICANT: | Andrew Pearsall |
| RESPONDENT: | Port Stephens Council |
| Member: | Richard Perrignon |
DATE OF DECISION: | 4 October 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation and whole person impairment compensation; whether worker suffered psychological injury; reasonable actions of employer with respect to discipline and transfer; whether whole or predominant cause of psychological injury; Held – the applicant suffered psychological injury by way of an Adjustment Disorder on 7 November 2017 (deemed date) as a result of an accumulation of stressors in the employ of the respondent from 2014 to 2017; the applicant’s employment with the respondent was a substantial contributing factor to his psychological injury and the main contributing factor; I am not satisfied that the whole or predominant cause of the psychological injury was actions of the employer with respect to discipline, dismissal or transfer. |
| determinations made: | 1. Findings as follows. a. The applicant suffered psychological injury by way of an Adjustment Disorder on 7 November 2017 (deemed date) as a result of an accumulation of stressors in the employ of the respondent from 2014 to 2017. b. The applicant’s employment with the respondent was a substantial contributing factor to his psychological injury, and the main contributing factor. c. I am not satisfied that the whole or predominant cause of the psychological injury was actions of the employer with respect to discipline, dismissal or transfer. 2. The matter is remitted to the President for referral to a Medical Assessor to assess whole person impairment (psychological) as a result of injury on 7 November 2017 (deemed date). 3. The Registry is requested to provide the following documents to the Medical Assessor: a. Application to Resolve a Dispute, and b. Reply. 4. In accordance with the parties’ agreement, the claims for weekly compensation and medical expenses are reserved for further determination of the Commission. 5. Having regard to paragraph 13 of the respondent’s written submissions, grant leave to the parties to request a preliminary conference if they are of the view that a course with respect to weekly compensation and medical expenses can be agreed. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Pearsall, worked as an assistant trades gardener for Port Stephens City Council (the respondent). He claims weekly compensation, medical expenses and compensation for a 21% whole person impairment as a result of psychological injury. The date of the alleged injury is deemed to be 7 November 17, which was the first date of incapacity for work.
He relies on the opinion of psychiatrist Dr Takyar among others, who diagnosed him with an adjustment disorder as a result of a series of stressors in the workplace from 2014 to 2017. Dr Takyar considers that Mr Pearsall’s symptoms have worsened, and now justify a diagnosis of major depressive disorder. He considers that Mr Pearsall has no capacity for employment.
The insurer disputes that Mr Pearsall suffered a psychological injury at all. It relies on the opinion of psychiatrist Dr Askar, who considers that there is no diagnosable psychological disorder. On that basis, it disputes that it is liable to pay workers compensation of any kind.
If the Personal Injury Commission (Commission) is satisfied that Mr Pearsall suffered a psychological injury, the insurer says it was wholly or predominantly caused by reasonable actions of the employer with respect to discipline, dismissal or transfer. The actions of the employer on which it relies are those set forth in paragraphs (o) to (p) inclusive of the respondent’s review notice issued on 4 May 2020, which are reproduced at pages 22 and 23 of the Application to Resolve a Dispute. In its written submissions, the respondent has kindly provided a chronology of them, which may be summarised as follows:
(a) 12 January to 1 February 2016: council informed Mr Pearsall of an allegation that he called Mr Brady a ‘dumb shit greenkeeper’, requiring him to attend a meeting on 1 February 2016 to investigate allegation, and council’s conduct of that meeting;
(b) 4 to 17 May 2016: council required Mr Pearsall to attend a meeting on 9 May 2016 with Ms Rodway to discuss allegation that he lacked respect for his supervisor, threatened his superior about taking legal action, was unwilling to following instructions and other things, and council’s conduct of that meeting, and its follow-up correspondence;
(c) 15 July 2016: council’s conduct of a meeting to discuss strategies implemented in May, and follow-up correspondence of 18 July 2016;
(d) 11 November 2016: council’s conduct of a meeting with staff to discuss proposed code of behaviour;
(e) 9 December 2016 and 7 February 2017: Meeting at which council informed Mr Pearsall of its intention to transfer him from Medowie depot to Heatherbrae depot, because of ongoing issues with his supervisor Mr Brady, and because there would be greater opportunity for promotion to trades gardener in a new team. The transfer took effect on 7 February 2017;
(f) 16 to 21 March 2017: council’s conduct of a meeting on 16 March 2017 with Mr Pearsall to discuss his not cleaning machines in the afternoon, and follow-up correspondence;
(g) 15 to 18 May 2018: council’s notice of, and conduct of, a disciplinary meeting on 18 May 2018 to discuss lack of clarity in worker’s understanding of his role, claims by him that he was being discriminated against and his unwillingness to discuss issues with Mr Reay;
(h) 20 June to 11 July 2017: council’s notice of, and conduct of, a fact finding interview on 11 July 2017;
(i) 14 to 24 July 2017: council’s notice of, and conduct of, a disciplinary meeting on 19 July 2017, and follow-up correspondence without findings;
(j) 28 August 2017: letter from council indicating that Mr Pearsall had breached its code of conduct, and providing a formal written warning;
(k) 11-12 September 2017: council’s notice of, and conduct of, a meeting on 12 September 2017 at which a notice of suspension from duty was given to the worker, on the basis that he had threatened his supervisor Mr Stanley, among other things;
(l) 27 September to 11 October 2017: council’s notice to attend an interview on 11 October 2017 with external investigators concerning issues in the suspension notice, and the conduct of that interview, presumably by the investigators on behalf of council, and
(m) 2 November 2017: council’s letter informing Mr Pearsall that it had made a decision to terminate his employment on the basis of the investigation findings against him, and invitation to show cause at a meeting on 8 November 2017.
