Podesta v Toll Transport Pty Ltd t/as Toll Global Logistics
[2024] NSWPIC 439
•14 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Podesta v Toll Transport Pty Ltd t/as Toll Global Logistics [2024] NSWPIC 439 |
| APPLICANT: | Paul Podesta |
| RESPONDENT: | Toll Transport Pty Ltd t/as Toll Global Logistics |
| MEMBER: | Michael Moore |
| DATE OF DECISION: | 14 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and payment of medical and related treatment expenses for alleged psychological injury in the nature of the aggravation of a pre-existing condition; issues of injury and main contributing factor; consequential condition of aggravation of pre-existing alcohol use disorder and further allegation of a consequential condition of aggravation of liver disease as a result of the aggravation of the alcohol use disorder; admissibility of medical evidence; Paric v John Holland Constructions Pty Ltd and Hancock v East Coast Timber Products Pty Ltd considered and applied; Held – second forensic report admitted as it related to a further claim; applicant not a reliable or credible witness; applicant’s medical case based on inaccurate and incomplete histories provided by applicant ; no “fair climate”; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. There will be an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant Paul Podesta is almost 56 years of age and was employed as a truck driver by the respondent.
The applicant appears to have commenced his employment as a casual driver in approximately 2010 and was made a permanent employee in November 2013.
In the course of his employment the applicant was subject of disciplinary proceedings on a number of occasions some of more significance or seriousness than others.
The disciplinary matters were as follows;
(a) 22 June 2014: failure to report an injury.
(b) 21 January 2015: causing avoidable damage to a prime mover and a third party vehicle.
(c) 26 August 2015: causing avoidable damage to a prime mover, a third party vehicle and a Woolworths trailer.
(d) 3 May 2018: incorrect coupling to a trailer (dropped trailer) and causing damage to a trailer.
(e) 16 July 2018: drove off designated route to have an unscheduled break when a theft occurred from the unmanned truck.
(f) 23 July 2019: fatigue breech [sic], not enough breaks recorded.
(g) 9 August 2019: failure to follow process and safety breach in allowing a fellow employee to drive and reverse a truck into a dock when the fellow employee was not rostered to work nor had completed a fit for duty declaration.
The incidents recited in point 4 above are referred to in the respondent’s Reply (Reply) at pages 217 to 236 and the dates refer to the notices to the applicant detailing the alleged misconduct.
It is to be noted that a number of the matters resulted in the applicant being given a “First and Final Warning” namely the incidents referred to in sub paragraphs (d),(e) and (f) and others resulted in warnings although none resulted in dismissal.
There is also evidence in the material before me of other disciplinary issues such as the applicant being found to be sleeping behind a Bunnings warehouse which was claimed as time worked[1] however given the absence of material corroborating action being taken in respect of such incidents I can only assume that they were not regarded as serious matters.
[1] Reply p 10.
The applicant apparently worked around 60 to 65 hours per week[2] and perhaps as many as 70 hours per week as claimed by the applicant in his statement dated 22 April 2020 forming part of the evidence attached to the Application to Resolve a Dispute (Application) at page 1 thereof.
[2] Reply p 10.
The applicant worked out of the Minchinbury yard operated by the respondent which appears to have around 150 drivers based there with around 25 on site at any particular time when things are quiet[3] (I assume that when things are busy there are less drivers actually present on the site as they are busy driving loads).
[3] Reply p 45.
The disciplinary incident referred to at point 4 (e) above related to an incident that occurred around early to mid July 2018 and involved the theft of cigarettes from a truck the applicant was driving when the applicant took an unscheduled break from driving leaving the vehicle unattended.
The applicant was required to attend a show cause meeting on 16 July 2018 and was also stood down with pay from his employment while the incident was investigated.[4]
[4] Reply p226.
The applicant’s employment was not terminated once the investigation of the theft was completed however he was issued with a Final Warning Letter[5] and he returned to driving duties.
[5] Reply pp 235-236.
The applicant continued to work for the respondent performing his driving duties, albeit with some disciplinary issues as noted above, until December 2020/ January 2021 at which time the applicant went on leave for some weeks.
The applicant returned to work at 3:00am on 22 February 2020 and while there appears to have been some confusion about whether the applicant was rostered to work that day he was assigned work and worked a full shift.
The applicant was advised that there was no work for him on the following day, namely
23 February 2020, but that he would be rostered for Monday 24 February 2020.On 23 February 2020 the applicant went to the Colyton Hotel where he drank for a number of hours.
After leaving the hotel the applicant who was driving his motor vehicle lost control of same at a roundabout and collided with a parked car with the applicant’s car then leaving the roadway and colliding with a fence of a property.
Police attended the scene of the accident and the applicant was asked to undergo a breath test but was unable to provide a sample.
The applicant was subsequently taken to Penrith Police Station where he underwent a breath analysis which returned a reading of .153 and the applicant’s licence was immediately suspended.[6]
[6] Reply pp 515-517.
The applicant did not report the suspension of his licence to his managers at work but states that he informed a Paul Wilson a union delegate and chair of the safety committee on the site who was to inform management.
The applicant did not return to work with the respondent and he moved to live with his father at Old Bar New South Wales a few days after his arrest and suspension of licence.[7]
[7] Application p 25.
The applicant was subsequently convicted with his licence being suspended for a period of time and a requirement being imposed that any vehicle he operate for a time following the return of his licence be fitted with an interlock device.
The applicant’s alcohol consumption increased following the loss of his licence and eventually his liver function deteriorated.
It is the applicant’s case that following the incident involving the theft of the cigarettes fellow workers bullied and harassed him about the incident resulting in the aggravation of his pre-existing depression and as a consequence of the aggravation of his depression the applicant’s alcohol use disorder was aggravated leading to the events on 23 February 2020 resulting in a deterioration of his liver and ultimately leading to a liver transplant.
The applicant made a claim for workers compensation benefits on 8 April 2020.
The respondent declined the claim pursuant to a notice under section 78 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 5 May 2020.
Following denial of liability by the respondent the applicant commenced proceedings in the Workers Compensation Commission in matter number 6298/20 which were ultimately discontinued before Senior Arbitrator Capel (as he then was) on 22 December 2020 with the Certificate of Determination noting that certain voluntary payments would be made by the respondent for a closed period. It was noted that those voluntary payments were not a determination of the Commission.
A further claim for workers compensation benefits was made on behalf of the applicant by his solicitor in correspondence dated 11 March 2021.[8]
[8] Application p 44.
The respondent issued a section 78 notice in response to the claim dated 11 March 2021 on 26 March 2021.
By letter dated 15 December 2021 (which the applicant’s solicitor has described in these proceedings as a request for a review under s 278A) the applicant’s solicitors made a claim for lump sum compensation and sought an admission that the applicant exceeded the threshold under section 151H of the Workers Compensation Act 1987 (the 1987 Act) for a claim for Work Injury Damages.
By letter dated 11 March 2022 the applicant’s solicitors also gave notice of a claim for a consequential liver condition and of a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of an alleged 80% whole person impairment.
On 20 April 2022 the respondent issued a section 78 notice denying liability for the claims made by or on behalf of the applicant.
The section 78 notice of 20 April 2022 denied that the applicant had suffered any injury arising out of or in the course of his employment as provided in s 4(a) of the 1987 Act, denied that the applicant had suffered an injury in the nature of a disease to which the applicant’s employment was the main contributing factor as provided in s 4(b)(i) of the 1987 Act, and denied that the applicant had suffered an injury in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease to which the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease as provided by s 4(b)(ii) of the 1987 Act.
The section 78 notice date 20 April 2022 also denied liability under s 9A of the 1987 Act on the basis that employment was not the main contributing factor to any injury that may have been sustained.
The respondent also raised an alternative a defence under s 11A of the 1987 Act that any psychological injury was the consequence of reasonable action taken by the employer with respect to performance appraisal, discipline and/or dismissal.
I note in passing that the notice also raised defences in respect of the alleged liver disease on the basis of failure to notify the claim within the time limits provided in the legislation however those particular denials of liability appear to be misconceived as the aggravation or causation of the liver disease is only an allegation of a consequential condition resulting from the alleged compensable injury.
The applicant commenced proceedings for workers compensation benefits in the Personal Injury Commission (Commission) in matter number W517/23 which were discontinued by the applicant.
The reason for discontinuing matter number W517/23 is unclear.
It appears the applicant issued further proceedings in the Commission bearing matter number W5739/23 which was listed for an all day hearing on 2 November 2023 which were again discontinued.
The present proceedings bearing matter number W9549/23 were filed with the Commission on 19 December 2023 and claimed weekly compensation pursuant to s 37 from
23 December 2020 together with payments of medical and related expenses pursuant to s 60 of the 1987 Act.The pleading of “Injury Details” in the Application in the present case is in the following terms:
“The applicant was subjected to bullying, harassment and adverse working conditions resulting in an aggravation of his pre-existing psychological condition. Secondary to his psychological injury the applicant has aggravated his alcohol use disorder and was drinking up to approximately 38 standard drinks per day on a daily basis. This has in turn accelerated the deterioration of his liver. He is suffering from a consequential liver disease injury, for which he underwent a liver transplant as of 2 May 2022.”
The pleaded date of injury is 22 February 2020 as a deemed date of injury.
The respondent has issued a number of notices under ss 78 and 278A of the 1998 Act dated 5 May 2020, 8 September 2020, 26 March 2021, 20 April 2022 and 1 September 2023 all of which are relied upon to deny liability for the applicant’s claim.
Given the form of the pleading of injury referred to in the Application it is my view that a number of the grounds of denial of liability set out in the various notices referred to in paragraph 43 above are not relevant to the case before as the case has essentially been pleaded as an injury in the nature of an aggravation, acceleration, deterioration or exacerbation of a disease under s 4(b)(ii) of the 1987 Act.
Further the respondent’s submissions do not seek to rely on a number of grounds raised in the various notices such a failure to give notice as provided by ss 61, 254 and 261 of the 1998 Act.
Before summarising the matters that remain in dispute re require determination I note that the matter came before me at a preliminary conference on 8 February 2024 when counsel for both parties were in attendance.