There were two other events included in council’s list of causative stressors which are not included above as, so far as the evidence reveals, they were not actions of the employer. For completeness, they were:
(a) grievance lodged on 26 May 2017 with the employer by other members of Mr Pearsall’s team, to the effect that they did not feel safe working with him, and
(b) Mr Pearsall’s actions on 8 September 2017 in ringing Mr Stanley out of hours, which was reported to police.
ISSUES FOR DETERMINATION
The issues for determination may be broadly summarised as follows.
(1) Whether Mr Pearsall suffered psychological injury at all.
(2) If so, whether employment with council was a substantial contributing factor.
(3) If so, whether his injury was wholly or predominantly caused by reasonable actions of the employer listed above, with respect to discipline, dismissal or transfer.
(4) Whether and, if so, what incapacity for work the worker has suffered as a result.
In the course of conciliation, the parties were able to agree as follows.
(a) All factual and legal issues in dispute before the original arbitrator, as set forth in paragraph 6 of the appeal decision, remain in dispute and constitute the issues for determination by me.
(b) If I am satisfied of injury and am not satisfied that it was wholly or predominantly caused by reasonable actions of the employer with respect to discipline, dismissal, or transfer, there should be a referral for assessment to a medical assessor, reserving for further determination the claims for weekly compensation and medical expenses.
(c) In her detailed decision, Deputy President Wood accurately and adequately summarised:
i)the extensive documentary evidence contained in council’s Application to Admit Late Documents – which is now, in substance, the Reply in these proceedings – at paragraphs 14 and 15 of the decision,
ii)the statements of Mr Pearsall, Ms Rodway, Mr Reay and Mr Matwijow - at paragraphs 16 to 126;
iii)the medical evidence of treating general practitioner (GP) Dr Raschke, treating psychologist Ms Clifford, and psychiatrists Dr Takyar and Dr Ashkar - at paragraphs 127 to 144.
Having read that evidence, I respectfully adopt the summaries made by the learned Deputy President, without setting them out here in full.
PROCEDURE BEFORE THE COMMISSION
The proceedings were first heard and determined by Arbitrator Young on 28 September 2018, sitting in the former Workers Compensation Commission. He made awards in favour of the worker. On 14 March 2019, Deputy President Wood set aside the arbitrator’s Certificate of Determination on appeal, and remitted the claim to another arbitrator for determination.
10.The proceedings came before me for conciliation/arbitration. I used my best endeavours to assist the parties to reach an agreed resolution of the issues in dispute. Agreements were reached as summarised above, but the parties were unable to resolve the claim in whole, so the matter proceeded to a hearing.
11.At the conclusion of the hearing, the parties were directed to file and serve written submissions, which they have done. Those submissions have been taken into account, together with oral submissions made at hearing.
12.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
EVIDENCE
Documentary evidence
13.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply with attached documents.
14.Directions for written submissions were made at hearing. Both parties filed written submissions which have been taken into account.
FINDINGS AND REASONS
Dr Takyar, psychiatrist
15.Four reports of Takyar were before the Commission. Their contents have already been summarised in the decision of the learned Deputy President, and I will not repeat that summary here. What follows is a brief collection of salient points arising from those reports.
(a) Dr Takyar examined the worker at the request of his solicitors on 1 May 2018, 23 September 2019, and 1 March 2021.
(b) He diagnosed Adjustment Disorder with mixed anxiety and depressed mood, based on the worker’s description of symptoms and clinical examination, summarised as follows:
i)Worker’s reported symptoms: low mood for 90% of the week, complete anhedonia, minimal energy, disturbed sleep and shortened sleep with frequent wakening, difficulties with memory, reduced concentration, reduced appetite with weight loss, negative ruminations, suicidal ideation without intent, anxiety every day for most of the day, irritability.
ii)Objective findings on examination: mood low, affect restricted in range, speech of slower rate.
(c) He found that the disorder had been caused by an accumulation of workplace stressors from April 2015 to 2017, which he summarised as follows:
i)In September 2014 he was instructed by another supervisor (Mr Priestley) to collect cigarette butts at the Lakeside Sports Complex during the rain, while the supervisor sat in the car and watched him do it on is hands and knees for at least three hours.
ii)His supervisor the trades gardener (Mr Brady) had instructed him to cut up a tree that had power lines running through it, following which he lodged a grievance.
iii)In 2015, Mr Brady made him work during his lunch breaks by requiring him to drive Mr Brady to the depot and then to pick up items from another depot, which would consume more than the 30 minutes he was allowed for lunch.
iv)On 28 May 2015, Mr Brady and Mr Pearsall were about to commence mowing Kindlebark Oval when they observed preschool children on the oval, and Mr Pearsall suggested they mow a nearby oval instead. On arrival at the nearby oval, Mr Brady said that Mr Pearsall could have (his job) as trades gardener, that the two did not get along, and that Mr Brady was struggling with his job. He threw his personal phone about six metres away, then threw his work phone to the back of the truck, after facing Mr Pearsall while holding the phone above his shoulder, making Mr Pearsall believe he would throw it at him and shatter the glass doors of the ride on mower Mr Pearsall was using.
v)On one occasion during a meeting at council chambers, Mr Priestley and Mr Brady said they did not wish to work with him, as a result of which he was transferred from Medowie depot to Heatherbrae depot.
vi)On 21 April 2017, he was directed to work with another colleague (Mr McKenzie) who he was told did not like him and had made threats to harm him – that was a reference to a hearsay report that the worker had said he would punch Mr Pearsall’s lights out. Mr Pearsall said he feared for his life.
vii)On 4 May 2017, Mr McKenzie accused him of abducting children from a preschool and sexually molesting them in an underground dungeon at his parents’ house.
viii)On 11 July 2017, following his lodgement of a grievance against Mr McKenzie, he attended an investigation at which he was asked questions ‘that were false’ and was not taken seriously.
ix)He was denied the opportunity to attend training courses despite his request.