At the time of the preliminary conference I was advised that there were no prospects of settlement of the matter at that time and that given the complexity of same it needed to be listed for a full day’s hearing.
Amongst other issues dealt with on that day Mr Tanner gave notice of his objection to any cross examination of the applicant given the psychological illness from which the applicant suffered.
On the conciliation/arbitration hearing date of 8 April 2024 the applicant was not personally present however it was proposed by both counsel that the matter proceed by way of written submissions with settlement discussions to occur in the period allowed in the timetable for the filing of sumbmissions.
Given that the proposal was put by both counsel I formed the view that there were real prospects of resolution that both parties wished to explore and exhaust and accordingly agreed with the proposal being put by counsel.
A timetable was agreed for the filing of written submissions however it appears that no negotiations took place in relation to settlement. Accordingly a day set aside for the hearing of the matter was lost and there was a need for a further preliminary conference to deal with the slippage in the timetable for the filing of submissions.
I do not regard what occurred as being satisfactory.
ISSUES FOR DETERMINATION
From the submissions filed by counsel it is clear that the following issues remain in dispute:
(a) whether the applicant suffered a psychological injury arising out of or in the course of his employment in the nature of the aggravation, acceleration, exacerbation or deterioration of a disease and if so whether the employment was the main contributing factor to an such aggravation, acceleration, exacerbation or deterioration (see s 4(b)(ii) of the 1987 Act);
(b) if the applicant suffered any such aggravation, acceleration, exacerbation or deterioration of a disease to which employment was the main contributing factor whether the applicant suffered a consequential condition being the deterioration or aggravation of an alcohol use disorder;
(c) if the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease to which the employment was the main contributing factor whether the applicant suffered a consequential condition being liver disease for which he underwent a liver transplant;
(d) if the applicant suffered any such aggravation, acceleration, exacerbation or deterioration to which the employment was the main contributing factor whether any such aggravation, acceleration, exacerbation or deterioration was temporary or transient and was not the cause of incapacity or the need for medical treatment;
(e) if the applicant suffered a psychological injury arising out of or in the course of his employment whether the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline, transfer and/or dismissal (s 11A of the 1987 Act), and
(f) whether the applicant suffers any incapacity for work as a consequence of the alleged injury (including any alleged consequential condition) received in or arising out of his employment and if so the extent of any such incapacity.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Applicant’s application to admit late documents dated 1 February 2024 (AALD1);
(d) Applicant’s application to admit late documents dated 27 February 2024 (AALD2);
(e) Respondent’s application to admit late documents dated 23 March 2024 (AALD3);
(f) applicant’s written submissions filed 20 May 2024 and attachments (AWS):
(g) respondent’s written submissions filed 12 June 2024 (RWS), and
(h) applicant’s written submissions in Reply filed 28 June 2024 (AWSR).
I note that given the fact that the submissions of both parties have been reduced to writing and form part of the Commission’s file I do not propose to provide a summary of the submissions in these reasons but will refer to same as required.
I have carefully read and considered the written submissions of both parties.
Oral evidence
No oral evidence was given in the matter having regard to the events of 8 April 2024 outlined above at points 49 to 52.
FINDINGS AND REASONS
Preliminary issues
Before dealing with the substantive case a preliminary issue in relation to the admission of evidence requires decision.
The respondent initially qualified Dr Glen Smith psychiatrist to provide an independent medical report and he provided a forensic report to the respondent dated 28 April 2020[9] together with supplementary report dated 22 September 2020.[10]
[9] Reply pp 290-303.
[10] Reply pp 304-307.
The respondent relied upon the opinions of Dr Smith to decline liability in the matter in the
s 78 notice dated 5 May 2020 and s 287A notice dated 8 September 2020.As noted after the resolution in proceedings bearing matter number 6298/20 in the Workers Compensation Commission the applicant made a claim for further compensation benefits dated 11 March 2021.[11]
[11] Application p 45.
Upon receipt of that claim the respondent obtained a further supplementary report dated
16 March 2021[12] from Dr Smith.[12] Reply pp 308-313.
That opinion and the earlier report and supplementary report of Dr Smith were relied upon by the respondent when it issued a s 78 notice dated 26 March 2021[13] in response to the claim for further benefits dated 11 March 2021.
[13] Application pp 45-71.
As noted earlier by letter dated 15 December 2021 the applicant’s solicitor put the respondent on notice that the applicant was suffering cirrhosis of the liver and of a claim for lump sum compensation in the sum of $61,900 on the basis that the applicant suffered from a whole person impairment of 23%. The applicant’s solicitors also sought an admission that the applicant exceeded the threshold of 15% whole person impairment for the purposes of a work injury damages claim.[14]
[14] Application pp 72-74.
Although not in the evidence before me it appears that by letter dated 21 January 2022 the applicant’s solicitors gave notice of an allegation of a “consequential liver injury” and a claim for lump sum compensation.[15]
[15] Application pp 74-75.
By letter dated 11 March 2022 the applicant’s solicitors sought a determination of liability with respect to the alleged injury.[16]
[16] Application p 74.
It appears that following receipt of the letter of claim dated 15 December 2021 the respondent sought to arrange a medical examination of the applicant by Dr Smith but in response to that request were advised by an email dated 16 December 2021 that Dr Smith would no longer be doing “any SIRA (Workers Comp, MVA) matters as of January 2022 onwards”[17] and accordingly was unable to arrange an examination with Dr Smith to deal with the new claims of consequential condition affecting the liver and the claim for lump sum compensation.
[17] Reply p 314.
The respondent was subsequently able to retain Dr Peter Snowdon psychiatrist to provide an opinion.
Dr Snowdon provided an IME report dated 28 February 2022.[18]
[18] Reply pp 337-359.
The s 78 notice dated 20 April 2022 denying liability for the alleged consequential condition affecting the applicant’s liver relied upon, inter alia, the opinion of Dr Snowdon in his report dated 28 February 2022.[19]
[19] Application pp 76-106.
Dr Snowdon has provided a supplementary medical report dated 29 August 2023[20] and a further supplementary report dated 22 February 2024.[21]
[20] Reply pp 384-399.
[21] AALD3 pp 2-39.
In his submissions the applicant’s counsel has objected to the respondent being allowed to rely upon the medical report of Dr Snowdon dated 28 February 2024 nor on the supplementary reports on the basis that to admit same into evidence would be a breach of regulation 44 of the Workers Compensation Regulation 2016.
Mr Tanner’s submissions were to the effect that regulation 44(1) provides that only one forensic medical report may be admitted on behalf of a party to proceedings and that the reports of Dr Snowden did not fall within the exceptions allowed under regulation 45.
Mr Tanner submits that the reports and supplementary reports provided by Dr Smith are the one forensic report and supplementary reports allowed by regulations 44 and 45 and that as Dr Smith remains in practice the reports of Dr Snowden cannot be admitted having regard to regulation 45(3) which requires that any supplementary report must be provided by the medical practitioner who provided the original report unless that medical practitioner has ceased permanently or temporarily to practise in the specialty concerned.
Mr Tanner argues that the s 78 notice issued by the respondent dated 5 May 2020 disputing the applicant’s claim relied upon the opinion of Dr Smith and accordingly constituted the one forensic report for the purposes of regulation 44.
Mr Tanner attached to his submissions material that he maintains establishes that Dr Smith remains in practice and accordingly it is not possible for Dr Snowdon’s reports to be admitted having regard to the clear terms of regulation 45(3).
Mr Doak for the respondent objects to the material attached to Mr Tanner’s submissions evidencing Dr Smith’s continuing practice as a specialist psychiatrist and argues that same should be ignored as no leave had been given to the admission of same.
In my view the material attached to Mr Tanner’s submissions which establish that Dr Smith is still in practice as a specialist psychiatrist should be admitted in the interests of justice and dealing with the real merits of the case.
I note that there is nothing in the respondent’s evidence that suggests that Dr Smith has ceased to practise as a specialist psychiatrist either temporarily or permanently and indeed the email dated 16 December 2021 does not assert anything other than the fact that
Dr Smith is no longer doing SIRA work.I accept that Dr Smith remains in practice and I also accept that the provisions of regulations 44 and 45 of the Workers Compensation Regulation 2016 are mandatory and rather extraordinarily would prevent a respondent obtaining supplementary opinions even where relevant and important to a case if a doctor who had provided a forensic report refused to assist a party further.
However I note that regulation 44 is in the following terms:
“(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to the proceedings.
(2)A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4) In this clause-
forensic medical report, in relation to a claim or dispute-
(a)means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
Regulation 43 of the Workers Compensation Regulation 2016 defines “claim” as meaning “a claim for compensation payable or claimed to be payable under the 1987 Act”.
Mr Tanner submissions appear to be predicated on the assertion that the present proceedings arose out of a denial of liability as set out in a s 78 notice issued by the respondent on 5 May 2020[22] which relied upon the opinion of Dr Smith.
[22] AWS p 15.
That submission is, with the greatest respect to Mr Tanner, in my view incorrect.
The denial of liability set out in the s 78 notice of 5 May 2020 resulted in litigation in the then Workers Compensation Commission in matter number 6298/20 which were, as noted at point 27 above, finalised on 20 December 2020.
On 11 March 2021 the applicant’s solicitors made a further claim for weekly compensation benefits,[23] which I note is correctly described in the index to the documents attached to the Application as “Claim for Further Benefits”,[24] and a s 78 notice was issued in response to that claim by the respondent on 26 March 2021.[25]
[23] Application p 44.
[24] Application p 1.
[25] Application pp 45-71.
I note that the only claim made by the applicant in the notice of 11 March 2021 was a claim for weekly compensation from 23 December 2020.
The s 78 notice issued by the respondent on 26 March 2021 clearly relied upon the opinions of Dr Smith and if the present proceedings were limited to a claim for weekly compensation relying upon the same allegations of injury as previously litigated in matter number 6298/20 in the Workers Compensation Commission then the submissions made by Mr Tanner in relation to the inadmissibility of Dr Snowden’s reports would have some force however that is not the case.