(d) Dr Takyar considered Mr Pearsall had no capacity for work as a result of his psychiatric condition.
(e) On re-examination on 23 September 2019, Mr Pearsall continued to have a flat affect, with a low mood, and exhibited objectively observed memory disturbance. His concentration had improved. He had by then commenced pharmacotherapy under the care of a psychiatrist.
(f) On 1 March 2021, Dr Takyar re-examined the worker. He took a history that on 22 November 2017 (in a later report the doctor noted the correct date was 2 November 2017) council had issued a show cause notice to Mr Pearsall, following which his employment was terminated on 16 March 2018. Mr Pearsall said he had already made an appointment to see a doctor on 25 October 2017, but the doctor had cancelled it and rescheduled it for 7 November 2017. On that date, he consulted GP Dr Raschke who diagnosed an adjustment disorder due to stressors at work.
(g) On 1 March 2021, objective examination was similar to the previous examination. The worker continued to complain of depressed mood, initial insomnia for which he took medication, difficulties with concentration, impaired memory, low energy, pervasive anhedonia, reduced appetite and suicidal ideation without plan or intent and feelings of worthlessness, and ongoing anxiety. Dr Takyar considered that he had no capacity for employment.
(h) Given the chronicity of symptoms and lack of improvement, and severity of depressive and anxiety symptoms, Dr Takyar revised his diagnosis to major depressive disorder and a generalised anxiety disorder. He assessed a 24% whole person impairment.
Dr Ashkar, neuropsychologist
16.On 19 March 2018 the worker was examined by Dr Ashkar at the insurer’s request. He took a history from the worker as follows.
(a) Around March 2015, he was instructed by Mr Brady to cut down trees which were dangerously close to power lines, after which he reported Mr Brady to the safety officer for incompetence.
(b) Mr Brady required him to work through is meal breaks and work overtime without pay for two years.
(c) The area supervisor Mr Priestley asked him to pick up cigarette buts on his hands and knees in the rain, which he found degrading, and said he would transfer Mr Pearsall to another council.
(d) In February 2017 he was transferred to Heatherbrae depot where he worked with Mr McKenzie, who accused him of not being a team player and of being a child molester, and who told other staff he was going to bash Mr Pearsall.
(e) On 12 September 2017 he was suspended for giving out confidential information, being unwilling to follow instructions, calling his supervisor Mr Stanley out of hours, and causing Heatherbrae depot staff to feel unsafe.
(f) On 16 March 2018 he received notice that his employment had been terminated following an external investigation.
17.Dr Ashkar noted a decline in functioning in respect of each of the Psychiatric Injury Rating Scales except self-care.
18.He noted suicidal ideation without intent since May 2017 when Mr Pearsall was accused of being a child molester and workplace investigation into his conduct.
19.Since December 2017 he had been seeing psychologist Ms Clifford, to whom he had been referred by Dr Raschke on 15 November 2017.
20.Dr Ashkar noted anxious behaviour throughout the interview such as restless hands, trembling arms and a stutter, which disappeared when pre-occupied with answering a questionnaire. That ‘raised concerns about the validity of his anxious presentation’. Later in the report, Dr Ashkar indicated that this caused him to consider the worker ‘contrived and disingenuous’. His mood appeared flat and restricted, but ‘he did not impress as clinically depressed’. He complained of anxiety and sadness most days since September 2017, and irritable mood. He reported difficulties with concentration affecting his driving, but said he often read two books at a time. Dr Ashkar expressed the view that the worker tended to answer ‘yes’ to questions regardless of their content, but gave no examples, or any basis for that opinion. He said this provided ‘compelling evidence of a disingenuous response style’, which ‘shows a complete disregard for the investigation process and strongly undermines the validity of his claim’.
21.As a result, Dr Ashkar said he was unable to express a view on symptoms, diagnosis, treatment need and capacity for employment.
22.He went on to say that it was not possible to make a diagnosis “in light of Mr Pearsall’s unco-operative and disingenuous response style”. Despite this, he offered that there was no evidence in the worker’s presentation to support a clinical diagnosis. He explained, “In my opinion, there is no psychological condition as such”.
23.There is a significant difference between an inability to provide a diagnosis due to the unreliability of responses, and an opinion that there is no psychiatric condition present. If Dr Ashkar was implying that, in his view, the worker suffers no diagnosable psychiatric condition, as he appears to, that conclusion is inconsistent with the proposition that it is not possible to express a view on diagnosis.
24.Having said there was no psychological condition, he offered that Mr Pearsall’s behaviour was a “direct response to performance management and disciplinary action”, in particular, the notification of intention to terminate is employment in November 2017.
25.He did not identify the ‘behaviour’ which resulted from the notice. He did not use the word symptoms. In the circumstances, it is not possible to discern with confidence what he meant by ‘behaviour’.
26.He did not express a view that the applicant’s psychological injury was wholly or predominantly caused by reasonable actions of the employer with respect to discipline, dismissal or transfer. He could hardly do so, in light of his view that there was no psychological injury.