As noted the applicant’s solicitors by letter dated 15 December 2021 gave notice of a further claim for s 66 benefits, a threshold claim for work injury damages and advising of the applicant’s severe liver cirrhosis.
As also noted the applicant gave notice of a claim for consequential liver injury by letter dated 21 January 2022 and on 11 March 2022 sent a letter pressing for a decision on the claim of a consequential liver injury and gave notice of an amended claim for lump sum compensation on the basis of an 80% whole person impairment which was based upon an opinion of Dr Anthony Greenberg dated 4 March 2022 and which was an assessment based on the applicant’s liver condition and its sequelae.[26]
[26] Application pp 167-168.
It was to meet the further allegation of injury that Dr Snowdon was qualified in circumstances where for whatever reason Dr Smith was unwilling to assist.
The allegation of a consequential condition affecting the applicant’s liver is a fundamental component of the pleading of “Injury Details” in the matter before me. If the applicant establishes the causal link between the applicant’s employment, injury and a consequential condition involving the applicant’s liver condition a very significant claim for lump sum compensation may arise. For the purposes of the claim before me, the potential award of weekly compensation would vary greatly depending on the outcome of the decision as to the relationship between the applicant’s liver disease and an injury (if any) received in or arising out of the course of the applicant’s employment.
It is my view that the allegation of a consequential condition affecting the applicant’s liver is another claim or dispute within the meaning of regulation 44(4) and accordingly the report of Dr Snowden is admissible in the matter together with the supplementary reports from that doctor including the late supplementary report attached to AALD3 which clearly deals with additional material served by the applicant that had not been provided to the doctor earlier.
It is clearly in the interests of justice and dealing with the real merits of the case that the documents be admitted.
A second preliminary issue that requires consideration is the admissibility of the statement of the applicant’s sister Louise Szyszka dated 20 May 2024 which is attached to AWS.
Mr Doak for the respondent has objected to the admission of that document on the basis that the applicant had failed to file the statement on or before 15 April 2024 as provided in the directions made on the conciliation/arbitration hearing date.
I note that no explanation for the lateness of the provision of the statement is given however given the failure of all parties to comply with the timetable and given that the contents of the proposed statement were advised at the time of the conciliation phase of the conciliation/arbitration and were not objected to by the respondent I am of the view that the statement of Ms Szyszka should be admitted in the interests of justice and dealing with the real merits of the case.
The other late documents of either party are not the subject of objection and shall be admitted into evidence.
The approach to be taken to the applicant’s case
The applicant’s pleading of injury is essentially a threefold allegation.
The first allegation is that he suffered an injury because he “was subjected to bullying, harassment and adverse working conditions resulting in an aggravation of his pre-existing psychological condition.”
The second allegation is that the aggravation of the psychological condition caused by the alleged bullying, harassment and adverse working conditions caused a consequential condition of the applicant namely it “aggravated his alcohol use disorder.”
The third allegation is that the consequential condition of the allegedly aggravated alcohol use disorder caused a further consequential condition involving accelerated deterioration of the applicant’s liver and subsequent need for a transplant.
The onus of proof in establishing each part of the allegation of injury and alleged consequential condition of course lies with the applicant.
As well as denying the applicant’s allegations of injury the respondent has raised an alternative defence under s 11A as noted earlier.
The respondent bears the onus of proof in establishing such a defence should it become relevant.
Given the cascading nature of the allegation of injury and the alleged consequential conditions I will approach the matter by firstly determining whether the applicant establishes on the balance of probabilities that he suffered an aggravation of his pre-existing psychological condition arising out of or in the course of his employment.
Secondly determine whether on the balance of probabilities the applicant establishes that his employment was the main contributing factor to any such aggravation.
Thirdly if the applicant establishes on the balance of probabilities that he suffered an aggravation to his pre-existing psychological condition to which aggravation the employment was the main contributing factor determine whether, applying the tests of causation described in Kooragang Cement Pty Ltd v Bates,[27] the applicant establishes on the balance of probabilities that he suffered a consequential condition of aggravation of his alcohol use disorder.
[27] (1994) 35 NSWLR 452.
Fourthly if the applicant establishes on the balance of probabilities that he suffered an aggravation to his pre-existing psychological condition arising out of or in the course of his employment to which the applicant’s employment was the main contributing factor, and establishes on the balance of probabilities that the aggravation of the psychological condition resulted in a consequential condition of aggravation of the applicant’s pre-existing alcohol use disorder determine whether the applicant then establishes on the balance of probabilities, (also applying the test of causation described in Kooragang Cement Pty Ltd v Bates), that the aggravation of the applicant’s alcohol use disorder resulted in accelerated deterioration of the applicant’s liver disease resulting in the applicant undergoing a liver transplant.
Fifthly I will consider, if necessary, whether the respondent establishes a defence under s 11A of the 1987 Act.
If the applicant fails to establish on the balance of probabilities that he suffered an aggravation to his pre-existing psychological condition arising out of or in the course of his employment to which his employment was the main contributing factor then, of course it will not be necessary to decide whether any consequential condition arises as a result of that injury.
Whether the applicant suffered an injury in the nature of an aggravation of his pre-existing psychological condition
As noted at point 41 the applicant pleads in the Application that:
“The applicant was subjected to bullying, harassment and adverse working conditions resulting in an aggravation of his pre-existing psychological condition.”
The applicant pleads a deemed date of injury of 22 February 2020.
It is clear that the applicant is seeking to make a case of injury in the nature of the aggravation, acceleration, deterioration or exacerbation of a disease under s 4(b)(ii) of the 1987 Act.
For reasons of brevity I will use the word “aggravation” as encompassing each of the terms aggravation, acceleration, deterioration and exacerbation in these reasons.
As stated above to succeed the applicant needs to establish not only that the applicant suffered an aggravation of his disease but that the applicant’s employment was the “main contributing factor” to the aggravation.
Deputy President Snell in AV v AW[28] considered the proper construction of the term “main contributing factor” and discussed the various authorities in relation to same. His summary of the authorities was as follows:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s.4(b)(ii) is more stringent than that in s.4(b)(ii) in its previous form, which applied in conjunction with the test in s.9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s. 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[28] [2020] NSWCCPD 9.
Statement and related medical record evidence
The applicant has provided a number of statements in support of his claim for compensation dated 22 April 2020, 26 October 2020, 10 June 2021 and 30 September 2022.[29]
[29] Application pp 1-36.
Mr Tanner in his submissions relies on those statements as correctly describing the events giving rise to the alleged injury and alleged consequential conditions.
Mr Doak’s submissions challenge the accuracy of the applicant’s statements describing same as “carefully curated”, “totally inaccurate and misleading”[30] and also “inaccurate and unsubstantiated”.[31]
[30] RWS p11.
[31] RWS p 6.
The applicant’s credit is clearly in issue and the accuracy of his statement evidence is of critical importance in the case.
Commencing with his statement of 22 April 2020 the applicant in that statement noted that he was then living at Old Bar, was divorced, had been educated to year 8 level, had some difficulties with reading and writing on occasion, did not smoke but was drinking around 10 beers a day.
He noted that he was currently employed as a driver by the respondent having commenced as a casual in 2010 after previously working in the family business Podesta Transport from the age of 14. He noted that he was made permanent by the respondent in 2013. The applicant noted that he was supervised by Steve Innes and a Mitch Varnon and that he had problems with Mitch Varnon.
The applicant stated that he was based in the Minchinbury yard and delivered goods from there to Woolworths stores.
The applicant stated that he worked up to 70 hours a week.
He further stated that at the time he commenced work with the respondent he was in good health and had no pre-existing injuries or medical conditions.
The applicant stated that in the course of his employment with the respondent he had undergone a number of training courses and was made aware of the company’s various policies including its grievance and occupational health and safety (OHS) policies.
In relation to work performance issues the applicant rather confusingly stated that he had not ever been counselled for any work performance issues or breaches of company policy or procedures but had received a first and final warning letter when he dropped a trailer in early 2018 and in around 2018 he was reprimanded for taking someone in the vehicle.
The statement also provides an outline of the work duties the applicant performed and acknowledged he was aware for the process for reporting injuries and incidents.
The applicant stated that, “Before July 2018 I was in good health and had no medical problems.”[32]
[32] Application p 5.
The applicant went on to state that in around July 2018 he was driving a trailer and had to have a work break and that while he was having that break someone stole cigarettes to the value of $10,000 to $15,000 from the truck.
The applicant stated that the loss of the stock was investigated and that he split up with his wife over the incident.
The applicant stated that he was stood down while the investigation into the loss of the cigarettes was carried out and that he was never advised of the results of the investigation.
Following the loss of the stock and the investigation of same the applicant stated that he kept getting bullied with comments about the cigarettes by other drivers and that he recorded details of the bullying by asking his sister to record it for him. A list of the allegedly recorded incidents was attached to the statement.
The applicant stated that he commenced seeing a psychologist about the bullying and harassment at work and further stated that he reported the alleged bullying and harassment at work to Steve Innes and the “HR bloke in the yard” and a Mark Trevillian (who had since left).
The applicant alleges that he was advised to speak to the other drivers by the HR bloke but decided to ignore that advice.
The applicant alleges that he also told the work Chaplin, Graham Block [sic] about the bullying in 2018.
The applicant’s statement also noted that he recalled a Terry and John as being drivers who made comments and that from time to time a few of the drivers indicated that he was a thief. He stated that “I can take jokes about my weight but not about my honesty.”[33]
[33] Application p 6.
The applicant stated that at the start of February 2020 he was feeling bad. He saw the psychologist who advised him to request a start in the morning so he would not see other drivers as he was trying to avoid them.
The applicant also stated that he had seen Steve Innes and told him about the bullying albeit that it is impossible to work out from the statement whether that conversation occurred in February 2020 or was intended to refer to the earlier alleged report of bullying referred to at point 135 above.
The applicant stated that he spoke to Dean Annetts to ask if he could get early shifts although the date of that alleged conversation is not stated.
The statement of the applicant also rather cryptically refers to “Mitch Vernon had been in the position while I have been having time off in the previous six months.”[34]
[34] Application p 6.