27.He said he was “unable to comment on work capacity” in light of his uncooperative test-taking approach. Nevertheless, he offered that he “found no evidence from his presentation to suggest psychological incapacity for employment”. I interpret him to mean that he considered there was no incapacity for employment resulting from psychological injury. This is a comment on work capacity. It is inconsistent with the statement that he is unable to comment on work capacity.
28.He went on to describe the worker as:
“an uncooperative and unreliable claimant. This behaviour is consistent with the concerns that have been raised about his conduct and performance in the workplace. There is considerable evidence to suggest a pattern of uncooperativeness and insincerity in his behaviours that speaks unfavourably to his character. As such, caution must be exercised before making any liability decision on the basis of his claim.”
29.On 1 April 2020, he re-examined Mr Pearsall. He took a similar history to the previous history. He noted that Mr Pearsall reported three suicide attempts by opening a car door while travelling speed as a passenger in a car driven by one of his parents, the last attempt being in November 2019. The attempts were foiled when the driver slowed down and stopped. Dr Ashkar sought and obtained his commitment to ‘enter into a contact with GP to not harm himself when he next felt suicidal’.
30.His reliance on psychotropic medications had increased.
31.Mr Pearsall completed a questionnaire for an hour and 45 minutes.
32.Despite having earlier expressed the view that Mr Pearsall had an “uncooperative reporting style” and tended to answer yes to all questions despite their content, Dr Ashkar said he considered the responses to the questionnaire are “considered valid” because the worker had appropriate attention, concentration and comprehension. He did not say why these three attributes would negative a response style of the kind which he previously thought rendered the applicant’s responses unreliable.
33.Dr Ashkar said the results demonstrated over-reporting of symptoms. He did not say why. He said that he reported considerably more symptoms than the average number reported by individuals with severe pathology. He did not say what conclusion was to be drawn from this, or why a greater than average number of symptoms suggested feigning, if that is what he was suggesting. He said that the worker described considerably more than the average number of somatic symptoms described by people with genuine medical problems, but did not say what conclusion should be drawn, or why a greater than average number of symptoms suggested feigning, if that is what he was suggesting. He said there was an unusual combination of responses “associated with non-credible reporting of … symptoms”, but did not identify the responses, did not explain how they could be associated with non-credible reporting, and did not explain whether this meant that he was lying about his symptoms, or why. He said there was a “very unusual combination of responses that is strongly associated with non-credible memory complaints”, but did not say whether this meant that he was lying as to his memory state or, if so, why.
34.He concluded:
“This level of over-reporting [presumably, of symptoms] is uncommon even in individuals with severe medical and psychological difficulties and provides compelling evidence of symptom exaggeration and ... malingering ….”.
35.With due respect to the learned psychologist, it is difficult to see how over-reporting of symptoms is ‘compelling evidence’ of symptom exaggeration. The two are the same. He did not say why he thought Mr Pearsall was over-reporting his symptoms.
36.Dr Ashkar concluded:
“Mr Pearsall is exaggerating his symptoms. …. His symptoms of adjustment disorder may (or may not) have been genuine at the time of his reported injury but they are not genuine today. His symptom exaggeration makes it impossible to know where his genuine symptoms begin and end and to make a diagnosis at this time. …. It is not clear why he is exaggerating his symptoms but it is difficult to ignore the possibility that he is doing so to support an undisclosed agenda ...”.
37.This passage suggests that he regarded the prospect of symptom exaggeration only as a ‘possibility’. That seems to contradict his earlier assertion that there was ‘compelling evidence’ of symptom exaggeration.
38.He rejected the diagnosis and opinions expressed by Dr Takyar on the basis that Mr Pearsall was exaggerating his symptoms, and that Dr Takyar’s opinions were based on an acceptance of the symptoms as genuine.
39.Dr Ashkar examined the worker again on 29 September 2021, this time by video. He repeated much of the history and opinions expressed in his earlier report. He observed the worker to be dishevelled in appearance, with restricted affect and low mood.
40.He considered that the lodgement of a claim for workers compensation was a direct response to performance management and disciplinary action, being the notification in November 2017 of an intention to terminate his employment.
41.He did not consider that Mr Pearsall had suffered a work related injury, but gave no further reasons for this conclusion. He said he was “maintaining a sick role behaviour”, noting “an intense, vitriolic and poorly controlled anger, for which he clearly requires treatment”.
42.Dr Ashkar’s reports contain numerous contradictions, detailed above. The conclusions expressed including the rejection of Dr Takyar’s diagnosis and opinions, are based on a firmly held view that the symptoms described by the worker were not genuine, and were at the very least exaggerated. His reasons are insufficient to support that conclusion.
43.For all those reasons, I am not persuaded by the conclusions expressed by Dr Ashkar, and I give his report little weight.
Whether alleged stressors were real events
44.The council urges the Commission not to accept the opinion of Dr Takyar because it was based on an incorrect history. It submits that the Commission would not accept that the events of which Mr Pearsall complained to Dr Takyar occurred, or that they did not occur as alleged, because Mr Pearsall is an unreliable historian. That requires consideration of the statement and other documentary evidence.
45.It also attacks his credit as a witness, on the basis of what it says was a false statement at par 2 of his statement dated 25 February 2022. In answer to an assertion by Dr Ashkar that he was placed in a performance plan, he responds that neither he nor the union representative were ever told of this, and that “I was never issued any disciplinary letters regarding the allegations asserted by my employer”.
46.The respondent says this latter assertion was false, because the evidence is replete with disciplinary letters from his employer.
47.Mr Pearsall does not say which of Dr Ashkar’s many reports he is referring to, but it seems likely he is referring to the report of 15 November 2021, at page 2 of which the following passage occurs:
“His allegations of bullying and harassment occurred on a background of performance management and disciplinary action dating back to May 2016 and he was placed on a performance management plan after that.”