The applicant further stated that he allegedly called Dean Annetts after his January 2020 break of 2-3 weeks to see if he could get an early start on Saturday and Sunday and
Mr Annetts is alleged to have agreed to the request.The applicant stated that at 3:00am on Saturday 22 February 2020 he went to the yard to be advised by the allocator that he was not rostered but that Dean Annetts gave him a load.
The applicant further stated that while driving on 22 February 2020 he was contacted by a Jan Chang to be advised that he was not rostered for the Sunday but to come into work on the Monday.
The applicant stated that on his return to the depot he complained to other drivers saying it was unfair.
The applicant stated that he was trying to use the weekend to get into driving for the week and to feel that he could cope.
The applicant’s statement goes on to record that the following day the applicant went to the pub (which is recorded as being the Colliston Hotel) at about 10:00am and drank there until 4:00pm when he left allegedly to drive to Shane’s Park to “do something to myself”.[35]
[35] Application p 7.
The applicant stated that he had a car accident where he hit a car and a fence in Hewet [sic] Street. The applicant stated that no one was injured in the accident but he could not drive his car which was a write-off.
The applicant’s statement goes on to record that the police attended the scene of the accident and he was taken to Penrith Police Station at about 5:30pm.
Before continuing the summary of the applicant’s statement of 22 April 2020 I note that
Mr Doak has submitted that the reference to Colliston Hotel should be read as Colyton Hotel and it is my view that is correct as there is clear evidence in the applicant’s bank records of purchases being made throughout 23 February 2020 (and on other days) at the Colyton Hotel.[36][36] Reply p 814.
Similarly the reference to “Hewet” Street should be read as Hewitt Street.
The applicant’s statement goes on to record that the applicant was picked up by his niece after being released from Penrith Police Station and that he had not returned to work since then.
The applicant stated that he spoke to a Paul Wilson a fellow worker on the safety committee at his place of employment and told him about the accident and drink driving but that he did not inform a manager of same. He, rather surprisingly, stated that he thought that the right thing to do was to talk with a union delegate.
The applicant stated that he waited at home for work to get back to him and was advised by Paul Wilson that he, Paul Wilson, was waiting for work to get back to him.
The applicant further stated that because work was not getting back to him on 6 April 2020 he saw a doctor and spoke to a solicitor and was advised by his sister to look for workers’ compensation.
The applicant also referred to attending Taree Court House on 13 April 2020 when he apparently had a case in Penrith Court dealt with remotely due to the COVID-19 restrictions.
The applicant stated that he was living at Taree at the time.
The applicant states that he was placed on a good behaviour bond for six months and had his licence suspended until August 2020.
The statement goes on to record that the applicant regarded himself as not able to return to work as he needed to see a psychologist as he was not in a right frame of mind.
The applicant’s statement then records that he has been treated by Steve McDavitt from Advantage Psychology, that his doctor is Dr Lim and that his regular general practitioner
(GP) is Dr Dinh Nguyen.The applicant stated that he was on a prescription for Pristia [sic] an antidepressant and had been taking if for about two years with the dose being doubled over the last 18 months.
The applicant also detailed a number of workers compensation incidents occurring in 2014 when he tripped over trailer air lines, 2015 when struck by bales of cardboard and in 2016 when he was involved in a car accident and was treated by a psychologist.
The applicant flatly stated he had never injured his back.
In relation to his driving record the applicant stated that he had lost some demerit points in the past resulting in a licence suspension for three months and loss of his licence for drink driving 25 years previously when his licence was suspended for six months.
The statement finally records that it was completed on 17 April 2020, was sent to the applicant for review and correction and after the corrections or amendments were made was signed by the applicant on 22 April 2020.
The picture that is created by the applicant’s statement could be summarised as him having started work with the respondent in 2010 when he was in good health with no injuries, that he became permanent in 2013, that he worked out of the Minchinbury yard doing delivery work for Woolworths usually starting at 3:00am and working up to 70 hours per week. Apart from three workers compensation incidents he worked without problems and before July 2018 he was in good health and had no medical problems. In June 2018 while on a required work break he had cigarettes stolen from his truck, he was stood down and the theft investigated but he was not told of the results of the investigation. He broke up with his wife over the incident and when he returned to work he was bullied by other workers with comments over the loss of the cigarettes. He started seeing a psychologist. He started taking an antidepressant two years ago. A psychologist suggested he request early shifts to avoid other drivers and the applicant then spoke to a Dean Annetts about an early start on Saturday 22 February 2020. When he attended work on that morning he was told he was not rostered on but was given work for the day. He was informed during the day that there was not work on the Sunday but to come in Monday. On 23 February 2020 he went to the Colyton Hotel and drank from 10:00am to 4:00pm. He left allegedly to drive to Shanes Park to do something to himself but had an accident at Hewitt Street. He was subsequently convicted of an offence in relation to the accident. His driving record involved a past suspension for exceeding the allowed demerit points and a PCA conviction 25 years ago.
The statement, if correct and credible, provides a consistent outline of the applicant having been the subject of a workplace investigation that resulted in other drivers harassing him about the circumstances leading up to the investigation and a development of an adverse psychological reaction.
It is to be noted that the statement does not identify any other stressors in the applicant’s life that could have lead to the development of an adverse psychological reaction in the nature of an aggravation of a pre-existing condition at that time in the applicant’s life.
The statement says nothing about the applicant’s alcohol consumption and any change in same as a consequence of the alleged psychological reaction however it would be surprising if an investigator carrying out an investigation for claims management purposes managed to cover all aspects of an allegation of injury that was to be pleaded some years later.
As noted at point 169 above if the applicant’s statement is correct and credible it provides a fairly contemporaneous record that is consistent with much of the pleading of injury in this case.
However a careful review of the statement against other evidentiary material in the matter establishes that the statement is not accurate or credible.
The applicant states that at the time he commenced work with the respondent he was in good health and had no pre-existing injuries or medical conditions.
In 1984 the applicant had a very significant degloving injury to his left ankle and foot in a motor vehicle accident requiring extensive treatment initially at Port Macquarie Hospital and then transferred to what is now Westmead Hospital.[37] Normally an event such as that some 25 years prior to commencing work with the respondent would not be of significance however in 2011 the applicant was being prescribed Panadeine Forte for pain in the left ankle in respect of the old injury[38] and was being prescribed Panadeine Forte for undocumented reasons in 2010.[39]
[37] Reply pp 639-663.
[38] Reply p 419.
[39] Reply p 420.
The applicant continued to request Panadeine Forte for his left ankle and foot pain in 2015 from Dr Nguyen his GP and in October 2016 saw a Dr Lagaida for Panadeine Forte for his left foot injury[40] and again saw Dr Lagaida with the same complaint of pain in the left foot in February 2017.[41]
[40] Reply p 422.
[41] Reply p 423.
The notes of Dr Nguyen and Dr Lagaida both contain references to other prescriptions of Panadeine Forte for undocumented reasons as well as for other conditions which will be discussed below however it is clear that the applicant was still requiring treatment of the sequelae of his earlier left foot and ankle injury with strong analgesics at around the time he commenced work with the respondent and in the years thereafter.
That is inconsistent with his claim of no pre-existing injuries at the time he commenced work with the respondent.
The applicant further stated that before July 2018 he was in good health and had no medical problems.[42]
[42] Application p 5.
That is clearly incorrect.
In August 2014 the applicant had commenced treatment for depression with the prescription of an antidepressant Pristiq. The applicant continued to be prescribed Pristiq for depression with the dosage being doubled in March 2015 from 50mg to 100mg,[43] increased to 200mg (100mg twice daily) on 8 June 2017,[44] reduced to 100mg per day on 25 May 2018,[45] and continuing to be prescribed up to and beyond July 2018.
[43] Reply p 412.
[44] Reply p 405.
[45] Reply p 404.
The applicant had gastric banding surgery some years ago in 2004[46] and the notes of Dr Nguyen reveal ongoing problems with the lap band and weight control. In August 2015 the applicant complained of weight gain after the lap band had been loosened and it was noted that arrangements were being made to have it tightened.[47] The notes record concerns about weight in November 2016[48] and the eventual removal of the gastric band in March 2018 to enable a gastric bypass operation to be carried out.[49] On 25 May 2018 the applicant saw
Dr Nguyen complaining of weight gain since removal of the gastric band with Dr Nguyen noting that a gastric sleeve (or bypass) is to be carried out in the future. The gastric bypass surgery was carried out in September 2018.[50][46] Reply p 406.
[47] Reply p 410.
[48] Reply p 406.
[49] Reply p 404.
[50] Reply p 403.
The applicant also consulted with Dr Lagaida about his gastric banding removal on
17 March 2018,[51] ongoing pain following the gastric band removal on 20 April 2018,[52] heartburn on 25 May 2018,[53] and the proposed bariatric surgery on 20 June 2018.[51] Reply p 425.
[52] Reply p 425.
[53] Reply pp 425-426.
It is clear that as of July 2018 the applicant had a significant issue with weight which had been the subject of unsuccessful lap banding with further, more comprehensive gastric bypass surgery being required in the near future. Indeed it appears from Dr Nguyen’s notes that the gastric sleeve operation was intended for March 2018 but could not be carried out on that day due to the presence of scar tissue.[54] The applicant’s weight and the surgical treatment of same was obviously a serious health issue as at July 2018.
[54] Reply p 404.
In his statement of 22 April 2020 the applicant stated “I have never injured my back.”
A review of Dr Nguyen’s notes reveals that on 14 July 2011 the applicant saw the doctor complaining of having had a fall in a trailer the previous day where he fell on his backside. He was complaining of pain in the lumbo-sacral area.[55] On 25 July 2011 the applicant was still complaining of back pain with an X-ray of the spine requested. On 25 May 2017 the applicant saw Dr Nguyen complaining of missing work due to back pain caused by driving small rigid trucks and wanted a certificate to “avoid driving rigid trucks”.[56]
[55] Reply p 418.
[56] Reply p 406.