48.Similar passages are to be found in other reports of Dr Ashkar.
49.The applicant’s statement must be read in its context. He is responding to an allegation that he was placed on performance management plan in May 2016. I interpret him to mean that he did not receive any disciplinary letters resulting from the meeting he had with council on 9 May 2016, and that the letter which followed that meeting on 17 May 2016 was not disciplinary in character.
50.That letter is before the Commission. It lists his responses to certain allegations, and courses of action which were agreed with him. It does not make any findings of misconduct against him, or specify any penalty or warning. It seems Mr Pearsall formed a view that the letter was not disciplinary in character. That is a view that one could take of the letter, even if not the only possible view. The fact that he takes that view does not reflect adversely on his credit.
51.Mr Pearsall told Dr Takyar that he was distressed by events at work from 2014 to 2017, which Dr Takyar found to have caused his diagnosed psychological condition. Council submits I should not accept that they occurred as alleged. Each is separately addressed below.
Lakeside Sports Complex, September 2014
52.The first such event was being required by Mr Priestley to pick up cigarette buts in the rain at Lakeside Sports Complex in September 2014, while Mr Priestley sat in his car. There is no statement from Mr Priestley to contradict his evidence. There is nothing inherently improbable, in my view, about an area supervisor instructing a subordinate to pick up rubbish at a sports complex. According to Mr Pearsall, the duties took some hours. There is nothing inherently improbable about rain occurring at some point in that period. There is nothing inherently improbable, or inappropriate, about the supervisor remaining in his car. It was his duty to supervise a number of depots. He may well have been doing so by phone. The evidence does not disclose what he was doing. I do not accept that Mr Priestley was doing anything wrong. However, I accept Mr Pearsall’s evidence in respect of this incident as likely to be true. I accept his uncontradicted evidence that he felt degraded by it, whether or not that reaction was reasonable in all the circumstances.
53.Mr Pearsall explains that he did not report the incident because he felt his complaint would fall on deaf ears. As there is no evidence that Mr Priestley did anything wrong, that was a reasonable assumption. It adequately explains why Mr Pearsall, though adept at making complaints where he thought them justified, did not do so on this occasion.
Tree limb at Casuarina Avenue, 24 April 2015
54.The second incident was being instructed by Mr Brady to cut a tree with power lines running through it. Mr Pearsall complained in writing about the incident, and other incidents involving Mr Brady, on 29 September 2015. In his complaint, he said that on 24 April 2015, the first working day after severe storms in April:
“While near Casuarina Reserve Medowie, Nic [sic] has ‘instructed’ me to cut and move a tree limb, which had previously been cut up, further away from the footpath. I saw a power line wrapped around the tree and refused to do it, I felt it was unsafe. I didn’t say anything to Nic and drove off.”
55.A different version was given by Mr Pearsall in his statement of 20 August 2020, some five years later. He said that Mr Brady instructed him to cut through a tree which had fallen across Casuarina Avenue and had power lines through it. The two versions are inconsistent. I find that the incident was much fresher in his mind when he wrote the complaint in September 2015 than it was by August 2020. I do not accept the accuracy of the later account, and regard it as the result of memory which had faded over time, as is natural.
56.Mr Reay said in his statement, and I accept, that he investigated the complaint that was made in September 2015. He said there were underground power lines at Casuarina Avenue, and Mr Brady could not advise what power lines Mr Pearsall had been referring to. He does not say that he asked Mr Pearsall what power lines he was referring to.
57.Mr Brady also gave a statement. He said that he was the trades gardener, and worked at Medowie depot with his assistant, Mr Pearsall, from early 2015 to February 2017. He denies that he instructed Mr Pearsall to use a chainsaw to cut a fallen tree with a power line through it. I accept that evidence, as I have found that Mr Pearsall’s memory to that effect was mistaken.
58.Mr Brady recalled that around that time, a resident told them of a fallen power line against a tree in their backyard at Kirrang Avenue, Medowie. As it was in private property, Mr Brady and Mr Pearsall did not attend. Mr Brady said he would never have put Mr Pearsall in a situation of danger by instructing him to cut a tree with a power line through it. It was against his specific training in relation to power lines.
59.This was not the allegation made by Mr Pearsall in September 2015. He alleged that he saw a power line wrapped around a tree when he was instructed to move a limb which had already been cut away from the footpath. It is likely that Mr Brady is recalling a different incident at a different location. As Mr Pearsall said nothing to Mr Brady about the power line in the tree at Casuarina Avenue, it is unlikely that Mr Brady knew about the problem at the time, or now knows what incident is being referred to, or even recalls it.
60.The fact that there were underground power lines in Casuarina Avenue six months later when Mr Reay investigated does not prove that there were no above ground power lines six months earlier. Mr Boyd’s inability to identify the power lines to Mr Reay is unsurprising, as Mr Pearsall did not alert Mr Boyd to the presence of power lines on the day.
61.I am persuaded that Mr Pearsall was instructed to remove a limb from the footpath which had already been cut, and that he observed what he believed to be power lines around a nearby tree, causing him to fear for his safety. I am satisfied that he was distressed by the incident.
62.The fact that Mr Pearsall sought legal advice from a solicitor before lodging the complaint of 29 September 2015, which also comprehended complaints about Mr Brady’s actions referred to below, supports the conclusion that he perceived there were risks in making a complaint, and anxious to ensure that he had the right to proceed in the manner he proposed. The fact that he proceeded with it suggests he was seriously distressed by his interactions with Mr Brady.
Lunch break work, 2015
63.The third event was Mr Brady’s alleged behaviour in 2015 in directing Mr Pearsall to work during his 30 minute lunch break by driving Mr Brady to the depot and driving to another depot, over a six month period. Mr Brady denied ever instructing Mr Pearsall to drive to Raymond Terrace during his lunch break. He admitted that on one occasion, when Mr Pearsall had driven the truck to Woolworths to buy his lunch, he instructed him to unlock the gates at Medowie depot, some 300 metres from Woolworths, and invited him to have lunch at the depot where there was an air-conditioned lunch room.
64.That evidence contradicts Mr Pearsall’s evidence of a pattern of behaviour over a six month period. As the evidence is conflicting, I am unable to decide which version of events is the more likely to be true. I am satisfied that on one occasion, Mr Brady did instruct him to open the gates at Medowie during his lunch break, as he admits. I am satisfied that this distressed Mr Pearsall, whether or not his reaction was a reasonable one in the circumstances. I make no findings in respect of the balance of the allegations concerning lunch break work.
Telephones incident, 28 May 2015
65.The fourth incident occurred at Boyd and Elaine Hurst Oval, near Kindlebark Oval, on 28 May 2015. Mr Pearsall alleges that he feared for his safety when Mr Brady became upset and threw his personal mobile phone about six metres from him, and after appearing to be about to throw the work phone at Mr Brady, threw it to the back of the truck instead.
66.Mr Brady denies that he threw any phones. He says that he recalls attending Kindlebark Oval with Mr Pearsall, that because there were children on the oval, he told Mr Pearsall that they would mow Ferrodale Oval instead. Mr Pearsall drove the work truck with Mr Brady as passenger past Ferrodale Oval to Boyd and Elaine Hurst Oval, without warning Mr Brady of his intention. When they arrived, Mr Boyd reiterated that he wanted to move Ferrodale.
67.Mr Boyd admitted to being frustrated by Mr Pearsall’s unwillingness to follow his instructions, which he said was not uncommon. He felt that Mr Pearsall wanted his position as trades gardener, particularly as Mr Pearsall had been employed at council for longer than Mr Boyd. He admitted to being “frustrated and angry” with Mr Pearsall. He said Mr Pearsall was seated in a ride-on mower when they spoke. He admitted to saying, “I’ve had enough of this, you can have your trades gardener position. I quit”, and walking away. He had his personal mobile with him, and contacted his partner to tell her that he was quitting. He said he then commenced his duties, and at some stage contacted Mr Priestley, staying until the mowing of the oval was completed.
68.He denied throwing any mobile phones on the ground or at Mr Pearsall.
69.He does not explain why, having told both Mr Pearsall and his partner that he was quitting his job, he then continued to mow the oval. It seems inherently unlikely that, in circumstances where he announced such an intention while angry and frustrated with his co-worker for what appears to have been a flat though silent refusal to follow his instructions, he would simply continue to work with his co-worker. One available explanation, though not the only one, is that he vented his frustration in some way, for instance by throwing one or other of his phones, before calming himself and resuming work. His specific denial that he threw any phones in the direction of Mr Pearsall, seems to give detail to his general denial of throwing phones, and to confine it. The specific denial does not refer to throwing the work phone in the truck, or holding the work phone above his shoulder as alleged. It is not possible to determine with certainty what happened in light of the conflicting evidence. I cannot say whether Mr Brady did or did not throw his phones or either of them.
However, he does not deny holding his work phone above his shoulder while talking to Mr Pearsall as Mr Pearsall alleges. I accept that Mr Pearsall perceived that Mr Brady was both angry and frustrated with him. In the circumstances, it is entirely acceptable that Mr Brady might, for one reason or another, have held the work phone above his shoulder. It is entirely acceptable that Mr Pearsall feared the work phone might be thrown at him and break the glass doors of his mower, injuring him. I accept that he feared for his safety, and was distressed by this incident.
Transfer to Heatherbrae depot, February 2017
71.The fifth incident was his transfer to Heatherbrae depot, after Mr Priestley and Mr Brady had said they could not work with him. As I understand it, it is common ground that he was distressed by the transfer. On the basis of his own statement evidence, I accept that he was.
Mr McKenzie, 21 April 2017
72.The sixth incident was being directed to work with Mr McKenzie, whom he was told had threatened to punch his lights out.
73.It is common ground that on 7 February 2017, Mr Pearsall had commenced work at Heatherbrae depot after being transferred from Medowie depot.
74.On Friday 21 April 2017, he said that Tim Boyd instructed him to go and assist Mr McKenzie on the mounds, explaining that Mr McKenzie had said that he “was going to bash my [Mr Pearsall’s] lights out”. Mr Pearsall said this distressed him, because he had been told that Mr McKenzie had a long history of violent behaviour, the details of which are set out in his first statement and need not be repeated here.
75.Mr McKenzie gave a statement. He said he and Mr Pearsall were both assistant trades gardeners, and would work together about three days per week on average. In 2016, they mowed playing fields at Kings Park Oval, Raymond Terrace, both using ride-on mowers on the same field at the same time. This must be an error for 2017, as Mr Pearsall did not work at Heatherbrae before 2017. Mr McKenzie felt that Mr Pearsall had driven his ride on mower in a way that could have caused a collision between them. When he returned to the depot, he said that he told Timothy Boyd about what happened and said words to the effect, “I felt like punching Andrew’s lights out today”. He was later spoken to about this statement by council, but no disciplinary action was taken.