A review of Dr Lagaida’s notes reveals that the applicant was seen with complaints of back pain on 5 May 2016 when Panadeine Forte was prescribed,[57] an attendance on
21 April 2017 for back pain when Panadeine Forte was prescribed,[58] an attendance on
31 July 2017 when Panadeine Forte was prescribed,[59] an attendance on 7 October 2017 for sacral spinal pain when Panadeine Forte was prescribed,[60] an attendance on24 November 2017 for sacral spinal pain when Panadeine Forte was prescribed,[61]and an attendance on 2 February 2018 for back pain when Panadeine Forte was prescribed.[62][57] Reply p 422.
[58] Reply p 423.
[59] Reply p 424.
[60] Reply p 424.
[61] Reply p 424.
[62] Reply pp 424-425.
The applicant was seen by Dr Lagaida on 8 September 2018 again for back pain and continued to be prescribed Panadeine Forte and consulted Dr Lagaida for back problems thereafter.[63]
[63] Reply pp 426-429.
The applicant clearly had suffered at least two back injuries at work being the fall in 2011 and the development of back pain while driving rigid vehicles in 2017 which is inconsistent with his claim of never injuring his back.
The applicant was receiving treatment for back problems with the prescription of strong analgesics on a regular basis right through 2017 into 2018 and continuing after July 2018. That is not consistent with his claim of having no medical problems as at July 2018.
Despite his claim of having no medical problems as at July 2018 the applicant was clearly suffering from at least three significant health issues at that time being depression, back pain, obesity and weight issues and associated surgical problems.
That leaves aside the question of the applicant’s alcohol use disorder and the severity of same as of July 2018. It also does not consider other health issues referred to in the doctors’ records such as neck pain, migraine and headaches and hernia repair.
That also leaves aside the ongoing problems associated with the degloving injury to the left ankle and foot referred to earlier.
While it might be understandable that the applicant did not recall one or two health problems the total denial of same linked with the denial of any back injury does not reflect well on his credit as a witness.
In his statement of 22 April 2020 the applicant claims that he broke up with his wife over the incident involving the theft of the cigarettes from the truck.
The statement does not provide any detail of how the marriage collapsed as a consequence of the incident but the linkage between the two events is claimed by the applicant.
At pages 431 to 503 of the Reply documents from the applicant’s Family Court proceedings are reproduced being matter number PAC2515/2019.
The proceedings were brought by the applicant and both the applicant and his former wife Nicki Podesta provided affidavit evidence in the case.
The applicant’s affidavit notes that he and his wife commenced a relationship in October 2010 and married on 19 February 2011. He states that they separated on 19 July 2018.
The applicant stated that at the time the relationship commenced his wife was going through a divorce and property settlement with her former husband.
The wife was living in a property at 30 Warrego Street North St Marys (the Warrego property) and was owned by Nicki and her former husband. The property had a mortgage secured over it in favour of Westpac Bank for $190,000.
Nicki Podesta wished to retain the property and to do so the applicant said that he gave her $45,000 to pay out the former husband’s property settlement. The applicant also stated that he paid a further $40,000 off the mortgage with Westpac Bank to enable Nicki Podesta to refinance the property in her name.
Essentially the applicant’s affidavit evidence was to the effect that in early 2012 he had effectively contributed $85,000 to the equity in the Warrego property.
The affidavit further stated that the applicant and his wife did not use a joint account but rather he had his earnings banked into an account in his own name and paid his wife $1,000 towards mortgage repayments each week. He stated his earnings were about $1,500 per week.
The applicant stated that his wife earned approximately $700-800 per week as a hairdresser which was paid into an account in her name for payment of bills and groceries.
The applicant also claimed to have contributed $3,700 towards landscaping and a side gate at the Warrego property in 2013 and claimed that $7,000 had been accessed from the redraw facility to do further landscaping at an unstated date.
The applicant also claimed that his wife had accessed that same redraw facility to purchase a Harley Davidson motorcycle for $14,000 in 2017.
The applicant stated that his wife had ceased employment as a hairdresser in around 2016/17 and had been unemployed for a year doing home duties and caring for a grandson.
The applicant’s affidavit claims that he was “forced out of the Warrego Street property in July 2018.” He further stated that his wife said to him words to the effect “I can call the Police and have you out of here in 5 minutes.” He stated that after the wife mentioned calling the police for the second time he left without removing any items or personal belongings.[64]
[64] Reply p 447.
The affidavit then recorded that approximately four days after he left the property he received a call from St Marys Police and was asked when he would be removing his personal property from the Warrego property. An arrangement was made to collect the items on the following Saturday at 10:30am. When he attended the property at the agreed time he was not allowed to enter same with the wife’s son, her male boss and three or four other blokes standing at the front of the property. His items were passed over the fence to him.[65]
[65] Reply p 448.
The affidavit noted that the applicant had been diagnosed with depression and was currently taking days off work when he was unwell. He stated in the affidavit that the depression had worsened following the separation and was on Desfax and under the care of Anica Spatz from MindWorx Psychology.[66]
[66] Reply p 448.
In his Financial Statement filed in the Family Court proceedings the applicant claimed an income of $1,911 per week and assets other than superannuation of a total value of $18,635.[67]
[67] Reply p 434.
The applicant’s affidavit evidence in the Family Court proceedings describes a breakdown of the relationship where he was asked to leave the premises on threat of police involvement. The breakdown of the relationship appears to have been so complete and acrimonious that the applicant’s wife used the police to relay a request for removal of the applicant’s property from the premises and to have four or five men present to monitor the applicant when he retrieved his property (or on the applicant’s version prevent him from entering the property at all).
The affidavit also tellingly in my view records the applicant as having become more depressed by the separation and requiring treatment for that deterioration.
The affidavit evidence of Nicki Podesta in the Family Court proceedings sets out that the Warrego property had a value of approximately $390,000 at the time of the Family Law settlement with her first husband.[68]
[68] Reply p 464.
Mrs Podesta confirms that the applicant provided her with $45,000 to pay out the monies due to Mrs Podesta’s former husband and also confirms that the applicant transferred $40,000 to Westpac to reduce the mortgage balance.
In terms of other financial contributions from the applicant Mrs Podesta’s version was that between approximately August 2012 and September 2015 the applicant contributed $300 per week to her for general living expenses and the mortgage. Between September 2015 and June 2018 the applicant made on average 35 contributions of $1,000 on each occasion.[69]
[69] Reply p 465.
Mrs Podesta stated that throughout the relationship the applicant earned around $130,00-$150,000 per annum while she was working part time between August 2006 and
24 March 2016 where her initial earnings were approximately $25,000 per annum but in September 2010 her income increased to $42,000 per annum.From April 2016 to December 2016 Mrs Podesta states that she was employed on a casual basis earning approximately $19,000 per annum. She further stated that from January 2018 to December 2018 she was working as a Driver Assistant for disabled children earning $450 per week and from March 2019 was working as a pack picker at an average of $870 per week.[70]
[70] Reply pp 465-466.
The affidavit of Mrs Podesta makes somewhat confusing reference to the applicant having been the victim of fraud at the hands of his mother resulting in his bankruptcy. It is hard to discern what occurred between the applicant and his mother from the contents of the affidavit however it was Mrs Podesta’s view that the loss sustained by the applicant had caused him distress and he became angry and frustrated and made threatening comments about his mother.
Mrs Podesta stated that the applicant drank every day and would often come to bed drunk when he would vomit in the bed. She further stated that he would be loud, stumble and punch the front door.
Mrs Podesta stated that the applicant’s outbursts became worse in 2016 and that he would yell and swear at her if she did not help him carry beer into the home.
Mrs Podesta further stated that in about 2017 the applicant started coming home drunk and telling her that “I can’t stand you anymore. I’m leaving. I need some money to go!”[71] She states this happened frequently up to the date of separation.
[71] Reply p 468.
Mrs Podesta further stated that she feared his unpredictable behaviour would result in physical violence.
Mrs Podesta’s affidavit also sets out details of a gambling problem she stated affected the applicant during the marriage where he would gamble and lose everything available to him at the time.[72] She further stated that on multiple occasions he would tell her that he had “nothing to give you this week”[73] and on 2 May 2018 he was slurring his words and that he appeared drunk when he said “ I have nothing to give you this week. I got paid today and I just blew the whole lot.”[74]
[72] Reply p 466.
[73] Reply p 466.
[74] Reply p 467.
Mrs Podesta stated that what she described as the applicant’s alcoholism, gambling and abuse caused her significant emotional distress.
Mrs Podesta stated that in relation to the actual separation on 16 July 2018 the applicant arrived home stressed about an internal investigation at work which was why he was home early. She stated that when she went to speak to him he said “Is there any fucking reason why you’re standing there?” and he later said “I can’t stand you! It’s over! Give me my money and I am out!”. She then asked the applicant to leave and called her son to come over. The applicant then left taking with him an esky filled with beer and a bottle of scotch.
Mr Tanner submits that the evidence of Mrs Podesta was “obviously drafted to further her self interest in portraying the applicant in a poor light and advancing her claim in those proceedings”[75] and I certainly agree that one needs to approach the evidence of parties in family law proceedings with a degree of caution given the emotionally charged and personal nature of those disputes however in this instance the affidavit evidence of Mrs Podesta has the ring of truth.
[75] AWSR p 8.
I firstly note that there is significant agreement between the affidavit evidence of the applicant and Mrs Podesta in a number of what would have been very important areas.
Mrs Podesta confirms in her affidavit evidence that the applicant provided the funds in the sum of $45,000 to enable her to pay out her former husband’s family law settlement.
She also confirms that the applicant contributed $40,000 to reduce the mortgage liability to Westpac Bank.
She confirms that the applicant paid her $1,000 on numerous occasions between September 2015 and June 2018. Given that the applicant’s evidence was that the payments were made in cash it would have been easy for her to deny receipt of all or some of those payments.
While she claimed that she found the behaviour of the applicant intimidating and stressful and was worried about the possibility of violence she does not ever allege that the applicant was violent to her as opposed to inanimate objects. If she really wanted to portray the applicant in a negative light she could easily have added such allegations.
Mrs Podesta’s affidavit evidence about a gambling problem seems probable given that the respondent’s Final Warning Letter following the investigation into the theft of the cigarettes on 27 June 2018 recorded that the theft occurred when the applicant was on an unauthorised break and he admitted that at the time he was taking the unauthorised break he was gambling.[76]
[76] Reply pp 235-236.
In relation to the probability of a significant gambling problem it is hard to understand how a man earning $125,000 to $150,000 per annum[77] and only paying at most on his own evidence $52,000 towards household expenses per annum would have personal assets after eight years of marriage of $18,635. That would not be inconsistent with a gambling issue.
[77] Reply pp 490-491.
Indeed while not admitted in the statement of 22 April 2020 the applicant subsequently in his statement of 30 September 2022 admitted he used to gamble.[78]
[78] Application pp 31-32.
Mrs Podesta’s evidence about the extent of the loan with Westpac is confirmed by correspondence from Westpac.[79]
[79] Reply pp 487-488.
Mrs Podesta’s claim of the applicant telling her in 2017 that he wanted to leave because he couldn’t stand her anymore is corroborated to some degree by a GP Mental Health Plan Patient Assessment dated 26 August 2017 which refers to the applicant having anxiety and
“Husband has problem with alcohol. Separated but living in same house.”[80][80] Reply pp 478-479.
Mrs Podesta’s claims of being stressed and unhappy because of her husband’s behaviour is also corroborated by a referral by Dr Nguyen of Mrs Podesta to Daniellla Fullagar Psychologist also on 26 August 2017 with the referral noting “She is going through emotional turmoil with husband who has alcohol issue separating from her but not willing to leave.”[81]
[81] Reply p 477.
In relation to the events of separation on 16 July 2018 Mrs Podesta confirms that she asked the applicant to leave and confirms that she subsequently had male friends and relatives attend the property when the applicant was picking up his property.
I see little in the affidavit evidence of Mrs Podesta in the family law proceedings to suggest that her evidence was unreliable and am of the view that it properly describes the break-up of the relationship as being caused by the applicant’s long term alcohol disorder, unpleasant and intimidating behaviour, and gambling issues which by mid 2017 had resulted in the applicant wanting to leave. A final precipitating event of actual separation occurred on
16 July 2018 when the applicant came home early.Subject to consideration of any other relevant evidence I do not accept that the theft of the cigarettes and subsequent investigation caused the break-up of the marriage as suggested by the applicant in his statement of 22 April 2020.
Before considering other aspects of the applicant’s statement I note that the family law proceedings were commenced by the applicant in May 2019 presumably because he was concerned to secure what he would have regarded as his share of the significant asset in the marriage the Warrego property and I note his own affidavit records that he had taken steps to caveat his interest in the property. Accepting as the best available evidence Mrs Podesta’s evidence that the Warrego property had a value in 2012 of $390,000 with net equity being $390,000 less the mortgage of $147,000 which gives a sum of $243,000. The applicant’s effective contribution to that equity was $85,000 being the amounts paid to settle the former husband’s share and to reduce the mortgage principal. As a percentage share the applicant’s interest in the equity of the Warrego property in 2012 was 35% in round terms.
As at the date of the family law proceedings involving the applicant and Mrs Podesta the property had a value of between $500,000 to $650,000 ( I note in passing that the $650,000 figure is one alleged by the applicant without any form of written valuation and is based upon a hearsay conversation between the applicant’s sister and a real estate agent and a figure of $500,000 to $530,000 appears to have more basis in evidence) depending which estimate of value was chosen. At that time the mortgage had reduced to around $73,000 - $80,000 which leaving aside any allowance for contributions during the marriage would value the applicant’s equity at around $160,000. The fate of that equity would no doubt be a matter of considerable concern for the applicant and would account for his commencing proceedings.
It would be extraordinary if family law proceedings were not a cause of psychological stress.
In his statement the applicant stated that he was bullied by other drivers with comments about the loss of the cigarettes and attached to his statement a list of incidents he says he asked his sister to record.
The document attached to the statement[82] is one which is clearly some sort of compilation of alleged incidents the basis of which is undisclosed and is not an original record kept by the applicant. Accordingly it is at best a hearsay document which needs to be treated with caution when considering its weight.
[82] Application pp 12-16.
The document details some 30 or so alleged incidents of bullying involving a number or other workers. The list appears to commence with a notation of events in April 2019 and includes a number of incidents that don’t appear to be instances of bullying such as 8 April an entry about early starts, an entry on 15 April about wanting him out of the truck because of the risk of damage, an entry on 19 April about starting at midnight, an entry on 20 April about an early start, an entry about a request for an early start on 23 April, an entry on 22 April about being spoken to about taking a work break outside his home, an entry for 4 July 2019 for being on someone’s radar while coughing, an entry about a meeting on 2 October when spoken to about time off and making a complaint to “Paul and Mark trevv [sic] abd Steve Innes and hr dean” about why he was having time off and being bullied, an entry for
22 February 2020 about Mitch saying Paul isn’t allowed to work tomorrow.The fellow workers identified in the list as being involved in the bullying incidents are (adopting the spelling used in the list) Dean Wallenberg, Andrew Darcy, Wayne Miles, John Eric, Mark Harris, Stan Richard, Cat One (or Kat One), Dean Arnotte, Ronnie Van, Steve Ford, Shane Wilson, Geoff Merrett, Billy Sadie, Dave Simpson and Ray Atkins.
The respondent obtained a number of statements from lay witnesses some of whom are the fellow workers referred to in the applicant’s list.
Andrew Dauncey provided a statement dated 13 May 2020 and identifies himself as a driver working for the respondent. I assume that he is the worker referred to as Andrew Darcy in the applicant’s list.
Mr Dauncey confirms that he may have made a joke about the applicant still being at work but states that all that was involved was banter with no malicious intent.[83]
[83] Reply pp 22-24.
Steve Ford provided a statement dated 25 May 2020 where he confirmed that he worked as a driver for the respondent. Mr Ford flatly denies ever having said “Go to Paul’s bag there are plenty of smokes there”[84] as alleged by the applicant. Mr Ford denied hearing any other driver say such a thing.
[84] Reply p 36.
Mark Harris is also identified by the applicant as having been responsible for bullying behaviour. Mr Harris provided a statement dated 25 May 2020 where he denied the applicant’s allegation of having said word to the effect “… they want you out of that truck because they know you are going to damage it.”[85]
[85] Reply p 39.
The applicant identified a Wayne Miles as responsible for an incident of bullying. The respondent relies upon a statement from a Wayne Myles dated 25 May 2020 who I assume to be the person referred to in the applicant’s list. Mr Myles denies the applicant’s allegation of having said words to the effect “why don’t you go to the garage and get all your smokes out because your truck got broken into”. Mr Myles clearly has no affection for the applicant describing him as “full of bullshit” and also recorded the applicant as referring to Mr Myles as a grub and a germ to stir him up. He also referred to the applicant initiating sledging against other drivers.
The applicant’s list also identified a “renel the allactor” [sic] and having said on
6 December 2019 in front of Ronnie van [sic] and other workers “when you do your delivery Make(sic) sure no smokes go missing.”[86][86] Application p16.
The respondent obtained a statement dated 28 May 2020 from Rahneel Kumar an allocator at the Toll Minchinbury depot. Mr Kumar in his statement denied ever having said any such thing to the applicant and did not recall any other drivers making similar comments.[87]
[87] Reply p 48.
Of the five identified lay witnesses who were referred to in the list attached to the applicant’s statement as having been involved in bullying incident and who have provided statements one admits having made a comment as claimed, the other four deny the alleged incidents. There is no reason for those witnesses who deny the bullying incidents to lie and I am prepared to accept those denials.
Nonetheless there are no statements from the other named workers in the applicant’s list and I accept that there may well have been incidents of teasing of the applicant about the loss of the cigarettes and other work incidents although not at the level claimed by the applicant in his statement.
After disregarding the entries in the applicant’s list that were not instances of alleged bullying and after disregarding the entries where the identified worker has denied the allegation approximately 17 or 18 incidents remain of the list where there is no evidence contradicting the applicant’s claim which covers a period of some 18 months between the date of the theft of the cigarettes and the date the applicant had the motor vehicle accident on
23 February 2020.In relation to the theft of the cigarettes from the truck and the subsequent investigation the applicant states in his statement of 22 April 2020 that he was not given the results of the investigation[88] which is in my view is totally improbable for two reasons.
[88] Application p 5.
The first reason is that the applicant had been suspended following the theft while same was being investigated. He clearly returned to work and obviously would not have been able to do so unless he had been informed of the result of the investigation.
The second reason is that the respondent sent to the applicant a Final Warning Letter dated 26 July 2018 setting out the results of the investigation[89] at his sister’s address at 4 Dowe Place Bligh Park which is the address he moved to after the events of 19 July 2018. It is improbable that the letter was not received by the applicant.
[89] Reply pp 235-236.
I do not accept the applicant’s statement that he was not advised of the results of the investigation into the theft of the cigarettes as claimed by him.
In his statement of 22 April 2020 the applicant stated that he started seeing a psychologist about the bullying and harassment at work[90] and told Steve Innes and the HR bloke about it.
[90] Application p 6.
The applicant certainly saw Anica Spatz Psychologist at MindWorx on referral from
Dr Nguyen his GP in March 2019.The referral from Dr Nguyen dated 18 March 2019 described the applicant as having chronic depression which he related to the death of his brother in 1987, consuming eight schooners of beer a day and separating from his wife in July 2018.[91]
[91] Reply p 562.
The Adult Initial Psychological Assessment Interview record prepared by Ms Spatz described the presenting problem in the following terms:
(a) Depressed all the time; since childhood;
(b) Time off work when bad 8 drinks;
(c) Works long days as truck driver;
(d) Divorcing : split last July; about 7 years marriage;
(e) Work investigation: cigarettes stolen
Dirty looks from boss;
(f) 6 days -50-60 hrs a week;
(g) Used to always work 72 hrs;
(h) For 2 months has been enjoying it less;
(i) 18: saw brother (4) getting killed hit by a motorbike; felt like his dad, and
(j) 5 yrs ago: seen accident , capsule couldn’t drive psychology.
Under the heading Medical History the following was recorded:
(a) obesity;
(b) surgery lost 10kg – slow progress;
(c) back pain, and
(d) sore foot (accident 14) pain level 4/10 constant.