On the basis of that evidence, I am satisfied that Mr Boyd did tell Mr Pearsall that Mr McKenzie had threatened to punch his lights out. Whether that is a completely accurate reflection of what Mr McKenzie said, I do not know, but that it was communicated to Mr Pearsall is beyond any real doubt. In light of what Mr Pearsall had heard about Mr McKenzie’s behaviour, it is entirely acceptable that he was distressed by the remark, coupled with the direction to work with Mr McKenzie. I accept that this incident occurred as alleged, and that it distressed Mr Pearsall.
Mr McKenzie, 4 May 2017
77.The seventh stressor was that on 4 May 2017, Mr McKenzie accused him of abducting children from a preschool and sexually molesting them in an underground dungeon at his parents’ house. Mr Pearsall complained of the remark to his solicitors on 17 May 2017, who confirmed it by letter dated 23 May 2017. Mr Pearsall made a complaint to council in writing, undated. He described a conversation between him and Mr McKenzie and Mr Boyd at Heatherbrae depot after work on Thursday 4 May 2017. He said that Mr McKenzie alleged that he molested school children from a local preschool in a dungeon underneath his parents’ house. It is unnecessary to repeat the details, save to say that they were, by any standards, disgusting.
78.Mr McKenzie did not address this incident in his statement.
79.In his statement, Mr Matwijow, Council’s Public Domain and Services Section manager, said that the complaint was investigated by him with Ms Rodway, who was council’s human resources manager. He said they found that Mr Pearsall was a willing participant in discussions of a sexual nature, which I take to include the discussion in question.
80.The basis for that finding is not described by Mr Matwijow. Even if the finding was correct, the fact that Mr Pearsall may have entered willingly into a discussion of a sexual nature does not indicate consent to being accused of paedophile activity. Still less does it prove that the remarks alleged to have been made were not made, or that Mr Pearsall was not distressed by them.
81.The allegations were objectively of a most distressing nature, whether they were made in jest or not. I am comfortably satisfied that Mr Pearsall was both disgusted and horrified by them, as alleged in his complaint, and that they caused him significant distress.
Meeting on 11 July 2017
82.The eighth stressor was a meeting on 11 July 2017, at which he was questioned about his allegations that Mr McKenzie had accused him of paedophilia, and it was put to him that he provided pornographic videos to staff, and willingly participated in sexual banter. He was invited to respond to various unrelated allegations made about him by other staff. This interview was by its nature distressing. I have no difficulty accepting his admission to Dr Takyar that it was one of the stressors which he confronted at work, and that it contributed to his psychological injury.
Training
83.The ninth stressor was the denial of his request to attend training. This seems to relate to a complaint made by email on 25 August 2016 that Mr Priestley had provided 40-hour training in the operation of a front-end loader to Mr Brady, but indicated that he did not have time to supervise Mr Pearsall. After investigation of the complaint, council responded on 20 October 2016 that Mr Priestley had in fact observed Mr Pearsall using the front-end loader, but that the failure to enter the hours in a log book was Mr Pearsall’s fault. It also commented that Mr Pearsall does not need qualifications of this sort for his role.
84.None of that satisfies me that Mr Pearsall was not upset about the situation with regard to front-end loader training. I accept that it was unsatisfactory to him, notwithstanding council’s position on it, and that it distressed him.
Conclusion
85.For the reasons given, I am satisfied that each of the nine stressors which Dr Takyar considered causative of Mr Pearsall’s condition in fact occurred, though in respect of the instructions to work during lunch hours, I am only satisfied that it occurred once.
86.It follows that I am not satisfied that, by and large, Dr Takyar based his opinion on an incorrect history. The history was on the whole correct, and accords with other evidence.
87.Dr Takyar’s diagnoses were made on the basis of objective examination, reporting of symptoms, and of the history taken. His recordings of his objective examinations are summarised above. The symptoms that he observed, together with the complaints of symptoms made by the worker, were all relevant to and consistent with his diagnoses. There is no evidence that any of those symptoms were feigned except for the opinion of Dr Ashkar, by which I am not persuaded.
88.As a psychiatrist who examined the worker on no fewer than three occasions, Dr Takyar has the expertise necessary to diagnose psychiatric disorders, both generally and in this case. I am persuaded by his view that the stressors described by him caused an adjustment disorder, which has developed into a major depressive disorder and generalised anxiety disorder. I accept his opinion that the diagnosed conditions were caused by the work stressors he identified.
Whole or predominant causeIt remains to consider whether the psychological injury was wholly or predominantly caused by reasonable actions of the employer with respect to discipline, dismissal or transfer.
89.Of the nine stressors identified by Dr Takyar, the decision to transfer Mr Pearsall to Heatherbrae was an action of the employer with respect to transfer, and the meeting of 11 July 2017 may be categorised as an action with respect to discipline, as it was an investigation into a serious complaint by him about Mr McKenzie, and into council’s concerns raised by employees about Mr Pearsall’s own role in the affair.
90.As indicated, council has proposed 13 stressors, listed above, which it says were the whole or predominant cause of injury, and which were reasonable actions of the employer with respect to discipline, dismissal and transfer.
91.As indicated, there is no issue that two of them were causative of injury: they were the transfer to Heatherbrae and the meeting on 11 July 2017. The remaining eleven are considered separately below.
(a) With respect to the allegations that he had called Mr Brady a “dumb shit greenkeeper”, Mr Pearsall described council’s investigation as a “non-event”, noting that the meeting of 1 February 2016 did not result in any outcomes or disciplinary action. I am not satisfied that it distressed him, or was causative of his injury.