Under the heading Substances the following was noted:
(a) 10 drinks of ETOH at pub for 7-8 yrs and home 15 drinks on days off, and
(b) on 8 off smoking: 6 days no smoking.
Under the heading Upbringing/Childhood the following was recorded:
(a) 14- Mother stole money from settlement;
(b) Parents bankrupted him;
(c) Father -physically abusive;
(d) Broke , electricity turned off. Debt . parents separated 10 years ago;
(e) Moved around a lot;
(f) Mum lives with sister- no contact for;
(g) Father lives in Taree;
(h) 2 sisters (younger – 35 y.o.);
(i) Matthew (brother) – no contact;
(j) Louise 3rd sister -regular contact, and
(k) Another brother – SIDS – passed away as an infant.
Under the heading Preliminary Diagnosis the notes record
(a) major depressive disorder – moderate severity chronic, and
(b) alcohol use disorder – chronic.
Under the heading Case Formulation the notes record as follows;
(a) Traumatic childhood ; maltreatment by parents; witnessed the accidental death of his 4 year old brother; currently going through his 2nd divorce; supportive sister; small social support network; GP is monitoring alcohol use effects on his health; obesity – gastric sleeve in 2018; issues at work 8 months ago; low literacy level.
The records of Ms Spatz make no reference to the applicant complaining of being bullied or teased at work by co-workers. There is reference to a work investigation and “dirty looks from boss” however that is in the overall context of a history including depression since childhood , divorcing after 7 years marriage, ongoing memories of the death of his brother, and seeing an accident with a baby capsule five years previously. That was also against a background of obesity, recent surgery for same, back pain and ongoing pain in the left foot after his accident at age 14.
As noted at point 208 above the applicant’s sworn affidavit evidence in the Family Court proceedings was that he started seeing Ms Spatz from MindWorx because he was more depressed after the separation from his wife. Ms Spatz’s notes are consistent with the Family Court version of the reasons for seeking psychological help and the referral letter from Dr Nguyen is also consistent with the worsening depression being related to the separation from the wife in July 2018.
Mr Nielsen diagnosed the applicant as suffering from a major depressive disorder.
On causation Mr Nielsen stated as follows:
“I am of the opinion that Mr Podesta’s employment with Toll Logistics was the main contributing factor to him suffering with Major Depressive Disorder. I am of the opinion that Toll Logistics were unreasonable in their actions and were unreasonable in their actions and were unsupportive in relation to Mr Podesta’s requests regarding working alternative shifts where the perpertrators [sic] of the bullying and belittling were not present.”[234]
[234] Application p 208.
I find that report to be of little assistance and unpersuasive as it is based on an inadequate, inaccurate, unreliable and incomplete history.
Mr Nielsen only history of the applicant’s prior psychological or psychiatric illness was of a diagnosis in the past of anxiety and depression which was stabilised with medication.[235] It is unstated when that illness occurred.
[235] Application p 207.
The reality, as has been noted many times before in these reasons, is that the applicant had been treated for depression since 2014 with the prescription of Pristiq increased from 50mg per day to 100mg per day on 23 March 2015, the prescription being increased again from 100mg to 200mg per day on 8 June 2017, decreased from 200mg per day to 100mg per day on 25 May 2018 and increased to 200mg a day on 18 March 2019.
The applicant was treated by a psychologist for post-traumatic stress disorder in 2015 and by psychologists in 2019.
The applicant clearly had a significant long term problem with depression which persisted right through from 2014 to 22 February 2020.
Mr Nielsen appears to have received no history of the applicant’s marital difficulties which resulted in the final failure of the marriage in July 2018 nor of the applicant’s concerns as to the financial impact of that event.
Mr Nielsen does not appear to be aware that the applicant was involved in family law proceedings in 2019 through to early 2020 where he was seeking a property settlement and was dissatisfied with the outcome of those proceedings.
Mr Nielsen does not appear to have received any history from the applicant about obesity issues and the need for surgery in September 2018 which also would have necessitated a time away from work.
Mr Nielsen appears to be unaware of the level of the applicant’s alcohol consumption prior to and subsequent to the events of June/July 2018 at all.
Mr Nielsen appears to be unaware that the applicant had a problem with gambling in 2018.
Mr Nielsen does not record or consider the significance of pre-existing life stressors such as other medical conditions such as long standing foot and ankle problems, back problems, hernia problems and repair, headaches and sexual dysfunction issues.
Mr Nielsen makes no reference to other events that had and may continue to affect the applicant’s mental health such as the death of his young brother and the loss of his financial settlement at the hands of his mother.
Further Mr Nielsen simply notes that the applicant was unable to work after
22 February 2020 without appearing to realise that the reason the applicant ceased working that day is that he lost his licence the following day due to a drink driving offence. There is nothing to indicate that the applicant was otherwise unfit for work on the 23 February 2020 and indeed the applicant was angry that he wasn’t given work that day.The above comments leave aside the fact that I have found that on the balance of probabilities the actual level of teasing or claimed harassment and bullying was much less than the rate the applicant appears to allege in his histories to the doctors or in his statement evidence.
I certainly do not accept that the opinion on causation expressed by Mr Nielsen is provided in a “fair climate” and that the facts upon which the opinion is based are “‘sufficiently like’ the facts established ‘to render the opinion of the expert to be of any value’”.[236]
[236] Per Beazley JA in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [82].
I do not find the opinion of Mr Nielsen persuasive in relation to the issue of causation.
The balance of the applicant’s medical evidence deals with issues relating to the cause of the applicant’s liver failure and are not relevant to the issue of the applicant suffered an aggravation of his pre-existing psychological condition arising out of or in the course of his employment to which the employment was the main contributing factor to the aggravation.
Before dealing with the respondent’s medical case I note the submission made by Mr Doak that an adverse Jones v Dunkel inference should be drawn against the applicant as the applicant has not sought to rely on reports from his GPs or treating psychologists to support his allegations of bullying and harassment.
I do not accept that submission. There is no evidence before me that would establish that any such reports exist so in my view no such inference is available.
The respondents qualified medical case relies on a medical report and a series of supplementary reports from Dr Glen Smith psychiatrist, a medical report from Dr Linda Thomas psychologist and a medical report and supplementary report from Dr Peter Snowdon psychiatrist. There are also reports from Dr John Garvey general surgeon and Ms Annie Hartley vocational psychologist but those reports of Dr Garvey and Ms Hartley are not relevant to the first issue being considered.
The reports of Dr Glen Smith are dated 28 April 2020,[237] 22 September 2020,[238] and
16 March 2021.[239][237] Reply pp 290-303.
[238] Reply pp 304-307.
[239] Reply pp 308-313.
Dr Smith in his report dated 28 April 2020 diagnosed the applicant as suffering from an alcohol use disorder, an alcohol-induced depressive disorder and an adjustment disorder with mixed anxiety and depressed mood.[240]
[240] Reply p 296.
Unfortunately Dr Smith’s opinion like the applicant’s medical case is based on incorrect or incomplete history and accordingly I give only slight weight to the opinion and diagnosis expressed therein.
I do note however that the thrust of Dr Smith’s opinion is that the depression the applicant suffers is the consequence of the alcohol use disorder rather than the alcohol use disorder being aggravated by depression which is the applicant’s case.
Dr Smith also diagnoses an adjustment disorder which is similar to the diagnosis of Dr Hong however the opinion on causation of that condition is based on an incorrect history of the events of 2018 and 22 February 2019 and is made without any knowledge of significant other stressors such as the matrimonial break-up and associated litigation and outcome of the litigation.
The report of Dr Linda Thomas is dated 3 March 2022[241] and has been previously referred to in these reasons.
[241] Reply pp 316-327.
Mr Tanner in his submissions argued that the opinion of Dr Thomas should be rejected as providing unreliable and unsubstantiated assertions such that it should be given no weight at all.[242]
[242] AWS p 26.
Mr Tanner particularly took issue with the part of Dr Thomas’s report dealing with the results of psychometric testing showing an invalid result relating to an extremely high level of bizarre, unusual or atypical responses that Dr Thomas stated were indicative of a tendency to exaggerate or malinger psychopathology.[243]
[243] AWS p 26.
Mr Tanner, justifiably in my view, criticised the refusal of Dr Thomas to identify the test she applied “to preserve the integrity of the test” which deprives the applicant of the opportunity to obtain evidence commenting on the reliability of the test.
A further difficulty I have with the opinion of Dr Thomas is that the history recorded in the report is like most of the medical opinion evidence in the case based on an inaccurate and incomplete history.
Without attempting to deal with all of the errors and omissions in the history that Dr Thomas recorded the following issues can be noted:
(a) there is no history taken in relation to the circumstances of the matrimonial break-up in 2018 and the state of the marriage before that event;
(b) there is no history recorded of the family law proceedings following the failure of the marriage and the outcome of the proceedings;
(c) there is not history recorded of the referrals to psychologists in 2019 to deal with depression consequent upon the matrimonial break-up;
(d) there is no history recorded of the applicant’s obesity issues and associated weight reduction surgeries including a gastric sleeve operation in
September 2018;(e) the history does not record the fact that the applicant had been treated for depression since 2014 nor does it record the incident of post-traumatic stress disorder in 2015;
(f) there is no history taken in relation to the events of 22 February 2022;
(g) there is no history taken of the level of Panadeine Forte use;
(h) there is no history of the applicant’s gambling issues recorded, and
(i) the applicant did not give up cigarettes in 2019 as claimed in the recorded history.
Dr Thomas diagnosed an alcohol use disorder but was not suffering from a psychological condition.
While it appears to be a well supported view that the applicant does suffer from an alcohol use disorder I find it difficult to accept that the applicant was not suffering from a psychological condition.
Dr Peter Snowdon has provided a medical report dated 28 February 2022,[244] a supplementary report dated 29 August 2023[245] and a further supplementary report dated
22 February 2024.[246][244]Reply pp 337-359.
[245] Reply pp 384-399.
[246] AALD3 pp 2-39.