(b) With respect to the meeting with Ms Rodway on 9 May 2016, at which council raised issues concerning lack of respect for and threats of legal action against Mr Brady and other things, Mr Pearsall said that he felt the meeting was “totally biased toward Nicholas Brady’s account of events”, but nevertheless addressed the issues as best he could. While I can accept that a person in his position would have been uncomfortable about the meeting, there is no evidence that he was distressed by it, or that it caused a psychological disorder. I am not satisfied that it was caused the psychological injury, alone or with other stressors.
(c) There is no evidence that the meeting of 15 July 2016 or its follow-up correspondence caused distress to Mr Pearsall. I am not satisfied it did, and not satisfied that it contributed to his injury.
(d) The same can be said of the meeting on 11 November 2016 at which council discussed with staff its proposed code of conduct.
(e) There is likewise no evidence to suggest that Mr Pearsall was distressed by a meeting on 16 March 2017, at which council discussed complaints about his cleaning machines. That occurred in the context of Mr Pearsall continuing to observe a nine-day fortnight while others adopted an eight-day fortnight which required them to work longer hours. From 18 April 2017, Mr Pearsall would adopt the eight-day fortnight himself, at first on a trial basis and later permanently. I am not persuaded that this meeting caused him distress or contributed to his injury.
(f) With respect to the disciplinary meeting conducted on 18 May 2017, Mr Pearsall said the issues aired on 16 March 2017 were revisited. He considered the meeting did not improve his relationship with Mr Brady, and “achieved very little”. I can accept that it was an unpleasant and unproductive experience for him, but there is no evidence that it caused him distress. I am not persuaded that it contributed to his psychological injury.
(g) Mr Pearsall admits that the fact finding interview on 11 July 2017 distressed him. I am satisfied that it was one of the stressors which caused his psychological injury.
(h) The disciplinary meeting of 19 July 2017 was called to discuss allegations that Mr Pearsall had denigrated Mr Knight, that he had suggested to Mr Polglase that there would be no place for him in a coming restructure and that Mr Pearsall had made an inappropriate joke about shoes in a toilet block. He denied all the allegations. He admitted to being distressed by the allegation about shoes in the toilet block. However, there is no evidence that it caused him distress of a kind sufficient to cause psychiatric disorder, and I am not satisfied it did.
(i) On 28 August 2017, council responded to Mr Pearsall’s grievances against Mr McKenzie by dismissing them, finding that Mr Pearsall had breached the code of conduct, and providing a formal written warning. Mr Pearsall admits that parts of the letter left him “feeling anxious and distressed.” I am satisfied that he was distressed by the letter. Despite this, he said and I accept, he continued to work and tried just to get on with it. I am not satisfied that it contributed to injury.
(j) On 12 September e2017, Mr Pearsall was suspended from duty due to allegations that he had threatened Mr Stanley, among other things. Mr Pearsall admitted, “I was devastated when issued the suspension letter. I was physically sick.” There is no doubt that it caused him significant distress.
(k) On 2 November 2017, Mr Pearsall received council’s letter indicating that a decision to terminate his employment had been made and requesting him to show cause why his employment should not be terminated at a meeting on 8 November. Mr Pearsall does not say what his reaction to that letter was, but on 7 November 2017 he consulted GP Dr Rashcke, who diagnosed an adjustment disorder and certified him unfit for work. He did not attend the meeting on 8 November 2017.
92.He had already arranged an appointment with the GP on 25 October, but that had been postponed by the doctor. I am satisfied that, by 25 October, his symptoms were sufficiently severe to warrant medical attention.
93.In summary, I am satisfied that the nine stressors identified by Dr Takyar were causative of psychological injury. I am also satisfied that the following actions of the employer caused him significant distress:
(a) suspension letter of 12 September 2017, and
(b) termination letter of 2 November 2017.
94.The first issue for determination is whether the latter two events, plus the transfer to Heatherbrae in January 2017 and the disciplinary meeting of 11 July 2017, or any combination of them, were the predominant cause of injury. The seven remaining causative stressors listed by Dr Takyar were not actions of the employer with respect to discipline, dismissal or transfer.
95.There is no medical evidence to support the view that the four actions of the employer mentioned in the preceding paragraph were the whole or predominant cause of injury. Dr Ashkar does not express a view on it. I am not persuaded by the medical evidence that these stressors were the whole or predominant cause of injury.
There is no other evidence that persuades me to the view that they were the whole or predominant cause. The most persuasive hypothesis consistent with the evidence, is that advanced by psychiatrist Dr Takyar, namely, that injury was caused by an accumulation of stressors from 2014 to 2017. I am well satisfied that, prominent among them, were Mr McKenzie’s allegations of paedophilia in May 2017. That is supported by the history taken by Dr Ashkar that suicidal ideation arose after these allegations were made, and by Mr Pearsall’s own evidence, which I accept, that he was horrified at the allegations that he molested children, and was concerned that it would affect his reputation among his worker colleagues. However, the evidence does not allow me to conclude which of the many stressors, alone or in combination, was or were the predominant cause.
97.The defence pursuant to section 11A fails. There will be a referral for assessment of whole person impairment.
SUMMARY
98.For the reasons given, I am satisfied that Mr Pearsall suffered an Adjustment Disorder as a result of the accumulation of stressors at work from 2014 to 2017, to which his employment was a substantial contributing factor. To the extent it is necessary to decide the issue, I am also satisfied that stressors in the workplace were the main contributing factor to the contraction of the Adjustment Disorder.
99.I am not satisfied that the whole or predominant cause of the psychological injury was actions of the employer with respect to discipline, dismissal or transfer. The defence pursuant to section 11A fails.
In accordance with the parties’ agreement, there will be a referral for assessment of whole person impairment.
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