Of all the doctors that have provided opinions in the matter Dr Snowdon is the one doctor who appears to have been given access to and properly considered most of the material that I have before me relating to the alleged circumstances of injury and the medical background for the applicant.
In his initial report dated 28 February 2022 Dr Snowdon records a diagnosis of alcohol use disorder with a pre-disposition to depression which at times had resulted in a major depressive disorder.
In coming to that view Dr Snowdon had recorded the applicant’s history as given to him but also had reviewed and considered the complete medical records of Dr Nguyen, the medical records of Dr Lagaida, the medical report of Dr Kumagaya dated 23 July 2021, the medical report of Mr Nielsen dated 11 October 2021 and the medical opinion of Dr Hong.
In his supplementary report dated 29 August 2023 Dr Snowdon was asked to consider the affidavit of the applicant’s ex-wife dated 18 July 2019, Dr Kumagaya’s report of 2 May 2023, Dr Hong’s supplementary report of 22 May 2023 and a vocational assessment report dated 20 June 2023. I note that the vocational assessment report is not relevant to the question of diagnosis or causation and does not need to be considered on those issues.
Having considered that material and having regard to the history, other material and findings at the time of his earlier examination of the applicant Dr Snowdon commented that:
“Given the issues in his life, attributing his psychological condition to teasing by his workmates seems absurd.”[247]
[247] Reply p 391.
Dr Snowdon was asked “Has there been any change to the claimant’s clinical diagnosis (if any is applicable)? Please provide your reasoning behind this”.[248] Dr Snowdon’s response was:
“The overriding diagnosis, in my opinion, in Mr Podesta’s case is Alcohol Use Disorder, and it appears now, Gambling Disorder, while Dr Kumagaya and Dr Hong have focused on Mr Podesta’s depression, which in my opinion is secondary to the effects of Alcohol Use Disorder and from Mrs Podesta’s affidavit, the behavioural and social effects of it.”[249]
[248] Reply p 391.
[249] Reply p 391.
In response to a long question about the contents of the affidavit of the applicant’s ex-wife Dr Snowdon made a number of relevant comments as follows;
“The affidavit from Mrs Podesta of 18th July 2019 indicates the severity of Mr Podesta’s Alcohol Use Disorder , and his destructive and violent behaviour when intoxicated.”
“It appears too, that from her affidavit, Mr Podesta has Gambling Disorder, and has shown a particular immaturity in dealing with financial matters.
Without any pejorative implications, looking at characterological implications of Mrs Podesta’s affidavit, I feel that, in view of what is often the accumulative or generalised consequence of heavy alcohol intake, Mr Podesta is immature, irresponsible and would have a tendency to blame misfortune on others rather than examining his own responsibilities.”[250]
“These characterological issues, and the consequence of them, in the form of Mr Podesta’s marriage dissolution, would have exerted a major stress upon him, far exceeding the workplace issues he had alleged.”[251]
[250] Reply p 392
[251] Reply p 392.
When asked to comment on whether he would agree that “the main contributing factor to any aggravation of his severe alcohol abuse [sic] disorder was the divorce of his wife in July 2018 and subsequent loss of his employment and truck driving licence” Dr Snowdon responded that:
“I absolutely agree that, weighing the expected results of his alcohol use, and divorce, and loss of his driver’s licence, that these issues far outweigh the minor events that
Mr Podesta had alleged had affected him in the workplace.”[252][252] Reply p 393.
The significance of that response is diluted somewhat by the somewhat misleading and incorrect form of the question the doctor was asked to address. The applicant was not divorced in 2018, the parties to the marriage separated at that time. The divorce and property settlement occurred in January/February 2020 and the loss of the licence followed the drink driving event.
Nonetheless it is clear that Dr Snowdon was of the view that the alleged bullying in the workplace was not the main contributing factor to any aggravation of the applicant’s psychological condition which in his view is alcohol use disorder with associated depression and which in the view of Drs Hong and Kumagaya is a major depressive disorder.
Dr Snowdon saw the applicant for a re-examination prior to the preparation of the supplementary report dated 22 February 2024.
As part of his commentary in that report Dr Snowdon noted as I have done the very selective accounts of the applicant to his doctors and in his statements which are not correct and which contain serious omissions.[253]
[253] AALD3 p 7.
Dr Snowdon spends much of the report dealing with the applicant’s present condition which is not relevant to the issue of causation.
Dr Snowdon also provides commentary on the reports of other medical witnesses but essentially maintains his view that the alleged workplace bullying and harassment and adverse working conditions were not the main contributing factor to an aggravation of a pre-existing psychological condition.
I note that the contents of the medical opinion evidence discussed above does not change my view as to the correct factual position as outlined at point 520 above.
Consideration and findings
As the applicant’s pleading is that he suffered bullying and harassment at work that aggravated his pre-existing psychological condition which and that injury has caused a consequential condition of aggravation of the applicant’s alcohol use disorder.
The applicant’s case is that he suffered from a pre-existing depressive condition that was aggravated by the alleged bullying, harassment and adverse working conditions resulting in an increase in his depressive symptoms.
As has been noted the allegation of injury is that of an aggravation of a disease with a pleaded deemed date of injury of 22 February 2020.
To succeed the applicant must establish on the balance of probabilities that the applicant’s employment was the main contributing factor to the aggravation of the disease[254] (in this case the applicant’s depression).
[254] See s 4(b)(ii) Workers Compensation Act 1987.
The applicant has sought in his statements and in the histories he has given to doctors to establish a picture of a man who commenced work with the respondent on a casual basis in 2010 at which time he was in good health with no injuries, became permanent in 2013, worked out of the respondent’s Minchinbury yard working long hours doing long hours, and apart from some workers compensation incidents was in good health and had no medical problems before June/July 2018.
Before June 2018 he was happily married with only the usual ups and downs of married life with one serious incident in 2016 when there was a risk of break-up but that had been resolved.
In June 2018 when on a scheduled break he had cigarettes stolen from his truck and he was the subject of unfair accusations of theft and unrelenting belittling, bullying and harassing actions by fellow colleagues resulting in a serious decline in his psychological health. He saw the doctor as a result of the psychological problems he was experiencing and had anti-depressants prescribed (or the prescription doubled depending on the version) and was referred to psychologists for treatment of the condition resulting from the bullying and harassment.
He requested a change in shifts to avoid the bullying which was not granted. He attended work on 22 February 2020 and was told he was not wanted. He went to the hotel the following day and consumed excess alcohol thinking about possible suicide and had a car accident on his way to the place where he was thinking of committing suicide.
He was subsequently arrested and ultimately charged with high range PCA, lost his licence and his employment and had his condition seriously decline.
That version of events is not correct as I have found.
The applicant is in my view a very unreliable witness and I have formed an unfavourable view as to his credit.
The reasons for that unfavourable view have been exhaustively set out in my consideration of the statement and other lay evidence and my review of the opinion medical evidence.
The applicant’s medical case relies upon the histories that the applicant provided and I have set out in detail my concerns as to the inaccurate and incomplete histories that the applicant has provided to his own doctors and accordingly I do not accept their opinions as to causation of the alleged work injury.
Because of his inaccurate and incomplete evidence and the consequent effect on the weight of the medical opinions upon which he relies the applicant in my view fails to discharge his onus of proof in establishing that any aggravation, acceleration, deterioration or exacerbation of his pre-existing depression was caused by his employment where his employment was the main contributing factor to such aggravation, acceleration, deterioration or exacerbation.
Although not necessary for my decision I note that of all the medical evidence in the matter the only doctor that had anything approaching a complete history was Dr Snowdon by the time of his first supplementary report and I consider his opinion on causation to be the most likely on the balance of probabilities and accept his opinion that the alleged workplace bullying and harassment was not the main contributing factor to any aggravation acceleration exacerbation or deterioration of the applicant’s psychological condition.
In considering the evidence as a whole a number of points strike me as significant as follows:
(a) the applicant was distressed by the loss of funds at the hands of his mother years previously and continued to forcefully complain about same to his wife during the course of the marriage;
(b) when considering leaving his wife in 2017 the applicant had been concerned about the financial risks of the decision if he had gone ahead;
(c) when he broke up with his wife, he (understandably) took steps to secure his financial interests in the matrimonial property and commenced proceedings for a property settlement;
(d) his referrals to psychologists in 2019 were in relation to the matrimonial issues either wholly or principally;
(e) he was upset by the result of the Family Court proceedings which were finalised immediately before he first day back at work in 2020;
(f) the actual list of alleged bullying incidents was very limited and detailed what appeared to be very trivial incidents over a period of just short of a year;
(g) the applicant only mentioned the alleged bullying once to his GP between
July 2018 and February 2020, and(h) there was no alleged incident of bullying/harassment/teasing at work on
22 February 2020 and the applicant was able to work a full day without problem.
While I have accepted that the incidents of teasing about the loss of cigarettes may have caused some irritation and possible distress for the applicant in my view the logically most significant stressor in the applicant’s life between July 2018 and February 2020 was the break-up of his marriage and the financial repercussions of that event and that would , as opined by Dr Snowdon, be the main contributing factor to any aggravation, acceleration, deterioration or exacerbation of the applicant’s psychological condition in that period.
Further even if such an aggravation had occurred as a result of the alleged bullying and harassment (which I have found is not the case) I would not on the balance of probabilities have found that the applicant’s alcohol consumption on 23 February 2020 was the result of that alleged aggravation of a psychological condition as the drinking on that day was, on the balance of probabilities, nothing more than what the applicant had been doing for many years on his day off – going to the hotel and drinking around 15 beers.
There will be an award for the respondent on the basis that the applicant has failed to establish on the balance of probabilities that he suffered an injury arising out of or in the course of his employment in the nature of the aggravation, acceleration, exacerbation, or deterioration of a disease where the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration.
SUMMARY
The applicant had alleged an injury in the nature of the aggravation of a psychological condition as a consequence of bullying, harassment and adverse working conditions with a deemed date of injury of 22 February 2020.
The applicant has failed to discharge his onus of proof as a consequence of findings on credit and the limitations of his medical evidence consequent upon the incorrect and incomplete histories the applicant’s doctors have relied upon.
There will be an award for the respondent.
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